67384 Federal Register / Vol. 79, No. 219 / Thursday, November 13, 2014 / Proposed Rules 

(f) Special Flight Permit 

Special flight permits are limited to a onetime flight to a maintenance facility to 

replace a part that has reached its life limit. 

(g) Alternative Methods of Compliance 

(AMOCs) 

(1) The Manager, Safety Management 

Group, FAA, may approve AMOCs for this 

AD. Send your proposal to: Matt Fuller, 

Senior Aviation Safety Engineer, Safety 

Management Group, Rotorcraft Directorate, 

FAA, 2601 Meacham Blvd., Fort Worth, 

Texas 76137; telephone (817) 222–5110; 

email matthew.fuller@faa.gov. 

(2) For operations conducted under a 14 

CFR part 119 operating certificate or under 

14 CFR part 91, subpart K, we suggest that 

you notify your principal inspector, or 

lacking a principal inspector, the manager of 

the local flight standards district office or 

certificate holding district office before 

operating any aircraft complying with this 

AD through an AMOC. 

(h) Additional Information 

The subject of this AD is addressed in 

European Aviation Safety Agency (EASA) AD 

2013–0178, dated August 7, 2013. You may 

view the EASA AD on the Internet at http:// 

www.regulations.gov in Docket No. FAA– 

2014–0903. 

(i) Subject 

Joint Aircraft Service Component (JASC) 

Code: 6300, 2700 Swashplate Ring, Cardan 

Ring, Bolt, Mixing Lever Gear Unit (flight 

controls). 

Issued in Fort Worth, Texas, on October 28, 

2014. 

Kim Smith, 

Manager, Rotorcraft Directorate, Aircraft 

Certification Service. 

[FR Doc. 2014–26836 Filed 11–12–14; 8:45 am] 

BILLING CODE 4910–13–P 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

14 CFR Part 1251 

[Document Number NASA–2014–0011] 

RIN 2700–AD85 

Discrimination on the Basis of 

Disability in Federally Assisted 

Programs and Activities 

AGENCY: National Aeronautics and 

Space Administration. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The National Aeronautics and 

Space Administration (NASA) is 

proposing to amend its rules 

implementing Section 504 of the 

Rehabilitation Act of 1973 (section 504), 

which prohibits discrimination on the 

basis of disability in programs, services, 

and activities by recipients of Federal 

financial assistance from NASA as well 

as those programs, services, and 

activities conducted by NASA. The 

revisions to this rule are part of NASA’s 

retrospective plan under EO 13563 

completed in August 2011. 

DATES: Submit comments on or before 

December 15, 2014. 

ADDRESSES: Comments must be 

identified with RIN 2700–AD85 and 

may be sent to NASA via the Federal ERulemaking Portal: http://

www.regulations.gov. Follow the online 

instructions for submitting comments. 

Please note that NASA will post all 

comments on the internet with changes, 

including any personal information 

provided. NASA’s full plan can be accessed at: 

http://www.nasa.gov/open/. 

FOR FURTHER INFORMATION CONTACT: 

Robert Cosgrove, (202) 358–0446. 

SUPPLEMENTARY INFORMATION: 

Background 

In this rulemaking, NASA is 

proposing to amend its section 504 

regulations to incorporate changes to the 

definition of disability required by the 

Americans with Disabilities Act (ADA) 

Amendments Act of 2008, include an 

affirmative statement of the 

longstanding requirement for reasonable 

accommodations in programs, services, 

and activities, include a definition of 

direct threat and a provision describing 

the parameters of the existing direct 

threat defense to a claim of 

discrimination, clarify the existing 

obligation to provide auxiliary aids and 

services to qualified individuals with 

disabilities, update the methods of 

communication that recipients may use 

to inform program beneficiaries of their 

obligation to comply with section 504 to 

reflect changes in technology, adopt 

updated accessibility standards 

applicable to the design, construction, 

and alteration of buildings and facilities, 

establish time periods for compliance 

with these updated accessibility 

standards, provide NASA with access to 

recipient data and records to determine 

compliance with section 504, and make 

administrative updates to correct titles. NASA is also proposing to amend its 

regulation to incorporate changes 

required by the Rehabilitation Act 

Amendments of 1992 (1992 

Amendments) by revising current 

sections 1251.2—Employment Practices 

(Federally Assisted Programs) and 

1251.540—Employment (Federally 

Conducted Programs) and instead 

referencing the EEOC’s ADA title I 

regulation. The proposed rule also 

updates outdated terminology and 

references that currently exist in Part 

1251 and changes the word 

‘‘handicapped’’ and similar variations of 

that word that appear throughout Part 

1251, replacing it with ‘‘people first’’ 

language (e.g., ‘‘individuals with 

disabilities’’) consistent with the 1992 

Amendments. 

Section 504 

NASA implements the requirements 

of Section 504 of the Rehabilitation Act 

of 1973 (section 504), which prohibits 

discrimination on the basis of disability 

in Federally conducted and assisted 

programs or activities, through its 

regulation in Part 1251. NASA’s section 

504 regulation applies to recipients to 

whom the Agency extends Federal 

financial assistance, such as research, 

education and training grants, and 

cooperative agreements, as well as 

programs, services, and activities 

conducted by NASA. NASA’s section 

504 regulation at § 1251.103 prohibits 

denial of the benefits of, exclusion from 

participation in, or other discrimination 

against qualified individuals with 

disabilities in programs or activities 

because a recipient’s facilities are 

inaccessible to or unusable by persons 

with disabilities. Many of the entities 

that receive financial assistance from 

NASA are also covered by Title II of the 

ADA (title II), which prohibits 

discrimination on the basis of disability 

by public entities (i.e., state and local 

governments and their agencies) or Title 

III of the ADA (title III), which prohibits 

discrimination on the basis of disability 

by: (1) Public accommodations (i.e., 

private entities that own, operate, lease, 

or lease to places of public 

accommodation); (2) newly constructed 

and altered commercial facilities; and 

(3) private entities that offer certain 

examinations and courses related to 

educational and occupational 

certification. 

Definition of Disability—ADA 

Amendments Act of 2008 

The ADA Amendments Act of 2008 

(the ADA Amendments Act) was signed 

into law in September 2008 and became 

effective on January 1, 2009. Congress 

enacted the ADA Amendments Act to 

revise the ADA definition of disability 

in order to ensure that this definition is 

broadly construed and applied without 

extensive analysis and to supersede 

Supreme Court decisions that had too 

narrowly interpreted the ADA’s 

definition of a disability. The ADA 

Amendments Act not only amended the 

definition of disability applicable to the 

ADA but also amended the 

Rehabilitation Act of 1973 to conform 

the section 504 definition of disability at 

29 U.S.C. 705(20)(B) to the revised ADA 

definition. In this rulemaking, NASA is 

proposing to amend its section 504 


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1Although 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. 

regulation to implement these revised 

requirements. NASA intends these 

proposed regulatory changes to be 

consistent with the Department of 

Justice’s (DOJ’s) proposed changes to its 

title II regulation to incorporate the 

requirements of the ADA Amendments 

Act published on January 30, 2014 [79 

FR 4839]. 

Due to the changes that the ADA 

Amendments Act made to the 

application of the definition of 

disability, participants in recipients’ 

programs, services, and activities who, 

in the past decade, may not have been 

determined to have a disability under 

section 504 and title II may now in fact 

be found to have a disability under 

those laws. Section 504 and the ADA 

define disability as (1) a physical or 

mental impairment that substantially 

limits a major life activity; (2) a record 

of such impairment; or (3) being 

regarded as having such an impairment 

[29 U.S.C. 705(9)(B); 42 U.S.C. 

12102(1)]. The ADA Amendments Act 

does not alter these three elements of 

the definition of disability in the ADA 

and section 504, but it significantly 

changes how the term ‘‘disability’’ is to 

be interpreted and adds important rules 

of construction to inform that 

interpretation. Specifically, Congress 

directed that the definition of disability 

shall be construed broadly and that the 

determination of whether an individual 

has a disability should not demand 

extensive analysis [42 U.S.C. 12102]. 

NASA’s proposed revisions to the 

definition of disability are all based on 

specific provisions in the ADA 

Amendments Act or specific language in 

the legislative history. Since the ADA 

Amendments Act does not change the 

meaning of the term ‘‘physical or mental 

impairment,’’ NASA is retaining the 

general regulatory definitions for this 

term with only minor modifications 

consistent with DOJ’s proposed 

revisions to its Title II ADA regulations. 

First, NASA is proposing to add 

examples of two new body systems—the 

immune system and the circulatory 

system—that may be affected by a 

physical impairment. See 14 CFR 

1251.102(h)(2)(A). In addition, 

‘‘dyslexia’’ will be added to 14 CFR 

1251.102(h)(2)(A) as one example of a 

specific learning disability that falls 

within the meaning of the phrase 

‘‘physical or mental impairment.’’ 

The proposed revisions also expand 

the definition of ‘‘major life activities’’ 

by providing a non-exhaustive list of 

major life activities and specifically 

including the operation of major bodily 

functions. Prior to the ADA 

Amendments Act, section 504 did not 

define ‘‘major life activities,’’ leaving 

delineation of illustrative examples to 

agency regulations. The definition of 

‘‘disability’’ in the NASA’s current 

section 504 regulations states that 

‘‘[m]ajor life activities means functions 

such as caring for one’s self, performing 

manual tasks, walking, seeing, hearing, 

speaking, breathing, learning, and 

working.’’ See 14 CFR 1251.102(h)(2)(ii). 

