14972 Federal Register / Vol. 77, No. 50 / Wednesday, March 14, 2012 / Rules and Regulations 

13175, Consultation and Coordination 

with Indian Tribal Governments, 

because it does not have a substantial 

direct effect on one or more Indian 

Tribes, on the relationship between the 

Federal Government and Indian Tribes, 

or on the distribution of power and 

responsibilities between the Federal 

Government and Indian Tribes. 

Energy Effects 

We have analyzed this rule under 

Executive Order 13211, Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use. We have 

determined that it is not a ‘‘significant 

energy action’’ under that order because 

it is not a ‘‘significant regulatory action’’ 

under Executive Order 12866 and is not 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy. The Administrator of the Office 

of Information and Regulatory Affairs 

has not designated it as a significant 

energy action. Therefore, it does not 

require a Statement of Energy Effects 

under Executive Order 13211. 

Technical Standards 

The National Technology Transfer 

and Advancement Act (NTTAA) (15 

U.S.C. 272 note) directs agencies to use 

voluntary consensus standards in their 

regulatory activities unless the agency 

provides Congress, through the Office of 

Management and Budget, with an 

explanation of why using these 

standards would be inconsistent with 

applicable law or otherwise impractical. 

Voluntary consensus standards are 

technical standards (e.g., specifications 

of materials, performance, design, or 

operation; test methods; sampling 

procedures; and related management 

systems practices) that are developed or 

adopted by voluntary consensus 

standards bodies. 

This rule does not use technical 

standards. Therefore, we did not 

consider the use of voluntary consensus 

standards. 

Environment 

We have analyzed this rule under 

Department of Homeland Security 

Management Directive 023–01 and 

Commandant Instruction M16475.lD, 

which guide the Coast Guard in 

complying with the National 

Environmental Policy Act of 1969 

(NEPA) (42 U.S.C. 4321–4370f), and 

have concluded this action is one of a 

category of actions that do not 

individually or cumulatively have a 

significant effect on the human 

environment. This rule is categorically 

excluded, under figure 2–1, paragraph 

(34)(g), of the Instruction. This rule 

involves the establishment of safety 

zones. An environmental analysis 

checklist and a categorical exclusion 

determination are available in the 

docket where indicated under 

ADDRESSES. 

List of Subjects in 33 CFR Part 165 

Harbors, Marine safety, Navigation 

(water), Reporting and recordkeeping 

requirements, Security measures, 

Waterways. 

For the reasons discussed in the 

preamble, the Coast Guard amends 33 

CFR part 165 as follows: 

PART 165—REGULATED NAVIGATION 

AREAS AND LIMITED ACCESS AREAS 

■ 1. The authority citation for part 165 

continues to read as follows: 

Authority: 33 U.S.C. 1231; 46 U.S.C. 

Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 

33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; Pub. L. 

107–295, 116 Stat. 2064; Department of 

Homeland Security Delegation No. 0170.1. 

■ 2. Add § 165.T13–207 to read as 

follows: 

§ 165.T13–207 Safety Zones; Sellwood 

Bridge project, Willamette River; Portland, 

OR 

(a) Location. The safety zone on the 

western river bank encompasses all 

waters of the Willamette River within 

the following four lines: Line one 

starting at 45–27′53.5′′ N/122–40′03.5′′ 

W then heading 375 feet offshore to 45– 

27′53.5′′ N/122–39′58.5′′ W then heading 

up river 200 feet to 45–27′49.5′′ N/122– 

39′58.5′′ W then heading 375 feet back 

to the shore at 45–27′49.5′′ N/122– 

40′04.5′′ W then following the shoreline 

to end at 45–27′53.5′′ N/122–40′40′03.5′′ 

W. The safety zone on the eastern river 

bank is encompassed within the 

following four lines: Line one starting at 

45–27′53.5′′ N/122–39′50.5′′ W then 

heading 420 feet offshore to 45–27′53.5′′ 

N/122–39′55.0′′ W then heading up river 

200 feet to 45–27′49.5′′ N/122–39′55.0′′ 

W then heading 420 feet back to the 

shore at 45–27′49.5′′ N/122–39′47.0′′ W 

then following the shoreline to end at 

45–27′49.5′′ N/122–39′47.0′′ W. 

Geographically, this rule will cover all 

waters of the Willamette River 100 feet 

upriver and downriver of the existing 

Sellwood Bridge, inward 375 feet from 

the Western side shoreline, and inward 

420 feet from the Eastern side shoreline. 

