Discrimination on the Basis of Disability in Federally Assisted and Federally Conducted Programs and Activities, 3703-3714 [2016-00610]

Download as PDF Federal Register / Vol. 81, No. 14 / Friday, January 22, 2016 / Rules and Regulations NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 14 CFR Part 1251 [Document Number NASA–2015–0008] RIN 2700–AD85 Discrimination on the Basis of Disability in Federally Assisted and Federally Conducted Programs and Activities National Aeronautics and Space Administration. ACTION: Final rule. AGENCY: This rule revises the National Aeronautics and Space Administration (NASA) regulations 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 Executive Order 13563 completed in August 2011. NASA’s full plan can be accessed at: http://www.nasa.gov/open/. DATES: Effective: February 22, 2016. FOR FURTHER INFORMATION CONTACT: Robert Cosgrove, Equal Opportunity Specialist, (202) 358–0446. SUPPLEMENTARY INFORMATION: mstockstill on DSK4VPTVN1PROD with RULES SUMMARY: I. Background 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 federally assisted programs or activities, through its regulations in Part 1251. On November 13, 2014 NASA published a Notice of Proposed Rulemaking (NPRM) in the Federal Register at 79 FR 67384 to amend its section 504 regulations to incorporate changes to the meaning and interpretation of the section 504 definition of disability required by the Americans with Disabilities Act Amendments Act of 2008 (ADA Amendments Act), include an affirmative statement of the longstanding requirement for reasonable accommodations in programs, services, and activities, and include a definition of direct threat and a provision describing the parameters of the existing direct threat defense to a claim of discrimination. The rule also proposed to clarify the existing obligation to provide auxiliary aids and services to qualified individuals with disabilities, update the methods of communication VerDate Sep<11>2014 16:27 Jan 21, 2016 Jkt 238001 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, and provide NASA with access to recipient data and records to determine compliance with section 504, and made administrative updates to correct titles. NASA also proposed amending its section 504 regulations to incorporate changes required by the Rehabilitation Act Amendments of 1992 (1992 Amendments) by revising subpart 1251.2—Employment Practices (federally assisted programs) and § 1251.540—Employment (federally conducted programs) and instead referencing the U.S. Equal Employment Opportunity Commission’s (EEOC’s) Americans with Disabilities Act of 1990 (ADA) title I regulation. NASA also proposed updating outdated terminology and references that currently exist in Part 1251 including changing the word ‘‘handicapped’’ and similar variations of that word that appear throughout part 1251, and replacing it with ‘‘people first’’ language (e.g., ‘‘individuals with disabilities’’) consistent with the requirements of the 1992 Amendments. II. Review of This Rule by Department of Justice Pursuant to Executive Order 12250 This final rule has been reviewed and approved by the U.S. Department of Justice (DOJ) in the exercise of its section 504 coordination authority under Executive Order 12250. III. Discussion of Comments on the Proposed Rulemaking NASA received only one comment from a member of the public in response to its NPRM. This individual raised three concerns which are discussed below. Issue 1 The commenter suggested that NASA simplify its language by replacing the phrase ‘‘nonhandicapped persons’’ wherever it is used in the regulations with the phrase ‘‘persons without a disability’’ rather than the phrase proposed by NASA, ‘‘persons who do not have a disability’’ NASA agrees and is making this change, except that instead of the phrase ‘‘persons without a disability,’’ NASA will use the phrase ‘‘individuals without disabilities.’’ PO 00000 Frm 00005 Fmt 4700 Sfmt 4700 3703 Issue 2 The commenter also objected to NASA’s inclusion of the activity of ‘‘speaking’’ in the list of major life activities in proposed § 1251.102(h)(2)(ii)(A). In the commenter’s view, because the list already provided ‘‘communicating’’ as an example, including ‘‘speaking’’ was redundant and unnecessary. NASA disagrees with the commenter. The ADA Amendments Act specifically references both ‘‘speaking’’ and ‘‘communicating’’ in its list of examples of major life activities. See 42 U.S.C. 12102(2)(A). NASA’s final rule no longer spells out a list of examples of major life activities, however, because the rule now incorporates by reference the definition of disability contained in DOJ’s ADA title II regulation at 29 CFR part 35.1 Issue 3 The commenter also suggested that NASA revise the definition of disability in § 1251.102(h)(2)(iii)(A)(2) to narrow its application to fewer individuals with disabilities because in the commenter’s view, it is too broad. NASA declines to adopt this recommendation as it proposes a change that is inconsistent with the changes to section 504 that were made by the ADA Amendments Act. Congress enacted the ADA Amendments Act to restore the understanding that the definition of disability shall be broadly construed and applied without extensive analysis, in response to the Supreme Court decisions in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), which interpreted the term ‘‘substantially limits’’ to require a greater degree of limitation than was intended by Congress. The ADA Amendments Act 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 ADA Amendments Act. NASA has decided, that in order to ensure, as Congress intended, that its section 504 definition of disability is interpreted consistently with the ADA Amendments Act, the final rule will incorporate by reference the definition of disability specified in the ADA title II regulation at 28 CFR part 35. 1 DOJ published its NPRM proposing to amend its title II and title III ADA regulations to incorporate the requirements of the ADA Amendments Act in the Federal Register on January 30, 2014. 79 FR 4839. This regulation incorporates the current version of the DOJ definition at 28 CFR part 35 and once DOJ publishes its final rule revising its definition of disability, this rule will apply to that revised definition. E:\FR\FM\22JAR1.SGM 22JAR1 3704 Federal Register / Vol. 81, No. 14 / Friday, January 22, 2016 / Rules and Regulations Since the publication of the NPRM, NASA has added definitions of ‘‘drug abuse’’ and ‘‘illegal use of drugs,’’ and a provision specifically addressing the application of section 504 to persons who use illegal drugs. These provisions were added to conform the regulations to the express requirements of the Rehabilitation Act of 1973. See 29 U.S.C. 705(10) and (20)(C)(i–iii). NASA has also added a safe harbor provision to § 1251.301 to eliminate an inconsistency between the requirements for existing facilities in title II of the ADA and the corresponding requirements for section 504. Finally, NASA has made a number of nonsubstantive clarifying edits and corrections to the regulatory text. mstockstill on DSK4VPTVN1PROD with RULES IV. Overlap of Coverage of NASA’s Section 504 Federally Assisted Rule With Coverage of the ADA NASA’s section 504 federally assisted regulation at § 1251.1 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 federally assisted regulation at § 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. Where possible and appropriate, NASA has tried to ensure consistency with its revised section 504 regulatory text to maintain consistency with the corresponding ADA requirements. V. ADA Amendments Act of 2008: Changes in the Meaning and Interpretation of the Section 504 Definition of Disability The ADA Amendments Act was signed into law in September 2008 and became effective on January 1, 2009. VerDate Sep<11>2014 16:27 Jan 21, 2016 Jkt 238001 Congress enacted the ADA Amendments Act in order to ensure that the definition of disability is broadly construed and applied without extensive analysis, in response to Supreme Court decisions that had too narrowly interpreted the ADA’s definition of a disability. The ADA Amendments Act not only amended the meaning and interpretation of the definition of disability applicable to the ADA, it also amended the Rehabilitation Act of 1973 to require similar changes to the meaning and interpretation of the definition of disability at 29 U.S.C. 705(20)(B) applicable to section 504. In the NPRM, NASA proposed to amend its section 504 regulations to include specific provisions implementing these revised requirements.2 In the interest of uniform application of the definition of disability across both the ADA and section 504, NASA has decided that rather than spelling out the meaning and interpretation of the definition of disability in its own regulations, it is adopting the Department of Justice’s current definition of disability at 28 CFR part 35, and once that definition is revised to reflect the requirements of the ADA Amendments Act, that revised definition will automatically apply to these regulations. 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 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 basic 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). 2 DOJ, which has coordinating authority for Section 504 under Executive Order 12250, has reviewed and approved these proposed changes to NASA’s Section 504 regulations. PO 00000 Frm 00006 Fmt 4700 Sfmt 4700 Definition of Auxiliary Aids and Services Although NASA’s original section 504 federally assisted and federally conducted regulations referenced the provision of auxiliary aids,3 they did not include a definition of the term. The final rule 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. The definition of auxiliary aids and services includes Video Remote Interpreting (VRI) as an example of an auxiliary aid or service. NASA notes that 28 CFR 35.160(d) and 36.303(f) of the ADA title II and title III regulations set forth specific performance standards for the use of VRI. Employment NASA’s rule also revises subpart 1251.2—Employment Practices (federally assisted programs) and § 1251.540—Employment (federally conducted programs) to conform to the 1992 Amendments (Pub. L. 102–569, sec. 506), which amended title V of the Rehabilitation Act to make the same employment standards set forth in title I of the ADA apply to employment discrimination 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 ADA (42 U.S.C. 12111 et seq.), the EEOC’s ADA title I regulation at 29 CFR part 1630, as amended, and, to the extent such sections relate to employment, the provisions of sections 501 through 504 and 510 of the ADA (42 U.S.C. 12201– 12204 and 12210). In this final rule, NASA is clarifying its role in the processing and coordination of complaints alleging employment 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 EEOC, which 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 both the jurisdiction of title I and section 504. NASA has authority to receive complaints of employment discrimination by recipients under section 504 and has developed 3 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. E:\FR\FM\22JAR1.SGM 22JAR1 Federal Register / Vol. 81, No. 14 / Friday, January 22, 2016 / Rules and Regulations 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 EEOC procedures set forth in 29 CFR part 1640 and 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). In the final rule, NASA also clarifies its role in the processing and adjudication of section 504 complaints in its federally conducted programs. mstockstill on DSK4VPTVN1PROD with RULES Provision of Auxiliary Aids and Services NASA’s original section 504 federally assisted regulation at § 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.’’ The final rule clarifies this existing obligation to provide auxiliary aids and services by using affirmative language explaining this obligation. Similar language is already included in NASA’s federally conducted regulation at § 1251.560 (Communications). Notice of Recipient Obligations To Comply With Section 504 NASA’s existing section 504 regulation at § 1251.107(a) requires 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 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, access to, 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 VerDate Sep<11>2014 16:27 Jan 21, 2016 Jkt 238001 § 1251.106(a). The regulation requires a recipient to make the initial notification required by this paragraph within 90 days of the effective date of this part. This regulation also delineates a choice of methods of initial and continuing notification ‘‘that may 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 have changed significantly since this regulation was promulgated and this regulation, as currently written, does not reflect the current and future state of information dissemination. With the advent of the broad application of the Internet and the World Wide Web, as well as electronic publishing, electronic mail (email), 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 their programs, services, and activities. Many of the publications that previously were available in print, such as pamphlets, brochures, maps, course catalogs, policies, and procedures, are now posted on recipients’ Web sites and can be printed or downloaded by an 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 recipients’ Web sites should be provided in accessible formats in order to ensure equal access by individuals with communication disabilities to the recipients’ programs, services, and activities. Accessibility Standards for New Construction and Alterations NASA’s existing section 504 regulation at § 1251.302(c) requires that, if construction of a recipient’s facility commenced after the effective date of the regulation (January 18, 1991), the facility must be designed and constructed so that it is readily accessible to and usable by persons with disabilities. This regulatory provision also requires that facility alterations commenced after January 18, 1991, that affect or may affect the facility’s PO 00000 Frm 00007 Fmt 4700 Sfmt 4700 3705 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 § 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 original 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 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 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 regulation 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 was 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. However, UFAS was not an accessibility option under the ADA for title III entities, even if they were also E:\FR\FM\22JAR1.SGM 22JAR1 3706 Federal Register / Vol. 81, No. 14 / Friday, January 22, 2016 / Rules and Regulations 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 are based on the 2004 ADA Accessibility Guidelines, which were adopted by the U.S. Access Board in 2004 (36 CFR parts 1190 and 1191), but include additional scoping and technical requirements. 