[Federal Register Volume 59, Number 115 (Thursday, June 16, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14499]
[[Page Unknown]]
[Federal Register: June 16, 1994]
BILLING CODE 6712-01-M
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Part V
Department of Housing and Urban Development
_______________________________________________________________________
24 CFR Part 9
Enforcement of Nondiscrimination on the Basis of Disability in Programs
or Activities Conducted by the Department of Housing and Urban
Development; Final Rule
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Office of the Secretary
24 CFR Part 9
[Docket No. R-94-1510; FR-2163-F-05]
RIN 2501-AB04
Enforcement of Nondiscrimination on the Basis of Disability in
Programs or Activities Conducted by the Department of Housing and Urban
Development
AGENCY: Office of the Secretary, HUD.
ACTION: Final rule.
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SUMMARY: This rule makes final a proposed rule published on May 30,
1991 which proposed to amend title 24 of the Code of Federal
Regulations to create a new part 9, that would provide for the
enforcement of section 504 of the Rehabilitation Act of 1973, as
amended, in programs or activities conducted by HUD. The rule at 24 CFR
part 9 is distinguished from the rule at 24 CFR part 8, which applies
to private, State or local programs or activities receiving Federal
financial assistance from HUD. This final rule at 24 CFR part 9
establishes standards for what constitutes discrimination on the basis
of mental or physical disabilities; provides definitions for
``individuals with disabilities'' and ``qualified individuals with
disabilities''; establishes a complaint procedure for resolving
allegations of discrimination; and also incorporates additional changes
to reflect regulatory implementation of the Americans with Disabilities
Act.
EFFECTIVE DATE: July 18, 1994.
FOR FURTHER INFORMATION CONTACT: Elizabeth Ryan, Office of Fair Housing
and Equal Opportunity, room 5214, Department of Housing and Urban
Development, 451 Seventh Street SW., Washington, DC 20410-5000,
telephone (202) 708-2333 (voice/TDD). (This is not a toll free number.)
SUPPLEMENTARY INFORMATION:
I. Background
Section 504 of the Rehabilitation Act of 1973, as amended (section
504), states in pertinent part that:
No otherwise qualified individual with disabilities in the United
States, * * * shall, solely by reason of her or his disability, be
excluded from the participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity receiving
Federal financial assistance or under any program or activity conducted
by any Executive agency or by the United States Postal Service. The
head of each such agency shall promulgate such regulations as may be
necessary to carry out the amendments to this section made by the
Rehabilitation, Comprehensive Services, and Developmental Disabilities
Act of 1978. Copies of any proposed regulation shall be submitted to
appropriate authorizing committees of the Congress, and such regulation
may take effect no earlier than the thirtieth day after the date on
which such regulation is so submitted to such committees. (29 U.S.C.
794 (1978 amendment italicized)).
On May 30, 1991 (56 FR 24604), HUD published a proposed rule that
would amend title 24 of the Code of Federal Regulations to create a new
part 9, that would provide for the enforcement of section 504 as it
applies to programs or activities conducted by HUD (i.e., HUD conducted
programs or activities). The part 9 rule is distinguished from the rule
at 24 CFR part 8, which applies to private, State or local programs or
activities receiving Federal financial assistance from HUD (HUD
assisted programs or activities). However, the substantive
nondiscrimination obligations of the agency as set forth in the part 9
rule are adapted from, and are very similar to, those contained in the
part 8 rule. (See 24 CFR part 8; see also 28 CFR part 41, which is the
section 504 coordination regulation for federally assisted programs
issued by the Department of Justice (DOJ).) This general parallelism is
in accord with the intent expressed by supporters of the 1978 amendment
in House floor debate, including its sponsor, U.S. Rep. James M.
Jeffords, that the Federal Government should have the same section 504
obligations as recipients of Federal financial assistance. 124 Cong.
Rec. 13,901 (1978) (remarks of Rep. Jeffords); 124 Cong. Rec. E2668,
E2670 (daily ed. May 17, 1978) id.; 124 Cong. Rec. 13,897 (remarks of
Rep. Brademas); id. at 38,552 (remarks of Rep. Sarasin).
There are, however, some differences between this part 9 rule and
the DOJ section 504 coordination regulations for federally assisted
programs, as well as many other agencies' implementing regulations.
Many of these changes are based on the Supreme Court's decision in
Southeastern Community College v. Davis, 442 U.S. 397 (1979) [Davis],
and the subsequent circuit court decisions interpreting Davis and
section 504. These differences were discussed in detail in the preamble
to the part 9 proposed rule at 56 FR 24604-24605. There are also
differences between the part 9 proposed rule and the part 9 final rule.
These differences are discussed in the following section.
II. Differences Between Part 9 Proposed Rule and Part 9 Final Rule
The Department invited public comment on the part 9 proposed rule.
During the public comment period, which expired July 29, 1991, the
Department received seven comments. The commenters included: One state
agency for the visually impaired; a not-for-profit law firm that
specializes in disability and health law; an organization representing
the interests of senior citizens; two legal service organizations; and
two disability advocacy organizations.
Following careful consideration of the issues raised by the
commenters, and further consideration of the part 9 rule in light of
regulatory implementation of the Americans with Disabilities Act
(Pub.L. 101-336, approved July 26, 1990) (ADA), the Department has
decided to adopt the part 9 proposed rule substantially as published on
May 30, 1991. However, the Department has made some changes to the
proposed rule in response to certain issues raised by the commenters,
and in response to the final rules published on July 26, 1991,
implementing titles I, II, and III of the ADA, which address,
respectively, equal employment opportunity for individuals with
disabilities (title I); nondiscrimination on the basis of disability in
State and local government services (title II); and nondiscrimination
on the basis of disability by public accommodations and in commercial
facilities (title III). (See 29 CFR part 1630, 56 FR 35726 (title I);
28 CFR part 35, 56 FR 35694 (title II); and 28 CFR part 36, 56 FR 3544
(title III).
A change in terminology that has been made in the part 9 final rule
(and which also will be made to the rule in 24 CFR part 8) is
replacement of the term ``handicap'' with ``disability.'' The
Rehabilitation Amendments of 1992 (Pub.L. 102-569, approved October 29,
1992) amended the Rehabilitation Act of 1973 to replace ``handicap''
with ``disability.''
The additional changes made to the part 9 proposed rule by this
final rule include the following.
Applicable Accessibility Standards
The final rule provides that HUD will follow the Uniform Federal
Accessibility Standards (UFAS), except where the accessibility
standards issued under the ADA provide for greater accessibility than
the UFAS. The accessibility standards issued under the ADA are referred
to as the ADA Accessibility Guidelines (ADAAG), and are set forth in
appendix A to 39 CFR part 1191.
The UFAS implements the accessibility standards required by the
Architectural Barriers Act (42 U.S.C. 4151-4157) (Barriers Act), and
these standards are set forth in 24 CFR part 40, appendix A for
residential structures, and in 41 CFR 101-19.600 to 101.607 for non-
residential structures.
The DOJ, by memorandum dated June 30, 1993, advised all Federal
agencies that at a recent meeting, the ATBCB adopted a resolution
urging Federal agencies to follow the ADAAG whenever it provides equal
or greater accessibility than UFAS. The DOJ has requested that Federal
agencies which have not issued their final rules implementing section
504 in Federally-conducted programs and activities comply with the
ATBCB's request. The DOJ notes that from a legal point of view, current
section 504 regulations do not prohibit implementation of such a policy
because the regulations do not require compliance with UFAS, but,
rather they simply state that compliance with UFAS is deemed to be
compliance with section 504 new construction and alteration
requirements.
Accordingly, this final rule provides that HUD will follow the
ADAAG whenever it provides greater accessibility than the UFAS.
Additionally, the terms ``UFAS'' and ``ADAAG'' will be added to the
definition section of the part 9 rule--Sec. 9.103.
Revised Definition of ``Accessible''
A minor revision is made to each of the definitions of accessible
in Sec. 9.103. Each definition includes the phrase ``complies with
applicable accessibility standards'' to clarify that the design,
construction or alteration undertaken must comply with applicable
accessibility standards.
Revised Definition of ``Accessible Route''
This final rule revises the definition of accessible route. The
definition of accessible route in the part 9 proposed rule was modeled
on the definition of accessible route in 24 CFR part 8. However, on
further consideration, the Department finds the part 8 definition to be
too limited for purposes of part 9.
Part 8 applies solely to HUD-assisted programs. The majority of
these programs are concerned with assisting individuals and families to
obtain decent and affordable housing by providing financial assistance
(through rental subsidies or for the development and operation of
public housing), or by endorsing a mortgage on a house or the mortgage
note on a housing project (or both) for insurance. Thus, the part 8
definition of accessible route reflects part 8's focus on housing
facilities.
Part 9, however, applies to all programs or activities conducted by
HUD. These programs and activities, as noted in the preamble to the
part 9 proposed rule (56 FR 24605), consist of the following: (1)
Employment; (2) HUD's contact with the general public as part of
ongoing agency operations; and (3) those HUD programs directly
administered by HUD for program beneficiaries and participants.
Activities within category 2 include communications with the public
(telephone contacts, office walk-ins or interviews) and the public's
use of the agency facilities. Activities within category (3) include
programs that provide Federal services or benefits (e.g., housing
facilities in HUD's Property Disposition Program, training at both HUD
and outside facilities, contracting and policy-development). These
activities involve many types of buildings and facilities, not just
housing facilities.
Accordingly, the definition of accessible route route in part 9 is
revised by replacing it with the definition of accessible route route
used in the ADAAG. The definition of accessible route route in the
ADAAG includes examples of interior accessible route routes and
exterior accessible route routes.
Revised Definition of ``Adaptability''
The definition of adaptability is also revised by this final rule.
The definition of adaptability in the proposed part 9 rule was based on
the definition of adaptability in 24 CFR part 8. The part 8 definition
is solely concerned with adaptability in dwelling units, and,
therefore, inappropriate for part 9, for the same reasons stated under
the discussion of the revised definition of accessible route route.
Accordingly, the Department is adopting the definition of adaptability
based on the definition of adaptability provided in the UFAS and ADAAG,
which provide the same definition for this term.
As revised in this final rule, adaptability will mean the ability
of certain elements of a dwelling unit, such as kitchen counters, sinks
and grab bars, to be added or altered so as to accommodate the needs of
individuals with or without disabilities or to accommodate the needs of
persons with different types or degrees of disability. This definition
differs from the definition in the part 9 proposed rule in that it
refers to ``building spaces and elements'' instead of ``certain
elements of a dwelling unit.'' Both UFAS and ADAAG use the phrase
``building spaces and elements.''
Replacement of Definition of ``Agency-Owned Housing Facility'' With
``PDP Housing Facility''
The final rule replaces the term ``agency-owned housing facility''
with PDP housing facility. PDP refers to HUD's Property Disposition
Program, and a definition is also included for this term. (See
discussion below.) Since the only HUD-owned housing facilities are
those in the Property Disposition Program, the Department believed use
of the term ``PDP housing facility'' is a more accurate term.
Revised Definition of ``Alteration''
The part 9 final rule replaces the definition of alteration set
forth in the May 30, 1991 proposed rule with that definition provided
in the ADAAG. This definition is more detailed and therefore provides
more guidance on what constitutes, and what does not constitute, an
alteration.
Revised Definition of ``Facility''
The part 9 final rule also replaces the definition of facility in
the May 30, 1991 proposed rule with that definition provided in the
ADAAG. As with the definition of alteration, the ADAAG definition of
facility is more detailed and therefore more helpful than the
definition provided in the part 9 proposed rule.
Revised Definition of ``Individual With Disabilities''
The definition of individual with disabilities (formerly,
``individual with handicaps'') is also revised by this rule.
Paragraph (a), which defines the term ``physical and mental
impairment'' is revised to include the human immunodeficiency virus
disease.
A new paragraph (b) is added to this definition to incorporate the
provisions of former Sec. 9.131 in the proposed rule, which addressed
applicability of section 504 to current and former illegal use of
drugs. The DOJ and the Equal Employment Opportunity Commission (EEOC)
which reviewed the part 9 rule in accordance with Executive Order 12067
(see Section IV of this preamble) suggested that the exclusion of
individuals currently engaged in the illegal use of drugs from the
protection provided by section 504, and the inclusion of individuals
undergoing, or having successfully completed, drug rehabilitation, are
more appropriately addressed in the definition of ``individual with
disabilities.'' Section 9.131 of the proposed rule has been removed as
a result of incorporation of its provisions in the definition of
individual with disabilities.