The ADA, as amended, incorporates 

into the statutory language a nonexhaustive list of major life activities 

that includes, but is not limited to, 

‘‘caring for oneself, performing manual 

tasks, seeing, hearing, eating, sleeping, 

walking, standing, lifting, bending, 

speaking, breathing, learning, reading, 

concentrating, thinking, 

communicating, and working.’’ See 42 

U.S.C. 12102(2)(A). This list reflects 

Congress’s concern that courts were 

interpreting the term ‘‘major life 

activities’’ more narrowly than Congress 

intended. See 42 U.S.C. 12101(b)(4). In 

§§ 1251.102(h) and 1251.503(h), NASA 

proposes to revise its section 504 

regulatory definitions of disability to 

incorporate the statutory examples as 

well as to provide additional examples 

included in the EEOC title I final 

regulation—reaching, sitting, and 

interacting with others. See 29 CFR 

1630.2(i)(1)(i). 

These proposed revisions also add 

rules of construction that should be 

applied when determining whether an 

impairment substantially limits a major 

life activity. The rules of construction 

state the following: 

—That the term ‘‘substantially limits’’ 

shall be construed broadly in favor of 

expansive coverage, to the maximum 

extent permitted by the terms of the 

ADA; 

—that an impairment is a disability if it 

substantially limits the ability of an 

individual to perform a major life 

activity as compared to most people 

in the general population; 

—that the primary issue in a case 

brought under the ADA should be 

whether the covered entity has 

complied with its obligations and 

whether discrimination has occurred, 

not the extent to which the 

individual’s impairment substantially 

limits a major life activity; 

—that in making the individualized 

assessment required by the ADA, the 

term ‘‘substantially limits’’ shall be 

interpreted and applied to require a 

degree of functional limitation that is 

lower than the standard for 

‘‘substantially limits’’ applied prior to 

the ADA Amendments Act; 

—that the comparison of an individual’s 

performance of a major life activity to 

the performance of the same major life 

activity by most people in the general 

population usually will not require 

scientific, medical, or statistical 

evidence; 

—that mitigating measures other than 

‘‘ordinary eyeglasses or contact 

lenses’’ shall not be considered in 

assessing whether an individual has a 

‘‘disability’’ (mitigating measures 

include medications, prosthetic 

devices, assistive devices, or learned 

behavioral or adaptive neurological 

modifications that an individual may 

use to eliminate or reduce the effects 

of an impairment); 

—that an impairment that is episodic or 

in remission is a disability if it would 

substantially limit a major life activity 

when active; and 

—that an impairment that substantially 

limits one major life activity need not 

substantially limit other major life 

activities in order to be considered a 

substantially limiting impairment. 

In keeping with the ADA 

Amendments Act, the proposed rule 

provides that if a person seeks to 

establish coverage under section 504 

using the ‘‘regarded as’’ prong of the 

disability definition, that individual 

need only establish that he or she has 

been subjected to an act prohibited by 

section 504 because of an actual or 

perceived physical or mental 

impairment. An individual will not be 

‘‘regarded as’’ a person with a disability 

if the impairment is both transitory 

(meaning that it has an actual or 

expected duration of six months or less) 

and minor. ADA Amendments Act, 

section 4(a) (codified as amended at 42 

U.S.C. 12102). 

Definition of Auxiliary Aids and 

Services 

Although NASA’s existing section 504 

Federally assisted regulation referenced 

the provision of auxiliary aids,1 it did 

not include a definition. The proposed 

regulation includes a definition for 

auxiliary aids and services, which is 

consistent with the definition used in 

the ADA title II regulation at 28 CFR 

35.104. 

Employment 

NASA proposes to revise Section 

1251.2—Employment Practices 

(Federally Assisted Programs) and 

Section 1251.540—Employment 

(Federally Conducted Programs) to 

conform to the Rehabilitation Act 

Amendments of 1992 (Pub. L. 102–569, 

sec. 506) which amended title V to make 


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the same employment standards set 

forth in title I of the ADA apply to 

employment discrimination apply 

under section 504. As such, the 

proposed rule deletes the existing 

requirements related to discriminatory 

employment practices and references 

the standards applied under Title I of 

the Americans with Disabilities Act of 

1990 (42 U.S.C. 12111 et seq.) and to the 

extent such sections relate to 

employment, the provisions of sections 

501 through 504 and 510 of the 

Americans with Disabilities Act of 1990 

(42 U.S.C. 12201–12204 and 12210), and 

the Equal Employment Opportunity 

Commission’s ADA title I regulation at 

29 CFR § 1630, as amended. 

NASA is also proposing to clarify its 

role in the processing and coordination 

of complaints alleging discrimination by 

its recipients, Title I of the ADA (title I) 

prohibits discrimination against 

individuals with disabilities employed 

in a business that has fifteen or more 

employees. Title I is enforced by the 

United States Equal Employment 

Opportunity Commission (EEOC) and is 

the designated Federal agency for the 

processing and adjudication of all 

complaints filed under title I. Many of 

the Agency’s recipients may fall under 

the jurisdiction of title I and may also 

file a complaint alleging discrimination 

under section 504. NASA has authority 

to receive complaints of discrimination 

and has developed procedures to 

identify when NASA has jurisdiction to 

process such complaints or when they 

must be referred to the EEOC or DOJ for 

processing. In order to avoid 

duplication of investigative and 

enforcement efforts, NASA will process 

and coordinate any complaints filed 

under this Part in accordance with the 

Equal Employment Opportunity 

Commission (EEOC) procedures set 

forth in 29 CFR part 1640 and the 

Department of Justice (DOJ) procedures 

set forth at 28 CFR part 37 (Procedures 

for Coordinating the Investigation of 

Complaints or Charges of Employment 

Discrimination Based on Disability 

Subject to the Americans with 

Disabilities Act and Section 504 of the 

Rehabilitation Act of 1973). 

NASA is also proposing to clarify its 

role in the processing and adjudication 

of section 504 complaints in its 

Federally conducted programs. 

Provision of Auxiliary Aids and 

Services 

NASA’s current section 504 Federally 

assisted regulation at § 1251.103(b)(3) 

provides that ‘‘[r]ecipients shall take 

appropriate steps to ensure that no 

handicapped individual is denied the 

benefits of, excluded from participation 

in, or otherwise subjected to 

discrimination in any program or 

activity receiving Federal financial 

assistance because of the absence of 

auxiliary aids for individuals with 

impaired sensory, manual, or speaking 

skills.’’ 

This Notice of Proposed Rule Making 

(NPRM) proposes to clarify this existing 

obligation by providing affirmative 

language explaining this obligation. 

Similar language is already included in 

NASA’s Federally conducted regulation 

at § 1251.560. (Communications) 

Notice of Recipient Obligations To 

Comply With Section 504 

NASA’s section 504 regulations at 

§ 1251.107(a) require a recipient that 

employs 15 or more persons to take 

appropriate initial and continuing steps 

to notify participants, beneficiaries, 

applicants, and employees, including 

those with or hearing and vision 

disabilities, and unions or professional 

organizations holding collective 

bargaining or professional agreements 

with the recipient that it does not 

discriminate on the basis of disability in 

violation of section 504 and this part. 

The notification shall state, where 

appropriate, that the recipient does not 

discriminate in admission or access to, 

or treatment or employment in, its 

programs or activities. The notification 

shall also include an identification of 

the responsible employee designated to 

coordinate the recipient’s efforts to 

comply with section 504 pursuant to 

§ 1251.106(a). The regulation requires 

the recipient to make the initial 

notification required by this paragraph 

within 90 days of the effective date of 

this part. This regulation also delineates 

the methods of initial and continuing 

notification to include ‘‘the posting of 

notices, publication in newspapers and 

magazines, placement of notices in 

recipient’s publication, and distribution 

of memoranda or other written 

communications.’’ NASA recognizes 

that the methods by which a recipient 

communicates with interested persons 

has changed significantly since these 

regulations were promulgated and this 

regulation as currently written does not 

reflect the current and future state of 

information dissemination. With the 

advent of broad application of the 

Internet and the Web, as well as 

electronic publishing, electronic mail, 

text messaging, and social media 

platforms, NASA has determined that 

the regulation does not adequately 

include electronic methods of 

communication. Furthermore, NASA’s 

grant recipients currently rely on their 

Web sites, email, text messaging, and 

social media to communicate with and 

provide information to the beneficiaries 

of its programs, services, and activities. 

Many of the publications that were 

available in print such as pamphlets, 

brochures, maps, course catalogs, 

policies, and procedures are now posted 

on the recipients’ Web sites and can be 

printed or downloaded by the interested 

person viewing the Web site. In revising 

the regulation to include electronic 

communications, NASA is also 

providing its grant recipients the ability 

to provide this information in a more 

cost-effective and expeditious manner 

than by relying on printed media. 

Information or programs provided to the 

public on recipient’s Web sites should 

be provided in an accessible format in 

order to ensure equal access to the 

recipient’s programs, services, and 

activities. 

Accessibility Standards for New 

Construction 

NASA’s section 504 regulations at 

§ 1251.302(c) require that if construction 

of a recipient’s facility commenced after 

the effective date of the regulations 

(January 18, 1991), the facility must be 

designed and constructed so that it is 

readily accessible to and usable by 

persons with disabilities. These 

regulations also require that facility 

alterations commenced after January 18, 

1991, that affect or may affect the 

facility’s usability must be 

accomplished so that, to the maximum 

extent feasible, the altered portion of the 

facility is readily accessible and usable 

by persons with disabilities. 

For facilities subject to the new 

construction and alterations 

requirements, the NASA regulation at 

§ 1251.302(c) has always incorporated 

by reference an accessibility design 

standard, such that construction or 

alterations in conformance with that 

standard would be deemed in 

compliance with NASA’s section 504 

regulation. Under the current regulation, 

new construction or alterations made in 

conformance with the Uniform Federal 

Accessibility Standards (UFAS) are 

deemed to be in compliance with 

NASA’s section 504 regulation, 

although a recipient may depart from 

UFAS when other methods provide 

equivalent or greater access to and 

usability of the facility. 