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 is required for all new construction and alterations that commenced on or after March 15, 2012 for entities subject to both titles II and III of the ADA. (75 FR 56164, 56182 (Sept. 15, 2010)). As of March 15, 2012, UFAS was no longer an option for compliance with title II. mstockstill on DSK4VPTVN1PROD with RULES NASA’s Revisions to Its Section 504 Federally Assisted Regulation 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.’’ As proposed in the NPRM, in coordination with DOJ, NASA is 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. In the time period between publication of this rule and the compliance date for the 2010 Standards, the rule provides that recipients may choose to comply with either UFAS or the 2010 Standards. For the reasons discussed below, the final rule specifies that all buildings and facilities newly constructed or altered by recipients in compliance with the 2010 Standards shall comply with the scoping and technical requirements for a ‘‘public building or facility’’ in the 2010 Standards, regardless of whether the VerDate Sep<11>2014 16:27 Jan 21, 2016 Jkt 238001 recipient is a public entity or private entity. Under NASA’s current section 504 federally assisted regulation, the same title II accessibility standards for new construction and alterations are applied to all recipients regardless of whether they are public or private entities with 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 federally assisted regulation. 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 scoping and technical requirements for a ‘‘public building or facility,’’ which are the requirements for buildings subject to title II of the ADA. 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, recipients shall be permitted to choose to use the 2010 Standards in lieu of UFAS.4 However, regardless of which accessibility standard recipients choose to use during this time period, recipients must consistently rely on one accessibility standard and may not designate one accessibility standard for one part of a facility and the other for the remainder. 4 This choice is in keeping with the DOJ 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 Standards as an acceptable alternative to the UFAS. (www.ada.gov/ 504_memo_standards.htm). PO 00000 Frm 00008 Fmt 4700 Sfmt 4700 Safe Harbor for Elements of an Existing Building or Facility in Compliance With UFAS Under § 1251.301(b) of NASA’s original section 504 federally assisted regulation, recipients that choose to make structural changes to their facilities in order to comply with the section 504 program accessibility requirements, must make those changes in compliance with the requirements of § 1251.302(c), which deems UFAS as the relevant accessibility standard. NASA’s revision of § 1251.302 to adopt the 2010 Standards, raises the question of whether recipients will have to update elements in UFAS-compliant buildings or facilities that are not otherwise being altered, in order to comply with the 2010 Standards. When DOJ revised its title II ADA regulation to adopt the 2010 Standards, it included a ‘‘safe harbor’’ provision in the regulation that provided that elements in existing buildings that complied with the requirements in UFAS or the 1991 Standards did not have to be modified to comply with corresponding requirements in the 2010 Standards. In order to ensure consistency between the requirements for existing facilities in title II of the ADA and the corresponding program accessibility requirements in section 504, NASA has added a similar ‘‘safe harbor’’ provision in the final rule. This provision, which is directly modeled after the title II ‘‘safe harbor,’’ clarifies that for the purposes of complying with NASA’s program accessibility requirements for existing facilities, elements that have not been altered in existing buildings or facilities on or after the date that is one year after the date of publication of this Final Rule in the Federal Register and that comply with the technical and scoping specifications for those elements in UFAS, Appendix A to 41 CFR part 101– 19.6 (1999 ed.), 49 FR 31528, app. A (Aug. 7, 1984), are not required to be brought into compliance with the requirements set forth in the 2010 Standards. Without this provision, recipients that are subject to titles II or III of the ADA and NASA’s section 504 rule would be held to different requirements; they would not be required by the ADA to modify already compliant elements based on UFAS (or the 1991 Standards) in existing facilities to comply with the 2010 Standards, but would be required to do so under NASA’s section 504 rule. The safe harbor provision incorporated into NASA’s final section 504 rule will avoid this anomalous result. E:\FR\FM\22JAR1.SGM 22JAR1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 81, No. 14 / Friday, January 22, 2016 / Rules and Regulations Notice of Location of Accessible Facilities The current NASA section 504 regulation at § 1251.301(e) requires recipients to adopt and implement procedures to ensure that interested individuals, including individuals with vision or hearing disabilities, can obtain information as to the existence and location of services, activities, and facilities that are accessible to and usable by individuals with disabilities. Since the publication of the NPRM, NASA has determined that the current NASA section 504 federally assisted regulation does not include a provision that is contained in the section 504 regulations of other Federal agencies that requires recipients to provide signs at a primary entrance to each of its inaccessible facilities directing users to an accessible facility or to a location at which they can obtain information about accessible facilities. This provision also requires that the international symbol for accessibility be used at each accessible entrance to a facility. NASA is adding this provision to § 1251.301(e) in order to conform to section 504 regulatory standards across the Government. Triggering event: The rule also adopts the approaches 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 standards to new construction and alterations under section 504. For NASA recipients that are public entities who would otherwise comply with title II (i.e., state and local governments and their agencies and organizations), the triggering event for application of the 2010 Standards under section 504 will be the commencement 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 for the application of the 2010 Standards under section 504 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; (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 has adopted 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 VerDate Sep<11>2014 16:27 Jan 21, 2016 Jkt 238001 3707 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. 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 Reasonable Accommodation (Nonconstitute ‘discrimination’ under the Employment) section would seem to be two sides of In Southeastern Community College v. a single coin; the ultimate question is Davis, 442 U.S. 397, 99 S. Ct. 2361 the extent to which a grantee is required (1979), the Supreme Court held that a to make reasonable modifications person is not protected by section 504 [accommodations] in its programs for if, in order to meet reasonable eligibility the needs of the handicapped.’’ 469 U.S. standards, the person needs program or at 300, note 19. policy modifications that would In keeping with these Supreme Court fundamentally alter the nature of the decisions, over the past decades Federal provider’s program or impose undue courts and Federal agencies have financial and administrative burdens. In regularly acknowledged Federal Davis, the Court upheld the community agencies’ affirmative obligation to college’s denial of admission to a provide qualified individuals with nursing program applicant with a disabilities reasonable accommodations hearing disability who had requested in programs, services, and activities. that the college provide a supervisor to However, their section 504 regulations aid her in communicating with patients, have lacked a specific provision to dispense with certain required implementing this requirement. courses, and to train her to hold some, When the ADA was enacted, Congress but not all, positions available to stated the obligation to make reasonable registered nurses. Although the Court changes in policies, practices, or also opined in Davis that there may be procedures when necessary to avoid situations where a refusal to modify an discrimination on the basis of disability existing program might be as a positive requirement. See U.S.C. discriminatory, the Court analyzed the 12182(b)(2)(A)(ii). DOJ incorporated this case in terms of the proper requirement into its ADA regulations at interpretation of the statutory term 28 CFR 35.130(b)(7) and 28 CFR 36.302. ‘‘otherwise qualified.’’ As a result, Accordingly, we have added provisions agency section 504 regulations 5 to the section 504 rules at §§ 1251.111 originally promulgated after Davis (federally assisted programs) and addressed the obligation to provide 1251.581 (federally conducted reasonable accommodations or programs) stating that a recipient or the reasonable modifications in the Agency, respectively, must provide definition section for ‘‘qualified reasonable accommodations when handicapped person,’’ rather than in the necessary to avoid discrimination on the 6 nondiscrimination section. basis of disability, unless the recipient Subsequently, in Alexander v. Choate, or the Agency can show that the 469 U.S. 287, 105 S.Ct. 712 (1985), the accommodations would result in a Court clarified its Davis analysis. In fundamental alteration in the nature of Alexander, the Court described Davis as its service, program, or activity or striking a balance between the need to impose undue financial and provide qualified individuals with administrative burdens. disabilities meaningful access to the NASA notes that title I of the ADA benefit a grantee offers and the also uses the term ‘‘reasonable legitimate interests of Federal grantees accommodation’’ to apply to changes in in preserving the integrity of their policies, practices and procedures with programs. See 469 U.S. at 300–301. It respect to employment, but the specific further stated that, although its opinion ADA title I regulatory requirements in Davis ‘‘addressed that portion of related to this term should not be applied to non-employment related 5 See, e.g., 14 CFR 1251.503 (NASA’s section 504 requests for reasonable accommodations federally conducted regulation.) 6 With respect to any agency program or activity under section 504. 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. PO 00000 Frm 00009 Fmt 4700 Sfmt 4700 Qualified Individual With a Disability NASA has revised § 1251.102, which adds paragraph (n) defining ‘‘qualified individual with a disability.’’ The definition for ‘‘qualified individual with a disability’’ in this final rule is also revised in order to update the references to employment to cite to the EEOC’s E:\FR\FM\22JAR1.SGM 22JAR1 3708 Federal Register / Vol. 81, No. 14 / Friday, January 22, 2016 / Rules and Regulations ADA title I regulation and to streamline the language. mstockstill on DSK4VPTVN1PROD with RULES Direct Threat In School Bd. of Nassau County, Fla. v. Arline, 480 U.S. 273, 107 S.Ct. 1123 (1987), the Supreme Court directed that 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 the carrier is infectious); severity of the risk (what the potential harm is 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.7 Congress incorporated this concept into the ADA calling it a ‘‘direct threat.’’ The ADA regulations for titles II and III include specific provisions addressing determinations of ‘‘direct threat’’ in §§ 35.104 and 36.104 (definitions) and §§ 35.139 and 36.208. Accordingly, we revised our section 504 regulation to include comparable language addressing direct threat consistent with Arline and the ADA title II regulation. See §§ 1251.110 (federally assisted programs) and 1251.580 (federally conducted programs). Compliance Procedures Federal agencies 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 and generally have provisions in their regulations that provide the authority for agencies to ensure compliance and conduct enforcement activities. NASA’s original section 504 regulation at § 1251.400 incorporates by reference several provisions in NASA’s regulation implementing Title VI of the Civil Rights Act of 1964, at 14 CFR part 1250 that authorize NASA to conduct compliance activities to ensure that recipients do not discriminate on the basis of disability in their programs, 7 While Arline arose in the context 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 apply to any allegations that a person with a disability poses a ‘‘direct threat’’ to the health or safety to others. VerDate Sep<11>2014 16:27 Jan 21, 2016 Jkt 238001 services, and activities. These provisions require NASA to: Conduct periodic compliance reviews of recipient programs; receive, investigate and resolve complaints of discrimination on the basis of disability alleged by recipient beneficiaries; 8 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; 9 and they provide for judicial review of NASA’s actions to enforce section 504.10 However, the original section 504 regulation did 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) 11 and age (Age Discrimination Act of 1975),12 as well as title VI, do have these provisions. NASA has amended its section 504 federally assisted regulation at § 1251.400 to incorporate by reference those title VI regulatory provisions, originally omitted from the existing regulation. Accordingly, NASA incorporated by reference into § 1251.400, NASA’s title VI regulation at § 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 and their applicability to the program for which the recipient receives Federal financial assistance in a manner deemed appropriate by NASA to apprise interested persons of the rights and protections afforded to them by this part. NASA also incorporated by reference into § 1251.400, NASA’s title VI regulation at § 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 8 14 CFR 1250.106. CFR 1250.108. 