The section of the Willamette River 

between the safety zones will remain 

open for vessel transits, and it will have 

a minimum width of 138 feet at all 

times. 

(b) Regulations. In accordance with 

the general regulations in 33 CFR part 

165, subpart C, no person may enter or 

remain in the safety zones created in 

this section or bring, cause to be 

brought, or allow to remain in the safety 

zones created in this section any 

vehicle, vessel, or object unless 

authorized by the Captain of the Port or 

his designated representative. The 

Captain of the Port may be assisted by 

other Federal, state, or local agencies 

with the enforcement of the safety 

zones. 

(c) Enforcement period. The safety 

zones created by this section will be in 

effect from 4 p.m. March 1, 2012, 

through 11 a.m. July 1, 2012. 

Dated: March 1, 2012. 

B.C. Jones, 

Captain, U. S. Coast Guard, Captain of the 

Port, Columbia River. 

[FR Doc. 2012–6137 Filed 3–13–12; 8:45 am] 

BILLING CODE 9110–04–P 

DEPARTMENT OF EDUCATION 

34 CFR Part 104 

Discrimination on the Basis of 

Disability in Federally Assisted 

Programs and Activities 

AGENCY: Office for Civil Rights, 

Department of Education. 

ACTION: Notice of interpretation. 

SUMMARY: The Department of Education 

(Department or Education) provides 

notice of its interpretation of Section 

504 of the Rehabilitation Act of 1973 

and the Department’s implementing 

regulations, which prohibit 

discrimination on the basis of disability 

in federally assisted programs and 

activities (Education’s Section 504 

regulations). Among other things, 

Education’s Section 504 regulations 

address the accessibility and usability of 

a recipient’s facilities by persons with 

disabilities. This document explains 

that for new construction and 

alterations commenced on or after 

September 15, 2010, we will permit 

recipients of Federal financial assistance 

from the Department to use an 

additional alternative accessibility 

standard in lieu of the Uniform Federal 

Accessibility Standards (UFAS) for the 

purpose of complying with Section 504. 

Specifically, we will permit the use of 

the U. S. Department of Justice’s 2010 

ADA Standards for Accessible Design as 

defined in the Americans with 

Disabilities Act (ADA) Title II regulation 

(referred to in this notice as the 2010 

Title II ADA Standards) except that 

Exception (1) to Section 206.2.3 does 

not apply. Use of the 2010 Title II ADA 

Standards will not be required as a 

means of compliance with Section 504, 


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1 29 U.S.C. 794. 

2 In this notice, we use the term ‘‘disability,’’ the 

term that is currently used by Congress in 

legislation, in place of the term ‘‘handicap,’’ which 

was used in the 1973 statute and our 1977 

regulations. There is no substantive difference. 3 34 CFR 104.21. 

4The former Department of Health, Education, 

and Welfare issued section 504 regulations, 

including this provision, with an effective date of 

June 3, 1977. See 45 CFR part 84 (1978). Upon the 

establishment of the Department of Education, 20 

U.S.C. 3401 et seq., we adopted those regulations 

without substantive change. 

5 34 CFR 104.23(a) provides: Design and 

construction. Each facility or part of a facility 

constructed by, on behalf of, or for the use of a 

recipient shall be designed and constructed in such 

manner that the facility or part of the facility is 

readily accessible to and usable by * * * persons 

[with disabilities], if the construction was 

commenced after the effective date of this part. 

6 34 CFR 104.23(b) provides: Alteration. Each 

facility, or part of a facility which is altered by, on 

behalf of, or for the use of a recipient after the 

effective date of this part in a manner that affects 

or could affect the usability of the facility or part 

of the facility shall, to the maximum extent feasible, 

be altered in such manner that the altered portion 

of the facility is readily accessible to and usable by 

* * * persons [with disabilities]. 

7 34 CFR 104.23(c). This section, in its entirety, 

provides: Conformance with Uniform Federal 

Accessibility Standards. 

(1) Effective as of January 18, 1991, design, 

construction, or alteration of buildings in 

conformance with sections 3–8 of the Uniform 

Federal Accessibility Standards (UFAS) (Appendix 

A to 41 CFR subpart 101–19.6) shall be deemed to 

comply with the requirements of this section with 

respect to those buildings. Departures from 

particular technical and scoping requirements of 

UFAS by the use of other methods are permitted 

where substantially equivalent or greater access to 

and usability of the building is provided. 