Former paragraph (b) (paragraph (b) in the part 9 proposed rule),
which addressed impairments that are not included in the definition of
``physical or mental impairment'' is redesignated as paragraph (c) in
this final rule, and is revised to address what is excluded from the
definition of individual with disabilities for purposes of employment.
In the part 9 proposed rule, paragraph (b) provided that the term
``physical or mental impairment'' did not include (1) an individual who
has a currently contagious disease or infection and who, by reasons of
such disease or infection, would constitute a direct threat to the
health or safety of other individuals, and (2) an individual who is an
alcoholic and whose current use of alcohol prevents the individual from
performing the duties of the job in question. Although these exclusions
are appropriate for inclusion under the definition of individual with
disabilities, they are not appropriate for inclusion in the definition
of ``physical or mental impairment.''
Accordingly, new paragraph (c) of the definition of individual with
disabilities clarifies that the contagious disease and alcohol abuse
exclusions are part of the definition of ``individual of disabilities''
and also clarifies that these exclusions are limited to the employment
context, in accordance with section 504 which imposes this limitation.
New Definition for ``Property Disposition Program''
As noted above, the final rule provides a definition for this term.
Property Disposition Program is defined to mean the HUD program under
which HUD administers the group of housing facilities that are either
owned by the Secretary or where, even though the Secretary has not
obtained title, the Secretary is mortgagee-in-possession. Such
properties are deemed to be in the possession or control of the agency.
Direct Threat Standard--New Sec. 9.131
The part 9 final rule adds a new Sec. 9.131 to implement section
302(b)(3) of the ADA, which addresses the issue of ``direct threat to
the health or safety of others.'' Section Sec. 9.131 provides that the
agency (HUD) is not required to permit an individual to participate in
or benefit from the goods, services, facilities, privileges, advantages
and accommodations of the agency where the individual poses a direct
threat to the health or safety of others. Section 9.131 is similar to
Sec. 36.208 of the final rule implementing title III of the ADA,
published on July 26, 1991 (56 FR 35544) and codified at 28 CFR part
36. New Sec. 9.131 is not intended to imply that individuals with
disabilities pose risks to others. It is intended to address concerns
that may arise in this area, and to establish a strict standard that
must be met before denying service to an individual with disabilities
or excluding that individual from participation in the programs or
activities conducted by the agency.
Paragraph (b) of this section defines ``direct threat'' to mean a
significant risk to the health or safety of others that cannot be
eliminated by a modification of policies, practices, or procedures, or
by the provision of auxiliary aids and services. This paragraph
codifies the standard first applied by the Supreme Court in School
Board of Nassau County v. Arline, 480 U.S. 273 (1987), in which the
Court held that an individual with a contagious disease may be an
individual with disabilities under section 504. In Arline, the Supreme
Court recognized that there is a need to balance the interests of
people with disabilities against legitimate concerns for public safety.
Although individuals with disabilities are generally entitled to the
protection of part 9, a person who poses a significant risk to others
may be excluded if reasonable modifications to the agency's policies,
practices, or procedures will not eliminate or reduce that risk (i.e.,
reduce it so that it is below the level of direct threat). The
determination that a person poses a direct threat to the health or
safety of others may not be based on generalizations or stereotypes
about the effects of a particular disability. This determination must
be based on an assessment of that individual that conforms to the
requirements of paragraph (c) of Sec. 9.131.
Paragraph (c) of Sec. 9.131 establishes the test to be used in
determining whether an individual poses a direct threat to the health
or safety of others. The agency is required to make an individualized
assessment, based on reasonable judgment that relies on current medical
evidence, or on the best available objective evidence to determine: the
nature, duration, and severity of the risk; the probability that the
potential injury will actually occur; and whether reasonable
modifications of policies, practices or procedures will mitigate the
risk. This is the test established by the Supreme Court in Arline. This
type of inquiry is essential if section 504 is to achieve its goal of
protecting individuals with disabilities from discrimination based on
prejudice, stereotypes, or unfounded fear, while giving appropriate
weight to legitimate concerns, such as the need to avoid exposing
others to significant health and safety risks. Making this assessment
will not usually require the services of a physician. Sources for
medical knowledge include guidance from public health authorities, such
as the U.S. Public Health Service, the Centers for Disease Control, and
the National Institutes of Health, including the National Institute of
Mental Health.
Additional Changes
In addition to the above changes, and as discussed in further
detail in Section III of this preamble, the final rule also revises
Sec. 9.170, which concerns the part 9 compliance procedure. A hearing
procedure is not mandated by statute, and the Department has concluded
that the compliance procedure set forth in Sec. 9.170 provides an
adequate remedy. Certain editorial changes were made to Sec. 9.152 to
clarify the extent of the agency's responsibility to modify existing
housing.
II. Discussion of Public Comments
The revisions to the part 9 proposed rule discussed in section II
above are further addressed in this section III, which addresses the
issues raised by the public commenters.
Relationship of Section 504 to the Fair Housing Act and the Americans
With Disabilities Act
Comment. Six of the commenters stated that the part 9 proposed rule
did not incorporate the standards and requirements that appear in the
Fair Housing Act\1\ or in title II of the ADA. Two commenters expressed
concern that the part 9 rule proposes to implement less stringent
standards than the Fair Housing Act, and requested that the part 9
final rule conform to the Fair Housing Act requirements; thus,
eliminating any conflict in program regulations. Another commenter
stated that the ADA requires HUD's regulations to ``refer to the ADA so
that when HUD assumes responsibility for housing enforcement under the
public services section (title II of the ADA), HUD will be better able
to ensure consistency among all of its enforcement responsibilities.''
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\1\Title VIII of the Civil Rights Act of 1968 as amended by the
Fair Housing Amendments Act of 1988 is referred to as the ``Fair
Housing Act.''
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Response. As noted in the preamble discussion under Section II,
which discusses changes made to the part 9 proposed rule, HUD does, in
several places in the final rule, incorporate the standards and
requirements of the ADA. However, it is important to note that in
enacting the Fair Housing Act and the ADA, the Congress did not
override the specific provisions of section 504. While all three
statutes (the Fair Housing Act, the ADA, and section 504) provide
certain civil rights protection to individuals with disabilities, the
scope and mandate of each statute is different.
Section 504 is concerned with discrimination against individuals
with disabilities in federally assisted and federally conducted
programs and activities. Federal programs or activities subject to
section 504 include those in the areas of employment, education,
health, social services, housing and agency facilities. Under section
504, the mandate that a federally assisted or conducted program or
activity be ``accessible'' to individuals with disabilities does not,
in every case, require structural changes. Moreover, when compliance
with the ``program accessibility'' of section 504 does require
structural changes, structural changes are not required to the same
extent as required under the Fair Housing Act. Under section 504,
accessibility is defined in broader terms, as discussed in the preamble
to HUD's part 8 interim rule implementing section 504 for HUD assisted
programs and activities:
For example, even though a facility in which a federally assisted
program is conducted is free of architectural barriers and thus meets
requirements for facility accessibility, the program is not accessible
if management policies and procedures effectively bar [individuals with
disabilities] from participating in or otherwise benefiting from the
program or activity. On the other hand, a program which is conducted in
an inaccessible existing facility can be made accessible without
altering the facility, where the program or activity can be delivered
or otherwise be made available to a [disabled] beneficiary without loss
of essential program benefits.
(See preamble to part 8 interim rule published on May 6, 1983, 48 FR
20638 at 20640)
The Fair Housing Act is concerned with discriminatory housing
practices, and its provisions apply to all housing, not just federally-
assisted or federally-owned housing. The Fair Housing Act is also
concerned with structural accessibility. The Fair Housing Act
establishes accessible design and construction requirements for certain
new multifamily dwellings for first occupancy on or after March 13,
1991. These requirements, however, do not extend to existing facilities
(i.e., alterations to existing facilities are not required).
The ADA is concerned with discrimination on the basis of disability
in the areas of employment, public accommodations, State and local
government services, and telecommunications. With respect to structural
accessibility, title II of the ADA requires that newly constructed or
newly altered State or local government facilities be designed and
constructed or altered so as to be readily accessible to and usable by
persons with disabilities. (See 56 FR 35574.)
The different mandates and scopes of section 504, the Fair Housing
Act and the ADA limit the extent to which the regulations promulgated
under these statutes can be uniform. Additionally, HUD's section 504
regulations are subject to the coordinating authority of the DOJ under
Executive Order 12250 (45 FR 72995, 3 CFR, 1980 Comp., p. 298.) The
purpose of DOJ's coordinating authority is to ensure that, to the
greatest extent possible, there is uniformity in the implementation of
section 504 by all Federal agencies. Accordingly, HUD's section 504
regulations are obliged to adhere, as closely as possible, to DOJ's
prototype section 504 regulations for these types of programs, and to
such other guidance as DOJ may provide in the issuance of section 504
regulations (for example, see the discussion concerning applicable
accessibility standards in Section II of the preamble).
With respect to any conflict among the requirements or the
accessibility standards of section 504, the Fair Housing Act and the
ADA, and their respective regulations, HUD notes that an individual or
entity that is subject to the provisions (including regulatory
provisions) of more than one of these statutes must comply with the
provisions that provide for the greater substantive rights or the more
stringent accessibility standards.
Definition of ``Accessible'' (Sec. 9.103)
Comment: Definition Requires Clarification. Two commenters stated
that the definition of ``accessible'' in the part 9 proposed rule lacks
the specific guidance provided by the definition for this term in
Sec. 100.201 of HUD's Fair Housing Act regulations (24 CFR 100.201).
One of the commenters stated that the part 9 definition of
``accessible'' with respect to individual dwelling units requires that
a unit be designed to meet the specific needs of a qualified
individual's particular disability or impairment. The commenter
requested that HUD clarify that for a unit to be counted toward a
program's five percent requirement for accessible units, all the
accessibility requirements for dwelling units, as provided in 24 CFR
part 40, must be met and not just those which might be adequate to meet
the needs of the individual's specific disability.
Response. As discussed above, section 504 and the Fair Housing Act
have different purposes. The Fair Housing Act's design and construction
accessibility standards apply only to certain new multifamily housing.
Section 504 is concerned with overall ``program'' accessibility, which
includes accessibility standards for multifamily housing and other
types of facilities, including Federal Government buildings.
Additionally, the Fair Housing Act, unlike section 504, does not impose
accessibility standards on alterations to existing housing and
facilities. Accordingly, the definition of ``accessible'' in HUD's Fair
Housing Act regulations is not sufficiently broad for section 504
purposes. However, as noted in Section II of this preamble, which
discusses changes made to the proposed rule, the Department did make
some modification to the definitions of ``accessible'' for purposes of
clarity.
With respect to the question of whether an individual dwelling
unit, that is altered to be accessible to a qualified individual with a
specific disability, counts toward the program's five percent
requirement, the Department notes that this issue is addressed by
Sec. 9.152 of the rule. Section 9.152 provides that if HUD undertakes
alterations to a PDP multifamily housing project, that is subject to
the accessibility requirements of Sec. 9.152, a minimum of five percent
of the total dwelling units, or at least one unit, whichever is
greater, must be made accessible for persons with mobility impairments.
(Emphasis added.) Section 9.152 also provides that if the unit is on an
accessible route and is adaptable and otherwise in compliance with
Sec. 9.152(d) (which requires compliance with the definitions,
requirements and standards of the UFAS, except where the ADAAG provides
for greater accessibility) the unit is accessible for purposes of
Sec. 9.152. Section 9.152 further provides that an additional two
percent of the units (but not less than one unit) in the project must
be made accessible for persons with hearing or vision impairments.
(Emphasis added.) Thus, whether an individual dwelling unit, which is
altered for a specific qualified individual with disabilities, counts
toward the program's five percent or two percent requirement depends
upon the nature of the alterations undertaken to address the
individual's disability.
Definition of ``Accessible Route'' (Sec. 9.103)
Comment: Definition Lacks Specific Guidance. Two commenters stated
that the definition of ``accessible route'' as set forth in HUD's Fair
Housing regulations provides more guidance than the definition in the
part 9 proposed rule, and urged the Department to adopt the definition
in the Fair Housing Act regulation.