10 14 CFR 1250.110. 11 14 CFR 1253.605. 12 14 CFR subpart 1252.2. 9 14 PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 financial assistance if a recipient’s noncompliance with this part cannot be remedied through informal means. Lastly, NASA incorporated by reference into § 1251.400, NASA’s title VI regulation at § 1250.109 (Decisions and notices) which delineates the process for rendering decisions and issuing findings in accordance with § 1250.107. NASA’s Revisions to Its Section 504 Regulation for Federally Conducted Programs In addition to its revisions to its section 504 federally assisted regulation at part 1251, NASA also revised its section 504 regulation at § 1251.5 that prohibits discrimination on the basis of disability in programs, services, and activities conducted by NASA. 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, issued regulations previously based on that prototype, prohibiting discrimination based on disability 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 impose similar requirements for NASA’s federally conducted and NASA’s federally assisted regulations, with the exception of the applicable accessibility standards for new and altered facilities.13 Consistent with its revision to the definition of disability in § 1251.102(g), NASA has revised the definition of ‘‘disability’’ at § 1251.503(e) to incorporate by reference the definition of disability in the Department of Justice’s title II ADA regulation at 28 CFR part 35. NASA also revised the definition of ‘‘direct threat’’ and added definitions of ‘‘drug abuse’’ and ‘‘illegal use of drugs’’ to § 1251.503 to conform 13 Facilities designed, built, or altered with Federal dollars or leased by Federal agencies are subject to the Architectural Barriers Act. 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 references the updated ABA Accessibility Standards adopted by GSA in 2007. See 41 CFR part 102–76 subpart C. E:\FR\FM\22JAR1.SGM 22JAR1 3709 Federal Register / Vol. 81, No. 14 / Friday, January 22, 2016 / Rules and Regulations to the corresponding regulatory provisions in the federally assisted rule. NASA added a new provision incorporating statutory requirements addressing the application of section 504 to persons who use illegal drugs, and regulatory standards for direct threat, employment, and reasonable accommodation in the federally conducted programs regulation to conform with the companion regulatory standards in the federally assisted regulation for direct threat found at § 1251.110, reasonable accommodation found at § 1251.111, illegal use of drugs found at § 1251.113, and employment found at § 1251.2. NASA also has conformed the language in § 1251.550(a), which addresses the limitations on the obligation to provide program accessibility in historic preservation programs conducted by the Agency, to the language used in the corresponding provision in the Department of Justice’s title II ADA regulation at 28 CFR 35.150 (a)(2), by removing the phrase ‘‘substantial impairment of historical features’’ of historical properties and replacing it with ‘‘threaten or destroy the historic significance’’ of these properties. NASA has also deleted the definition of ‘‘substantial impairment’’ at § 1251.503 because the term is no longer used with respect to program accessibility in existing facilities and thus, the definition is no longer necessary. Last, NASA revised its regulation at § 1251.551 to update the reference to the GSA standards applicable to new construction, alterations and leases of Federal buildings subject to the Architectural Barriers Act, which is no longer found at the 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. mstockstill on DSK4VPTVN1PROD with RULES IV. 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 Final Rule has been designated a ‘‘significant regulatory action,’’ although not an economically significant one, under VerDate Sep<11>2014 16:27 Jan 21, 2016 Jkt 238001 section 3(f) of Executive Order 12866. Accordingly, this rule has been reviewed by the Office of Management and Budget. Regulatory Flexibility Act NASA certifies 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 Section 4(2) of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1503(2), excludes from coverage under that Act any proposed or final Federal regulation that ‘‘establishes or enforces any statutory rights that prohibit discrimination on the basis of race, color, religion, sex, national origin, age, handicap, or disability.’’ Accordingly, NASA’s rulemaking is not subject to the provisions of the Unfunded Mandates Reform Act. 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 foreignbased 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 amends 14 CFR part 1251 as follows: PART 1251—NONDISCRIMINATION ON BASIS OF DISABILITY 1. The authority citation for part 1251 is revised to read as follows: ■ Authority: Sec. 504 (29 U.S.C. 794) 2. Revise the heading of part 1251 to read as set forth above. ■ PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 3. In part 1251, wherever they appear, remove the words in the ‘‘Remove’’ column and add in their place the words in the ‘‘Add in its place’’ column in the following table: ■ Remove Add in Its place handicap ......................... handicaps ....................... handicapped person ....... handicapped persons ..... disability. disabilities. individual with a disability individuals with disabilities. individual with a disability. individuals with disabilities. individuals with disabilities. qualified individual with a disability. qualified individuals with disabilities. qualified individuals with disabilities. qualified applicants or employees with disabilities. individuals without disabilities. handicapped individual ... handicapped individuals individuals with handicaps. qualified handicapped individual. qualified handicapped individuals. qualified individuals with handicaps. qualified handicapped applicants or employees. nonhandicapped persons Subpart 1251.1—General Provisions 4. Revise § 1251.100 to read as follows: ■ § 1251.100 Purpose and broad coverage. (a) Purpose. This part effectuates section 504 of the Rehabilitation Act of 1973, which is designed to eliminate discrimination on the basis of disability in any program or activity receiving Federal financial assistance. (b) Broad scope of coverage. Consistent with the Americans with Disabilities Act Amendments Act of 2008’s purpose (ADA Amendments Act) of reinstating a broad scope of protection under the ADA and section 504, the definition of ‘‘disability’’ applicable to this part shall be construed broadly in favor of expansive coverage to the maximum extent permitted by the terms of this part. The primary object of attention in cases brought under this part should be whether entities covered under section 504 have complied with their obligations and whether discrimination has occurred, not whether the individual meets the definition of disability. The question of whether an individual meets the definition of disability under this part should not demand extensive analysis. ■ 5. Revise § 1251.102 to read as follows: § 1251.102 Definitions As used in this part, the term: (a) 2004 ADAAG means the Americans with Disabilities Act (ADA) Accessibility Guidelines for Buildings and Facilities requirements set forth in E:\FR\FM\22JAR1.SGM 22JAR1 mstockstill on DSK4VPTVN1PROD with RULES 3710 Federal Register / Vol. 81, No. 14 / Friday, January 22, 2016 / Rules and Regulations appendices B and D to 36 CFR part 1191 (2009). (b) 2010 Standards means the 2010 ADA Standards for Accessible Design, which consist of the 2004 ADAAG and the requirements contained in 28 CFR 35.151. (c) Applicant for assistance means one who submits an application, request, or plan required to be approved either by a NASA official or by a recipient, as a condition to becoming a recipient. (d) Associate Administrator means the Associate Administrator for Diversity and Equal Opportunity Programs for NASA. (e) 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 computeraided 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 real-time 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. (f) 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 § 1251.110 of this part. VerDate Sep<11>2014 16:27 Jan 21, 2016 Jkt 238001 (g) Disability means the definition given that term in the Department of Justice’s regulation implementing title II of the ADA at 28 CFR part 35. (h) Drug means a controlled substance as defined in schedules I through V of section 202 of the Controlled Substances Act (21 U.S.C. 812). (i) Facility means all or any portion of buildings, structures, equipment, roads, walks, parking lots, or other real or personal property or interest in such property. (j) Federal financial assistance means any grant, loan, contract (other than a procurement contract or a contract of insurance or guaranty), or any other arrangement by which the agency provides or otherwise makes available assistance in the form of: (1) Funds; (2) Services of Federal personnel; or (3) Real and personal property or any interest in or use of such property, including: (i) Transfers or leases of such property for less than fair market value or for reduced consideration; and (ii) Proceeds from a subsequent transfer or lease of such property if the Federal share of its fair market value is not returned to the Federal Government. (k) Illegal use of drugs means the use of one or more drugs, the possession or distribution of which is unlawful under the Controlled Substances Act (21 U.S.C. 812). The term illegal use of drugs does not include the use of a drug taken under supervision by a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provisions of Federal law. (l) Individual with a disability means any individual who has a disability as defined in 28 CFR part 35. The term ‘‘individual with a disability’’ does not include an individual who is currently engaging in the illegal use of drugs, when the recipient acts on the basis of such use. (m) Program or activity means all of the operations of any entity described in paragraphs (m)(1) through (4) of this section, any part of which is extended Federal financial assistance: (1)(i) A department, agency, special purpose district, or other instrumentality of a State or of a local government; or (ii) The entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government; PO 00000 Frm 00012 Fmt 4700 Sfmt 4700 (2)(i) A college, university, or other postsecondary institution, or a public system of higher education; or (ii) A local educational agency (as defined in 20 U.S.C. 7801), system of vocational education, or other school system; (3)(i) An entire corporation, partnership, or other private organization, or an entire sole proprietorship— (A) If assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole; or (B) Which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or (ii) The entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or (4) Any other entity which is established by two or more of the entities described in paragraph (m)(1), (2), or (3) of this section. (n) 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 § 1251.2. (o) Recipient means any state or its political subdivision, any instrumentality of a state or its political subdivision, any public or private agency, institution, organization, or other entity, or any person to which Federal financial assistance is extended directly or through another recipient, including any successor, assignee, or transferee of a recipient, but excluding the ultimate beneficiary of the assistance. (p) Section 504 means section 504 of the Act. E:\FR\FM\22JAR1.SGM 22JAR1 Federal Register / Vol. 81, No. 14 / Friday, January 22, 2016 / Rules and Regulations 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’’. ■ 8. Amend § 1251.107 by revising paragraph (a) to read as follows: (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. ■ 11. Add § 1251.111 to subpart 1251.1 to read as follows: § 1251.107 § 1251.111 (q) The Act means the Rehabilitation Act of 1973, Pub. L. 93–112, as amended, 29 U.S.C. 794 et seq. § 1251.104 [Amended] 6. In § 1251.104, in paragraphs (a) and (c)(3), remove the word ‘‘Assistant’’ and add in its place the word ‘‘Associate’’. ■ § 1251.105 [Amended] ■ 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 § 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. * * * * * § 1251.108 [Amended] 9. Amend § 1251.108 by removing the word ‘‘Assistant’’ wherever it appears and adding in its place the word ‘‘Associate’’. ■ 10. Add § 1251.110 to subpart 1251.1 to read as follows: mstockstill on DSK4VPTVN1PROD with RULES ■ § 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. VerDate Sep<11>2014 16:27 Jan 21, 2016 Jkt 238001 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. ■ 12. Add § 1251.112 to subpart 1251.1 to read as follows: § 1251.112 Communications. (a) A recipient shall take appropriate steps to ensure that communications with applicants, participants, beneficiaries, members of the public, and companions with disabilities, are as effective as communications with others. (b)(1) A recipient shall furnish appropriate auxiliary aids or services where necessary to afford qualified individuals with disabilities, including applicants, participants, beneficiaries, 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 who are deaf or hard of hearing or have speech impairments. (c) This section does not require the recipient to take any action that it can PO 00000 Frm 00013 Fmt 4700 Sfmt 4700 3711 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 § 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 chief executive officer of the recipient 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. ■ 13. Add § 1251.113 to subpart 1251.1 to read as follows: § 1251.113 Illegal Use of Drugs (a) General. (1) Except as provided in paragraph (b) of this section, this part does not prohibit discrimination against an individual based on that individual’s current illegal use of drugs. (2) A recipient shall not discriminate on the basis of illegal use of drugs against an individual who is not engaging in current illegal use of drugs and who— (i) Has successfully completed a supervised drug rehabilitation program or has otherwise been rehabilitated successfully; (ii) Is participating in a supervised rehabilitation program; or (iii) Is erroneously regarded as engaging in such use. (b) Health and drug rehabilitation services. (1) A recipient shall not deny health services, or services provided in connection with drug rehabilitation, to an individual on the basis of that individual’s current illegal use of drugs, if the individual is otherwise entitled to such services. (2) A drug rehabilitation or treatment program may deny participation to individuals who engage in illegal use of drugs while they are in the program. (c) Drug testing. (1) This part does not prohibit a recipient from adopting or administering reasonable policies or E:\FR\FM\22JAR1.SGM 22JAR1 3712 Federal Register / Vol. 81, No. 14 / Friday, January 22, 2016 / Rules and Regulations procedures, including but not limited to drug testing, designed to ensure that an individual who formerly engaged in the illegal use of drugs is not now engaging in current illegal use of drugs. (2) Nothing in this paragraph (c) shall be construed to encourage, prohibit, restrict, or authorize the conduct of testing for the illegal use of drugs. ■ 14. Revise § 1251.200 to read as follows: § 1251.200 Discrimination prohibited. (a) General. No qualified individual 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. 