The adoption of UFAS as an 

accessibility design standard in NASA’s 

section 504 regulation occurred in 1991 

as part of a joint rulemaking with other 

Federal agencies, led by the DOJ 

pursuant to its coordinating authority 

for section 504 under Executive Order 

12250. [51 FR 26862 July 28, 1986, as 

amended and 55 FR 52138, 52140, 

December 19, 1990]. NASA and the 


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2This choice is in keeping with the Department 

of Justice March 2011 memorandum advising 

Federal agencies that until such time as they update 

their agency’s regulation implementing the 

Federally assisted provisions of section 504 of the 

Rehabilitation Act of 1973 (section 504), they may 

notify covered entities that they may use the 2010 

ADA Standards for Accessible Design (2010 

Standards) as an acceptable alternative to the 

Uniform Federal Accessibility Standards (UFAS). 

(www.ada.gov/504_memo_standards.htm). 

other participating agencies adopted 

UFAS (effective January 18, 1991) to 

diminish the possibility that some 

recipients of Federal financial assistance 

would face conflicting enforcement 

standards either between section 504 

and the Architectural Barriers Act of 

1968, or among the section 504 

regulations of different Federal agencies. 

[55 FR 52136–37 (1990)] 

Accessibility Standards in the ADA 

Regulations Issued by DOJ 

DOJ’s 1991 title II ADA regulation 

incorporated by reference two sets of 

standards for new construction and 

alterations: UFAS and the 1991 ADA 

Standards for Accessible Design (1991 

Standards) except that the elevator 

exemption contained at sections 4.1.3(5) 

and 4.1.6(1)(k) of the 1991 Standards 

did not apply. The 1991 title II ADA 

regulations also permitted departures 

from the particular requirements of 

either standard by the use of other 

methods when it was clearly evident 

that equivalent access to the facility or 

part of the facility is thereby provided. 

UFAS was included as an option for 

title II entities because it was deemed 

the accessibility standard under existing 

section 504 accessibility regulations. 

UFAS was not an accessibility option 

under the ADA for title III entities, even 

if they were also subject to an agency 

section 504 regulation. 

On September 15, 2010, DOJ 

published revised title II and title III 

ADA regulations that included the 

adoption of revised accessibility 

standards, the 2010 ADA Standards for 

Accessible Design (2010 Standards). [75 

FR 56164]. The 2010 Standards were 

based on the 2004 ADA Accessibility 

Guidelines adopted by the United States 

Access Board in 2004. (36 CFR parts 

1190 and 1191). The 2010 Standards, 

which now supersede the 1991 

Standards, were adopted by DOJ 

through formal rulemaking and were 

subject to substantial scrutiny and 

deliberation, including consideration of 

costs and benefits. Compliance with the 

2010 Standards was required for all new 

construction and alterations that 

commenced on or after March 15, 2012. 

[75 FR 56164, 56182 (Sept. 15, 2010)]. 

As of March 15, 2012, UFAS was no 

longer an option for compliance with 

title II. 

NASA’s Revisions to Its Section 504 

Federally Assisted Regulations To 

Adopt the 2010 Standards 

In the preamble to the final title II 

regulation, DOJ stated that Federal 

agencies that extend Federal financial 

assistance should revise their section 

504 regulations to adopt the 2010 

Standards as section 504 standards for 

new construction and alterations [75 FR 

56164, 56213 Sep. 15, 2010]. DOJ also 

stated its intent to work with Federal 

agencies ‘‘to revise their section 504 

regulations in the near future to adopt 

the 2010 Standards as the appropriate 

accessibility standard for their 

recipients.’’ In coordination with DOJ, 

we are adopting the 2010 Standards as 

set forth in 28 CFR part 35, in lieu of 

UFAS, for new construction and 

alterations commencing on or after one 

year from the publication date of the 

final rule in the Federal Register. 

Therefore, as discussed below, the 

proposed rule specifies that all 

buildings and facilities newly 

constructed or altered by recipients 

shall comply with the requirements for 

a ‘‘public building or facility’’ as set 

forth in the 2010 Standards. 

Under NASA’s section 504 

regulations, the same accessibility 

standards for new construction and 

alterations are applied to all recipients 

regardless of whether they are public or 

private entities that have an obligation 

to comply with title II or title III of the 

ADA, respectively. That is, both private 

and public recipients are subject to the 

same requirements for the purposes of 

compliance with NASA’s section 504 

regulations. The 2010 Standards impose 

several different requirements for 

buildings and facilities covered by title 

II as compared to buildings and 

facilities covered by title III. For 

example, Exception 1 of section 206.2.3 

of the 2010 Standards exempts certain 

multistory buildings owned by private 

entities from the requirement to provide 

an elevator. This exemption does not 

apply to buildings owned by public 

entities. Similarly, the 2010 Standards 

specify TTY requirements for public 

buildings that are different than those 

required for private buildings. In order 

to maintain consistency in the 

requirements applicable to all its 

recipients, regardless of whether they 

are public or private entities, NASA is 

requiring all buildings and facilities 

covered by its section 504 Federally 

assisted rule to comply with the 

requirements for a ‘‘public building or 

facility,’’ which are the requirements for 

buildings subject to title II of the ADA. 

The NPRM proposes that compliance 

with the 2010 Standards is required one 

year from the publication date of the 

final rule in the Federal Register. In the 

period between the effective date of the 

final rule and the compliance date for 

new construction and alterations 

announced in the final rule, the NPRM 

proposes that recipients shall be 

permitted to choose to use the 2010 

Standards in lieu of UFAS.2 However, 

regardless of which accessibility 

standard recipients choose to use during 

this time period, recipients may not 

designate one accessibility standard for 

part of a facility and the other 

accessibility standard for the remainder. 

The NPRM also proposes to adopt the 

approach used in both title II at 28 CFR 

35.151(c) and title III at 28 CFR 

36.406(a) to determine the ‘‘triggering 

event’’ for applying the proposed 

standards to new construction and 

alterations under section 504. For NASA 

recipients that are public entities (i.e., 

state and local governments and their 

agencies and organizations) who would 

otherwise comply with title II, the 

triggering event will be the commence 

of physical construction or alterations. 

For private entities who would 

otherwise comply with title III (i.e., 

privately owned and operated 

organizations), the triggering event is 

the date of: a) The last application for 

a building permit or permit extension 

certified to be complete by a state, 

county, or local government; or b) in 

those jurisdictions where the 

government does not certify completion 

of applications, the date when the last 

application for a building permit or 

permit extension is received by the 

State, county, or local government; or c) 

if no permit is required, the start of 

physical construction or alterations. For 

both public and private entities, NASA 

proposes to adopt the language found at 

28 CFR 35.151(c)(4) in title II and 28 

CFR 36.406(a)(4) in title III to make it 

clear that the date of ceremonial 

groundbreaking or the date a structure is 

razed to make it possible for 

construction of a facility to take place 

does not qualify as the commencement 

of physical construction. 

Reasonable Accommodation (NonEmployment) 

In Southeastern Community College v. 

Davis, 442 U.S. 397, 99 S.Ct. 2361 

(1979), the Supreme Court held that a 

person is not protected by section 504 

if, in order for the person to meet 

reasonable eligibility standards, the 

person needs program or policy 

modifications that would fundamentally 

alter the nature of the provider’s 

program or impose undue financial and 


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3See, e.g., 14 CFR 1251.503 (NASA’s section 504 

Federally conducted regulation.) 

4With 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. 

5While Arline speaks to ‘‘direct threat’’ in terms 

of allegations that an individual with a ‘‘contagious 

disease’’ may pose a danger to the health and safety 

of others, the individualized inquiry and the 

specific analysis required by Arline and this 

regulation applies to all allegations that a person 

with a disability poses a ‘‘direct threat’’ to the 

health or safety to others. 

administrative burdens (applicant who 

was denied admission to college nursing 

program because of her hearing 

disability asked college to provide 

hearing supervisor to aid her in 

communicating with patients, to 

dispense with certain required courses, 

and to train her to hold some, but not 

all, positions available to a registered 

nurse). Although the Court also opined 

in Davis that there may be situations 

where a refusal to modify an existing 

program might be discriminatory, this 

issue was posed to, and analyzed by, the 

Court in terms of the proper 

interpretation of the statutory term 

‘‘otherwise qualified.’’ As a result, 

agency Section 504 regulations 3

originally promulgated after the Davis 

decision addressed the obligation to 

provide reasonable accommodations/

modifications in the definition section 

for ‘‘qualified handicapped person’’ 

(rather than in the nondiscrimination 

section).4

Subsequently, in Alexander v. Choate, 

469 U.S. 287, 105 S.Ct. 712 (1985) 

(Medicaid recipients not entitled to 

relief under section 504 against state’s 

reduction in the number of inpatient 

hospital days that state Medicaid would 

pay), the Court clarified its Davis 

analysis. In that case, the Court 

described Davis as striking a balance 

between the need to provide qualified 

individuals with disabilities with 

meaningful access to the benefit the 

grantee offers and the legitimate 

interests of Federal grantees in 

preserving the integrity of their 

programs (469 U.S. at 300–301). It 

further stated that, although its opinion 

in Davis ‘‘addressed that portion of 

section 504 that requires that a 

handicapped individual be ‘otherwise 

qualified’ before the nondiscrimination 

principle of section 504 becomes 

relevant, . . . the question of who is 

‘otherwise qualified’ and what actions 

constitute ‘discrimination’ under the 

section would seem to be two sides of 

a single coin; the ultimate question is 

the extent to which a grantee is required 

to make reasonable modifications 

[accommodations] in its programs for 

the needs of the handicapped.’’ (469 

U.S. at 300, note 19). 

In addition, in keeping with these 

decisions of the Supreme Court over the 

past decades, Federal courts and Federal 

agencies have regularly acknowledged 

the affirmative obligation to provide 

qualified individuals with disabilities 

reasonable accommodations in 

programs, services, and activities. 