Response. As discussed in the previous response, the differences
between the mandate and scope of the Fair Housing Act and the mandate
and scope of section 504 render the definition of ``accessible route''
in HUD's Fair Housing Act regulations inappropriate for section 504
purposes. However, as noted in section II of this preamble, the
Department has revised the definition of ``accessible route'' to
require compliance with the ADAAG. The Department believes that the
ADAAG definition of ``accessible route'' provides more guidance than
the definition of ``accessible route'' in the part 9 proposed rule, and
should address the commenters' concerns.
Comment: Definition Should Reference Architectural Barriers Act.
One commenter stated that the definitions of ``accessible,''
``accessible route,'' and ``adaptability'' should reference the
Barriers Act, which imposes access requirements on all HUD-owned,
leased, and managed properties.
Response. As discussed in section II of this preamble, the
definitions of ``accessible route'' and ``adaptability'' were revised
in this final rule to adopt the standards of the ADAAG or UFAS, as
applicable. Also, Secs. 9.151 and 9.152 of the proposed rule, and of
this final rule, which establish the requirements for new construction
and alterations to existing facilities, provide that the definitions,
requirements, and standards of the UFAS apply to facilities covered by
this rule, except where the ADAAG may provide for greater
accessibility.
Comment: Definition Should Provide Accessibility For Persons Who
Are Hearing and Sight Impaired. One commenter stated that the
definition of ``accessible route'' in the part 9 rule provides that
``an accessible route that serves only accessible units occupied by
persons with hearing or vision impairments would not be required to
comply with those requirements intended to effect accessibility for
persons with mobility impairments.'' The commenter requested that HUD
revise this definition to include persons who are visually impaired,
blind, or deaf and blind. The commenter stated that moving about safely
in one's environment can be a major obstacle to independent living for
individuals with these disabilities.
Response. HUD agrees with the commenter and believes that the
revision made to the definition of ``accessible route'' by this final
rule, which is to adopt the ADAAG definition of ``accessible route,''
addresses the commenter's concern.
Definition of ``Adaptability'' (Sec. 9.103)
Comment: HUD Should Adopt the Definition of Adaptability Used in
Fair Housing Regulations. Two commenters urged the Department to adopt
the definition of ``adaptability'' in the Fair Housing Act regulations
(24 CFR 100.205), and stated that the part 9 rule should not use a
different definition than that contained in the Fair Housing Act
regulations.
Response. The more explicit description of ``adaptability'' in the
Fair Housing Act regulations results from the fact that the statutory
language of the Fair Housing Act is explicit as to what constitutes
accessibility and adaptability under the Act. The language in
Sec. 100.205(c) of HUD's Fair Housing Act regulations is taken directly
from section 804(f)(3)(C) of the Fair Housing Act. However, the
features of adaptable design and construction described in
Sec. 100.205(c) do not include all the features that may be required
under part 9. For example, the accessibility/adaptability requirements
of the Fair Housing Act do not require adjustable cabinetry, fixtures
and plumbing. (See discussion of this issue in the preamble to the Fair
Housing Accessibility Guidelines codified at 24 CFR, Ch. I, Subch. A,
App. III.) Additionally, the Fair Housing Act does not require
accessible/adaptable features for individuals with hearing or vision
impairments. The section 504 definition of ``adaptability'' includes
adjustable cabinetry and fixtures, and design features for persons with
impaired hearing and vision. Thus, the Fair Housing Act definition of
adaptability, which is directed largely to individuals with mobility
impairments, is inappropriate for section 504 purposes.
Definition of ``Auxiliary Aids'' (Sec. 9.103)
Comment: Definition Should Include Devices for Persons With
Impaired Cognitive Skills. Two commenters stated that the definition of
``auxiliary aids'' in the part 9 rule limits these aids to persons with
impaired sensory, manual or speaking skills. The commenters stated that
auxiliary aids and services should not exclude individuals with mental
disabilities, and suggested that the definition be revised as follows:
``Auxiliary aids means services or devices that enable persons with
impaired sensory, manual, cognitive, interpersonal, or speaking skills
to have equal opportunity . . . .''
Response. HUD's definition of auxiliary aids and services is
consistent with the DOJ's definition for these terms. The DOJ
interprets auxiliary aids and services as those aids and services
designed to provide effective communication, e.g., making aurally and
visually delivered information available to persons with hearing,
speech and vision impairments. This interpretation was recently
reiterated in DOJ's final rules implementing title II and title III of
the ADA. (See 28 CFR part 35 (title II); and 28 CFR part 36 (title
III); see, especially discussion in preamble to title III final rule at
56 FR 35565). To the extent that individuals with cognitive or learning
disabilities have impaired sensory, manual, or communication skills,
these individuals are covered by the definition of auxiliary aids and
services.
Definition of ``Individuals With Disabilities'' (Sec. 9.103)
Comment: Definition Omits the Human Immunodeficiency Virus. Four
commenters stated that the definition for ``individuals with
disabilities'' in the part 9 rule omits from the list of physical and
mental impairments the human immunodeficiency virus (HIV). The
commenters stated that it is important to clarify that individuals who
test positive for the HIV are covered because subsection (b) of the
definition for ``individuals with disabilities'' excludes individuals
who currently have contagious diseases and who pose a direct health and
safety threat to others, or who, by reasons of the disease, cannot
perform the duties of the job.
Response. As noted in section II of this preamble, HUD has revised
the definition of ``individuals with disabilities'' in the final rule
to clarify that persons with the human immunodeficiency virus disease
(symptomatic or asymptomatic) are covered.
Comment: Direct Threat Standard Excludes Reasonable Accommodation
Requirement. One commenter stated that the ``direct threat to the
health or safety of others'' exclusion derives from the case of School
Board of Nassau County v. Arline, 107 S.Ct. 1123 (1987), but fails to
include the essential caveat that ``the direct threat not be capable of
elimination by reasonable accommodation''. The commenter stated that
the Congress, in its discussion of this direct threat exclusion in the
legislative history of the Fair Housing Act, was careful to note the
reasonable accommodation requirement. The commenter requested that the
reasonable accommodation requirement be explicitly acknowledged in the
part 9 final rule.
Response. As discussed in section II of this preamble, the
Department has added a new Sec. 9.131 to address the issue of ``direct
threat to the health or safety of others.'' This new section provides
that the agency must determine whether reasonable modifications of its
policies, practices or procedures will mitigate the risk posed by the
individual determined to present a direct threat to the health or
safety of others. Although the commenter uses the term ``reasonable
accommodation,'' which is the appropriate term within the context of
the Fair Housing Act, the appropriate comparable term for section 504,
generally, is ``reasonable modification,'' which reflects section 504's
application to a broader range of programs and activities. However,
reference to reasonable accommodation is appropriate when discussing
section 504's application to the employment.
Comment: Delete Reference to ``Inability to Perform the Essential
Elements of Job or Activity.'' One commenter stated that the exclusion
from the definition of ``individuals with disabilities'' of the
following phrase--``persons with a contagious disease who are unable to
perform the duties of the job''--was unwarranted. The commenter stated
that inquiries as to whether an individual with disabilities is able to
perform the duties of a job or activity are relevant only with respect
to whether the individual is ``qualified''--and then only if the
individual is unable to perform the essential duties, not all duties,
of the job or activity. The commenter stated that reasonable
accommodation must be provided, if necessary, to assist the individual
in performing the essential duties. The commenter further stated:
``Because this subsection involves the definition of `individual with
disabilities,' rather than `qualified individual with disabilities,'
the reference to inability to perform the duties of job should be
deleted.''
Response. The Department agrees with the commenter's statement that
without reference to the essential duties and reasonable accommodation
aspects of the analysis, this particular provision of the definition is
misleading. Accordingly, the Department has revised paragraph
(c)(1)(ii) of the definition of ``individuals with disabilities'' to
include the following language: ``An individual * * * is unable to
perform the essential duties of the job, with or without reasonable
accommodation.''
Definition of ``Multifamily Housing Project'' (Sec. 9.103)
Comment: Multifamily Dwellings Covered by Section 504 Should Be the
Same as Those Covered by the Fair Housing Act. Three commenters noted
that the part 9 rule defined ``multifamily housing project'' to mean
``a project containing five or more dwelling units,'' while the Fair
Housing regulations define covered multifamily dwellings to mean
buildings consisting of four or more dwelling units, if such buildings
have one or more elevators, and ground floor units in other buildings
consisting of four or more units. The commenters stated that the
dwellings covered by the section 504 regulations should mirror those of
the Fair Housing Act.
Response. The definition of ``covered multifamily dwelling'' found
in the Fair Housing Act regulations is consistent with the definition
of this term in the Fair Housing Act. The definition of ``multifamily
housing project'' in the part 9 rule is consistent with the definition
of this term in section 207(c) of the National Housing Act (12 U.S.C.
1713), and is the definition with which HUD program participants are
familiar. The definition is also consistent with HUD's section 504
regulations for federally assisted activities. (See 24 CFR 8.3) Since
section 504 extends only to federally assisted and federally conducted
programs and activities, the Department believes that the definition of
multifamily housing project, as set forth in the National Housing Act,
which pertains to Federal housing programs, is the appropriate
definition for HUD's section 504 regulations.
Comment: All HUD Housing Should Be Covered by Section 504,
Including Single Family Homes. One commenter stated that the occupancy
classification provision of the UFAS defines multifamily housing as
apartment buildings, without reference to a number of units, and the
residential section of the UFAS occupancy classification refers to one
and two family dwellings. The commenter stated that the inclusion of
the classification of one and two family dwellings in the UFAS
indicates that these dwellings are also subject to the Barriers Act.
The commenter requested that HUD make all of its housing, including
single family homes, subject to the requirements of the Barriers Act.
Response. The fact that the UFAS contains provisions applicable to
one or two family dwellings is not determinative of whether one or two
family dwellings are subject to the requirements of the Barriers Act.
Whether one or two family dwellings are covered by the Barriers Act
depends upon whether a statute subjects these types of dwellings to the
requirements of Barriers Act. One or two family dwellings are subject
to the requirements of section 504, and possibly the UFAS, to the
extent that they are part of a HUD conducted program and meet the
requirements of 24 CFR 9.150(e).
Definition of ``Qualified Individuals With Disabilities'' (Sec. 9.103)
Comment: Eliminate Definition. Five commenters stated that the
definition for ``qualified individuals with disabilities'' should be
removed from the part 9 rule. One commenter stated that HUD concedes in
the preamble to the proposed part 9 rule that housing programs do not
require a definition of qualified individual with disabilities (56 FR
24606). The commenter stated that HUD included this definition so that
the part 9 rule will cover all programs or activities conducted by HUD
now and in the future, and so that HUD's regulation will be consistent
with the DOJ's prototype regulation and the regulations of other
Federal agencies (56 FR 24606). The commenter stated that HUD could
achieve its purpose through other ways, such as explicitly describing
the HUD programs or the kinds of HUD programs to which the definition
applies, or explaining that this term does not apply to housing
consumers.
Response. The term ``qualified individual with disabilities'' is
taken directly from the language of section 504. The protection
afforded by section 504 is restricted to ``qualified'' individuals with
disabilities. As noted in the preamble to the part 9 proposed rule, HUD
does not conduct programs under which a person is required to perform
services or achieve a level of accomplishment as a part of his or her
participation in a particular program or activity (e.g., educational
programs) (56 FR 24606). Notwithstanding this fact, HUD determined, as
also noted in the preamble to the part 9 proposed rule, that it is
important to include a definition for this term so that HUD's
regulation will cover all programs or activities conducted by HUD now
and in the future, and so that its section 504 regulation for federally
conducted programs will be consistent with DOJ's prototype regulation.
However, the fact that section 504 applies only to ``qualified
individuals with disabilities'' makes it important to include a
definition for this term in HUD's section 504 regulations.
The purpose in defining the term ``qualified individuals with
disabilities'' is to establish a uniform standard by which an
individual with disabilities is determined to be ``qualified'' to
participate in a federally assisted or federally conducted program. The
standard, as established by DOJ on the basis of Federal case law
concerning section 504, is whether, with appropriate modifications, an
individual with disabilities is able to participate in, or achieve the
purpose of a federally assisted or federally conducted program or
activity. To be considered qualified, however, the modifications
required for the individual with disabilities may not be those which
would result in a fundamental alteration in the nature of the program.