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. The procedures to be used to determine whether paragraph (a) of this section has been violated shall be the procedures set forth in § 1251.400 of this part. § 1251.202 [Amended] 15. Amend § 1251.202 by removing the word ‘‘Assistant’’ in paragraph (a)(2) and adding in its place the word ‘‘Associate’’. ■ 16. Amend 1251.301 by redesignating paragraph (e) as paragraph (f) and revising it and adding a new paragraph (e) to read as follows: ■ § 1251.301 Existing facilities. mstockstill on DSK4VPTVN1PROD with RULES * * * * * (e) Safe harbor. For the purposes of complying with this section, elements that have not been altered in existing facilities on or after January 23, 2017, and that comply with the corresponding technical and scoping specifications for those elements in the Uniform Federal Accessibility Standards (UFAS), Appendix A to 41 CFR part 101–19.6, 49 FR 31528, app. A (Aug. 7, 1984), are not required to be modified to be brought VerDate Sep<11>2014 16:27 Jan 21, 2016 Jkt 238001 into compliance with the requirements set forth in the 2010 Standards. (f) Notice of location of accessible facilities—(1) General. The recipient shall adopt and implement procedures to ensure that interested individuals, including individuals with vision or hearing disabilities, can obtain information as to the existence and location of services, activities, and facilities that are accessible to and usable by individuals with disabilities. (2) Signs at primary entrances. The recipient shall provide signs at a primary entrance to each of its inaccessible facilities, directing users to an accessible facility or a location at which they can obtain information about accessible facilities. The international symbol for accessibility shall be used at each accessible entrance to a facility. ■ 17. Amend § 1251.302 as follows: ■ a. Revise paragraphs (a) and (c)(1); and ■ b. Redesignate paragraphs (c)(2) and (3) as paragraphs (c)(5) and (6) and add new paragraphs (c)(2) and (3). The revisions and additions read as follows: § 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) Applicable accessibility standards. (i) New construction and alterations undertaken prior to the compliance dates specified in paragraph (c)(2) of this section must comply with either UFAS or the 2010 Standards. (ii) New construction and alterations on or after the compliance dates specified in paragraph (c)(2) of this section must comply with the 2010 Standards. (iii) New construction and alterations of buildings or facilities undertaken in compliance with the 2010 Standards shall comply with the requirements for a ‘‘public building or facility’’ as defined in the 2010 Standards regardless of whether the recipient is a public or private entity. (iv) Departures from particular requirements of either standard by the PO 00000 Frm 00014 Fmt 4700 Sfmt 4700 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. (2) Compliance dates—(i) New Construction and alterations by recipients that are private entities. (A) 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 January 23, 2017, or if no permit is required, if the start of physical construction or alterations occurs prior to January 23, 2017, then such new construction and alterations must comply with either the Uniform Federal Accessibility Standards or the 2010 Standards. (B) 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 January 23, 2017, or if no permit is required, if the start of physical construction or alterations occurs on or after January 23, 2017, then such new construction and alterations shall comply with the 2010 Standards. (ii) New construction and alterations by recipients that are public entities. (A) If physical construction or alterations commence prior to January 23, 2017, then such new construction and alterations must comply with either UFAS or the 2010 Standards. (C) If physical construction or alterations commence on or after January 23, 2017, 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. E:\FR\FM\22JAR1.SGM 22JAR1 Federal Register / Vol. 81, No. 14 / Friday, January 22, 2016 / Rules and Regulations 3713 TABLE OF APPLICABLE STANDARDS FOR COMPLYING WITH 14 CFR 1251.302(C) Compliance dates for new construction and alterations Applicable standards for complying with 14 CFR 1251.302(c) Prior to January 23, 2017 ............... On or after January 23, 2017 .......... UFAS or the scoping and technical requirements for a ‘‘public building or facility’’ in the 2010 Standards. Scoping and technical requirements for a ‘‘public building or facility’’ in the 2010 Standards. * * * * * 18. Section 1251.400 is revised to read as follows: ■ § 1251.400 Compliance Procedures. (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 this section 504 regulation. These procedures are found at §§ 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 19. Section 1251.503 is revised to read as follows: ■ mstockstill on DSK4VPTVN1PROD with RULES § 1251.503 Definitions. As used in this part, the term: (a) Assistant Attorney General means the Assistant Attorney General, Civil Rights Division, United States Department of Justice. (b) 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 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 real-time captioning; voice, text, and video-based telecommunications products and systems, including text telephones (TTYs), videophones, and captioned telephones, or equally effective telecommunications devices; videotext VerDate Sep<11>2014 16:27 Jan 21, 2016 Jkt 238001 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. (c) 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. (d) 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 § 1251.110 of this part. (e) Disability means the definition given that term in the Department of Justice’s regulation implementing title II of the ADA at 28 CFR part 35. (f) Drug means a controlled substance as defined in schedules I through V of section 202 of the Controlled Substances Act (21 U.S.C. 812). (g) 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. (h) Historic preservation programs means programs conducted by the agency that have preservation of historic properties as a primary purpose. (i) Historic properties means those properties that are listed or eligible for PO 00000 Frm 00015 Fmt 4700 Sfmt 4700 listing in the National Register of Historic Places or properties designated as historic under a statute of the appropriate state or local government body. (j) Illegal use of drugs means the use of one or more drugs, the possession or distribution of which is unlawful under the Controlled Substances Act (21 U.S.C. 812). The term ‘‘illegal use of drugs’’ does not include the use of a drug taken under supervision by a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provisions of Federal law. (k) Individual with a disability means any person who meets the definition of ‘‘disability’’ under 28 CFR part 35. (l) Qualified individual with a disability means any person who meets the definition of ‘‘qualified individual with a disability’’ under § 1251.102(i) of this part. (m) 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. ■ 20. Revise § 1251.540 to read as follows: § 1251.540 Employment. (a) General. No qualified individual 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. ■ 21. In § 1251.550, revise paragraph (a)(2) to read as follows: § 1251.550 facilities. Program accessibility: Existing (a) * * * E:\FR\FM\22JAR1.SGM 22JAR1 3714 Federal Register / Vol. 81, No. 14 / Friday, January 22, 2016 / Rules and Regulations (2) In the case of historic preservation programs, require the Agency to take any action that would threaten or destroy the historic significance of historic properties. * * * * * ■ 22. Revise § 1251.551 to read as follows: § 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 disabilities. 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. ■ 23. In § 1251.570, revise paragraphs (b) and (c) to read as follows: § 1251.570 Compliance procedures. * * * * * (b) The Agency shall process complaints alleging violations of section 504 of the Rehabilitation Act with respect to employment according to the procedures established by the Equal Employment Opportunity Commission in 29 CFR part 1640 pursuant to section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791). (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. * * * * * ■ 24. Add § 1251.580 to subpart 1251.5 to read as follows: mstockstill on DSK4VPTVN1PROD with RULES § 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, the Agency 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 VerDate Sep<11>2014 16:27 Jan 21, 2016 Jkt 238001 reasonable accommodations in policies, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk. 25. Add § 1251.581 to subpart 1251.5 to read as follows: ■ § 1251.581 26. Add § 1251.582 to subpart 1251.5 to read as follows: ■ [FR Doc. 2016–00610 Filed 1–21–16; 8:45 am] BILLING CODE 7510–13–P Frm 00016 Fmt 4700 Sfmt 4700 DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Parts 1 and 117 [Docket No. FDA–2011–N–0920] RIN 0910–AG36 Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Human Food; Technical Amendment AGENCY: Illegal use of drugs Food and Drug Administration, HHS. (a) General. (1) Except as provided in paragraph (b) of this section, this part does not prohibit discrimination against an individual based on that individual’s current illegal use of drugs. (2) The Agency shall not discriminate on the basis of illegal use of drugs against an individual who is not engaging in current illegal use of drugs and who— (i) Has successfully completed a supervised drug rehabilitation program or has otherwise been rehabilitated successfully; (ii) Is participating in a supervised rehabilitation program; or (iii) Is erroneously regarded as engaging in such use. (b) Health and drug rehabilitation services. (1) The Agency shall not deny health services, or services provided in connection with drug rehabilitation, to an individual on the basis of that individual’s current illegal use of drugs, if the individual is otherwise entitled to such services. (2) A drug rehabilitation or treatment program may deny participation to individuals who engage in illegal use of drugs while they are in the program. (c) Drug testing. (1) This part does not prohibit the Agency from adopting or administering reasonable policies or procedures, including but not limited to drug testing, designed to ensure that an individual who formerly engaged in the illegal use of drugs is not now engaging in current illegal use of drugs. (2) Nothing in this paragraph (c) shall be construed to encourage, prohibit, PO 00000 Cheryl E. Parker, NASA Federal Register Liaison Officer. 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, unless the Agency 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. § 1251.582 restrict, or authorize the conducting of testing for the illegal use of drugs. Final rule; technical amendment. ACTION: The Food and Drug Administration (FDA or we) is amending a final rule that published in the Federal Register of September 17, 2015. That final rule amended our regulation for current good manufacturing practice in manufacturing, packing, or holding human food to modernize it, and to add requirements for domestic and foreign facilities that are required to register under the Federal Food, Drug, and Cosmetic Act (the FD&C Act) to establish and implement hazard analysis and risk-based preventive controls for human food. That final rule also revised certain definitions in our current regulation for registration of food facilities to clarify the scope of the exemption from registration requirements provided by the FD&C Act for ‘‘farms.’’ The final rule published with some editorial and inadvertent errors. This document corrects those errors. DATES: Effective January 22, 2016. FOR FURTHER INFORMATION CONTACT: Jenny Scott, Center for Food Safety and Applied Nutrition (HFS–300), Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740, 240– 402–2166. SUPPLEMENTARY INFORMATION: In the Federal Register of Thursday, September 17, 2015 (80 FR 55908), FDA published the final rule ‘‘Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Human Food’’ with some editorial and inadvertent errors. This SUMMARY: E:\FR\FM\22JAR1.SGM 22JAR1