Similarly, Congress, in the ADA at 42 

U.S.C. 12182(b)(2)(A)(ii), and DOJ, in its 

ADA regulations at 28 CFR 35.130(b)(7) 

and 28 CFR 36.302, stated the obligation 

as a positive requirement to make 

reasonable changes in policies, 

practices, or procedures when necessary 

to avoid discrimination on the basis of 

disability. Accordingly, and with the 

approval of the DOJ pursuant to its 

section 504 coordination authority, we 

are proposing to add to the section 504 

rule at §§ 1251.111 (Federally Assisted 

Programs) and 1251.581 (Federally 

Conducted Programs) a provision stating 

that a recipient must provide reasonable 

accommodations by making changes to 

policies, practices, or procedures when 

necessary to avoid discrimination on the 

basis of disability, unless the covered 

entity can show that the 

accommodations would result in a 

fundamental alteration in the nature of 

its service, program, or activity or 

impose undue financial and 

administrative burdens. The term 

‘‘reasonable accommodation’’ is 

intended to have the same meaning as 

the term reasonable modifications under 

title II of the ADA (and the title II 

implementing regulation) and not the 

same meaning as ‘‘reasonable 

accommodation’’ in title I of the ADA 

(and the title I implementing regulation) 

covering employment. However, unlike 

reasonable modifications under title II, 

the obligation to provide reasonable 

accommodations under section 504 is 

limited by both the fundamental 

alteration and the undue financial and 

administrative burden defenses. 

Qualified Individual With a Disability 

NASA is proposing to revise 

§ 1251.102(k) Qualified Individual with 

a Disability in order to streamline the 

language and update the references to 

employment to cite to the EEOC title I 

ADA regulation. 

Direct Threat 

In School Bd. of Nassau County, Fla. 

v. Arline, 480 U.S. 273,107 S.Ct. 1123 

(1987) (school board dismissed teacher 

after a third relapse of tuberculosis 

within a two-year period), the Court 

held that (i) section 504 covers 

individuals with contagious diseases 

and (ii) the determination of whether a 

person with a contagious disease is 

otherwise qualified must be made on an 

individualized basis, taking into 

account the nature of the risk (how the 

disease is transmitted), duration of the 

risk (how long is the carrier infectious), 

severity of the risk (what is the potential 

harm to third parties), and probability 

the disease will be transmitted and will 

cause varying degrees of harm. The 

individualized inquiry must include 

appropriate findings of fact about these 

factors, based on reasonable medical 

judgments given the state of medical 

knowledge; based on these findings, a 

determination must be made as to 

whether the individual’s disability 

could be reasonably accommodated.5

This concept was incorporated by 

Congress into the ADA where it was 

termed a ‘‘direct threat.’’ The ADA 

regulations for titles II and III 

incorporate provisions allowing for 

determinations of ‘‘direct threat’’ in 

§§ 35.104 and 36.104 (definitions) and 

§§ 35.139 and 36.208. Accordingly, and 

with the approval of DOJ pursuant to its 

coordination authority under section 

504, we are proposing to revise our 

section 504 regulation to include 

language addressing direct threat 

consistent with the language included 

in the ADA title II regulation. See 

proposed §§ 1251.110 (Federally 

Assisted Programs) and 1251.580 

(Federally Conducted Programs). 

Procedures for Compliance 

Federal agencies that have the 

responsibility to ensure that their 

recipients comply with civil rights 

regulations that prohibit discrimination 

in programs, services, and activities that 

receive Federal financial assistance have 

provisions in their regulations that 

provide the authority for agencies to 

ensure compliance and conduct 

enforcement activities. NASA’s section 

504 regulation at § 1251.400 

incorporates by reference several 

provisions of the Title VI of the Civil 

Rights Act of 1964 regulation that 

authorize NASA to conduct compliance 

activities to ensure that recipients do 

not discriminate on the basis of 

disability in their programs, services, 

and activities. These provisions of the 

title VI regulation require NASA to 

conduct periodic compliance reviews of 

recipient programs; receive, investigate 

and resolve complaints of 


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6 14 CFR 1250.106. 

7 14 CFR 1250.108. 

8 14 CFR 1250.110. 

9 14 CFR 1253.605. 

10 14 CFR subpart 1252.2. 

11Facilities designed, built, or altered with 

Federal dollars or leased by Federal agencies are 

subject to the Architectural Barriers Act (ABA). The 

General Services Administration (GSA) is 

responsible for prescribing the accessibility 

standards for all of these facilities (other than 

residential structures and Department of Defense 

and U.S. Postal Service facilities). Thus, this rule 

will reference the updated ABA Accessibility 

Standards adopted by GSA in 2007. See 41 CFR part 

102–76 Subpart C. 

discrimination on the basis of disability 

alleged by recipient beneficiaries; 6

conduct hearings to determine whether 

Federal financial assistance is to be 

suspended, revoked, or withheld due to 

a recipient’s failure to comply with any 

provisions of section 504; 7 and judicial 

review of NASA actions to enforce 

Section 504.8 However, the section 504 

regulation does not incorporate by 

reference three additional title VI 

regulatory provisions that are included 

in other Federal agency section 504 

regulations that pertain to procedures 

for compliance and are critical to 

effective enforcement of section 504. In 

contrast, NASA’s civil rights regulations 

that prohibit discrimination on the basis 

of sex (Title IX of the Education 

Amendments of 1972) 9 and age (Age 

Discrimination Act of 1975),10 as well as 

title VI, do have these provisions. 

NASA proposes to amend its section 

504 regulation at § 1251.400 to 

incorporate by reference those title VI 

regulatory provisions omitted from this 

section 504 Federally assisted regulation 

that are necessary for NASA to ensure 

that recipients and subrecipients are 

complying with this part. Accordingly, 

NASA will incorporate by reference into 

§ 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 in a 

manner deemed appropriate by NASA 

to apprise interested persons of the 

rights and protections afforded to them 

by this part. NASA will also incorporate 

by reference into § 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 financial assistance if 

a recipient’s noncompliance with this 

part cannot be remedied through 

informal means. Lastly, NASA will 

incorporate by reference into 

§ 1251.400, NASA’s title VI regulation at 

§ 1250.109 (decisions and notices) 

which delineates the process for 

rendering decisions and findings of the 

hearings conducted in accordance with 

§ 1250.107. 

NASA’s Revisions to its Section 504 

Regulation for Federally Conducted 

Programs 

In addition to its proposed revisions 

to its section 504 Federally assisted 

regulation at § 1215.1, NASA is also 

proposing to revise its section 504 

regulation that prohibits discrimination 

on the basis of disability in programs, 

services, and activities conducted by 

NASA at § 1251.5. In 1978, Congress 

extended application of section 504 to 

programs and activities conducted by 

Federal Executive agencies and the 

United States Postal Service. Pursuant 

to Executive Order 12250, the 

Department of Justice developed a 

prototype regulation to implement the 

1978 amendment for Federally 

conducted programs and activities. 

More than 80 Federal agencies, 

including NASA, have now issued final 

regulations based on that prototype, 

prohibiting discrimination based on 

handicap in the programs and activities 

they conduct. Despite the large number 

of regulations implementing section 504 

for Federally assisted and Federally 

conducted programs and activities, 

there is very little variation in their 

substantive requirements, or even in 

their language. The regulatory revisions 

in this rulemaking do not propose 

different requirements for NASA’s 

Federally conducted programs, with the 

exception of the applicable accessibility 

standards for new and altered 

facilities.11

Specifically, NASA proposes to revise 

the definition of ‘‘disability’’ and 

‘‘individual with a disability’’ at 

§ 1251.503 by incorporating by reference 

the companion definitions in the 

revised Federally assisted programs 

regulation at § 1251.102(h) and (k). 

NASA also proposes to revise the 

definition of ‘‘direct threat’’ and revise 

the regulatory standards for direct 

threat, employment, and reasonable 

accommodation in the Federally 

conducted programs regulation to 

conform with the companion regulatory 

standards for direct threat found at 

§ 1251.110, employment found at 

§ 1251.2, and reasonable 

accommodation found at § 1251.111. 

Lastly, NASA proposes to revise its 

Federally conducted programs 

regulation at § 1251.551 to update the 

regulatory reference to the GSA 

standards applicable to Federal 

buildings subject to the Architectural 

Barriers Act for new construction and 

alterations, which is no longer at GSA 

Federal Management Regulation 41 CFR 

101–19.600 to 101–19.607, but is now 

found at 41 CFR part 102–76, subpart C. 

Statutory Authority 

The National Aeronautics and Space 

Act (the Space Act), 51 U.S.C. 20113 (a), 

authorizes the Administrator of the 

National Aeronautics and Space 

Administration (NASA) to make, 

promulgate, issue, rescind, and amend 

rules and regulations governing the 

manner of its operations and the 

exercise of the powers vested in it by 

law. 

Regulatory Analysis 

Executive Order 12866 and Executive 

Order 13563 

Executive Orders 13563 and 12866 

direct agencies to assess all costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). Executive Order 13563 

emphasizes the importance of 

quantifying both costs and benefits, 

reducing costs, harmonizing rules, and 

promoting flexibility. This proposed 

rule has been designated a ‘‘significant 

regulatory action,’’ although not 

economically significant, under section 

3(f) of Executive Order 12866. 

Accordingly, this rule has been 

reviewed by the Office of Management 

and Budget. 

Regulatory Flexibility Act 

It has been certified that this rule is 

not subject to the Regulatory Flexibility 

Act (5 U.S.C. 601) because it would not, 

if promulgated, have a significant 

economic impact on a substantial 

number of small entities. 

Paperwork Reduction Act Statement 

This rule does not contain an 

information collection requirement 

subject to the Paperwork Reduction Act 

of 1995 (44 U.S.C. 3501 et seq.). 