(2) For the purposes of this section, section 

4.1.6(1)(g) of UFAS shall be interpreted to exempt 

from the requirements of UFAS only mechanical 

rooms and other spaces that, because of their 

intended use, will not require accessibility to the 

public or beneficiaries or result in the employment 

or residence therein of persons with physical 

[disabilities]. 

(3) This section does not require recipients to 

make building alterations that have little likelihood 

of being accomplished without removing or altering 

a load-bearing structural member. 

8 34 CFR 104.23(c)(1). 

9The Architectural Barriers Act of 1968 (ABA), 

42 U.S.C. 4151–4157, directed four agencies, the 

General Services Administration, the Department of 

Housing and Urban Development, the Department 

of Defense, and the United States Postal Service, to 

establish accessibility standards for the design, 

construction, and alteration of certain Federal and 

federally funded buildings. The four agencies 

adopted UFAS as the ABA standard in 1984. 

10 55 FR 52136–37 (1990). 

11See ‘‘Major Differences Between the Americans 

with Disabilities Act Accessibility Guidelines for 

Buildings and Facilities and the Uniform Federal 

Accessibility Standards,’’ Office for Civil Rights 

(OCR), U.S. Department of Education, September 

1993, at 4. This technical assistance handout was 

distributed as an attachment to a September 17, 

1993, memorandum from Norma V. Cantu, 

Assistant Secretary for Civil Rights, to OCR Senior 

Staff, with instructions that it was designed to 

accompany technical-assistance presentations on 

the issue of accessibility and that OCR staff should 

disseminate copies to interested persons. 

12Education is the designated agency for public 

elementary and secondary education systems and 

institutions, institutions of higher education and 

vocational education (other than schools of 

medicine, dentistry, nursing, and other healthrelated schools), and libraries. 28 CFR 35.190(b)(2). 

however, until the Department revises 

its Section 504 regulations to formally 

adopt the 2010 Title II ADA Standards 

in lieu of UFAS. 

DATES: Effective date: March 14, 2012. 

FOR FURTHER INFORMATION CONTACT: 

Arthur Goldman, U.S. Department of 

Education, 400 Maryland Avenue SW., 

Washington, DC 20202–1100. 

Telephone: (800) 421–3481, or by email 

at: OCR@ed.gov. 

If you use a telecommunications 

device for the deaf (TDD) or a text 

telephone (TTY), call the Federal Relay 

Service (FRS), toll-free, at 1–800–877– 

8339. 

Individuals with disabilities can 

obtain this document in an accessible 

format (e.g., braille, large print, 

audiotape, or computer disc) on request 

to the contact person listed in this 

section. 

SUPPLEMENTARY INFORMATION: 

Background 

Section 504 

Education implements the 

requirements of Section 504 of the 

Rehabilitation Act of 1973 (Section 

504),1 which prohibits discrimination 

on the basis of disability 2 in federally 

assisted programs or activities, through 

regulations in 34 CFR part 104. 

Education’s Section 504 regulations 

apply to recipients to which the 

Department extends Federal financial 

assistance. Among other things, 

Education’s Section 504 regulations 

prohibit denial of the benefits of, 

exclusion from participation in, or other 

discrimination against qualified 

individuals with disabilities in 

programs or activities because a 

recipient’s facilities are inaccessible to 

or unusable by persons with 

disabilities.3

Education’s Section 504 regulations 

require that if construction of a 

recipient’s facility commenced after the 

effective date of the regulations (June 3, 

1977) 4 the facility must be designed and 

constructed so that it is readily 

accessible to and usable by persons with 

disabilities.5 These regulations also 

require that facility alterations 

commenced after June 3, 1977, that 

affect or may affect the facility’s 

usability must be accomplished so that, 

to the maximum extent feasible, the 

altered portion of the facility is readily 

accessible and usable by persons with 

disabilities.6

For facilities subject to the new 

construction and alterations 

requirements, 34 CFR 104.23(c) has 

always incorporated by reference an 

accessibility design standard, such that 

construction or alterations in 

conformance with that standard would 

be deemed compliance with Education’s 

Section 504 regulations.7 Under the 

current regulations, at 34 CFR 104.23(c), 

new construction or alterations made in 

conformance with the Uniform Federal 

Accessibility Standards (UFAS) are 

deemed to be in compliance with 

Education’s Section 504 regulations, 

although a recipient may depart from 

UFAS when other methods provide 

equivalent or greater access to and 

usability of the facility.8

The adoption of UFAS as an 

accessibility design standard in 

Education’s Section 504 regulations 

occurred in 1991 as part of a joint 

rulemaking with other Federal agencies, 

led by the Department of Justice (DOJ) 