(See preamble to DOJ's coordination regulation for federally conducted
programs codified at 28 CFR part 39, Editorial Note, 415-429 (1991) at
418; and preamble to proposed part 9 rule at 56 FR 24606.) HUD's
definition of ``qualified individuals with disabilities'' incorporates
this basic test established by DOJ and Federal case law and is
consistent with the DOJ's definition of ``qualified individual with
disabilities'' in its section 504 prototype regulation for federally
conducted programs.
Comment: Eliminate Language Concerning Essential Eligibility
Requirements
Five commenters objected to the language concerning ``essential
eligibility requirements'' set forth in paragraph (b) of the
definition. One commenter stated that the essential eligibility
requirement language included ``implicit'' eligibility requirements.
Response. In defining ``qualified individual with disabilities,''
HUD adheres to DOJ's guidance on the meaning and interpretation of this
term, which guidance is set forth in DOJ's preamble to the final rule
implementing its section 504 prototype regulation for federally
conducted programs, codified at 28 CFR part 39, Editorial Note, 415-429
(1991). In this preamble, DOJ advises that the concept of ``qualified
individual with disabilities'' includes the notion of ``essential
eligibility requirements''. (Id at 419). Under section 504, a qualified
individual with disabilities must be able to meet the essential
eligibility requirements of a federally assisted or federally conducted
program, with the recognition that reasonable modification may need to
be made to the program for the individual with disabilities to meet the
essential eligibility requirements of the program.
The inclusion of the term ``implicit requirements'' in the
definition is to clarify that the essential eligibility requirements do
not include only stated program eligibility requirements, but also
those requirements that are inherent in the nature of the program.
However, in including implicit requirements in the definition, HUD does
not intend a program's eligibility requirements to include requirements
that are not intrinsic to the program or that are applied solely to
individuals with disabilities--and not to other tenants.
Comment: ``All Obligations of Occupancy'' Are Not Essential. One
commenter stated that the ``essential eligibility requirements''
include the requirement to comply with ``all obligations of
occupancy.'' The commenter stated that all obligations of occupancy
cannot possibly be essential. The commenter stated: ``Rather than
clarifying the obligations of program operators under section 504, this
definition will mislead operators into believing that they can exclude
any individual with disabilities who cannot fully satisfy every term of
the lease, however incidental or unimportant.''
Response. The phrase ``all obligations of occupancy,'' as with the
phrase ``implicit eligibility requirements'' discussed above, is
intended to refer only to those requirements or obligations that are
imposed on all tenants or residents, regardless of whether the tenants
or residents are individuals with disabilities. The Department believes
that it is important to retain the phrase ``all obligations of
occupancy'' within the definition of ``qualified individual with
disabilities'' because it is embodied in the concept of ``essential
eligibility requirements''. To be eligible to participate in a HUD
housing program, an applicant must be able to comply with all
obligations of occupancy. Typical occupancy obligations include those
related to rent, security deposits, use of premises, subletting, and
utility charges. It is inappropriate for the Department to list in a
regulation which obligations constitute ``important'' obligations of
occupancy, because of the difficulty in ensuring the comprehensiveness
of such a list, and because certain multifamily housing projects as a
result of their location or use may require the inclusion of
obligations (or terms) that are not generally found in leases for other
multifamily housing projects. For the foregoing reasons, the Department
declines to state which obligations of occupancy are those with which
an individual with disabilities must comply.
Comment: Definition Fails to Note the Obligation of HUD to Provide
Reasonable Accommodations. Two commenters stated that the definition
fails to note the obligation of HUD to provide reasonable accommodation
to individuals who would be able to satisfy essential program
requirements with such assistance.
Response. HUD's definition of ``qualified individual with
disabilities'' is consistent with the definition for this term found in
DOJ's section 504 prototype regulation for federally conducted programs
and in the section 504 regulations of other Federal agencies. The fact
that the definition of qualified individual with disabilities does not
explicitly refer to the ``reasonable modification'' requirement does
not mean that the requirement is inapplicable to Federal programs
covered by section 504. As noted earlier in this preamble, reasonable
modification is required under section 504. The reasonable modification
requirement, although not explicitly referred to in the definition of
``qualified individual with disabilities,'' is referred to in the
definition of ``individual with disabilities'' and is implicitly
referenced in the language of the definition of ``qualified individual
with disabilities'' that provides that modifications in the program or
activity, which result in a fundamental alteration in the nature of the
program, are not required. Conversely, modifications to the program
that would not result in a fundamental alteration in the nature of the
program are required.
Comment: Definition Should Include Direct Threat Standard and
Eliminate Standard of Significant Risk of Substantial Interference with
the Safety of Others. Five commenters supported incorporating the
``direct threat'' standard that is included in the Fair Housing Act,
rather than the standard of ``significant risk of substantial
interference with the safety or enjoyment of others or with his own
health or safety,'' as set forth in the part 9 rule. One commenter
stated that it was absolutely improper to permit evaluation of whether
an individual is a potential risk to his or her own health or safety.
The commenter stated that: ``In the housing context, such a concern can
never be related to an essential eligibility requirement. Where an
individual may pose a risk to him or herself and to others, the Fair
Housing Act standard of direct threat to the health and safety of
others is adequate.''
Response. As discussed in section II of this preamble, the
Department has added a new Sec. 9.131, which addresses the direct
threat standard.
Self-Evaluation (Sec. 9.110)
Section 9.110(a) provides that HUD shall, within one year of the
effective date of the part 9 final rule, evaluate its current policies
and practices, and the effects of those policies and practices,
including regulations, handbooks, notices and other written guidance,
that do not or may not meet the requirements of part 9, and, to the
extent modification of any such policies is required, HUD shall take
the necessary corrective actions.
Comment: Self-Evaluation Section Should Be Delayed by Final Rule
Deadlines. Two commenters suggested that this section be revised to
state that remedial actions, which HUD has begun or is planning, will
not be delayed by the ``deadlines in this section.'' One of the
commenters stated that the part 9 final rule should clearly state that
HUD will complete the self-evaluation of its policies and practices
within one year of the effective date of the final rule.
Response. The Department periodically reviews the requirements of
its various programs, and the policies and practices of these programs,
to ensure that all HUD programs, both HUD assisted and HUD conducted,
reflect existing statutory requirements. Given this periodic review
process, the Department does not intend or foresee any delay in the
evaluation of HUD conducted programs to ensure that these programs meet
the requirements of part 9, as required by Sec. 9.110.
Comment: HUD Should Review Its Federal Preference Criteria, As Part
of Its Self-Evaluation Process. One commenter urged the Department to
review its Federal preference criteria for housing programs funded by
the Department. The commenter stated that the current criteria are not
clear on the definition of what is not a ``regular sleeping
accommodation'' and that Federal preferences should be revised to give
top preference to individuals released from institutions, such as
hospitals, nursing homes and rehabilitation facilities.
Response. A review of Federal preference criteria for housing
programs is not appropriate in connection with the development and
implementation of this part 9 rule. This rule is concerned with the
implementation of section 504 solely as it applies to HUD conducted
programs. Federal preferences in housing affect all HUD housing
programs, not only housing owned by HUD. Any changes to the list of
individuals that should be given preferences in federally-assisted or
federally-conducted housing is more appropriate for proposed rulemaking
that provides for advance notice to, and solicitation of comment from,
the public.
Comment: Expand Public Participation in the Self-Evaluation Process
to Include Comments on Fair Housing Issues. Section 9.110(b) of the
part 9 rule provides that HUD shall provide an opportunity to
interested persons, including individuals with disabilities or
organizations representing individuals with disabilities, to
participate in the self-evaluation process by submitting comments, both
oral and written. One commenter recommended that HUD expand this
section of the self-evaluation process to include fair housing issues
that relate to people with disabilities.
Response. As discussed throughout this preamble, the mandate and
the scope of the Fair Housing Act and section 504 are different.
Accordingly, it is inappropriate for issues specifically related to the
Fair Housing Act to be included in the section 504 self-evaluation
process. However, to the extent that section 504 incorporates or
overlaps with the Fair Housing Act, these issues may be raised in
connection with the self-evaluation process.
Comment: Files Should Be Maintained Permanently. Section 9.110(c)
of the part 9 rule provides that HUD shall, for a period of at least
three years following the completion of the self-evaluation, maintain
on file and make available for public inspection: (1) A list of
interested persons; (2) a description of the areas examined and any
problems identified; and (3) a description of any modifications made or
to be made. Two commenters recommended that HUD maintain this file
permanently. The commenters stated that HUD may make progress in the
implementation and enforcement of section 504 if HUD's efforts are
permanently catalogued, and that this progress is more important than
maintaining consistency with the DOJ's coordination regulation.
Response. The Department believes that successful implementation
and enforcement of section 504 will not be hindered by the rule's
requirement to maintain the ``self-evaluation'' files for a period of
three years. The Department notes that under Sec. 9.110, HUD is not
required to discard the self-evaluation files after the three year
period has expired. Rather, HUD is required to maintain these files for
a period of at least three years following the completion of the self-
evaluation. HUD may maintain these files permanently or indefinitely.
Accordingly, the Department believes that the minimum three-year
requirement is sufficient.
Notice (Sec. 9.111)
Comment: This Section Should Clarify How HUD Will Communicate with
People with Disabilities. Section 9.111 provides that HUD shall make
available to employees, applicants, participants, beneficiaries, and
other interested persons, information regarding the provisions of part
9. One commenter stated that although the preamble to the part 9
proposed rule indicated that certain HUD materials will be made
available on tape and in Braille, nothing in the regulation makes that
clear. The commenter requested that the part 9 proposed rule describe
the specific ways in which HUD will communicate effectively with
applicants, participants, personnel or other Federal entities, and
members of the public who have disabilities.
Response. To make available to individuals with disabilities the
information required by Sec. 9.111, HUD will use, to the extent
necessary, the auxiliary aids and services described in Sec. 9.103. The
definition of ``auxiliary aids'' in Sec. 9.103 provides in relevant
part as follows: ``Although auxiliary aids are required explicitly only
by Sec. 9.160(a)(1), they may also be necessary to meet other
requirements of the proposed regulation.''
General Prohibitions Against Discrimination (Sec. 9.130)
Section 9.130 lists the general prohibitions against discrimination
under section 504. Subsection (b)(vi) of Sec. 9.130 states that it is
discriminatory to:
``Deny a dwelling to an otherwise qualified buyer or renter because
of a disability of that buyer or renter or a person residing or
intending to reside in that dwelling after it is sold, rented or made
available.'' (Sec. 9.130(b)(vi))
Comment: Sec. 9.130 Should Include Relatives, Friends and
Associates of Individuals with Disabilities. Three commenters stated
that this paragraph was similar to language in the Fair Housing Act,
except that the Fair Housing Act adds a third category of
discrimination--``or because of a disability of any person associated
with that person.'' The commenters urged adoption of this category of
individuals so that the section 504 regulations, like the Fair Housing
regulations (24 CFR 100.202), will prohibit discrimination against
buyers and renters who have relatives, friends or associates who have
disabilities.
Response. The Fair Housing Act prohibits, inter alia,
discrimination against any person on the basis of disability, whether
or not it is the aggrieved person or an associate or relative of that
person who is disabled. Because of differences in the language and
structure of the Fair Housing Act and section 504, the Fair Housing Act
language is not necessarily transferable to section 504.
Comment: This Section Should Incorporate Language Concerning
Reasonable Accommodation. One commenter requested that HUD incorporate
the language of Sec. 100.204 of the Fair Housing Act regulations
concerning reasonable accommodation in the part 9 rule's provision
establishing the general prohibitions against discrimination under
section 504.
Response. HUD's Fair Housing Act regulation concerning reasonable
accommodation is not appropriate for the section 504 regulations. The
reasonable accommodation requirements of the Fair Housing Act are
narrower than the ``reasonable modification'' requirements of section
504, because the Fair Housing Act requirements only refer to reasonable
modifications and the rules, policies, practices or services associated
with a dwelling unit. (See 24 CFR 100.204.) Under section 504,
reasonable modifications will vary in the context of each Federal
program or activity. Accordingly, it is important that the
interpretation of reasonable modification with respect to a program or
activity covered by section 504 not be limited to the interpretation
provided by HUD's Fair Housing Act regulations. Additionally, as noted
previously, the term, ``qualified individuals with disabilities,'' used
throughout the part 8 and part 9 rules implicitly incorporates the
concept of reasonable accommodation or reasonable modification.