Unfunded Mandates Reform Act of 1995 

This rule will not result in the 

expenditure by state, local, and Tribal 

governments, in the aggregate, or by the 


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private sector, of $100,000,000 or more 

in any one year, and it will not 

significantly or uniquely affect small 

governments. Therefore, no actions were 

deemed necessary under the provisions 

of the Unfunded Mandates Reform Act 

of 1995. 

Small Business Regulatory Enforcement 

Fairness Act of 1996 

This rule is not a major rule as 

defined by section 251 of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996 (as amended), 5 

U.S.C. 804. This rule will not result in 

an annual effect on the economy of 

$100,000,000 or more; a major increase 

in costs or prices; or significant adverse 

effects on competition, employment, 

investment, productivity, innovation, or 

on the ability of United States-based 

companies to compete with 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 proposes to 

amend 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. 

■ 3. Remove the following words 

wherever they appear in part 1251 and 

add in their place as indicated in the 

table below. 

Remove Add in its place 

handicap ................................................................................................... disability. 

handicaps ................................................................................................. disabilities. 

handicapped person ................................................................................. individual with a disability. 

handicapped persons ............................................................................... individuals with a disability. 

handicapped individual ............................................................................. individual with a disability. 

handicapped individuals ........................................................................... individuals with a disability. 

individuals with handicaps ........................................................................ individuals with a disability. 

qualified handicapped individual .............................................................. qualified individual with a disability. 

qualified handicapped individuals ............................................................. qualified individuals with a disability. 

qualified individuals with handicaps ......................................................... qualified individuals with a disability. 

qualified handicapped applicants or employees ...................................... qualified applicants or employees with a disability. 

nonhandicapped persons ......................................................................... persons who do not have a disability. 

Subpart 1251.1—General Provision 

■ 4. Revise § 1251.100 to read as 

follows: 

§ 1251.100 Purpose and broad coverage. 

(a) General. This part effectuates 

Section 504 of the Rehabilitation Act of 

1973, which is designed to eliminate 

discrimination on the basis of handicap 

in any program or activity receiving 

Federal financial assistance. 

(b) Broad coverage. Consistent with 

the Americans with Disabilities 

Amendments Act of 2008 (ADAA) and 

its purpose of reinstating a broad scope 

of protection under the Americans with 

Disabilities Act and this part, the 

definition of disability in this chapter 

shall be construed in favor of broad 

coverage of individuals under this part, 

to the maximum extent permitted by the 

terms of this part. 

■ 5. Amend § 1251.102 as follows: 

■ a. In paragraph (c), remove the word 

‘‘Assistant’’ and add in its place the 

word ‘‘Associate’’ wherever it occurs 

and add the words ‘‘Diversity and’’ after 

the word ‘‘for’’; 

■ b. In paragraph (d), remove the word 

‘‘entry’’ and add in its place the word 

‘‘entity’’; 

■ c. Revise paragraphs (h)(1)(iii) and 

(h)(2)(i) through (iv); 

■ d. Add paragraphs (h)(2)(v) and (vi); 

■ e. Revise paragraphs (i) and (j); and 

■ f. Add paragraphs (l) through (m). 

The revisions and additions read as 

follows: 

§ 1251.102 Definitions. 

* * * * * 

(h) * * * 

(1) * * * 

(iii) Being regarded as having such an 

impairment as described in paragraph 

(h)(1)(v)(A) of this section. This means 

that the individual has been subjected to 

an action prohibited by this part 

because of an actual or perceived 

impairment that is not both ‘‘transitory 

and minor.’’ 

(A) Rules of construction (1) An 

individual may establish coverage under 

any one or more of the three prongs of 

the definition of disability in this 

paragraph (h)(1), the ‘‘actual disability’’ 

prong in paragraph (h)(1)(i) of this 

section, the ‘‘record of’’ prong in 

paragraph (h)(1)(ii) of this section, or the 

‘‘regarded as’’ prong in paragraph 

(h)(1)(iii) of this section. 

(2) Where an individual is not 

challenging a recipient’s failure to 

provide reasonable accommodations 

under § 1251.111, it is generally 

unnecessary to proceed under the 

‘‘actual disability’’ or ‘‘record of’’ 

prongs, which require a showing of an 

impairment that substantially limits a 

major life activity or a record of such an 

impairment. In these cases, the 

evaluation of coverage can be made 

solely under the ‘‘regarded as’’ prong of 

the definition of disability, which does 

not require a showing of an impairment 

that substantially limits a major life 

activity or a record of such an 

impairment. An individual may choose, 

however, to proceed under the ‘‘actual 

disability’’ or ‘‘record of’’ prong 

regardless of whether the individual is 

challenging a public entity’s failure to 

provide reasonable accommodations. 

(B) [Reserved] 

(2) * * * 

(i) Physical or mental impairment 

means: 

(A) Any physiological disorder or 

condition, cosmetic disfigurement, or 

anatomical loss affecting one or more of 

the following body systems: 

Neurological, musculoskeletal, special 

sense organs, respiratory (including 

speech organs), cardiovascular, 

reproductive, digestive, genitourinary, 

immune, circulatory, hemic and 

lymphatic, skin, and endocrine; or 

(B) Any mental or psychological 

disorder such as an intellectual 

disability, organic brain syndrome, 

emotional or mental illness, and specific 

learning disabilities. The phrase 

‘‘physical or mental impairment’’ 


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includes, but is not limited to, such 

contagious and noncontagious diseases 

and conditions as orthopedic, visual, 

speech and hearing impairments, 

cerebral palsy, epilepsy, muscular 

dystrophy, multiple sclerosis, cancer, 

heart disease, diabetes, intellectual 

disability, emotional illness, specific 

learning disabilities (including but not 

limited to dyslexia), HIV disease 

(whether symptomatic or 

asymptomatic), tuberculosis, drug 

addiction, and alcoholism. 

(C) The phrase ‘‘physical or mental 

impairment’’ does not include 

homosexuality or bisexuality. 

(ii) Major life activities include, but 

are not limited to: 

(A) Caring for oneself, performing 

manual tasks, seeing, hearing, eating, 

sleeping, walking, standing, sitting, 

reaching, lifting, bending, speaking, 

breathing, learning, reading, 

concentrating, thinking, 

communicating, interacting with others, 

and working; and 

(B) The operation of a major bodily 

function, including functions of the 

immune system, special sense organs 

and skin; normal cell growth; and 

digestive, genitourinary, bowel, bladder, 

neurological, brain, respiratory, 

circulatory, cardiovascular, endocrine, 

hemic, lymphatic, musculoskeletal, and 

reproductive functions. The operation of 

a major bodily function includes the 

operation of an individual organ within 

a body system. 

(C) In determining other examples of 

major life activities, the term ‘‘major’’ 

shall not be interpreted strictly to create 

a demanding standard for disability. 

Whether an activity is a ‘‘major life 

activity’’ is not determined by reference 

to whether it is of ‘‘central importance 

to daily life.’’ 

(iii) Substantially limits—(A) Rules of 

construction. The following rules of 

construction apply when determining 

whether an impairment substantially 

limits an individual in a major life 

activity. 

(1) The term ‘‘substantially limits’’ 

shall be construed broadly in favor of 

expansive coverage, to the maximum 

extent permitted by the terms of the 

ADA Amendments Act of 2008. 

‘‘Substantially limits’’ is not meant to be 

a demanding standard. 

(2) An impairment is a disability 

within the meaning of this part if it 

substantially limits the ability of an 

individual to perform a major life 

activity as compared to most people in 

the general population. An impairment 

need not prevent, or significantly or 

severely restrict, the individual from 

performing a major life activity in order 

to be considered substantially limiting. 

(3) The primary object of attention in 

cases brought under section 504 should 

be whether recipients have complied 

with their obligations and whether 

discrimination has occurred, not the 

extent to which an individual’s 

impairment substantially limits a major 

life activity. Accordingly, the threshold 

issue of whether an impairment 

substantially limits a major life activity 

should not demand extensive analysis. 

(4) The determination of whether an 

impairment substantially limits a major 

life activity requires an individualized 

assessment. However, in making this 

assessment, the term ‘‘substantially 

limits’’ shall be interpreted and applied 

to require a degree of functional 

limitation that is lower than the 

standard for substantially limits applied 

prior to the ADA Amendments Act. 

(5) The comparison of an individual’s 

performance of a major life activity to 

the performance of the same major life 

activity by most people in the general 

population usually will not require 

scientific, medical, or statistical 

evidence. Nothing in this paragraph is 

intended, however, to prohibit or limit 

the use of scientific, medical, or 

statistical evidence in making such a 

comparison where appropriate. 

(6) The determination of whether an 

impairment substantially limits a major 

life activity shall be made without 

regard to the ameliorative effects of 

mitigating measures. However, the 

ameliorative effects of ordinary 

eyeglasses or contact lenses shall be 

considered in determining whether an 

impairment substantially limits a major 

life activity. Ordinary eyeglasses or 

contact lenses are lenses that are 

intended to fully correct visual acuity or 

to eliminate refractive errors. 

(7) An impairment that is episodic or 

in remission is a disability if it would 

substantially limit a major life activity 

when active. 

(8) An impairment that substantially 

limits one major life activity need not 

substantially limit other major life 

activities in order to be considered a 

substantially limiting impairment. 

(9) The six-month ‘‘transitory’’ part of 

the ‘‘transitory and minor’’ exception in 

paragraph (h)(3) of this section does not 

apply to the ‘‘actual disability’’ or 

‘‘record of’’ prongs of the definition of 

disability. The effects of an impairment 

lasting or expected to last fewer than six 

months can be substantially limiting 

within the meaning of this section for 

establishing an actual disability or a 

record of a disability. 

(B) Predictable assessments. (1) The 

principles set forth in 

§ 1251.102(h)(2)(iii) are intended to 

provide for more generous coverage and 

application of section 504’s prohibition 

on discrimination through a framework 

that is predictable, consistent, and 

workable for all individuals and entities 

with rights and responsibilities under 

section 504. 