pursuant to its coordinating authority 

for Section 504 under Executive Order 

12250. We and the other participating 

agencies adopted UFAS (effective 

January 18, 1991) to diminish the 

possibility that some recipients of 

Federal financial assistance would face 

conflicting enforcement standards either 

between Section 504 and the 

Architectural Barriers Act of 1968,9 or 

among the Section 504 regulations of 

different Federal agencies.10 In addition, 

after DOJ adopted the 1991 ADA 

Accessibility Standards for compliance 

with Title II of the ADA, Education 

permitted entities subject to our Section 

504 regulation and the ADA to use the 

1991 Standards, except that the elevator 

exemption contained at section 4.1.3(5) 

and section 4.1.6(1)(k) does not apply.11

Title II Regulations 

Title II of the ADA prohibits 

discrimination on the basis of disability 

by public entities. Public educational 

institutions that are subject to 

Education’s Section 504 regulations 

because they receive Federal financial 

assistance from us are also subject to the 

Title II regulations because they are 

public entities (e.g., school districts, 

State educational agencies, public 

institutions of vocational education, and 

public colleges and universities). 

Pursuant to a delegation by the Attorney 

General of the United States, Education 

shares in the enforcement of Title II by 

virtue of being the designated agency to 

investigate complaints and seek 

voluntary compliance under Title II for 

certain types of public educational 

entities.12 Thus, for those entities, 

Education enforces both Section 504 


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14974 Federal Register / Vol. 77, No. 50 / Wednesday, March 14, 2012 / Rules and Regulations 

13 DOJ enforces Title III of the ADA and has 

advised Education that private educational 

institutions that are subject to Education’s Section 

504 regulations are in almost all cases also subject 

to Title III. 

14 34 CFR 104.23(c). 42 U.S.C. 12131 et seq.; 28 

CFR part 35. The Title II regulations and 

supplementary information were published in the 

Federal Register on September 15, 2010 (75 FR 

56164–56236). DOJ’s ADA Web site contains links 

to HTML and PDF versions at www.ada.gov/ 

regs2010/ADAregs2010.htm. 

15 28 CFR part 35 (1992). DOJ also issued 

regulations in 1991 under Title III of the ADA, 42 

U.S.C. 12181 et seq., 28 CFR part 36 (1992), that 

prohibit discrimination on the basis of disability by, 

among other entities, private educational 

institutions. As previously noted, DOJ enforces 

Title III of the ADA. 

16 34 CFR 104.23(c). 

17 28 CFR 35.104. These standards were based on 

the ADA Accessibility Guidelines (ADAAG) 

published by the Access Board (Architectural and 

Transportation Barriers Compliance Board) in 1991 

(1991 ADAAG). DOJ’s ADA Web site contains links 

to HTML and PDF versions of the 1991 Standards 

at www.ada.gov/stdspdf.htm. 

18 28 CFR 35.104. DOJ provides an online 

compilation of the revised ADA regulations that 

includes the 2010 Standards, guidance about the 

2010 Standards, and the Title II and Title III 

regulations and the interpretive guidance 

accompanying the regulations, at www.ada.gov/ 

2010ADAstandards_index.htm. There are links to 

HTML, PDF screen, and PDF print versions of the 

2010 Standards and the regulations. (The online 

version also includes the 2010 Title III ADA 

Standards for the purposes of the Title III 

regulations, i.e., 28 CFR part 36, subpart D, and 

2004 ADAAG.) 

19 28 CFR 35.104. 

20 28 CFR 35.151(a) (new construction); 28 CFR 

35.151(b) (alterations). 

21See definition of 1991 Standards in the 

Definitions of Standards Referenced in this Notice 

section of this notice. 

22The 1991 Title II regulations provided that 

design, construction, or alterations of facilities in 

conformance with UFAS or the 1991 Standards 

shall be deemed compliant with the relevant 

requirements, except that if the public entity chose 

the 1991 Standards, the elevator exemption set forth 

at section 4.1.3(5) and section 4.1.6(1)(k) of those 

standards did not apply. All references in this 

notice to the ‘‘elevator exemption’’ in connection 

with the 1991 Standards refer to the exemption 

from these specific sections of the 1991 Standards. 

The elevator exemption, applicable to certain 

private buildings under the 1991 Standards 

pursuant to the 1991 Title III ADA regulations, 

provided that, with some exceptions, elevators were 

not required in facilities that have less than three 

stories or have less than 3,000 square feet per story. 