Program Accessibility: Existing Facilities (Sec. 9.150)
Comment: The Department Should Consider the Impact of the Americans
with Disabilities Act on Existing Facilities. Section 9.150(b) provides
that HUD is not required to make structural changes in existing
facilities where other methods are effective in achieving compliance
with this section. Three commenters stated that HUD should consider the
impact of the ADA on HUD programs and activities. Two commenters stated
that it would be helpful both to consumers and to HUD and Justice
enforcement personnel if these regulations referred to the ADA and to
the ADA title II regulations and standards.
Response. In developing this final rule, the Department in
consultation with the DOJ and EEOC, has considered the impact of the
ADA on HUD conducted programs and activities, and where appropriate,
incorporated those requirements of the ADA that are applicable to these
programs and activities.
Comment: Section 9.150(e) Should Clarify HUD's Responsibility to
Make Reasonable Modifications in Housing Sold to Buyers with
Disabilities. Section 9.150(e) provides that HUD is not required to
make alterations to existing facilities that are part of HUD's Property
Disposition Programs, unless such alterations are necessary to meet the
needs of a current or prospective tenant during the time when the
Department expects to retain legal possession of the facilities and
there is no alternative method to meet the needs of that tenant.
Section 9.150(e) further provides that nothing in this section shall be
construed to require alterations to make facilities accessible to
persons with disabilities who are expected to occupy the facilities
only after HUD relinquishes legal possession.
One commenter stated that this section relieves HUD of all
responsibility to make any modifications for buyers with disabilities
who purchase housing through HUD's Property Disposition Program. The
commenter stated that Sec. 9.150(e) should be revised to clarify HUD'S
responsibility to make reasonable modifications in housing sold to
buyers with disabilities.
Another commenter stated that the part 9 final rule should be
revised to provide that HUD will exert its best efforts to assist a
purchaser in obtaining the funding and expertise that HUD is able to
provide in making the building usable for tenants and owners with
disabilities.
Response. Section 9.150 requires the housing provider to
demonstrate that physical alterations to make a unit accessible would
result in a fundamental alteration in the nature of the program or
activity or in an undue financial and administrative burden. This
section requires that where physical alterations would result in a
fundamental alteration or undue financial and administrative burden,
alternative action must be taken that would not result in such an
alteration or such burdens, but nevertheless would ensure that
individuals with disabilities receive the benefits and services of the
program or activity.
In the preamble to the part 9 proposed rule, HUD explained why the
traditional approach to program accessibility with respect to existing
facilities is not appropriate for the Property Disposition Programs
because HUD holds the properties only temporarily and for an
unpredictable amount of time (56 FR 24611). Since HUD does not know how
long it will be in possession of the property, the agency cannot
identify a time period within which it can assess the needs of those
who might wish to live there in the future. However, HUD recognizes
that during the time that the agency retains possession of a housing
property under this program, HUD provides a housing service to the
residents and also has a section 504 obligation to those who apply for
housing in the facility.
Program Accessibility: Alterations of Property Disposition Program
Multifamily Housing Facilities (Sec. 9.152)
Section 9.152 imposes accessibility requirements on HUD when HUD
undertakes alterations to multifamily housing facilities that are part
of HUD's Property Disposition Program. This section would require that
once HUD undertakes alterations that cost 75 percent or more of the
replacement value of the building, HUD must make at least five percent
of the units accessible to tenants with mobility disabilities and two
percent of the units accessible to tenants with sight and hearing
disabilities.
Comment: Section 9.152 Should Include the Fair Housing Act
Standards for New Construction. One commenter stated that HUD adopted
the 75 percent figure for its section 504 federally assisted
regulations, because it purposely wanted the level of alterations to
``be tantamount to new construction'' (53 FR 20224). The commenter
stated that the Department is now required to meet the Fair Housing Act
new construction standards when altering housing facilities. The
commenter further stated that this section requires the five percent/
two percent standard only in buildings with 15 or more units that are
undergoing significant alteration, and that this requirement conflicts
with HUD's UFAS standards for federally owned residential property
which has no minimum 15 unit requirement.
Response. As previously discussed, it is inappropriate for HUD to
incorporate the standards and requirements of the Fair Housing Act in a
regulation implementing section 504 because the purposes and goals of
these two statutes are not identical. To the extent that newly
constructed HUD multifamily housing is subject to the requirements of
the Fair Housing Act and section 504, HUD will adhere to the standards
that provide for greater accessibility.
The UFAS standards were promulgated under the Barriers Act. (See 24
CFR part 40, App. A, 4.1; 49 FR 31528; 53 FR 20228.) Because section
504 requires compliance with accessibility standards in certain
circumstances, the DOJ recommended that Federal agencies provide that
new construction and alterations comply with the ADAAG or the UFAS
(that is, compliance with the ADAAG whenever the ADAAG provides for
greater accessibility than the UFAS). Compliance with the UFAS or the
ADAAG therefore is deemed to be compliance with section 504. The DOJ
recommended the UFAS and the ADAAG as the applicable accessibility
standards for section 504 to reduce potential conflict between
standards enforced under the Barriers Act and section 504. However, the
degree of accessibility required by the Barriers Act and that required
by section 504 are not identical, and the regulations and standards
promulgated under section 504 and the Barriers Act reflect these
differences.
Comment: Replacement Cost Cap of Section 9.152 Should Be Lowered
from 75 percent to 50 percent. One commenter recommended lowering the
replacement cost cap in Sec. 9.152 because many states and cities
nationwide have a lower triggering percentage. The commenter stated
that HUD projects should not be allowed to remain inaccessible until a
renovation totals 75 percent of replacement cost when private buildings
are subject to a more stringent standard.
Response. The 75 percent replacement cost cap set forth in
Sec. 9.152 is also contained in Sec. 8.23 of HUD's section 504
regulation for HUD assisted programs. The replacement cost cap issue
was carefully considered by the Department during development of the
final part 8 rule. The Department received 290 comments on this issue
following publication of the proposed part 8 rule (53 FR 20224). In the
preamble to the final part 8 rule, the Department explained in detail
the reasons behind its decision to retain the 75 percent replacement
cost cap. (See 53 FR 20224.) The comment made by the commenter on this
issue in the context of the part 9 rule has not persuaded the
Department to revise its initial decision that the 75 percent
replacement cost cap is an appropriate standard for section 504
purposes. The Department points out, however, that HUD projects in
jurisdictions which impose more stringent accessibility standards, than
those prescribed in HUD's section 504 regulations, must comply with the
more stringent requirements.
Comment: Section 9.152(b) is Unclear As to When Responsibility to
Modify Existing Housing Ends. One commenter stated that paragraph (b)
of Sec. 9.152 is confusing. The commenter stated that housing providers
who read the regulation do not understand when their responsibility to
modify existing housing ends. The commenter stated that paragraph (b)
should be revised to clarify that each time a building is altered,
accessibility requirements apply.
Response. The Department believes that part of the confusion
concerning Sec. 9.152 results from the fact that the subheadings were
inadvertently omitted at the time of publication of the part 9 proposed
rule. Paragraph (a) of Sec. 9.152 should be titled ``Substantial
Alterations,'' and paragraph (b) of this section should be titled
``Other Alterations.'' The final rule includes these subheadings which
indicates the extent of the provider's responsibility to modify
existing housing. The Department believes that no further revisions to
this section are necessary. The issue raised by the commenter, like the
issue in the preceding comment, was the subject of considerable public
comment at the time of publication of the proposed part 8 rule. (See 24
CFR 20224.) The Department believes that the lack of substantial public
comment on Sec. 9.152(b), which is identical to Sec. 8.23(b), indicates
that the provisions of this section are not confusing for the majority
of HUD program participants. Accordingly, except for the inclusion of
the subheadings, the Department declines to amend the language in this
section.
Distribution of Accessible Dwelling Units (Sec. 9.153)
This section requires accessible units to be distributed throughout
projects ``to the maximum extent feasible and subject to reasonable
health and safety requirements''.
Comment: Eliminate Language Concerning ``To the Maximum Extent
Feasible''. Two commenters recommended that the Department delete the
language beginning ``to the maximum extent feasible.'' The commenters
stated that the Fair Housing Act prohibits segregating all tenants with
disabilities into one area or into one part of a building.
Response. The language in Sec. 9.153 is identical to the language
in Sec. 8.26 of HUD's section 504 regulation for federally assisted
programs. Section 8.26 was the subject of considerable public comment
following publication of the part 8 proposed rule. (See 53 FR 20226.)
The commenters on the part 8 rule expressed concerns similar to those
expressed by the commenters on this rule. In the preamble to the part 8
proposed rule, the Department stated that this provision does not allow
``the unnecessary segregation of qualified individuals with
disabilities'' (53 FR 20226). The Department reaffirms that prohibition
here, and notes that this prohibition is contained in
Sec. 9.130(b)(1)(iv), which prohibits the agency from providing
different or separate housing, aid, benefits, or services to
individuals with disabilities, or to any class of individuals with
disabilities than is provided to others unless such action is necessary
to provide qualified individuals with disabilities with housing, aid,
benefits, or services that are as effective as those provided to
others.
Occupancy of Accessible Dwelling Units (Sec. 9.154)
Section 9.154(b) provides that when offering an accessible unit to
an applicant who is not disabled and does not require the accessibility
features of the unit, the Department may require the applicant to agree
(and may incorporate this agreement in the lease) to move to a non-
accessible unit when available.
Comment: Department Should Require All Leases to Incorporate
``Agreement to Move'' Clause as Standard Practice. One commenter
recommended that the Department incorporate this provision in the lease
as standard practice.
Response. The Department believes that it is unnecessary to require
that this provision be incorporated in the lease as standard practice.
The Department believes that the language in Sec. 9.154, which provides
that this provision may be incorporated in the lease is adequate. The
Department notes that this language was contained in Sec. 8.26 of HUD's
part 8 interim rule published on May 6, 1983 (48 FR 20655) and was
retained in Sec. 8.27(b) of the part 8 final rule, published on June 2,
1988 (53 FR 20240). Because this provision has been in HUD's section
504 regulations for approximately 10 years, the Department believes
that HUD managers are aware that they are legally empowered to--and
will--require an applicant without disabilities to agree to move to a
non-accessible unit when one becomes available.
Housing Adjustments (Sec. 9.155)
This section requires the Department to modify its housing policies
and practices to ensure that they do not limit the participation of
tenants with disabilities.
Comment: New Housing Policies Implemented In Response to Fair
Housing Act Should be Included in Sec. 9.155. One commenter stated that
since the passage of both section 504 and the Fair Housing Act, HUD has
changed some of its housing policies, as for example, making FHA
mortgages available to non-profit organizations for the purchase of
single-family homes that are to be used by groups of unrelated tenants
with disabilities. The commenter recommended that these new policies be
listed in the regulation.
Response. The Department does not believe that the part 9 rule is
the proper place to enunciate any policy revisions resulting from the
Fair Housing Act. All new policies have been or will be announced in a
more appropriate forum.
Comment: Section 9.155(a) Should Include Reference to Reasonable
Accommodation. Four commenters stated that the last sentence of
Sec. 9.155(a) discusses fundamental alterations and undue financial and
administrative burdens but not reasonable accommodation, which
indicates that HUD has no duty to reasonably accommodate an
individual's disability.
Response. Again, the appropriate term, generally, for purposes of
section 504 is ``reasonable modification.'' The reasonable modification
issue has been raised in connection with other sections of the part 9
rule. The Department refers the commenters to its previous response on
this issue as set forth in this preamble.
Communications (Sec. 9.160)
Section 9.160 would require HUD to take appropriate steps to ensure
effective communication with personnel of other Federal entities,
applicants, participants and members of the public.
Comment: Section 9.160 Should Address the Communication Needs of
Individuals with Impaired Cognitive Skills. One commenter stated that
this section focuses on individuals with hearing and sight
disabilities, and excludes individuals with impaired cognitive skills.