Agencies

[Federal Register Volume 81, Number 14 (Friday, January 22, 2016)]
[Rules and Regulations]
[Pages 3703-3714]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-00610]



[[Page 3703]]

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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

14 CFR Part 1251

[Document Number NASA-2015-0008]
RIN 2700-AD85


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

AGENCY: National Aeronautics and Space Administration.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This rule revises the National Aeronautics and Space 
Administration (NASA) regulations 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 
Executive Order 13563 completed in August 2011. NASA's full plan can be 
accessed at: http://www.nasa.gov/open/.

DATES: Effective: February 22, 2016.

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

SUPPLEMENTARY INFORMATION:

I. Background

    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 
federally assisted programs or activities, through its regulations in 
Part 1251.
    On November 13, 2014 NASA published a Notice of Proposed Rulemaking 
(NPRM) in the Federal Register at 79 FR 67384 to amend its section 504 
regulations to incorporate changes to the meaning and interpretation of 
the section 504 definition of disability required by the Americans with 
Disabilities Act Amendments Act of 2008 (ADA Amendments Act), include 
an affirmative statement of the longstanding requirement for reasonable 
accommodations in programs, services, and activities, and include a 
definition of direct threat and a provision describing the parameters 
of the existing direct threat defense to a claim of discrimination. The 
rule also proposed to 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, and provide NASA with access to recipient data 
and records to determine compliance with section 504, and made 
administrative updates to correct titles.
    NASA also proposed amending its section 504 regulations to 
incorporate changes required by the Rehabilitation Act Amendments of 
1992 (1992 Amendments) by revising subpart 1251.2--Employment Practices 
(federally assisted programs) and Sec.  1251.540--Employment (federally 
conducted programs) and instead referencing the U.S. Equal Employment 
Opportunity Commission's (EEOC's) Americans with Disabilities Act of 
1990 (ADA) title I regulation. NASA also proposed updating outdated 
terminology and references that currently exist in Part 1251 including 
changing the word ``handicapped'' and similar variations of that word 
that appear throughout part 1251, and replacing it with ``people 
first'' language (e.g., ``individuals with disabilities'') consistent 
with the requirements of the 1992 Amendments.

II. Review of This Rule by Department of Justice Pursuant to Executive 
Order 12250

    This final rule has been reviewed and approved by the U.S. 
Department of Justice (DOJ) in the exercise of its section 504 
coordination authority under Executive Order 12250.

III. Discussion of Comments on the Proposed Rulemaking

    NASA received only one comment from a member of the public in 
response to its NPRM. This individual raised three concerns which are 
discussed below.

Issue 1

    The commenter suggested that NASA simplify its language by 
replacing the phrase ``nonhandicapped persons'' wherever it is used in 
the regulations with the phrase ``persons without a disability'' rather 
than the phrase proposed by NASA, ``persons who do not have a 
disability'' NASA agrees and is making this change, except that instead 
of the phrase ``persons without a disability,'' NASA will use the 
phrase ``individuals without disabilities.''

Issue 2

    The commenter also objected to NASA's inclusion of the activity of 
``speaking'' in the list of major life activities in proposed Sec.  
1251.102(h)(2)(ii)(A). In the commenter's view, because the list 
already provided ``communicating'' as an example, including 
``speaking'' was redundant and unnecessary. NASA disagrees with the 
commenter. The ADA Amendments Act specifically references both 
``speaking'' and ``communicating'' in its list of examples of major 
life activities. See 42 U.S.C. 12102(2)(A). NASA's final rule no longer 
spells out a list of examples of major life activities, however, 
because the rule now incorporates by reference the definition of 
disability contained in DOJ's ADA title II regulation at 29 CFR part 
35.\1\
---------------------------------------------------------------------------

    \1\ DOJ published its NPRM proposing to amend its title II and 
title III ADA regulations to incorporate the requirements of the ADA 
Amendments Act in the Federal Register on January 30, 2014. 79 FR 
4839. This regulation incorporates the current version of the DOJ 
definition at 28 CFR part 35 and once DOJ publishes its final rule 
revising its definition of disability, this rule will apply to that 
revised definition.
---------------------------------------------------------------------------

Issue 3

    The commenter also suggested that NASA revise the definition of 
disability in Sec.  1251.102(h)(2)(iii)(A)(2) to narrow its application 
to fewer individuals with disabilities because in the commenter's view, 
it is too broad. NASA declines to adopt this recommendation as it 
proposes a change that is inconsistent with the changes to section 504 
that were made by the ADA Amendments Act. Congress enacted the ADA 
Amendments Act to restore the understanding that the definition of 
disability shall be broadly construed and applied without extensive 
analysis, in response to the Supreme Court decisions in Sutton v. 
United Air Lines, Inc., 527 U.S. 471 (1999), and Toyota Motor 
Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), which 
interpreted the term ``substantially limits'' to require a greater 
degree of limitation than was intended by Congress. The ADA Amendments 
Act 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 ADA 
Amendments Act. NASA has decided, that in order to ensure, as Congress 
intended, that its section 504 definition of disability is interpreted 
consistently with the ADA Amendments Act, the final rule will 
incorporate by reference the definition of disability specified in the 
ADA title II regulation at 28 CFR part 35.

[[Page 3704]]

    Since the publication of the NPRM, NASA has added definitions of 
``drug abuse'' and ``illegal use of drugs,'' and a provision 
specifically addressing the application of section 504 to persons who 
use illegal drugs. These provisions were added to conform the 
regulations to the express requirements of the Rehabilitation Act of 
1973. See 29 U.S.C. 705(10) and (20)(C)(i-iii). NASA has also added a 
safe harbor provision to Sec.  1251.301 to eliminate an inconsistency 
between the requirements for existing facilities in title II of the ADA 
and the corresponding requirements for section 504.
    Finally, NASA has made a number of nonsubstantive clarifying edits 
and corrections to the regulatory text.

IV. Overlap of Coverage of NASA's Section 504 Federally Assisted Rule 
With Coverage of the ADA

    NASA's section 504 federally assisted regulation at Sec.  1251.1 
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 federally assisted 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. Where possible and 
appropriate, NASA has tried to ensure consistency with its revised 
section 504 regulatory text to maintain consistency with the 
corresponding ADA requirements.

V. ADA Amendments Act of 2008: Changes in the Meaning and 
Interpretation of the Section 504 Definition of Disability

    The ADA Amendments Act was signed into law in September 2008 and 
became effective on January 1, 2009. Congress enacted the ADA 
Amendments Act in order to ensure that the definition of disability is 
broadly construed and applied without extensive analysis, in response 
to Supreme Court decisions that had too narrowly interpreted the ADA's 
definition of a disability. The ADA Amendments Act not only amended the 
meaning and interpretation of the definition of disability applicable 
to the ADA, it also amended the Rehabilitation Act of 1973 to require 
similar changes to the meaning and interpretation of the definition of 
disability at 29 U.S.C. 705(20)(B) applicable to section 504. In the 
NPRM, NASA proposed to amend its section 504 regulations to include 
specific provisions implementing these revised requirements.\2\ In the 
interest of uniform application of the definition of disability across 
both the ADA and section 504, NASA has decided that rather than 
spelling out the meaning and interpretation of the definition of 
disability in its own regulations, it is adopting the Department of 
Justice's current definition of disability at 28 CFR part 35, and once 
that definition is revised to reflect the requirements of the ADA 
Amendments Act, that revised definition will automatically apply to 
these regulations. 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 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 basic 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).
---------------------------------------------------------------------------

    \2\ DOJ, which has coordinating authority for Section 504 under 
Executive Order 12250, has reviewed and approved these proposed 
changes to NASA's Section 504 regulations.
---------------------------------------------------------------------------

Definition of Auxiliary Aids and Services

    Although NASA's original section 504 federally assisted and 
federally conducted regulations referenced the provision of auxiliary 
aids,\3\ they did not include a definition of the term. The final rule 
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. The definition of auxiliary aids and services includes 
Video Remote Interpreting (VRI) as an example of an auxiliary aid or 
service. NASA notes that 28 CFR 35.160(d) and 36.303(f) of the ADA 
title II and title III regulations set forth specific performance 
standards for the use of VRI.
---------------------------------------------------------------------------

    \3\ Although the current regulation references ``auxiliary 
aids,'' the term has always been understood to mean ``auxiliary aids 
and services,'' and the revised regulation references them 
correctly.
---------------------------------------------------------------------------

Employment

    NASA's rule also revises subpart 1251.2--Employment Practices 
(federally assisted programs) and Sec.  1251.540--Employment (federally 
conducted programs) to conform to the 1992 Amendments (Pub. L. 102-569, 
sec. 506), which amended title V of the Rehabilitation Act to make the 
same employment standards set forth in title I of the ADA apply to 
employment discrimination 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 ADA 
(42 U.S.C. 12111 et seq.), the EEOC's ADA title I regulation at 29 CFR 
part 1630, as amended, and, to the extent such sections relate to 
employment, the provisions of sections 501 through 504 and 510 of the 
ADA (42 U.S.C. 12201-12204 and 12210).
    In this final rule, NASA is clarifying its role in the processing 
and coordination of complaints alleging employment 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 EEOC, which 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 both the jurisdiction of title I and section 504. NASA has 
authority to receive complaints of employment discrimination by 
recipients under section 504 and has developed

[[Page 3705]]

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 EEOC procedures set forth 
in 29 CFR part 1640 and 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).
    In the final rule, NASA also clarifies its role in the processing 
and adjudication of section 504 complaints in its federally conducted 
programs.