Consequently, although the 1991 Standards 

contained an elevator exemption, the Title II 

regulations prohibited public entities that chose to 

use the 1991 Standards for new construction or 

alterations from applying the elevator exemption. 

28 CFR 35.151(c). 

23 28 CFR 35.151(c). 

24That same day, DOJ also published revisions to 

the Title III regulations (75 FR 56236). 

25See definition of the 2010 Standards (2010 

Title II ADA Standards) in the Definitions of 

Standards Referenced in this Notice section in this 

notice. 

26 28 CFR 35.151(c)(2). 

27 75 FR 56164, 56213 (Sep. 15, 2010). 

and Title II, as well as the implementing 

regulations of both statutes.13

Definitions of Standards Referenced in 

This Notice 

In this notice, we explain our 

interpretation of 34 CFR 104.23 as it 

relates to new construction and 

alterations commenced on or after 

September 15, 2010. As described more 

fully later in this notice, our purpose is 

to inform all interested parties that for 

new construction and alterations 

commenced after that date, we are 

interpreting Education’s current Section 

504 regulations to permit use of 

accessibility standards that are 

consistent with DOJ’s Title II regulations 

until Education’s Section 504 

regulations are revised.14 DOJ first 

issued the Title II regulations in 1991,15

and published revisions to the 

regulations on September 15, 2010. 

These revised regulations included 

modifications to the Title II ADA 

nondiscrimination requirements and 

they adopt revised ADA accessibility 

standards (the 2010 Title II ADA 

Standards). Before discussing 

Education’s decision to deem the 2010 

Title II ADA Standards as an acceptable 

alternative to UFAS, we first introduce 

and define the various accessibility 

standards referenced in the Title II 

regulations or Education’s Section 504 

regulations that are used for designing, 

constructing, or altering a facility: 

UFAS means the Uniform Federal 

Accessibility Standards. Education’s 

Section 504 regulations reference 

sections 3 through 8 of UFAS.16

1991 Standards means the 

requirements in the ADA Standards for 

Accessible Design originally published 

as Appendix A to 28 CFR part 36 on 

July 26, 1991, and republished as 

Appendix D to 28 CFR part 36 on 

September 15, 2010.17

2010 Standards as defined in the Title 

II regulation, means the 2010 ADA 

Standards for Accessible Design, which 

consist of the 2004 ADAAG and the 

requirements contained in 28 CFR 

35.151.18 In this notice, these standards 

are referred to as the ‘‘2010 Title II ADA 

Standards.’’ 

2004 ADAAG means the requirements 

set forth in appendices B and D to 36 

CFR part 1191 (2009).19

Accessibility Standards in Title II 

Regulations Issued by DOJ 

DOJ’s Title II regulations prohibit 

exclusion from participation in or the 

denial of the benefits of services, 

programs, or activities, or other 

discrimination because a public entity’s 

facilities are inaccessible to or unusable 

by individuals with disabilities. The 

Title II regulations provide that design, 

construction, and alterations of facilities 

commenced after January 26, 1992, must 

be done in such a manner that the 

facility or part of the facility being built 

or altered is readily accessible to and 

usable by individuals with 

disabilities.20

The Title II regulations issued in 1991 

(which have been revised in relevant 

part, as discussed later in this section) 

incorporated by reference two sets of 

standards for new construction and 

alterations: UFAS and the 1991 

Standards 21 without the ‘‘elevator 

exemption.’’ 22 The 1991 Title II 

regulations also permitted departures 

from the particular requirements of 

either standard by the use of other 

methods when it was clearly evident 

that equivalent access to the facility or 

part of the facility is thereby provided.23

On September 15, 2010, DOJ 

published revisions to the Title II 

regulations.24 The revised regulations 

became effective March 15, 2011. 

Among other things, they provide that 

new construction and alterations that 

commence on or after March 15, 2012, 

must comply with the 2010 Title II ADA 

Standards.25

The revised Title II regulations permit 

covered entities to use the 2010 Title II 

ADA Standards as an alternative to the 

1991 Standards without the elevator 

exemption or to UFAS for new 

construction and alterations that 

commenced on or after September 15, 

2010, but before March 15, 2012.26 This 

approach provides flexibility for 

covered entities that comply with 

building codes that have many of the 

same requirements as the 2010 Title II 

ADA Standards. 