Response. The provisions of this section are not intended to
exclude individuals who have disabilities other than hearing and vision
impairments. Because hearing and vision impairments present easily
identifiable communication difficulties, a number of auxiliary aids and
services have been designed to overcome these communication
difficulties, and serve as clear examples of how effective
communication may be achieved under the requirements of section 504.
However, the provisions of Sec. 9.160 clearly provide that HUD shall,
where necessary, furnish the auxiliary aid appropriate to an
individual's disability, and in determining what type of auxiliary aid
is necessary, shall give primary consideration to the request of the
individual with disabilities.
Compliance Procedures (Sec. 9.170)
Section 9.170 would establish the procedures for processing
complaints arising under section 504. In the preamble to the proposed
rule, the Department specifically solicited comment on whether the
compliance procedures for part 9 should include a hearing before an
Administrative Law Judge. (See 56 FR 24613.)
Comment: Procedures Should Include Full Evidentiary Hearing Before
an Administrative Law Judge. One commenter recommended that HUD provide
complainants with the opportunity for a full evidentiary hearing before
an Administrative Law Judge in appeals from the Assistant Secretary's
determination.
Response. The issue of whether the part 9 rule should provide for
an administrative law judge was carefully considered by the Department
during development of the proposed part 9 rule, and again, after
receiving this comment. The Department has concluded that the complaint
processing procedure set forth in Sec. 9.170 will provide for an
adequate remedy, and therefore, it is not necessary to provide for a
hearing before an administrative law judge. Accordingly, the ``right to
request a hearing'' has been deleted from Sec. 9.170 of the final rule.
IV. Other Matters
Coordination. This final rule has been reviewed by the Department
of Justice. It is an adaptation of a prototype prepared by the
Department of Justice under Executive Order 12250 (45 FR 72995, 3 CFR,
1980 Comp., p. 298) and distributed to Executive agencies. This final
rule also has been reviewed by the Equal Employment Opportunity
Commission under Executive Order 12067 (43 FR 28967, 3 CFR, 1978 Comp.,
p. 206).
Environmental Impact. At the time of development of the proposed
part 9 rule, a Finding of No Significant Impact with respect to the
environment was made in accordance with HUD regulations at 24 CFR part
50, which implement section 102(2)(C) of the National Environmental
Policy Act of 1969. That Finding of No Significant Impact remains
applicable to this final rule and is available for public inspection
during regular business hours in the Office of the Rules Docket Clerk
at the above address.
Impact on Small Entities. The Secretary, in accordance with the
Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this rule
before publication, and by approving it, certifies that this rule does
not have a significant economic impact on small entities. The purpose
of this rule is to provide for the enforcement of section 504 of the
Rehabilitation Act of 1973 as it applies to programs or activities
conducted by HUD.
Executive Order 12612, Federalism. The General Counsel, as the
Designated Official under section 6(a) of Executive Order 12612,
Federalism, has determined that the policies contained in this rule
would not, if implemented, have substantial direct effects on States or
their political subdivisions, or the relationship between the Federal
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Specifically,
the requirements of this rule are directed to HUD programs and
activities, and do not impinge upon the relationship between the
Federal government and State and local governments. Accordingly, the
rule is not subject to review under the Order.
Executive Order 12606, the Family. The General Counsel, as the
Designated Official under Executive Order 12606, the Family, has
determined that this rule does not have potential for significant
impact on family formation, maintenance, and general well-being, and,
thus, is not subject to review under the Order. The rule establishes
requirements prohibiting discrimination against individuals with
disabilities in programs and activities conducted by HUD.
Semiannual Agenda of Regulations. This rule was listed as sequence
number 1528 in the Department's Semiannual Agenda of Regulations
published on April 25, 1994 (59 FR 20424, 20434) pursuant to Executive
Order 12866 and the Regulatory Flexibility Act.
List of Subjects in 24 CFR Part 9
Blind, Buildings, Civil rights, Employment, Equal employment
opportunity, Federal buildings and facilities, Government employees,
Persons with disabilities.
Accordingly, title 24 of the Code of Federal Regulations is amended
by adding a new part 9, consisting of Secs. 9.101 through 9.170, to
read as follows:
PART 9--ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF DISABILITY
IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE DEPARTMENT OF HOUSING
AND URBAN DEVELOPMENT
Sec.
9.101 Purpose.
9.102 Applicability.
9.103 Definitions.
9.110 Self-evaluation.
9.111 Notice.
9.112--9.129 [Reserved]
9.130 General prohibitions against discrimination.
9.131 Direct threat.
9.132--9.139 [Reserved]
9.140 Employment.
9.141--9.148 [Reserved]
9.149 Program accessibility: discrimination prohibited.
9.150 Program accessibility: existing facilities.
9.151 Program accessibility: new construction and alterations.
9.152 Program accessibility: Alterations of Property Disposition
Program multifamily housing facilities.
9.153 Distribution of accessible dwelling units.
9.154 Occupancy of accessible dwelling units.
9.155 Housing adjustments.
9.160 Communications.
9.170 Compliance procedures.
Authority: 29 U.S.C. 794; 42 U.S.C. 3535(d).
Sec. 9.101 Purpose.
The purpose of this part is to effectuate section 119 of the
Rehabilitation, Comprehensive Services, and Developmental Disabilities
Amendments of 1978, which amended section 504 of the Rehabilitation Act
of 1973 to prohibit discrimination on the basis of disability in
programs or activities conducted by Executive agencies or the United
States Postal Service.
Sec. 9.102 Applicability.
This part applies to all programs or activities conducted by the
agency, except for programs or activities conducted outside the United
States that do not involve individuals with disabilities in the United
States.
Sec. 9.103 Definitions.
For purposes of this part:
Accessible: (1) When used with respect to the design, construction,
or alteration of a facility or a portion of a facility other than an
individual dwelling unit, means that the facility or portion of the
facility when designed, constructed or altered, complies with
applicable accessibility standards and can be approached, entered, and
used by individuals with physical disabilities. The phrase ``accessible
to and usable by'' is synonymous with accessible.
(2) When used with respect to the design, construction, or
alteration of an individual dwelling unit, means that the unit is
located on an accessible route and, when designed, constructed, altered
or adapted, complies with applicable accessibility standards, and can
be approached, entered, and used by individuals with physical
disabilities. A unit that is on an accessible route and is adaptable
and otherwise in compliance with the standards set forth in Sec. 9.151
is ``accessible'' within the meaning of this definition. When a unit in
an existing facility which is being made accessible as a result of
alterations is intended for use by a specific qualified individual with
disabilities (e.g., a current occupant of such unit or of another unit
under the control of the same agency, or an applicant on a waiting
list), the unit will be deemed accessible if it meets the requirements
of applicable standards that address the particular disability or
impairment of such person.
Accessible route means a continuous unobstructed path connecting
accessible elements and spaces of a building or facility. Interior
accessible routes may include corridors, floors, ramps, elevators,
lifts, and clear floor space at fixtures. Exterior accessible routes
may include parking access aisles, curb ramps, crosswalks at vehicular
ways, walks, ramps and lifts.
ADA means the Americans with Disabilities Act of 1990 (42 U.S.C.
12101 through 12213)
ADA Accessibility Guidelines (ADAAG) means the Accessibility
Guidelines issued under the ADA, and which are codified in the Appendix
to 39 CFR part 1191.
Adaptability means the ability of certain building, spaces and
elements, such as kitchen counters, sinks, and grab bars, to be added
or altered, to accommodate the needs of persons with or without
disabilities, or to accommodate the needs of persons with different
types or degrees of disability. For example, in a unit adaptable for a
person with impaired hearing, the wiring for visible emergency alarms
may be installed but the alarms need not be installed until such time
as the unit is made ready for occupancy by a person with impaired
hearing.
Agency means the Department of Housing and Urban Development.
Alteration means a change to a building or facility or its
permanent fixtures or equipment that affects or could affect the
usability of the building or facility or part thereof. Alterations
include, but are not limited to, remodeling, renovation,
rehabilitation, reconstruction, historic restoration, changes or
rearrangements of the structural parts and changes or rearrangements in
the plan configuration of walls and full-height partitions. Normal
maintenance, re-roofing, painting, or wallpapering or changes to
mechanical and electrical systems are not alterations unless they
affect the usability of the building or facility.
Assistant Attorney General means the Assistant Attorney General,
Civil Rights Division, United States Department of Justice.
Assistant Secretary means the Assistant Secretary of Housing and
Urban Development for Fair Housing and Equal Opportunity.
Auxiliary aids means services or devices that enable persons with
impaired sensory, manual, or communication skills to have an equal
opportunity to participate in, and enjoy the benefits of, programs or
activities conducted by the agency. For example, auxiliary aids useful
for persons with impaired vision include readers, Brailled materials,
audio recordings, and other similar services and devices. Auxiliary
aids useful for persons with impaired hearing include telephone handset
amplifiers, telephones compatible with hearing aids, telecommunication
devices for deaf persons (TDD's), interpreters, note takers, written
materials, and other similar services and devices.
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.
Current illegal use of drugs means illegal use of drugs that
occurred recently enough to justify a reasonable belief that a person's
drug use is current or that continuing use is a real and ongoing
problem.
Drug means a controlled substance, as defined in schedules I
through V of section 202 of the Controlled Substances Act (21 U.S.C.
812).
Facility means all or any portion of buildings, structures, site
improvements, complexes, equipment, roads, walks, passageways, parking
lots, rolling stock or other conveyances, or other real or personal
property located on a site.
Historic properties means those properties that are listed or are
eligible for listing in the National Register of Historic Places, or
such properties designated as historic under a statute of the
appropriate State or local government body.
Illegal use of drugs means the use of one or more drugs, the
possession or distribution of which is unlawful under the Controlled
Substances Act (21 U.S.C. 812). The term ``illegal use of drugs'' does
not include the use of a drug taken under supervision by a licensed
health care professional, or other uses authorized by the Controlled
Substances Act or other provisions of Federal law.
Individual with disabilities means any person who has a physical or
mental impairment that substantially limits one or more major life
activities, has a record of such an impairment, or is regarded as
having such an impairment. As used in this definition, the phrase:
(1) ``Physical or mental impairment'' includes:
(i) 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; genito-urinary; hemic and lymphatic; skin; and
endocrine; or
(ii) Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities. The term ``physical or mental
impairment'' includes, but is not limited to, such diseases and
conditions as orthopedic, visual, speech, and hearing impairments,
cerebral palsy, autism, epilepsy, muscular dystrophy, multiple
sclerosis, cancer, heart disease, diabetes, Human Immunodeficiency
Virus disease (symptomatic or asymptomatic), mental retardation,
emotional illness, drug addiction and alcoholism.
(2) The term ``individual with disabilities'' does not include:
(i) An individual who is currently engaging in the illegal use of
drugs, when the agency acts on the basis of such use. This exclusion,
however, does not exclude an individual with disabilities who--
(A) Has successfully completed a supervised drug rehabilitation
program, and is no longer engaging in the illegal use of drugs, or has
otherwise been rehabilitated successfully, and is no longer engaging in
such use;
(B) Is participating in a supervised rehabilitation program, and is
no longer engaging in such use; or
(C) Is erroneously regarded as engaging in such use, but is not
engaging in such use.
(ii) Except that it shall not violate this part for the agency to
adopt or administer reasonable policies and procedures, including but
not limited to drug testing, designed to ensure than an individual
described in paragraphs (2)(i) (A) and (B) of this definition is no
longer engaging in the illegal use of drugs.
(iii) Nothing in paragraph (2) of this definition shall be
construed to encourage, prohibit, restrict or authorize the conduct of
testing for illegal use of drugs.
(iv) The agency shall not deny health services provided under
titles I, II and III of the Rehabilitation Act of 1973 (29 U.S.C. 701
through 777f) to an individual with disabilities on the basis of that
individual's current illegal use of drugs, if the individual is
otherwise entitled to such services.
(3) For purposes of employment, the term ``individual with
disabilities'' does not include:
(i) An individual who has a currently contagious disease or
infection and who, by reason of such disease or infection--
(A) Has been determined, in accordance with the provisions of
Sec. 9.131, to pose a direct threat to the health or safety of other
individuals, which threat cannot be eliminated or reduced by reasonable
accommodation, or
(B) Is unable to perform the essential duties of the job, with or
without reasonable accommodation; or
(ii) An individual who is an alcoholic and whose current use of
alcohol prevents him or her from performing the duties of the job in
question or whose employment would constitute a direct threat to the
property or the safety of others by reason of his or her current
alcohol abuse.