Provision of Auxiliary Aids and Services

    NASA's original 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.''
    The final rule clarifies this existing obligation to provide 
auxiliary aids and services by using 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 existing section 504 regulation at Sec.  1251.107(a) 
requires 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 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, access to, 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 a recipient to make the initial notification 
required by this paragraph within 90 days of the effective date of this 
part. This regulation also delineates a choice of methods of initial 
and continuing notification ``that may 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 have changed significantly since 
this regulation was promulgated and this regulation, as currently 
written, does not reflect the current and future state of information 
dissemination. With the advent of the broad application of the Internet 
and the World Wide Web, as well as electronic publishing, electronic 
mail (email), 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 their programs, services, and activities. Many of the publications 
that previously were available in print, such as pamphlets, brochures, 
maps, course catalogs, policies, and procedures, are now posted on 
recipients' Web sites and can be printed or downloaded by an 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 recipients' Web sites should be 
provided in accessible formats in order to ensure equal access by 
individuals with communication disabilities to the recipients' 
programs, services, and activities.

Accessibility Standards for New Construction and Alterations

    NASA's existing section 504 regulation at Sec.  1251.302(c) 
requires that, if construction of a recipient's facility commenced 
after the effective date of the regulation (January 18, 1991), the 
facility must be designed and constructed so that it is readily 
accessible to and usable by persons with disabilities. This regulatory 
provision also requires 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 
original 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 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 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 regulation 
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 was 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. However, UFAS was not an accessibility 
option under the ADA for title III entities, even if they were also

[[Page 3706]]

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 are based on the 2004 ADA 
Accessibility Guidelines, which were adopted by the U.S. Access Board 
in 2004 (36 CFR parts 1190 and 1191), but include additional scoping 
and technical requirements. 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 
is required for all new construction and alterations that commenced on 
or after March 15, 2012 for entities subject to both titles II and III 
of the ADA. (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 Regulation 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.''
    As proposed in the NPRM, in coordination with DOJ, NASA is 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. In the 
time period between publication of this rule and the compliance date 
for the 2010 Standards, the rule provides that recipients may choose to 
comply with either UFAS or the 2010 Standards. For the reasons 
discussed below, the final rule specifies that all buildings and 
facilities newly constructed or altered by recipients in compliance 
with the 2010 Standards shall comply with the scoping and technical 
requirements for a ``public building or facility'' in the 2010 
Standards, regardless of whether the recipient is a public entity or 
private entity.
    Under NASA's current section 504 federally assisted regulation, the 
same title II accessibility standards for new construction and 
alterations are applied to all recipients regardless of whether they 
are public or private entities with 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 federally assisted regulation. 
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 scoping and 
technical requirements for a ``public building or facility,'' which are 
the requirements for buildings subject to title II of the ADA.
    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, 
recipients shall be permitted to choose to use the 2010 Standards in 
lieu of UFAS.\4\ However, regardless of which accessibility standard 
recipients choose to use during this time period, recipients must 
consistently rely on one accessibility standard and may not designate 
one accessibility standard for one part of a facility and the other for 
the remainder.
---------------------------------------------------------------------------

    \4\ This choice is in keeping with the DOJ 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 Standards as 
an acceptable alternative to the UFAS. (www.ada.gov/504_memo_standards.htm).
---------------------------------------------------------------------------

Safe Harbor for Elements of an Existing Building or Facility in 
Compliance With UFAS

    Under Sec.  1251.301(b) of NASA's original section 504 federally 
assisted regulation, recipients that choose to make structural changes 
to their facilities in order to comply with the section 504 program 
accessibility requirements, must make those changes in compliance with 
the requirements of Sec.  1251.302(c), which deems UFAS as the relevant 
accessibility standard. NASA's revision of Sec.  1251.302 to adopt the 
2010 Standards, raises the question of whether recipients will have to 
update elements in UFAS-compliant buildings or facilities that are not 
otherwise being altered, in order to comply with the 2010 Standards. 
When DOJ revised its title II ADA regulation to adopt the 2010 
Standards, it included a ``safe harbor'' provision in the regulation 
that provided that elements in existing buildings that complied with 
the requirements in UFAS or the 1991 Standards did not have to be 
modified to comply with corresponding requirements in the 2010 
Standards. In order to ensure consistency between the requirements for 
existing facilities in title II of the ADA and the corresponding 
program accessibility requirements in section 504, NASA has added a 
similar ``safe harbor'' provision in the final rule. This provision, 
which is directly modeled after the title II ``safe harbor,'' clarifies 
that for the purposes of complying with NASA's program accessibility 
requirements for existing facilities, elements that have not been 
altered in existing buildings or facilities on or after the date that 
is one year after the date of publication of this Final Rule in the 
Federal Register and that comply with the technical and scoping 
specifications for those elements in UFAS, Appendix A to 41 CFR part 
101-19.6 (1999 ed.), 49 FR 31528, app. A (Aug. 7, 1984), are not 
required to be brought into compliance with the requirements set forth 
in the 2010 Standards. Without this provision, recipients that are 
subject to titles II or III of the ADA and NASA's section 504 rule 
would be held to different requirements; they would not be required by 
the ADA to modify already compliant elements based on UFAS (or the 1991 
Standards) in existing facilities to comply with the 2010 Standards, 
but would be required to do so under NASA's section 504 rule. The safe 
harbor provision incorporated into NASA's final section 504 rule will 
avoid this anomalous result.

[[Page 3707]]

Notice of Location of Accessible Facilities

    The current NASA section 504 regulation at Sec.  1251.301(e) 
requires recipients to adopt and implement procedures to ensure that 
interested individuals, including individuals with vision or hearing 
disabilities, can obtain information as to the existence and location 
of services, activities, and facilities that are accessible to and 
usable by individuals with disabilities. Since the publication of the 
NPRM, NASA has determined that the current NASA section 504 federally 
assisted regulation does not include a provision that is contained in 
the section 504 regulations of other Federal agencies that requires 
recipients to provide signs at a primary entrance to each of its 
inaccessible facilities directing users to an accessible facility or to 
a location at which they can obtain information about accessible 
facilities. This provision also requires that the international symbol 
for accessibility be used at each accessible entrance to a facility. 
NASA is adding this provision to Sec.  1251.301(e) in order to conform 
to section 504 regulatory standards across the Government.
    Triggering event: The rule also adopts the approaches 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 standards to new 
construction and alterations under section 504. For NASA recipients 
that are public entities who would otherwise comply with title II 
(i.e., state and local governments and their agencies and 
organizations), the triggering event for application of the 2010 
Standards under section 504 will be the commencement 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 for the application of the 2010 
Standards under section 504 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; (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 has adopted 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 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 administrative burdens. In Davis, the Court upheld the community 
college's denial of admission to a nursing program applicant with a 
hearing disability who had requested that the college provide a 
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 registered nurses. Although the Court also 
opined in Davis that there may be situations where a refusal to modify 
an existing program might be discriminatory, the Court analyzed the 
case in terms of the proper interpretation of the statutory term 
``otherwise qualified.'' As a result, agency section 504 regulations 
\5\ originally promulgated after Davis addressed the obligation to 
provide reasonable accommodations or reasonable modifications in the 
definition section for ``qualified handicapped person,'' rather than in 
the nondiscrimination section.\6\
---------------------------------------------------------------------------

    \5\ See, e.g., 14 CFR 1251.503 (NASA's section 504 federally 
conducted regulation.)
    \6\ With respect to any agency program or activity under which a 
person is required to perform services or to achieve a level of 
accomplishment, the regulatory definition of a ``qualified 
handicapped person'' (revised to ``qualified individual with a 
disability'' in this part) is an individual who meets the essential 
eligibility requirements of the program and who can achieve the 
purpose of the program or activity without modifications in the 
program or activity that the agency can demonstrate would result in 
a fundamental alteration in its nature.
---------------------------------------------------------------------------

    Subsequently, in Alexander v. Choate, 469 U.S. 287, 105 S.Ct. 712 
(1985), the Court clarified its Davis analysis. In Alexander, the Court 
described Davis as striking a balance between the need to provide 
qualified individuals with disabilities meaningful access to the 
benefit a grantee offers and the legitimate interests of Federal 
grantees in preserving the integrity of their programs. See 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 keeping with these Supreme Court decisions, over the past 
decades Federal courts and Federal agencies have regularly acknowledged 
Federal agencies' affirmative obligation to provide qualified 
individuals with disabilities reasonable accommodations in programs, 
services, and activities. However, their section 504 regulations have 
lacked a specific provision implementing this requirement.
    When the ADA was enacted, Congress stated the obligation to make 
reasonable changes in policies, practices, or procedures when necessary 
to avoid discrimination on the basis of disability as a positive 
requirement. See U.S.C. 12182(b)(2)(A)(ii). DOJ incorporated this 
requirement into its ADA regulations at 28 CFR 35.130(b)(7) and 28 CFR 
36.302. Accordingly, we have added provisions to the section 504 rules 
at Sec. Sec.  1251.111 (federally assisted programs) and 1251.581 
(federally conducted programs) stating that a recipient or the Agency, 
respectively, must provide reasonable accommodations when necessary to 
avoid discrimination on the basis of disability, unless the recipient 
or the Agency 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.
    NASA notes that title I of the ADA also uses the term ``reasonable 
accommodation'' to apply to changes in policies, practices and 
procedures with respect to employment, but the specific ADA title I 
regulatory requirements related to this term should not be applied to 
non-employment related requests for reasonable accommodations under 
section 504.