As emphasized by the revised Title II 

regulatory language as well as the 

interpretive guidance published with it, 

covered entities engaged in physical 

construction or alterations during this 

period may select only one standard 

from among the three options. They may 

not rely on some of the requirements 

contained in one standard and some of 

the requirements contained in the other 

standards.27

Education’s Enforcement of DOJ’s Title 

II Regulations 

Public entities that receive Federal 

financial assistance are subject to both 

Title II and Section 504, and, as 

described previously, Education shares 

enforcement responsibilities with DOJ 

for Title II because it is the designated 

agency for investigation of complaints 

and voluntary compliance under Title 

II. For new construction and alterations 

commenced on or after March 15, 2012, 

the 2010 Title II ADA Standards will be 


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28 28 CFR 35.151(c)(3). In other words, for the 

purposes of Title II compliance, a public entity 

must comply with the 2010 Title II ADA Standards 

as of March 15, 2012, even if UFAS remains an 

option under the Section 504 regulations for some 

period after this date. In addition, DOJ, which 

enforces Title III of the ADA, has advised Education 

that as of March 15, 2012, entities subject to Title 

III must use the 2010 Title III ADA Standards for 

the purposes of Title III ADA compliance. 

29 75 FR 56164, 56213 (Sep. 15, 2010) (Because 

‘‘construction in accordance with UFAS would no 

longer satisfy ADA requirements[,] * * * the 

Department [of Justice] would coordinate a 

government wide effort to revise Federal agencies’ 

section 504 regulations to adopt the [2010 Title II 

ADA Standards] as the Standard for new 

construction and alterations.’’). 

30Memorandum dated March 29, 2011, from 

Thomas E. Perez, Assistant Attorney General, 

Division of Civil Rights, U.S. DOJ, to Federal 

Agency Civil Rights Directors and General 

Counsels, titled ‘‘Permitting Entities Covered by the 

Federally Assisted Provisions of Section 504 of the 

Rehabilitation Act to Use the 2010 ADA Standards 

for Accessible Design as an Alternative 

Accessibility Standard for New Construction and 

Alterations’’ (March 29, 2011 DOJ memorandum.) 

This memorandum is available on DOJ’s ADA Web 

site at http://www.ada.gov/ 

504_memo_standards.htm. 

31Section 206.2.3 of the 2010 Title II ADA 

Standards requires that an accessible route connect 

each story and mezzanine in multi-story facilities, 

which means that an elevator is required unless 

there is an applicable exception. Exception (1) to 

Section 206.2.3 exempts from this requirement 

certain private facilities that are less than three 

stories or that have less than 3000 square feet per 

story. Because Education’s Section 504 regulations 

for new construction and alterations impose the 

same obligation on recipients whether they are 

public or private entities, the Department is 

announcing that it will not permit recipients that 

are private entities to avail themselves of Exception 

(1). 

32March 29, 2011 DOJ memorandum. 33 28 CFR 35.151(c)(2). 

used by Education in its enforcement of 

the Title II regulations.28

Education’s Intent To Revise its Section 

504 Regulations To Adopt the 2010 

Title II ADA Standards 

In the preamble to the final Title II 

regulation, DOJ stated that Federal 

agencies that extend Federal financial 

assistance should revise their Section 

504 regulations to adopt the 2010 

Standards as Section 504 standards for 

new construction and alterations.29

Following issuance of the final rule, DOJ 

reiterated its intent to work with Federal 

agencies ‘‘to revise their Section 504 

regulations in the near future to adopt 

the 2010 Standards as the appropriate 

accessibility standard for their 

recipients.’’ 30 The 2010 Standards were 

adopted through formal rulemaking and 

were subject to substantial scrutiny and 

deliberation, including consideration of 

costs and benefits; we intend to 

harmonize the corresponding 

requirements of Education’s Section 504 

regulations with the Title II 

requirements. For these reasons, in 

coordination with DOJ, we are planning 

to initiate rulemaking to address the 

relevant standards of Education’s 

Section 504 regulations for new 

construction and alterations 

commencing on or after March 15, 2012, 

by proposing an amendment to adopt 

the 2010 Title II ADA Standards, in lieu 

of UFAS, except that Exception (1) to 

Section 206.2.3 would not apply.31

Applicable Standards Under the 

Department of Education’s Section 504 

Regulation 

Because the only standard specifically 

incorporated by reference in Education’s 

Section 504 regulations at this time is 

UFAS, we have received questions both 

about whether, for new construction 

and alterations commenced on or after 

September 15, 2010, but before March 

15, 2012, we will interpret Education’s 

Section 504 regulations to deem 

conformance with the 2010 Title II ADA 

Standards or the 1991 Standards 

without the elevator exemption as 

compliance with these requirements, 

and about which standards will be 

permissible on or after March 15, 2012. 

