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

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