Qualified Individual With a Disability

    NASA has revised Sec.  1251.102, which adds paragraph (n) defining 
``qualified individual with a disability.'' The definition for 
``qualified individual with a disability'' in this final rule is also 
revised in order to update the references to employment to cite to the 
EEOC's

[[Page 3708]]

ADA title I regulation and to streamline the language.

Direct Threat

    In School Bd. of Nassau County, Fla. v. Arline, 480 U.S. 273, 107 
S.Ct. 1123 (1987), the Supreme Court directed that 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 the carrier is infectious); severity of the risk (what the 
potential harm is 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.\7\ Congress incorporated this concept into the ADA 
calling it a ``direct threat.'' The ADA regulations for titles II and 
III include specific provisions addressing determinations of ``direct 
threat'' in Sec. Sec.  35.104 and 36.104 (definitions) and Sec. Sec.  
35.139 and 36.208. Accordingly, we revised our section 504 regulation 
to include comparable language addressing direct threat consistent with 
Arline and the ADA title II regulation. See Sec. Sec.  1251.110 
(federally assisted programs) and 1251.580 (federally conducted 
programs).
---------------------------------------------------------------------------

    \7\ While Arline arose in the context 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 apply to 
any allegations that a person with a disability poses a ``direct 
threat'' to the health or safety to others.
---------------------------------------------------------------------------

Compliance Procedures

    Federal agencies 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 and generally have provisions in their 
regulations that provide the authority for agencies to ensure 
compliance and conduct enforcement activities. NASA's original section 
504 regulation at Sec.  1251.400 incorporates by reference several 
provisions in NASA's regulation implementing Title VI of the Civil 
Rights Act of 1964, at 14 CFR part 1250 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 require NASA to: Conduct periodic compliance reviews 
of recipient programs; receive, investigate and resolve complaints of 
discrimination on the basis of disability alleged by recipient 
beneficiaries; \8\ 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; \9\ 
and they provide for judicial review of NASA's actions to enforce 
section 504.\10\ However, the original section 504 regulation did 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) \11\ and age (Age 
Discrimination Act of 1975),\12\ as well as title VI, do have these 
provisions.
---------------------------------------------------------------------------

    \8\ 14 CFR 1250.106.
    \9\ 14 CFR 1250.108.
    \10\ 14 CFR 1250.110.
    \11\ 14 CFR 1253.605.
    \12\ 14 CFR subpart 1252.2.
---------------------------------------------------------------------------

    NASA has amended its section 504 federally assisted regulation at 
Sec.  1251.400 to incorporate by reference those title VI regulatory 
provisions, originally omitted from the existing regulation. 
Accordingly, NASA incorporated 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 and their applicability to the 
program for which the recipient receives Federal financial assistance 
in a manner deemed appropriate by NASA to apprise interested persons of 
the rights and protections afforded to them by this part. NASA also 
incorporated 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 
incorporated 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 issuing findings in accordance 
with Sec.  1250.107.

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

    In addition to its revisions to its section 504 federally assisted 
regulation at part 1251, NASA also revised its section 504 regulation 
at Sec.  1251.5 that prohibits discrimination on the basis of 
disability in programs, services, and activities conducted by NASA. 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, issued regulations previously 
based on that prototype, prohibiting discrimination based on disability 
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 impose similar requirements 
for NASA's federally conducted and NASA's federally assisted 
regulations, with the exception of the applicable accessibility 
standards for new and altered facilities.\13\
---------------------------------------------------------------------------

    \13\ Facilities designed, built, or altered with Federal dollars 
or leased by Federal agencies are subject to the Architectural 
Barriers Act. 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 
references the updated ABA Accessibility Standards adopted by GSA in 
2007. See 41 CFR part 102-76 subpart C.
---------------------------------------------------------------------------

    Consistent with its revision to the definition of disability in 
Sec.  1251.102(g), NASA has revised the definition of ``disability'' at 
Sec.  1251.503(e) to incorporate by reference the definition of 
disability in the Department of Justice's title II ADA regulation at 28 
CFR part 35. NASA also revised the definition of ``direct threat'' and 
added definitions of ``drug abuse'' and ``illegal use of drugs'' to 
Sec.  1251.503 to conform

[[Page 3709]]

to the corresponding regulatory provisions in the federally assisted 
rule. NASA added a new provision incorporating statutory requirements 
addressing the application of section 504 to persons who use illegal 
drugs, and regulatory standards for direct threat, employment, and 
reasonable accommodation in the federally conducted programs regulation 
to conform with the companion regulatory standards in the federally 
assisted regulation for direct threat found at Sec.  1251.110, 
reasonable accommodation found at Sec.  1251.111, illegal use of drugs 
found at Sec.  1251.113, and employment found at Sec.  1251.2. NASA 
also has conformed the language in Sec.  1251.550(a), which addresses 
the limitations on the obligation to provide program accessibility in 
historic preservation programs conducted by the Agency, to the language 
used in the corresponding provision in the Department of Justice's 
title II ADA regulation at 28 CFR 35.150 (a)(2), by removing the phrase 
``substantial impairment of historical features'' of historical 
properties and replacing it with ``threaten or destroy the historic 
significance'' of these properties. NASA has also deleted the 
definition of ``substantial impairment'' at Sec.  1251.503 because the 
term is no longer used with respect to program accessibility in 
existing facilities and thus, the definition is no longer necessary. 
Last, NASA revised its regulation at Sec.  1251.551 to update the 
reference to the GSA standards applicable to new construction, 
alterations and leases of Federal buildings subject to the 
Architectural Barriers Act, which is no longer found at the 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.

IV. 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 Final Rule has been designated a ``significant regulatory 
action,'' although not an economically significant one, under section 
3(f) of Executive Order 12866. Accordingly, this rule has been reviewed 
by the Office of Management and Budget.

Regulatory Flexibility Act

    NASA certifies 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

    Section 4(2) of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 
1503(2), excludes from coverage under that Act any proposed or final 
Federal regulation that ``establishes or enforces any statutory rights 
that prohibit discrimination on the basis of race, color, religion, 
sex, national origin, age, handicap, or disability.'' Accordingly, 
NASA's rulemaking is not subject to the provisions of the Unfunded 
Mandates Reform Act.

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 amends 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. In part 1251, wherever they appear, remove the words in the 
``Remove'' column and add in their place the words in the ``Add in its 
place'' column in the following table:

------------------------------------------------------------------------
                  Remove                          Add in Its place
------------------------------------------------------------------------
handicap..................................  disability.
handicaps.................................  disabilities.
handicapped person........................  individual with a disability
handicapped persons.......................  individuals with
                                             disabilities.
handicapped individual....................  individual with a
                                             disability.
handicapped individuals...................  individuals with
                                             disabilities.
individuals with handicaps................  individuals with
                                             disabilities.
qualified handicapped individual..........  qualified individual with a
                                             disability.
qualified handicapped individuals.........  qualified individuals with
                                             disabilities.
qualified individuals with handicaps......  qualified individuals with
                                             disabilities.
qualified handicapped applicants or         qualified applicants or
 employees.                                  employees with
                                             disabilities.
nonhandicapped persons....................  individuals without
                                             disabilities.
------------------------------------------------------------------------

Subpart 1251.1--General Provisions

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


Sec.  1251.100  Purpose and broad coverage.

    (a) Purpose. This part effectuates section 504 of the 
Rehabilitation Act of 1973, which is designed to eliminate 
discrimination on the basis of disability in any program or activity 
receiving Federal financial assistance.
    (b) Broad scope of coverage. Consistent with the Americans with 
Disabilities Act Amendments Act of 2008's purpose (ADA Amendments Act) 
of reinstating a broad scope of protection under the ADA and section 
504, the definition of ``disability'' applicable to this part shall be 
construed broadly in favor of expansive coverage to the maximum extent 
permitted by the terms of this part. The primary object of attention in 
cases brought under this part should be whether entities covered under 
section 504 have complied with their obligations and whether 
discrimination has occurred, not whether the individual meets the 
definition of disability. The question of whether an individual meets 
the definition of disability under this part should not demand 
extensive analysis.

0
5. Revise Sec.  1251.102 to read as follows:


Sec.  1251.102  Definitions

    As used in this part, the term:
    (a) 2004 ADAAG means the Americans with Disabilities Act (ADA) 
Accessibility Guidelines for Buildings and Facilities requirements set 
forth in

[[Page 3710]]

appendices B and D to 36 CFR part 1191 (2009).
    (b) 2010 Standards means the 2010 ADA Standards for Accessible 
Design, which consist of the 2004 ADAAG and the requirements contained 
in 28 CFR 35.151.
    (c) Applicant for assistance means one who submits an application, 
request, or plan required to be approved either by a NASA official or 
by a recipient, as a condition to becoming a recipient.
    (d) Associate Administrator means the Associate Administrator for 
Diversity and Equal Opportunity Programs for NASA.
    (e) 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 real-time 
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.
    (f) 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.
    (g) Disability means the definition given that term in the 
Department of Justice's regulation implementing title II of the ADA at 
28 CFR part 35.
    (h) Drug means a controlled substance as defined in schedules I 
through V of section 202 of the Controlled Substances Act (21 U.S.C. 
812).
    (i) Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, or other real or personal 
property or interest in such property.
    (j) Federal financial assistance means any grant, loan, contract 
(other than a procurement contract or a contract of insurance or 
guaranty), or any other arrangement by which the agency provides or 
otherwise makes available assistance in the form of:
    (1) Funds;
    (2) Services of Federal personnel; or
    (3) Real and personal property or any interest in or use of such 
property, including:
    (i) Transfers or leases of such property for less than fair market 
value or for reduced consideration; and
    (ii) Proceeds from a subsequent transfer or lease of such property 
if the Federal share of its fair market value is not returned to the 
Federal Government.
    (k) Illegal use of drugs means the use of one or more drugs, the 
possession or distribution of which is unlawful under the Controlled 
Substances Act (21 U.S.C. 812). The term illegal use of drugs does not 
include the use of a drug taken under supervision by a licensed health 
care professional, or other uses authorized by the Controlled 
Substances Act or other provisions of Federal law.
    (l) Individual with a disability means any individual who has a 
disability as defined in 28 CFR part 35. The term ``individual with a 
disability'' does not include an individual who is currently engaging 
in the illegal use of drugs, when the recipient acts on the basis of 
such use.
    (m) Program or activity means all of the operations of any entity 
described in paragraphs (m)(1) through (4) of this section, any part of 
which is extended Federal financial assistance:
    (1)(i) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (ii) The entity of such State or local government that distributes 
such assistance and each such department or agency (and each other 
State or local government entity) to which the assistance is extended, 
in the case of assistance to a State or local government;
    (2)(i) A college, university, or other postsecondary institution, 
or a public system of higher education; or
    (ii) A local educational agency (as defined in 20 U.S.C. 7801), 
system of vocational education, or other school system;
    (3)(i) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (A) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (B) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (ii) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (4) Any other entity which is established by two or more of the 
entities described in paragraph (m)(1), (2), or (3) of this section.
    (n) 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.
    (o) Recipient means any state or its political subdivision, any 
instrumentality of a state or its political subdivision, any public or 
private agency, institution, organization, or other entity, or any 
person to which Federal financial assistance is extended directly or 
through another recipient, including any successor, assignee, or 
transferee of a recipient, but excluding the ultimate beneficiary of 
the assistance.
    (p) Section 504 means section 504 of the Act.