DOJ, exercising its Section 504 

coordinating authority, has advised all 

affected Federal agencies that, until the 

agencies revise their Section 504 

regulations, they may issue guidance to 

recipients that permits, but does not 

require, recipients to use the 2010 Title 

II ADA Standards as an acceptable 

alternative to UFAS for the purposes of 

compliance with Section 504.32

Standards Applicable Prior to March 

15, 2012 

We announce, through this notice, 

that we will permit, but not require, 

recipients to use the 2010 Standards as 

adopted in the Title II regulations, 

except that Exception (1) in Section 

206.2.3 does not apply, as an acceptable 

alternative accessibility standard for 

new construction and alterations 

commencing on or after September 15, 

2010, but before March 15, 2012. In 

addition, based on our longstanding 

policy, we will also continue to 

interpret 34 CFR 104.23(c), which 

addresses UFAS and departures from 

UFAS, to permit, but not require, 

recipients to use the 1991 Standards 

without the elevator exemption as an 

acceptable alternative accessibility 

standard for new construction and 

alterations that commence before March 

15, 2012. This is also consistent with 

the corresponding provision in the Title 

II regulations, 28 CFR 35.151(c), which 

provides: 

If physical construction or alterations 

commence on or after September 15, 2010 

and before March 15, 2012, then new 

construction and alterations subject to this 

section may comply with one of the 

following: The 2010 Standards, UFAS, or the 

1991 Standards except that the elevator 

exemption contained at section 4.1.3(5) and 

section 4.1.6(1)(k) of the 1991 Standards shall 

not apply. Departures from particular 

requirements of either standard by use of 

other methods shall be permitted when it is 

clearly evident that equivalent access to the 

facility or part of the facility is thereby 

provided.33

Thus, for the period spanning 

September 15, 2010, to March 14, 2012, 

we are deeming compliance with any of 

the following three accessibility 

standards as compliance with 34 CFR 

104.23: (1) The 1991 Standards without 

the elevator exemption, (2) the 2010 

Title II ADA Standards except that 

Exception (1) to Section 206.2.3 does 

not apply, or (3) UFAS. We note, 

however, that a recipient may select 

only one standard from among these 

options for purposes of complying with 

34 CFR 104.23. 

Because under Education’s Section 

504 regulations we apply the same 

accessibility standards for new 

construction and alterations to private 

and public recipients, this notice 

applies to recipients of Federal financial 

assistance from the Department 

regardless of whether they are public or 

private entities. That is, under the 

interpretation announced in this notice, 

both private and public recipients may 

make the same choice of a standard for 

the purposes of compliance with 

Education’s Section 504 regulations. 

Education wishes to emphasize that 

private entities that are covered both by 

our Section 504 regulation and by Title 

III of the ADA and that choose the 2010 

Standards may not rely on the elevator 

exception found at Exception (1) to 

section 206.2.3 of the 2010 Standards. 

Standards Applicable Under Section 

504 as of March 15, 2012 

In addition, effective March 15, 2012, 

because the 1991 Standards will no 

longer be an applicable standard under 

the ADA for any new construction and 

alterations, we are announcing that for 

Section 504, recipients will have the 

choice of the 2010 Title II ADA 

Standards (except that Exception (1) to 

Section 206.2.3 does not apply) or 

UFAS until Education has revised its 

Section 504 regulation to adopt the 2010 

Title II ADA Standards. Please refer to 

the following table of dates and 

accessibility standards for a quick 


pstrozier on DSK7SPTVN1PROD with RULES
14976 Federal Register / Vol. 77, No. 50 / Wednesday, March 14, 2012 / Rules and Regulations 

34This is the ‘‘American National Standards 

Specifications for Making Buildings and Facilities 

Accessible to, and Usable by, the Physically 

Handicapped,’’ published by the American National 

Standards Institute, Inc. 

reference to standards for complying 

with 34 CFR 104.23. 

TABLE OF APPLICABLE STANDARDS FOR COMPLYING WITH 34 CFR 104.23 

Date construction or alteration commenced Applicable standards for complying with 34 CFR 104.23 

Between 6/3/77 and 1/17/91 .................................................................... ANSI A117.1–1961 (R1971).34

Between 1/18/91 and 1/25/92 .................................................................. UFAS. 