(2) Applying the principles set forth 

in § 1251.102(h)(2)(iii) the 

individualized assessment of some 

types of impairments will, in virtually 

all cases, result in a determination of 

coverage under § 1251.102(h)(1)(i) (the 

‘‘actual disability’’ prong) or 

§ 1251.102(h)(1)(ii) (the ‘‘record of’’ 

prong). Given their inherent nature, 

these types of impairments will, as a 

factual matter, virtually always be found 

to impose a substantial limitation of a 

major life activity. Therefore, with 

respect to these types of impairments, 

the necessary individualized assessment 

should be particularly simple and 

straightforward. 

(3) For example, applying the 

principles set forth in 

§ 1251.102(h)(2)(iii) it should easily be 

concluded that the following types of 

impairments will, at a minimum, 

substantially limit the major life 

activities indicated: 

(i) Deafness substantially limits 

hearing and auditory function; 

(ii) Blindness substantially limits 

visual function; 

(iii) An intellectual disability 

substantially limits reading, learning, 

and problem solving; 

(iv) Partially or completely missing 

limbs or mobility impairments requiring 

the use of a wheelchair substantially 

limit musculoskeletal function; 

(v) Autism substantially limits 

learning, social interaction, and 

communication; 

(vi) Cancer substantially limits normal 

cell growth; 

(vii) Cerebral palsy substantially 

limits brain function; 

(viii) Diabetes substantially limits 

endocrine function; 

(ix) Epilepsy, muscular dystrophy, 

and multiple sclerosis substantially 

limit neurological function; 

(x) Human Immunodeficiency Virus 

(HIV) infection substantially limits 

immune function; and 

(xi) Major depressive disorder, bipolar 

disorder, post-traumatic stress disorder, 

traumatic brain injury, obsessive 

compulsive disorder, and schizophrenia 

substantially limit brain function. The 

types of impairments described in this 

paragraph may substantially limit 

additional major life activities not 

explicitly listed above. 

(C) Condition, manner or duration. (1) 

At all times taking into account the 

principles in § 1251.102(h)(2)(iii), in 

determining whether an individual is 


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67392 Federal Register / Vol. 79, No. 219 / Thursday, November 13, 2014 / Proposed Rules 

substantially limited in a major life 

activity, it may be useful in appropriate 

cases to consider, as compared to most 

people in the general population, the 

conditions under which the individual 

performs the major life activity; the 

manner in which the individual 

performs the major life activity; or the 

duration of time it takes the individual 

to perform the major life activity, or for 

which the individual can perform the 

major life activity. 

(2) Consideration of facts such as 

condition, manner, or duration may 

include, among other things, 

consideration of the difficulty, effort or 

time required to perform a major life 

activity; pain experienced when 

performing a major life activity; the 

length of time a major life activity can 

be performed; or the way an impairment 

affects the operation of a major bodily 

function. In addition, the nonameliorative effects of mitigating 

measures, such as negative side effects 

of medication or burdens associated 

with following a particular treatment 

regimen, may be considered when 

determining whether an individual’s 

impairment substantially impairs a 

major life activity. 

(3) In determining whether an 

individual has a disability under the 

‘‘actual disability’’ or ‘‘record of’’ prongs 

of the definition of disability, the focus 

is on how a major life activity is 

substantially limited, not on what 

outcomes an individual can achieve. For 

example, someone with a learning 

disability may achieve a high level of 

academic success, but may nevertheless 

be substantially limited in one or more 

major life activities, including, but not 

limited to, reading, writing, speaking, or 

learning because of the additional time 

or effort he or she must spend to read, 

write, speak, or learn compared to most 

people in the general population. 

(D) Mitigating measures include, but 

are not limited to: 

(1) Medication, medical supplies, 

equipment, appliances, low-vision 

devices (defined as devices that 

magnify, enhance, or otherwise augment 

a visual image, but not including 

ordinary eyeglasses or contact lenses), 

prosthetics including limbs and devices, 

hearing aid(s) and cochlear implant(s) or 

other implantable hearing devices, 

mobility devices, and oxygen therapy 

equipment and supplies. 

(2) Use of assistive technology; 

(3) Reasonable accommodations or 

auxiliary aids or services as defined in 

this section; 

(4) Learned behavioral or adaptive 

neurological modifications; or 

(5) Psychotherapy, behavioral 

therapy, or physical therapy. 

(iv) Has a record of such an 

impairment means: 

(A) Broad construction. Whether an 

individual has a record of an 

impairment that substantially limited a 

major life activity shall be construed 

broadly to the maximum extent 

permitted by section 504 and should not 

demand extensive analysis. An 

individual will be considered to fall 

within this prong of the definition of 

disability if the individual has a history 

of an impairment that substantially 

limited one or more major life activities 

when compared to most people in the 

general population, or was misclassified 

as having had such an impairment. In 

determining whether an impairment 

substantially limited a major life 

activity, the principles articulated in 

§ 1251.102(h)(2)(iii) apply. 

(B) Reasonable accommodation. An 

individual with a record of a 

substantially limiting impairment may 

be entitled to a reasonable 

accommodation if needed and related to 

the past disability. 

(v) Regarded as having such an 

impairment means: 

(A) An individual is ‘‘regarded as 

having such an impairment’’ if the 

individual is subjected to an action 

prohibited by the ADA because of an 

actual or perceived physical or mental 

impairment, whether or not that 

impairment substantially limits, or is 

perceived to substantially limit, a major 

life activity, except for an impairment 

that is both transitory and minor. A 

transitory impairment is an impairment 

with an actual or expected duration of 

six months or less. 

(B) An individual is ‘‘regarded as 

having such an impairment’’ any time a 

covered entity takes a prohibited action 

against the individual because of an 

actual or perceived impairment, even if 

the entity asserts, or may or does 

ultimately establish, a defense to such 

action. 

(C) Establishing that an individual is 

‘‘regarded as having such an 

impairment’’ does not, by itself, 

establish liability. Liability is 

established under section 504 only 

when an individual proves that a 

covered entity discriminated on the 

basis of disability within the meaning of 

section 504. 

(vi) Exclusions. The term ‘‘disability’’ 

does not include: 

(A) Transvestism, transsexualism, 

pedophilia, exhibitionism, voyeurism, 

gender identity disorders not resulting 

from physical impairments, or other 

sexual behavior disorders; 

(B) Compulsive gambling, 

kleptomania, or pyromania; or 

(C) Psychoactive substance use 

disorders resulting from current illegal 

use of drugs. 

* * * * * 

(i) Qualified individual with a 

disability means: 

(1) With respect to any aid, benefit, or 

service, provided under a program or 

activity subject to this part, an 

individual with a disability who, with 

or without reasonable accommodations 

in rules policies, or procedures, the 

removal of architectural, 

communication, or transportation 

barriers, or the provision auxiliary aids 

or services, meets the essential 

eligibility requirements for participation 

in, or receipt from, that aid, benefit, or 

service, and 

(2) With respect to employment, the 

definition given that term in the Equal 

Employment Opportunity Commission’s 

regulation at 29 CFR part 1630, 

implementing Title I of the Americans 

with Disabilities Act of 1990, which 

regulation is made applicable to this 

part by § 1251.2. 

(j) Disability means a physical or 

mental impairment which substantially 

limits one or more major life activities 

as defined in paragraph (h) of this 

section. 

* * * * * 

(l) Direct threat means a significant 

risk to the health or safety of others that 

cannot be eliminated by a change to 

policies, practices or procedures, or by 

the provision of auxiliary aids or 

services as provided in § 1251.110 of 

this part. 

(m) Auxiliary aids and services means 

services or devices that enable persons 

with sensory, manual, or speech 

disabilities to have an equal opportunity 

to participate in, and enjoy the benefits 

of, programs or activities conducted by 

the recipient. Auxiliary aids and 

services include: 

(1) Qualified interpreters onsite or 

through video remote interpreting (VRI) 

services; notetakers; real-time 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 

realtime captioning; voice, text, and 

video-based telecommunications 

products and systems, including text 

telephones (TTYs), videophones, and 

captioned telephones, or equally 

effective telecommunications devices; 

videotext displays; accessible electronic 

and information technology; or other 

effective methods of making aurally 

delivered information available to 


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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. 

§ 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] 

■ 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: 

§ 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 § 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: 

§ 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. 

■ 11. Add § 1251.111 to subpart 1251.1 

to read as follows: 

§ 1251.111 Reasonable accommodation. 

A recipient shall make reasonable 

accommodations in policies, practices, 

or procedures when such 

accommodations are necessary to avoid 

discrimination on the basis of disability, 

unless the recipient can demonstrate 

that making the accommodations would 

fundamentally alter the nature of the 

service, program, or activity or result in 

an undue financial and administrative 

burden. For the purposes of this section, 

the term reasonable accommodation 

shall be interpreted in a manner 

consistent with the term ‘‘reasonable 

modifications’’ as set forth in the 

Americans with Disabilities Act Title II 

regulation at 28 CFR 35.130(b)(7), and 

not as it is defined or interpreted for the 

purposes of employment discrimination 

under Title I of the ADA (42 U.S.C. 

12111–12112) and its implementing 

regulation at 29 CFR Part 1630. 

■ 12. Add § 1251.112 to subpart 1251.1 

to read as follows: 

§ 1231.112 Communications. 

(a) A recipient shall take appropriate 

steps to ensure effective communication 

with applicants, participants, and 

members of the public. 

(1) The recipient shall furnish 

appropriate auxiliary aids or services 

where necessary to afford an individual 

with a disability, including applicants, 

participants and members of the public, 

an equal opportunity to participate in, 

and enjoy the benefits of, a program or 

activity of the recipient. 

(i) In determining what type of 

auxiliary aid or service is necessary, the 

recipient shall give primary 

consideration to the requests of the 

individual with a disability. 