[[Page 3711]]

    (q) The Act means the Rehabilitation Act of 1973, Pub. L. 93-112, 
as amended, 29 U.S.C. 794 et seq.


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.

0
12. Add Sec.  1251.112 to subpart 1251.1 to read as follows:


Sec.  1251.112  Communications.

    (a) A recipient shall take appropriate steps to ensure that 
communications with applicants, participants, beneficiaries, members of 
the public, and companions with disabilities, are as effective as 
communications with others.
    (b)(1) A recipient shall furnish appropriate auxiliary aids or 
services where necessary to afford qualified individuals with 
disabilities, including applicants, participants, beneficiaries, 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 who are deaf or hard of hearing or have speech 
impairments.
    (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 chief executive officer of the recipient 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. Add Sec.  1251.113 to subpart 1251.1 to read as follows:


Sec.  1251.113  Illegal Use of Drugs

    (a) General. (1) Except as provided in paragraph (b) of this 
section, this part does not prohibit discrimination against an 
individual based on that individual's current illegal use of drugs.
    (2) A recipient shall not discriminate on the basis of illegal use 
of drugs against an individual who is not engaging in current illegal 
use of drugs and who--
    (i) Has successfully completed a supervised drug rehabilitation 
program or has otherwise been rehabilitated successfully;
    (ii) Is participating in a supervised rehabilitation program; or
    (iii) Is erroneously regarded as engaging in such use.
    (b) Health and drug rehabilitation services. (1) A recipient shall 
not deny health services, or services provided in connection with drug 
rehabilitation, to an individual on the basis of that individual's 
current illegal use of drugs, if the individual is otherwise entitled 
to such services.
    (2) A drug rehabilitation or treatment program may deny 
participation to individuals who engage in illegal use of drugs while 
they are in the program.
    (c) Drug testing. (1) This part does not prohibit a recipient from 
adopting or administering reasonable policies or

[[Page 3712]]

procedures, including but not limited to drug testing, designed to 
ensure that an individual who formerly engaged in the illegal use of 
drugs is not now engaging in current illegal use of drugs.
    (2) Nothing in this paragraph (c) shall be construed to encourage, 
prohibit, restrict, or authorize the conduct of testing for the illegal 
use of drugs.

0
14. Revise Sec.  1251.200 to read as follows:


Sec.  1251.200  Discrimination prohibited.

    (a) General. No qualified individual 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. 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. 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
15. Amend Sec.  1251.202 by removing the word ``Assistant'' in 
paragraph (a)(2) and adding in its place the word ``Associate''.

0
16. Amend 1251.301 by redesignating paragraph (e) as paragraph (f) and 
revising it and adding a new paragraph (e) to read as follows:


Sec.  1251.301  Existing facilities.

* * * * *
    (e) Safe harbor. For the purposes of complying with this section, 
elements that have not been altered in existing facilities on or after 
January 23, 2017, and that comply with the corresponding technical and 
scoping specifications for those elements in the Uniform Federal 
Accessibility Standards (UFAS), Appendix A to 41 CFR part 101-19.6, 49 
FR 31528, app. A (Aug. 7, 1984), are not required to be modified to be 
brought into compliance with the requirements set forth in the 2010 
Standards.
    (f) Notice of location of accessible facilities--(1) General. The 
recipient shall adopt and implement procedures to ensure that 
interested individuals, including individuals with vision or hearing 
disabilities, can obtain information as to the existence and location 
of services, activities, and facilities that are accessible to and 
usable by individuals with disabilities.
    (2) Signs at primary entrances. The recipient shall provide signs 
at a primary entrance to each of its inaccessible facilities, directing 
users to an accessible facility or a location at which they can obtain 
information about accessible facilities. The international symbol for 
accessibility shall be used at each accessible entrance to a facility.

0
17. 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) and (3).
    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) Applicable 
accessibility standards. (i) New construction and alterations 
undertaken prior to the compliance dates specified in paragraph (c)(2) 
of this section must comply with either UFAS or the 2010 Standards.
    (ii) New construction and alterations on or after the compliance 
dates specified in paragraph (c)(2) of this section must comply with 
the 2010 Standards.
    (iii) New construction and alterations of buildings or facilities 
undertaken in compliance with the 2010 Standards shall comply with the 
requirements for a ``public building or facility'' as defined in the 
2010 Standards regardless of whether the recipient is a public or 
private entity.
    (iv) 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.
    (2) Compliance dates--(i) New Construction and alterations by 
recipients that are private entities. (A) 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 January 23, 2017, or if no permit is required, 
if the start of physical construction or alterations occurs prior to 
January 23, 2017, then such new construction and alterations must 
comply with either the Uniform Federal Accessibility Standards or the 
2010 Standards.
    (B) 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 January 23, 
2017, or if no permit is required, if the start of physical 
construction or alterations occurs on or after January 23, 2017, then 
such new construction and alterations shall comply with the 2010 
Standards.
    (ii) New construction and alterations by recipients that are public 
entities. (A) If physical construction or alterations commence prior to 
January 23, 2017, then such new construction and alterations must 
comply with either UFAS or the 2010 Standards.
    (C) If physical construction or alterations commence on or after 
January 23, 2017, 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.

[[Page 3713]]



   Table of Applicable Standards for Complying With 14 CFR 1251.302(c)
------------------------------------------------------------------------
      Compliance dates for new        Applicable standards for complying
    construction and alterations            with 14 CFR 1251.302(c)
------------------------------------------------------------------------
Prior to January 23, 2017...........  UFAS or the scoping and technical
                                       requirements for a ``public
                                       building or facility'' in the
                                       2010 Standards.
On or after January 23, 2017........  Scoping and technical requirements
                                       for a ``public building or
                                       facility'' in the 2010 Standards.
------------------------------------------------------------------------

* * * * *

0
18. Section 1251.400 is revised to read as follows:


Sec.  1251.400  Compliance Procedures.

    (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 this section 504 regulation. 
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
19. Section 1251.503 is revised to read as follows:


Sec.  1251.503  Definitions.

    As used in this part, the term:
    (a) Assistant Attorney General means the Assistant Attorney 
General, Civil Rights Division, United States Department of Justice.
    (b) 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 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 real-time 
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.
    (c) 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.
    (d) 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.
    (e) Disability means the definition given that term in the 
Department of Justice's regulation implementing title II of the ADA at 
28 CFR part 35.
    (f) Drug means a controlled substance as defined in schedules I 
through V of section 202 of the Controlled Substances Act (21 U.S.C. 
812).
    (g) 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.
    (h) Historic preservation programs means programs conducted by the 
agency that have preservation of historic properties as a primary 
purpose.
    (i) 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.
    (j) Illegal use of drugs means the use of one or more drugs, the 
possession or distribution of which is unlawful under the Controlled 
Substances Act (21 U.S.C. 812). The term ``illegal use of drugs'' does 
not include the use of a drug taken under supervision by a licensed 
health care professional, or other uses authorized by the Controlled 
Substances Act or other provisions of Federal law.
    (k) Individual with a disability means any person who meets the 
definition of ``disability'' under 28 CFR part 35.
    (l) Qualified individual with a disability means any person who 
meets the definition of ``qualified individual with a disability'' 
under Sec.  1251.102(i) of this part.
    (m) 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.

0
20. Revise Sec.  1251.540 to read as follows:


Sec.  1251.540  Employment.

    (a) General. No qualified individual 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
21. In Sec.  1251.550, revise paragraph (a)(2) to read as follows:


Sec.  1251.550  Program accessibility: Existing facilities.

    (a) * * *

[[Page 3714]]

    (2) In the case of historic preservation programs, require the 
Agency to take any action that would threaten or destroy the historic 
significance of historic properties.
* * * * *

0
22. 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 disabilities. 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
23. 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 of the Rehabilitation Act with respect to employment 
according to the procedures established by the Equal Employment 
Opportunity Commission in 29 CFR part 1640 pursuant to section 501 of 
the Rehabilitation Act of 1973 (29 U.S.C. 791).
    (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
24. 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, the Agency 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
25. 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, unless the Agency 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.

0
26. Add Sec.  1251.582 to subpart 1251.5 to read as follows:


Sec.  1251.582  Illegal use of drugs

    (a) General. (1) Except as provided in paragraph (b) of this 
section, this part does not prohibit discrimination against an 
individual based on that individual's current illegal use of drugs.
    (2) The Agency shall not discriminate on the basis of illegal use 
of drugs against an individual who is not engaging in current illegal 
use of drugs and who--
    (i) Has successfully completed a supervised drug rehabilitation 
program or has otherwise been rehabilitated successfully;
    (ii) Is participating in a supervised rehabilitation program; or
    (iii) Is erroneously regarded as engaging in such use.
    (b) Health and drug rehabilitation services. (1) The Agency shall 
not deny health services, or services provided in connection with drug 
rehabilitation, to an individual on the basis of that individual's 
current illegal use of drugs, if the individual is otherwise entitled 
to such services.
    (2) A drug rehabilitation or treatment program may deny 
participation to individuals who engage in illegal use of drugs while 
they are in the program.
    (c) Drug testing. (1) This part does not prohibit the Agency from 
adopting or administering reasonable policies or procedures, including 
but not limited to drug testing, designed to ensure that an individual 
who formerly engaged in the illegal use of drugs is not now engaging in 
current illegal use of drugs.
    (2) Nothing in this paragraph (c) shall be construed to encourage, 
prohibit, restrict, or authorize the conducting of testing for the 
illegal use of drugs.

Cheryl E. Parker,
NASA Federal Register Liaison Officer.
[FR Doc. 2016-00610 Filed 1-21-16; 8:45 am]
 BILLING CODE 7510-13-P