Between 1/26/92 and 9/14/10 .................................................................. UFAS or 1991 Standards without the elevator exception. 

Between 9/15/10 and 3/14/12 .................................................................. UFAS, 1991 Standards without the elevator exception, or 2010 Title II 

ADA Standards except that Exception (1) to Section 206.2.3 does 

not apply. 

On or after 3/15/2012 (until the regulations are revised) ......................... UFAS or 2010 Title II ADA Standards except that Exception (1) to Section 206.2.3 does not apply. 

Electronic Access to This Document: 

The official version of this document is 

the document published in the Federal 

Register. Free Internet access to the 

official edition of the Federal Register 

and the Code of Federal Regulations is 

available via the Federal Digital System 

at: www.gpo.gov/fdsys. At this site you 

can view this document, as well as all 

other documents of this Department 

published in the Federal Register, in 

text or Adobe Portable Document 

Format (PDF). To use PDF you must 

have software to open a PDF file. One 

option is Adobe Acrobat Reader, which 

is available free at the site. 

You may also access documents of the 

Department published in the Federal 

Register by using the article-search 

feature at: www.federalregister.gov. 

Specifically, through the advanced 

search feature at this site, you can limit 

your search to documents published by 

the Department. 

This notice is also available on OCR’s 

Web site at: http://www.ed.gov/ocr. 

Authority: 29 U.S.C. 794. 

Dated: March 8, 2012. 

Arne Duncan, 

Secretary of Education. 

[FR Doc. 2012–6122 Filed 3–13–12; 8:45 am] 

BILLING CODE 4000–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2011–0353; FRL–9644–3] 

Approval and Promulgation of 

Implementation Plans; Tennessee; 

110(a)(1) and (2) Infrastructure 

Requirements for the 1997 8-Hour 

Ozone National Ambient Air Quality 

Standards 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is taking final action to 

approve the state implementation plan 

(SIP) revision submitted by the State of 

Tennessee, through the Tennessee 

Department of Environment and 

Conservation (TDEC), to demonstrate 

that the State meets the requirements of 

sections 110(a)(1) and (2) with respect to 

sections 110(a)(2)(C) and (J), of the 

Clean Air Act (CAA or Act) for the 1997 

8-hour ozone national ambient air 

quality standards (NAAQS). Section 

110(a) of the CAA requires that each 

state adopt and submit a state 

implementation plan (SIP) for the 

implementation, maintenance, and 

enforcement of each NAAQS 

promulgated by EPA, which is 

commonly referred to as an 

‘‘infrastructure’’ SIP. TDEC certified that 

the Tennessee SIP contains provisions 

that ensure the 1997 8-hour ozone 

NAAQS are implemented, enforced, and 

maintained in Tennessee (hereafter 

referred to as ‘‘infrastructure 

submission’’). Tennessee’s 

infrastructure submission, provided to 

EPA on December 14, 2007, and 

clarified in a subsequent May 28, 2009, 

submission, addressed the required 

infrastructure elements for the 1997 8- 

hour ozone NAAQS, however the 

subject of this notice is limited to 

infrastructure elements 110(a)(2)(C) and 

(J). All other applicable Tennessee 

infrastructure elements will be 

addressed in a separate rulemaking. 

DATES: Effective Date: This rule will be 

effective April 13, 2012. 

ADDRESSES: EPA has established a 

docket for this action under Docket 

Identification No. EPA–R04–OAR– 

2011–0353. All documents in the docket 

are listed on the www.regulations.gov 

Web site. Although listed in the index, 

some information is not publicly 

available, i.e., Confidential Business 

Information or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

www.regulations.gov or in hard copy at 

the Regulatory Development Section, 

Air Planning Branch, Air, Pesticides and 

Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street, SW., 

Atlanta, Georgia 30303–8960. EPA 

requests that if at all possible, you 

contact the person listed in the FOR

FURTHER INFORMATION CONTACT section to 

schedule your inspection. The Regional 

Office’s official hours of business are 

Monday through Friday, 8:30 to 4:30 

excluding Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Nacosta C. Ward, Regulatory 

Development Section, Air Planning 

Branch, Air, Pesticides and Toxics 

Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street, SW., 

Atlanta, Georgia 30303–8960. The 

telephone number is (404) 562–9140. 

Ms. Ward can be reached via electronic 

mail at ward.nacosta@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Background 

II. This Action 

III. Final Action 

IV. Statutory and Executive Order Reviews 


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