(ii) The recipient need not provide 

individually prescribed devices, readers 

for personal use or study, or other 

devices of a personal nature. 

(2) Where the recipient communicates 

with applicants and beneficiaries by 

telephone, telecommunication devices 

for deaf persons (TTY’s) or equally 

effective telecommunication systems 

shall be used to communicate with 

persons with hearing disabilities. 

(b) The recipient shall ensure that 

interested persons, including persons 

with vision or hearing disabilities, can 

obtain information as to the existence 

and location of accessible services, 

activities, and facilities. 

(c) This section does not require the 

recipient to take any action that it can 

demonstrate would result in a 

fundamental alteration in the nature of 

a program or activity or in undue 

financial and administrative burdens. In 

those circumstances where the recipient 

believes that the proposed action would 

fundamentally alter the program or 

activity or would result in undue 

financial and administrative burdens, 

the recipient has the burden of proving 

that compliance with § 1251.112 would 

result in such alteration or burdens. The 

decision that compliance would result 

in such alteration or burdens must be 

made by the recipient agency head or 

his or her designee after considering all 

of the recipient’s resources available for 

use in the funding and operation of the 

conducted program or activity and must 

be accompanied by a written statement 

of the reasons for reaching that 

conclusion. If an action required to 

comply with this section would result 

in such an alteration or such burdens, 

the recipient shall take any other action 

that would not result in such an 

alteration or such burdens but would 

nevertheless ensure that, to the 

maximum extent possible, individuals 

with disabilities receive the benefits and 

services of the program or activity. 

■ 13. Revise § 1251.200 to read as 

follows: 

§ 1251.200 Discrimination prohibited. 

(a) General. No qualified individual 

with a disability shall, on the basis of 

disability, be subjected to 

discrimination in employment under 

any program or activity to which this 

part applies. 

(b) Employment discrimination 

standards. The standards used to 

determine whether paragraph (a) of this 

section has been violated shall be the 


tkelley on DSK3SPTVN1PROD with PROPOSALS
67394 Federal Register / Vol. 79, No. 219 / Thursday, November 13, 2014 / Proposed Rules 

standards applied under Title I of the 

Americans with Disabilities Act of 1990 

(42 U.S.C. 12111 et seq.) and, as such 

sections relate to employment, the 

provisions of sections 501 through 504 

and 510 of the Americans with 

Disabilities Act of 1990 (42 U.S.C. 

12201–12204 and 12210), as amended 

by the ADA Amendments Act of 2008 

(Pub. L. 110–325), as such standards are 

implemented in the Equal Employment 

Opportunity Commission’s regulation at 

29 CFR part 1630, as amended. The 

procedures to be used to determine 

whether paragraph (a) of this section has 

been violated shall be the procedures set 

forth in § 1251.400 of this part. 

§ 1251.202 [Amended] 

■ 14. Amend § 1251.202 by removing 

the word ‘‘Assistant’’ in paragraph (a)(2) 

and adding in its place the word 

‘‘Associate’’. 

■ 15. 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) through (4). 

■ 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) New 

Construction and alterations by 

recipients that are private entities. (i) 

New construction and alterations in 

which the last application for a building 

permit or permit extension for such 

construction or alterations is certified to 

be complete by a state, county, or local 

government (or, in those jurisdictions 

where the government does not certify 

completion of applications, if the date 

when the last application for a building 

permit or permit extension is received 

by the state, county, or local 

government) is prior to [DATE ONE 

YEAR AFTER PUBLICATION OF THE 

FINAL RULE IN THE Federal Register], 

or if no permit is required, if the start 

of physical construction or alterations 

occurs prior to [DATE ONE YEAR 

FROM THE PUBLICATION OF THE 

FINAL RULE IN THE Federal Register], 

then such new construction and 

alterations must comply with either the 

Uniform Federal Accessibility 

Standards (UFAS) or the ADA 

Standards for Accessible Design, (2010 

Standards) as defined in 28 CFR 35.104. 

Departures from particular requirements 

of either standard by the use of other 

methods shall be permitted when it is 

clearly evident that equivalent access to 

the facility or part of the facility is 

thereby provided. 

(ii) New construction and alterations 

in which the last application for a 

building permit or permit extension for 

such construction or alterations is 

certified to be complete by a state, 

county, or local government (or, in those 

jurisdictions where the government 

does not certify completion of 

applications, if the date when the last 

application for a building permit or 

permit extension is received by the 

state, county, or local government) is on 

or after [DATE ONE YEAR AFTER 

PUBLICATION OF THE FINAL RULE 

IN THE Federal Register], or if no 

permit is required, if the start of 

physical construction or alterations 

occurs on or after [DATE ONE YEAR 

FROM THE PUBLICATION OF THE 

FINAL RULE IN THE Federal Register], 

then such new construction and 

alterations shall comply with the 2010 

Standards. 

(2) New construction and alterations 

by recipients that are public entities. (i) 

If physical construction or alterations 

commence prior to [DATE ONE YEAR 

AFTER PUBLICATION OF THE FINAL 

RULE IN THE Federal Register], then 

such new construction and alterations 

must comply with either UFAS or the 

2010 Standards as defined in 28 CFR 

35.104. Departures from particular 

requirements of either standard by the 

use of other methods shall be permitted 

when it is clearly evident that 

equivalent access to the facility or part 

of the facility is thereby provided. 

(ii) If physical construction or 

alterations commence on or after [DATE 

ONE YEAR AFTER PUBLICATION OF 

THE FINAL RULE IN THE Federal 

Register], then such new construction 

and alterations shall comply with the 

2010 Standards. 

(3) For the purposes of this section, 

ceremonial groundbreaking or razing of 

structures prior to site preparation will 

not be considered to commence or start 

physical construction or alterations. 

(4) All newly constructed or altered 

buildings or facilities subject to this 

section shall comply with the 

requirements for a ‘‘public building or 

facility’’ as defined in section 106.5 of 

the 2010 Standards. 

TABLE OF APPLICABLE STANDARDS FOR COMPLYING WITH 14 CFR 1251.302(c) 

Compliance dates for new construction and alterations Applicable standards for complying 

with 14 CFR 1251.302(c) 

Prior to [DATE ONE YEAR AFTER PUBLICATION OF THE FINAL 

RULE IN THE Federal Register].

UFAS or the requirements for a ‘‘public building or facility’’ as defined 

in section 106.5 of the 2010 Standards 

On or after [DATE ONE YEAR AFTER PUBLICATION OF THE FINAL 

RULE IN THE Federal Register].

All buildings or facilities shall comply with the requirements for a ‘‘public building or facility’’ as defined in section 106.5 of the 2010 Standards. 

* * * * * 

■ 16. Section 1251.400 is revised to read 

as follows: 

§ 1251.400 Procedures for compliance. 

(a) The investigative, compliance, and 

enforcement procedural provisions of 

Title VI of the Civil Rights Act of 1964 

(42 U.S.C. 2000d) are hereby adopted 

and apply to these section 504 

regulations. These procedures are found 

at §§ 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 

■ 17. Section 1251.503 is revised to read 

as follows: 

§ 1251.503 Definitions. 

As used in this part, the term: 

Assistant Attorney General means the 

Assistant Attorney General, Civil Rights 


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Federal Register / Vol. 79, No. 219 / Thursday, November 13, 2014 / Proposed Rules 67395 

Division, United States Department of 

Justice. 

Auxiliary aids and services means 

services or devices that enable persons 

with sensory, manual, or speech 

disabilities to have an equal opportunity 

to participate in, and enjoy the benefits 

of, programs or activities conducted by 

the agency. Auxiliary aids and services 

include: 

(1) Qualified interpreters onsite or 

through VRI services; notetakers; realtime computer-aided transcription 

services; written materials; exchange of 

written notes; telephone handset 

amplifiers; assistive listening devices; 

assistive listening systems; telephones 

compatible with hearing aids; closed 

caption decoders; open and closed 

captioning, including realtime 

captioning; voice, text, and video-based 

telecommunications products and 

systems, including text telephones 

(TTYs), videophones, and captioned 

telephones, or equally effective 

telecommunications devices; videotext 

displays; accessible electronic and 

information technology; or other 

effective methods of making aurally 

delivered information available to 

individuals who are deaf or hard of 

hearing; 

(2) Qualified readers; taped texts; 

audio recordings; Brailled materials and 

displays; screen reader software; 

magnification software; optical readers; 

secondary auditory programs (SAP); 

large print materials; accessible 

electronic and information technology; 

or other effective methods of making 

visually delivered materials available to 

individuals who are blind or have low 

vision; 

(3) Acquisition or modification of 

equipment or devices; and 

(4) Other similar services and actions. 

Complete complaint means a written 

statement that contains the 

complainant’s name and address and 

describes the agency’s alleged 

discriminatory action in sufficient detail 

to inform the agency of the nature and 

date of the alleged violation of section 

504. It shall be signed by the 

complainant or by someone authorized 

to do so on his or her behalf. Complaints 

filed on behalf of classes or third parties 

shall describe or identify (by name, if 

possible) the alleged victims of 

discrimination. 

Direct threat means a significant risk 

to the health or safety of others that 

cannot be eliminated by a change to 

policies, practices or procedures, or by 

the provision of auxiliary aids or 

services as provided in § 1251.110 of 

this part. 

Facility means all or any portion of 

buildings, structures, equipment, roads, 

walks, parking lots, rolling stock or 

other conveyances, or other real or 

personal property. 

Historic preservation programs means 

programs conducted by the agency that 

have preservation of historic properties 

as a primary purpose. 

Historic properties means those 

properties that are listed or eligible for 

listing in the National Register of 

Historic Places or properties designated 

as historic under a statute of the 

appropriate state or local government 

body. 

Individual with a disability means any 

person who meets the definition of 

‘‘individual with a disability’’ under 

§ 1251.102(h) of this part. 