(4) ``Major life activities'' means functions such as caring for
one's self, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working.
(5) ``Has a record of such an impairment'' means has a history of,
or has been misclassified as having, a mental or physical impairment
that substantially limits one or more major life activities.
(6) ``Is regarded as having an impairment'' means--
(i) Has a physical or mental impairment that does not substantially
limit major life activities but is treated by the agency as
constituting such a limitation;
(ii) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others
toward such impairment; or
(iii) Has none of the impairments defined in paragraph (1) of this
definition but is treated by the agency as having such an impairment.
Multifamily housing project means a project containing five or more
dwelling units.
Official or Responsible Official means the Assistant Secretary of
HUD for Fair Housing and Equal Opportunity.
PDP housing facility means a housing facility administered under
HUD's Property Disposition Program.
Project means the whole of one or more residential structures and
appurtenant structures, equipment, roads, walks, and parking lots which
are covered by a single mortgage or contract or otherwise treated as a
whole by the agency for processing purposes, whether or not located on
a common site.
Property Disposition Program (PDP) means the HUD program which
administers the housing facilities that are either owned by the
Secretary or where, even though the Secretary has not obtained title,
the Secretary is mortgagee-in-possession. Such properties are deemed to
be in the possession or control of the agency.
Qualified individual with disabilities means:
(1) With respect to any agency non-employment program or activity
under which a person is required to perform services or to achieve a
level of accomplishment, an individual with disabilities who meets the
essential eligibility requirements 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; or
(2) With respect to any other agency non-employment program or
activity, an individual with disabilities who meets the essential
eligibility requirements for participation in, or receipt of benefits
from, that program or activity.
(3) ``Essential eligibility requirements'' include stated
eligibility requirements such as income, as well as other explicit or
implicit requirements inherent in the nature of the program or
activity, such as requirements that an occupant of a PDP multifamily
housing facility be capable of meeting selection criteria and be
capable of complying with all obligations of occupancy with or without
supportive services provided by persons other than the agency.
(4) ``Qualified person with disabilities'' as that term is defined
for purposes of employment in 29 CFR 1613.702(f), which is made
applicable to this part by Sec. 9.140.
Replacement cost of the completed facility means the current cost
of construction and equipment for a newly constructed housing facility
of the size and type being altered. Construction and equipment costs do
not include the cost of land, demolition, site improvements, non-
dwelling facilities and administrative costs for project development
activities.
Secretary means the Secretary of Housing and Urban Development.
Section 504 means section 504 of the Rehabilitation Act of 1973, as
amended (29 U.S.C. 794). As used in this part, section 504 applies only
to programs or activities conducted by the agency and not to federally
assisted programs.
Substantial impairment means a significant loss of the integrity of
finished materials, design quality, or special character resulting from
a permanent alteration.
UFAS means the Uniform Federal Accessibility Standards, which
implement the accessibility standards required by the Architectural
Barriers Act (42 U.S.C. 4151 through 4157), and which are established
at 24 CFR part 40, Appendix A for residential structures, and 41 CFR
101-19.600 through 101-19.607, and Appendix A to these sections, for
non-residential structures.
Sec. 9.110 Self-evaluation.
(a) The agency shall, within one year of the effective date of this
part, evaluate its current policies and practices, and the effects of
those policies and practices, including regulations, handbooks, notices
and other written guidance, that do not or may not meet the
requirements of this part. To the extent modification of any such
policies is required, the agency shall take the necessary corrective
actions.
(b) The agency shall provide an opportunity to interested persons,
including individuals with disabilities or organizations representing
individuals with disabilities, to participate in the self-evaluation
process by submitting comments (both oral and written).
(c) The agency shall, for at least three years following the
completion of the self-evaluation, maintain on file and make available
for public inspection:
(1) A list of interested persons;
(2) A description of the areas examined and any problems
identified; and
(3) A description of any modifications made or to be made.
Sec. 9.111 Notice.
The agency shall make available to employees, applicants,
participants, beneficiaries, and other interested persons information
regarding the provisions of this part and its applicability to the
programs or activities conducted by the agency. The agency shall make
such information available to such persons in such manner as the
Secretary finds necessary to apprise them of the protections against
discrimination assured them by section 504 and this part. All
publications and recruitment materials distributed to participants,
beneficiaries, applicants or employees shall include a statement that
the agency does not discriminate on the basis of disability. The notice
shall include the name of the person or office responsible for the
implementation of section 504.
Secs. 9.112-9.129 [Reserved]
Sec. 9.130 General prohibitions against discrimination.
(a) No qualified individual with disabilities shall, on the basis
of disability, be excluded from participation in, be denied the
benefits of, or otherwise be subjected to discrimination under any
program or activity conducted by the agency.
(b) (1) The agency, in providing any housing, aid, benefit, or
service, may not, directly or through contractual, licensing, or other
arrangements, on the basis of disability--
(i) Deny a qualified individual with disabilities the opportunity
to participate in or benefit from the housing, aid, benefit, or
service;
(ii) Afford a qualified individual with disabilities an opportunity
to participate in or benefit from the housing, aid, benefit, or service
that is not equal to that afforded others;
(iii) Provide a qualified individual with disabilities with any
housing, aid, benefit, or service that is not as effective in affording
equal opportunity to obtain the same result, to gain the same benefit,
or to reach the same level of achievement as that provided to others;
(iv) Provide different or separate housing, aid, benefits, or
services to individuals with disabilities or to any class of
individuals with disabilities than is provided to others unless such
action is necessary to provide qualified individuals with disabilities
with housing, aid, benefits, or services that are as effective as those
provided to others;
(v) Deny a qualified individual with disabilities the opportunity
to participate as a member of planning or advisory boards;
(vi) Deny a dwelling to an otherwise qualified buyer or renter
because of a disability of that buyer or renter or a person residing in
or intending to reside in that dwelling after it is sold, rented or
made available; or
(vii) Otherwise limit a qualified individual with disabilities in
the enjoyment of any right, privilege, advantage, or opportunity
enjoyed by others receiving the housing, aid, benefit, or service.
(2) For purposes of this part, housing, aids, benefits, and
services, to be equally effective, are not required to produce the
identical result or level of achievement for individuals with
disabilities and for persons without disabilities, but must afford
individuals with disabilities equal opportunity to obtain the same
result, to gain the same benefit, or to reach the same level of
achievement.
(3) The agency may not deny a qualified individual with
disabilities the opportunity to participate in programs or activities
that are not separate or different, despite the existence of programs
or activities that are permissibly separate or different for persons
with disabilities.
(4) The agency may not, directly or through contractual or other
arrangements, utilize criteria or methods of administration the purpose
or effect of which would:
(i) Subject qualified individuals with disabilities to
discrimination on the basis of disability; or
(ii) Defeat or substantially impair accomplishment of the
objectives of a program or activity with respect to individuals with
disabilities.
(5) The agency may not, in determining the site or location of a
facility, make selections the purpose or effect of which would:
(i) Exclude individuals with disabilities from, deny them the
benefits of, or otherwise subject them to discrimination under any
program or activity conducted by the agency; or
(ii) Defeat or substantially impair the accomplishment of the
objectives of a program or activity with respect to individuals with
disabilities.
(6) The agency, in the selection of procurement contractors, may
not use criteria that subject qualified individuals with disabilities
to discrimination on the basis of disability.
(7) The agency may not administer a licensing or certification
program in a manner that subjects qualified individuals with
disabilities to discrimination on the basis of disability, nor may the
agency establish requirements for the programs or activities of
licensees or certified entities that subject qualified individuals with
disabilities to discrimination on the basis of disability. However, the
programs or activities of entities that are licensed or certified by
the agency are not, themselves, covered by this part.
(c) (1) Notwithstanding any other provision of this part, persons
without disabilities may be excluded from the benefits of a program if
the program is limited by Federal statute or Executive order to
individuals with disabilities. A specific class of individuals with
disabilities may be excluded from a program if the program is limited
by Federal statute or Executive order to a different class of
individuals.
(2) Certain agency programs operate under statutory definitions of
``persons with disabilities'' that are more restrictive than the
definition of ``individual with disabilities'' contained in Sec. 9.103.
Those definitions are not superseded or otherwise affected by this
regulation.
(d) The agency shall administer programs and activities in the most
integrated setting appropriate to the needs of qualified individuals
with disabilities.
(e) The obligation to comply with this part is not obviated or
alleviated by any State or local law or other requirement that, based
on disability, imposes inconsistent or contradictory prohibitions or
limits upon the eligibility of qualified individuals with disabilities
to receive services or to practice any occupation or profession.
(f) The enumeration of specific forms of prohibited discrimination
in paragraphs (b) and (d) of this section does not limit the general
prohibition in paragraph (a) of this section.
Sec. 9.131 Direct threat.
(a) This part does not require the agency to permit an individual
to participate in, or benefit from the goods, services, facilities,
privileges, advantages and accommodations of that agency when that
individual poses a direct threat to the health or safety of others.
(b) ``Direct threat'' means a significant risk to the health or
safety of others that cannot be eliminated by a modification of
policies, practices, or procedures, or by the provision of auxiliary
aids or services.
(c) In determining whether an individual poses a direct threat to
the health or safety of others, the agency must make an individualized
assessment, based on reasonable judgment that relies on current medical
knowledge or on the best available objective evidence to ascertain: the
nature, duration, and severity of the risk; the probability that the
potential injury will actually occur; and whether reasonable
modifications of policies, practices, or procedures will mitigate the
risk.
Secs. 9.132--9.139 [Reserved]
Sec. 9.140 Employment.
No qualified individual with disabilities shall, on the basis of
disability, be subjected to discrimination in employment under any
program or activity conducted by the agency. The definitions,
requirements, and procedures of section 501 of the Rehabilitation Act
of 1973 (29 U.S.C. 791), as established by the Equal Employment
Opportunity Commission in 29 CFR part 1613 (subpart G), shall apply to
employment in federally conducted programs or activities.
Secs. 9.141--9.148 [Reserved]
Sec. 9.149 Program accessibility: discrimination prohibited.
Except as otherwise provided in Sec. 9.150, no qualified individual
with disabilities shall, because the agency's facilities are
inaccessible to or unusable by individuals with disabilities, be denied
the benefits of, be excluded from participation in, or otherwise be
subjected to discrimination under any program or activity conducted by
the agency.
Sec. 9.150 Program accessibility: existing facilities.
(a) General. Except as otherwise provided in paragraph (e) of this
section, the agency shall operate each program or activity so that the
program or activity, when viewed in its entirety, is readily accessible
to and usable by individuals with disabilities. This section does not--
(1) Necessarily require the agency to make each of its existing
facilities accessible to and usable by individuals with disabilities;
(2) In the case of historic properties, require the agency to take
any action that would result in a substantial impairment of significant
historic features of an historic property; or
(3) Require the agency 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 agency personnel believe that the proposed action
would fundamentally alter the program or activity or would result in
undue financial and administrative burdens, the agency has the burden
of proving that compliance with Sec. 9.150(a) would result in such
alteration or burdens. The decision that compliance would result in
such alteration or burdens must be made by the Secretary or his or her
designee after considering all agency 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 would result in such an alteration or
such burdens, the agency shall take any other action that would not
result in such an alteration or such burdens but would nevertheless
ensure that individuals with disabilities receive the benefits and
services of the program or activity.
(b) Methods. The agency may comply with the requirements of this
section through such means as redesign of equipment, reassignment of
services to accessible buildings, assignment of aides to beneficiaries,
home visits, delivery of services at alternate accessible sites,
alteration of existing facilities and construction of new facilities,
use of accessible rolling stock, or any other methods that result in
making its programs or activities readily accessible to and usable by
individuals with disabilities. The agency is not required to make
structural changes in existing facilities where other methods are
effective in achieving compliance with this section. The agency, in
making alterations to existing buildings, also shall meet accessibility
requirements to the extent compelled by the Architectural Barriers Act
of 1968, as amended (42 U.S.C. 4151 through 4157), and any regulations
implementing it. In choosing among available methods for meeting the
requirements of this section, the agency shall give priority to those
methods that offer programs and activities to qualified individuals
with disabilities in the most integrated setting appropriate.