Qualified individual with a disability 

means any person who meets the 

definition of ‘‘qualified individual with 

a disability’’ under § 1251.102(k) of this 

part. 

Section 504 means section 504 of the 

Rehabilitation Act of 1973 (Pub. L. 93– 

112, 87 Stat. 394 (29 U.S.C. 794)), as 

amended by the Rehabilitation Act 

Amendments of 1974 (Pub. L. 93–516, 

88 Stat. 1617); the Rehabilitation, 

Comprehensive Services, and 

Developmental Disabilities 

Amendments of 1978 (Pub. L. 95–602, 

92 Stat. 2955); and the Rehabilitation 

Act Amendments of 1986 (Pub. L. 99– 

506, 100 Stat. 1810). 

Substantial impairment means a 

significant loss of the integrity of 

finished materials, design quality, or 

special character resulting from a 

permanent alteration. 

■ 18. Revise § 1251.540 to read as 

follows: 

§ 1251.540 Employment. 

(a) General. No qualified individual 

with a disability shall, on the basis of 

disability, be subjected to 

discrimination in employment under 

any program or activity to which this 

part applies. 

(b) Employment discrimination 

standards. The standards used to 

determine whether paragraph (a) of this 

section has been violated shall be the 

standards applied under Title I of the 

Americans with Disabilities Act of 1990 

(42 U.S.C. 12,111 et seq.) and, as such 

sections relate to employment, the 

provisions of sections 501 through 504 

and 510 of the Americans with 

Disabilities Act of 1990 (42 U.S.C. 

12201–12204 and 12210), as amended 

by the ADA Amendments Act of 2008 

(Pub. L. 110–325), as such standards are 

implemented in the Equal Employment 

Opportunity Commission’s regulation at 

29 CFR part 1630, as amended. 

■ 19. 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 

handicaps. The definitions, 

requirements, and standards of the 

Architectural Barriers Act (42 U.S.C. 

4151–4157), as established in 41 CFR 

part 102–76, subpart C, apply to 

buildings covered by this section. 

■ 20. 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 with respect to employment 

according to the procedures established 

by the Equal Employment Opportunity 

Commission in 29 CFR part 1614. 

(c) The Associate Administrator for 

Diversity and Equal Opportunity shall 

be responsible for coordinating 

implementation of this section. 

Complaints may be sent to the Office of 

Diversity and Equal Opportunity, NASA 

Headquarters, 300 E Street SW., 

Washington, DC 20546. 

* * * * * 

■ 21. Add § 1251.580 to subpart 1251.5 

to read as follows: 

§ 1251.580 Direct threat. 

(a) This part does not require the 

Agency to permit an individual to 

participate in or benefit from the 

services, programs, or activities of that 

recipient when that individual poses a 

direct threat to the health or safety of 

others. 

(b) In determining whether an 

individual poses a direct threat to the 

health or safety of others, a recipient 

must make an individualized 

assessment, based on reasonable 

judgment that relies on current medical 

knowledge or on the best available 

objective evidence, to ascertain: the 

nature, duration, and severity of the 

risk; the probability that the potential 

injury will actually occur; and whether 

reasonable accommodations in policies, 

practices, or procedures or the provision 

of auxiliary aids or services will 

mitigate the risk. 

■ 22. Add § 1251.581 to subpart 1251.5 

to read as follows: 

§ 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, 


tkelley on DSK3SPTVN1PROD with PROPOSALS
67396 Federal Register / Vol. 79, No. 219 / Thursday, November 13, 2014 / Proposed Rules 

unless the recipient can demonstrate 

that making the accommodations would 

fundamentally alter the nature of the 

service, program, or activity or result in 

an undue financial and administrative 

burden. For the purposes of this section, 

the term ‘‘reasonable accommodation’’ 

shall be interpreted in a manner 

consistent with the term ‘‘reasonable 

modifications’’ as set forth in the 

Americans with Disabilities Act Title II 

regulation at 28 CFR 35.130(b)(7), and 

not as it is defined or interpreted for the 

purposes of employment discrimination 

under Title I of the ADA (42 U.S.C. 

12111–12112) and its implementing 

regulations at 29 CFR part 1630. 

Cheryl E. Parker, 

NASA Federal Register Liaison Officer. 

[FR Doc. 2014–26543 Filed 11–12–14; 8:45 am] 

BILLING CODE 7510–13–P 

DEPARTMENT OF THE TREASURY 

Internal Revenue Service 

26 CFR Part 801 

[REG–138605–13] 

RIN 1545–BL88 

Balanced System for Measuring 

Organizational and Employee 

Performance Within the Internal 

Revenue Service 

AGENCY: Internal Revenue Service (IRS), 

Treasury. 

ACTION: Notice of proposed rulemaking 

by cross-reference to temporary 

regulation. 

SUMMARY: In the Rules and Regulations 

section of this issue of the Federal 

Register, the IRS and the Treasury 

Department are issuing a temporary 

regulation modifying the regulations 

governing the IRS Balanced System for 

Measuring Organizational and 

Employee Performance. The section 

being modified, Employee satisfaction 

measures, collects information from 

employees to measure and report on 

employee satisfaction. The temporary 

regulation provides for the reporting of 

this information to a higher agency 

level, to be consistent with other 

government-wide employee satisfaction 

surveys. The text of the temporary 

regulation serves as the text of the 

proposed regulation. 

DATES: Written or electronic comments 

and requests for a public hearing must 

be received by January 12, 2015. 

ADDRESSES: Send submissions to: 

CC:PA:LPD:PR (REG–138605–13), 

Internal Revenue Service, Room 5203, 

P.O. Box 7604, Ben Franklin Station, 

Washington, DC 20044. Submissions 

may be hand delivered Monday through 

Friday between the hours of 8 a.m. and 

4 p.m. to CC:PA:LPD:PR (REG–138605– 

13), Courier’s Desk, Internal Revenue 

Service, 1111 Constitution Avenue NW., 

Washington, DC 20224; or sent 

electronically via the Federal 

eRulemaking Portal at http://

www.regulations.gov (IRS–REG– 

138605–13). 

FOR FURTHER INFORMATION CONTACT: 

Concerning the proposed regulation, 

Neil Worden, (202) 317–5775; 

concerning submissions of comments, 

Oluwafunmilayo (Funmi) Taylor, 

Publications and Regulations Branch, 

(202) 317–6901 (not toll-free numbers). 

SUPPLEMENTARY INFORMATION: 

Background 

The temporary regulation published 

in the Rules and Regulations section of 

this issue of the Federal Register 

amends 26 CFR part 801 to permit the 

reporting of information collected to 

measure employee satisfaction to a 

higher agency level than the regulation 

currently allows. The Explanation of 

Provisions section of the temporary 

regulation explains the purpose of the 

temporary regulation and this proposed 

regulation. 

Special Analyses 

It has been determined that this notice 

of proposed rulemaking is not a 

significant regulatory action as defined 

in Executive Order 12866, as 

supplemented by Executive Order 

13563. Therefore, a regulatory 

assessment is not required. It also has 

been determined that section 553(b) of 

the Administrative Procedure Act (5 

U.S.C. chapter 5) does not apply to these 

regulations, and because the regulation 

does not impose a collection of 

information on small entities, the 

Regulatory Flexibility Act (5 U.S.C. 

chapter 6) does not apply. Pursuant to 

section 7805(f) of the Internal Revenue 

Code, this notice of proposed 

rulemaking will be submitted to the 

Chief Counsel for Advocacy of the Small 

Business Administration for comment 

on its impact on small business. 

Comments and Requests for a Public 

Hearing 

Before this proposed regulation is 

adopted as a final regulation, 

consideration will be given to any 

written or electronic comments that are 

timely submitted to the IRS. The IRS 

and the Treasury Department request 

comments on all aspects of the proposed 

regulations. All comments will be 

available for public inspection and 

copying. A public hearing may be 

scheduled if requested by any person 

who timely submits comments. If a 

public hearing is scheduled, notice of 

the date, time and place for the hearing 

will be published in the Federal 

Register. 

Drafting Information 

The principal author of these 

regulations is Karen F. Keller, Office of 

Associate Chief Counsel (General Legal 

Services). However, other personnel 

from the IRS participated in their 

development. 

List of Subjects in 26 CFR Part 801 

Federal employees, Organization and 

functions (Government agencies). 

Proposed Amendment to the 

Regulations 

Accordingly, 26 CFR Part 801 is 

proposed to be amended as follows: 

PART 801—BALANCED SYSTEM FOR 

MEASURING ORGANIZATIONAL AND 

EMPLOYEE PERFORMANCE WITHIN 

THE INTERNAL REVENUE SERVICE 

■ Paragraph 1. The authority citation 

for part 801 continues to read in part as 

follows: 

Authority: 5 U.S.C. 9501 * * * 

■ Par. 2. Section 801.5 is amended to 

read as follows: 

§ 801.5 [The text of the proposed 

amendment to § 801.5 is the same as the 

text of § 801.5T published elsewhere in this 

issue of the Federal Register]. 

John Dalrymple, 

Deputy Commissioner for Services and 

Enforcement. 

[FR Doc. 2014–26781 Filed 11–12–14; 8:45 am] 

BILLING CODE 4830–01–P 

DEPARTMENT OF THE INTERIOR 

Office of Surface Mining Reclamation 

and Enforcement 

30 CFR Part 948 

[SATS No.: WV–122–FOR; Docket ID: 

OSMRE–2013–0011; S1D1SSS08011000 

SX066A00067F144S180110; 

S2D2SSS08011000SX066A00033 

F14XS501520] 

West Virginia Regulatory Program 

AGENCY: Office of Surface Mining 

Reclamation and Enforcement (OSMRE), 

Interior. 

ACTION: Proposed rule; reopening of the 

comment period. 

SUMMARY: We are reopening the public 

comment period on a proposed 


tkelley on DSK3SPTVN1PROD with PROPOSALS