(c) Time period for compliance. The agency shall comply with the
obligations established under this section within sixty days of July
18, 1994 except that where structural changes in facilities are
undertaken, such changes shall be made within three years of July 18,
1994, but in any event as expeditiously as possible.
(d) Transition plan. In the event that structural changes to
facilities will be undertaken to achieve program accessibility, the
agency shall develop, within six months of July 18, 1994, a transition
plan setting forth the steps necessary to complete such changes. The
agency shall provide an opportunity to interested persons, including
individuals with disabilities or organizations representing individuals
with disabilities, to participate in the development of the transition
plan by submitting comments (both oral and written). A copy of the
transition plan shall be made available for public inspection. The plan
shall, at a minimum--
(1) Identify physical obstacles in the agency's facilities that
limit the accessibility of its programs or activities to individuals
with disabilities;
(2) Describe in detail the methods that will be used to make the
facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve
compliance with this section and, if the time period of the transition
plan is longer than one year, identify steps that will be taken during
each year of the transition period; and
(4) Indicate the official responsible for implementation of the
plan.
(e) The requirements of paragraphs (a), (b), and (c) of this
section shall apply to the Property Disposition Programs. However, this
section does not require HUD to make alterations to existing facilities
that are part of the Property Disposition Programs unless such
alterations are necessary to meet the needs of a current or prospective
tenant during the time when HUD expects to retain legal possession of
the facilities, and there is no alternative method to meet the needs of
that current or prospective tenant. Nothing in this section shall be
construed to require alterations to make facilities accessible to
persons with disabilities who are expected to occupy the facilities
only after HUD relinquishes legal possession.
Sec. 9.151 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 and provide emergency egress so as to be
readily accessible to and usable by individuals with disabilities. The
definitions, requirements, and accessibility standards that apply to
buildings covered by this section are those contained in the UFAS,
except where the ADAAG provides for greater accessibility for the type
of construction or alteration being undertaken, and in this case, the
definitions, requirements and standards of the ADAAG shall apply.
Sec. 9.152 Program accessibility: alterations of Property Disposition
Program multifamily housing facilities.
(a) Substantial alteration. If the agency undertakes alterations to
a PDP multifamily housing project that has 15 or more units and the
cost of the alterations is 75 percent or more of the replacement cost
of the completed facility, then the project shall be designed and
altered to be readily accessible to and usable by individuals with
disabilities. Subject to paragraph (c) of this section, a minimum of
five percent of the total dwelling units, or at least one unit,
whichever is greater, shall be made accessible for persons with
mobility impairments. A unit that is on an accessible route and is
adaptable and otherwise in compliance with the standards set forth in
paragraph (d) of this section is accessible for purposes of this
section. An additional two percent of the units (but not less that one
unit) in such a project shall be accessible for persons with hearing or
vision impairments. If state or local requirements for alterations
require greater action than this paragraph, those requirements shall
prevail.
(b) Other alteration. (1) Subject to paragraph (c) of this section,
alterations to dwelling units in a PDP multifamily housing project
shall, to the maximum extent feasible, be made to be readily accessible
to and usable by individuals with disabilities. If alterations of
single elements or spaces of a dwelling unit, when considered together,
amount to an alteration of a dwelling unit, the entire dwelling unit
shall be made accessible. Once five percent of the dwelling units in a
project are readily accessible to and usable by individuals with
mobility impairments, then no additional elements of dwelling units, or
entire dwelling units, are required to be accessible under this
paragraph. Once two percent of the dwelling units in a project are
readily accessible to or usable by individuals with hearing or vision
impairments, then no additional elements of dwelling units, or entire
dwelling units, are required to be accessible under this paragraph.
(2) Alterations to common areas or parts of facilities that affect
accessibility of existing housing facilities, shall, to the maximum
extent feasible, be made to be accessible to and usable by individuals
with disabilities.
(c) The agency may establish a higher percentage or number of
accessible units than that prescribed in paragraphs (a) or (b) of this
section if the agency determines that there is a need for a higher
percentage or number, based on census data or other available current
data. In making such a determination, HUD shall take into account the
expected needs of eligible persons with and without disabilities.
(d) The definitions, requirements, and accessibility standards that
apply to PDP multifamily housing projects covered by this section are
those contained in the UFAS, except where the ADAAG provides for
greater accessibility for the type of alteration being undertaken, and,
in this case, the definitions, requirements and standards of the ADAAG
shall apply.
(e) With respect to multifamily housing projects operated by HUD,
but in which HUD does not have an ownership interest, alterations under
this section need not be made if doing so would impose undue financial
and administrative burdens on the operation of the multifamily housing
project.
Sec. 9.153 Distribution of accessible dwelling units.
Accessible dwelling units required by Sec. 9.152 shall, to the
maximum extent feasible, be distributed throughout projects and sites
and shall be available in a sufficient range of sizes and amenities so
that a qualified individual with disabilities' choice of living
arrangements is, as a whole, comparable to that of other persons
eligible for housing assistance under the same agency conducted
program. This provision shall not be construed to require (but does
allow) the provision of an elevator in any multifamily housing project
solely for the purpose of permitting location of accessible units above
or below the accessible grade level.
Sec. 9.154 Occupancy of accessible dwelling units.
(a) The agency shall adopt suitable means to assure that
information regarding the availability of accessible units in PDP
housing facilities reaches eligible individuals with disabilities, and
shall take reasonable nondiscriminatory steps to maximize the
utilization of such units by eligible individuals whose disability
requires the accessibility features of the particular unit. To this
end, when an accessible unit becomes vacant, the agency (or its
management agent) before offering such units to an applicant without
disabilities shall offer such unit:
(1) First, to a current occupant of another unit of the same
project, or comparable projects under common control, having
disabilities requiring the accessibility features of the vacant unit
and occupying a unit not having such features, or, if no such occupant
exists, then
(2) Second, to an eligible qualified applicant on the waiting list
having a disability requiring the accessibility features of the vacant
unit.
(b) When offering an accessible unit to an applicant not having
disabilities requiring the accessibility features of the unit, the
agency may require the applicant to agree (and may incorporate this
agreement in the lease) to move to a non-accessible unit when
available.
Sec. 9.155 Housing adjustments.
(a) The agency shall modify its housing policies and practices as
they relate to PDP housing facilities to ensure that these policies and
practices do not discriminate, on the basis of disability, against a
qualified individual with disabilities. The agency may not impose upon
individuals with disabilities other policies, such as the prohibition
of assistive devices, auxiliary aids, alarms, or guides in housing
facilities, that have the effect of limiting the participation of
tenants with disabilities in any agency conducted housing program or
activity in violation of this part. Housing policies that the agency
can demonstrate are essential to the housing program or activity will
not be regarded as discriminatory within the meaning of this section if
modifications would result in a fundamental alteration in the nature of
the program or activity or undue financial and administrative burdens.
(b) The decision that compliance would result in such alteration or
burdens must be made by the Secretary or his or her designee after
considering all agency 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 agency 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.
Sec. 9.160 Communications.
(a) The agency shall take appropriate steps to ensure effective
communication with applicants, participants, personnel of other Federal
entities, and members of the public.
(1) The agency shall furnish appropriate auxiliary aids where
necessary to afford an individual with disabilities an equal
opportunity to participate in, and enjoy the benefits of, a program or
activity conducted by the agency.
(i) In determining what type of auxiliary aid is necessary, the
agency shall give primary consideration to the requests of the
individual with disabilities.
(ii) The agency need not provide individually prescribed devices,
readers for personal use or study, or other devices of a personal
nature.
(2) Where the agency communicates with applicants and beneficiaries
or members of the public by telephone, telecommunication devices for
deaf persons (TDD's) or equally effective telecommunication systems
shall be used to communicate with persons with impaired hearing.
(b) The agency shall ensure that interested persons, including
persons with impaired vision or hearing, can obtain information as to
the existence and location of accessible services, activities, and
facilities.
(c) The agency shall provide signage at a primary entrance to each
of its inaccessible facilities, directing users to a location at which
they can obtain information about accessible facilities. The
international symbol for accessibility shall be used at each primary
entrance of an accessible facility.
(d) This section does not require the agency 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 agency personnel
believe that the proposed action would fundamentally alter the program
or activity or would result in undue financial and administrative
burdens, the agency has the burden of proving that compliance with this
section would result in such alteration or burdens. The decision that
compliance would result in such alteration or burdens must be made by
the Secretary or his or her designee after considering all agency
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 Sec. 9.160 would result in such an alteration
or such burdens, the agency 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.
Sec. 9.170 Compliance procedures.
(a) Except as provided in paragraph (b) of this section, this
section applies to all allegations of discrimination on the basis of
disability in programs or activities conducted by the agency.
(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 1613 under section 501 of the Rehabilitation Act of 1973 (29
U.S.C. 791).
(c) The Responsible Official shall coordinate implementation of
this section.
(d) Persons may submit complete complaints to the Assistant
Secretary for Fair Housing and Equal Opportunity, 451 Seventh St., SW.,
Washington, DC 20410, or to any HUD Area Office. The agency shall
accept and investigate all complete complaints for which the agency has
jurisdiction. All complete complaints shall be filed within 180 days of
the alleged act of discrimination. The agency may extend this time
period for good cause. For purposes of determining when a complaint is
filed, a complaint mailed to the agency shall be deemed filed on the
date it is postmarked. Any other complaint shall be deemed filed on the
date it is received by the agency. The agency shall acknowledge all
complaints, in writing, within ten (10) working days of receipt of the
complaint.
(e) If the agency receives a complaint over which it does not have
jurisdiction, it shall promptly notify the complainant and shall make
reasonable efforts to refer the complaint to the appropriate Government
entity.
(f) The agency shall notify the Architectural and Transportation
Barriers Compliance Board upon receipt of any complaint alleging that a
building or facility that is subject to the Architectural Barriers Act
of 1968, as amended (42 U.S.C. 4151 through 4157), is not readily
accessible to and usable by individuals with disabilities. The agency
shall delete the identity of the complainant from the copy of the
complaint.
(g)(1) Within 180 days of the receipt of a complete complaint for
which it has jurisdiction, the Office of Fair Housing and Equal
Opportunity shall complete the investigation of the complaint, attempt
informal resolution, and if no informal resolution is achieved, issue a
letter of findings. If a complaint is filed against the Office of Fair
Housing and Equal Opportunity, the Secretary or a designee of the
Secretary shall investigate and resolve the complaint through informal
agreement or letter of findings.
(2) If a complaint is resolved informally, the terms of the
agreement shall be reduced to writing and made part of the complaint
file, with a copy of the agreement provided to the complainant and the
agency. The written agreement may include a finding on the issue of
discrimination and shall describe any corrective action to which the
complainant and the respondent have agreed.
(3) If a complaint is not resolved informally, the Office of Fair
Housing and Equal Opportunity or a person designated under this
paragraph shall notify the complainant of the results of the
investigation in a letter containing--
(i) Findings of fact and conclusions of law;
(ii) A description of a remedy for each violation found;
(iii) A notice of the right to appeal to the Secretary;
(h)(1) Appeals of the findings of fact and conclusions of law or
remedies must be filed by the complainant within 90 days of receipt
from the agency of the letter required by Sec. 9.170(g). The Assistant
Secretary or the person designated by the Secretary to decide an appeal
of a complaint filed against the Office of Fair Housing and Equal
Opportunity may extend this time for good cause.
(2) Timely appeals shall be accepted and processed by the Assistant
Secretary. Decisions on an appeal shall not be issued by the person who
made the initial determination.
(i) The Assistant Secretary or the person designated by the
Secretary to decide an appeal of a complaint filed against the Office
of Fair Housing and Equal Opportunity shall notify the complainant of
the results of the appeal within 60 days of the receipt of the request.
If the agency determines that it needs additional information from the
complainant, it shall have 60 days from the date it receives the
additional information to make its determination on the appeal.
(j) The time limits cited in paragraphs (g) and (i) of this section
may be extended with the permission of the Assistant Attorney General.
(k) The agency may delegate its authority for conducting complaint
investigations to other Federal agencies, except that the authority for
making the final determination may not be delegated to another agency.
Dated: June 9, 1994.
Henry G. Cisneros,
Secretary.
[FR Doc. 94-14499 Filed 6-15-94; 8:45 am]
BILLING CODE 4210-32-P
