[Federal Register Volume 85, Number 137 (Thursday, July 16, 2020)]
[Proposed Rules]
[Pages 43168-43187]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-12999]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 56
[Docket ID: DOD-2016-OS-0115]
RIN 0790-AJ04
Nondiscrimination on the Basis of Disability in Programs or
Activities Assisted or Conducted by the DoD and in Equal Access to
Information and Communication Technology Used by DoD, and Procedures
for Resolving Complaints
AGENCY: Office of the Under Secretary of Defense for Personnel and
Readiness, DoD.
ACTION: Proposed rule.
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SUMMARY: The Department of Defense (DoD) is proposing to amend its
regulations prohibiting unlawful discrimination on the basis of
disability in programs or activities receiving Federal financial
assistance from, or conducted by, DoD. These revisions update and
clarify the obligations that section 504 of the Rehabilitation Act
imposes on recipients of Federal financial assistance and DoD
Components, in order to incorporate current statutory provisions,
requirements from judicial decisions, and comparable provisions
implementing title II of the Americans with Disabilities Act (ADA). The
regulation is further revised to implement section 508 of the
Rehabilitation Act, as applicable to the DoD Components, in order to
provide policy concerning accessibility of DoD information and
communication technology. Additionally, the regulation provides the
procedures pursuant to sections 504 or 508 of the Rehabilitation Act.
DATES: Comments must be received by September 14, 2020.
ADDRESSES: You may submit comments, identified by docket number and/or
Regulatory Information Number (RIN) number and title, by any of the
following methods:
Federal Rulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: DoD cannot receive written comments at this time due
to the COVID-19 pandemic. Comments should be sent electronically to the
docket listed above.
Instructions: All submissions received must include the agency name
and docket number or RIN for this Federal Register document. The
general policy for comments and other submissions from members of the
public is to make these submissions available for public viewing on the
internet at http://www.regulations.gov as they are received without
change, including any personal identifiers or contact information.
FOR FURTHER INFORMATION CONTACT: Randy Cooper, 703-571-9327.
SUPPLEMENTARY INFORMATION:
I. Background
This Notice of Proposed Rulemaking (``NPRM'') proposes to amend 32
CFR part 56, ``Nondiscrimination on the Basis of Handicap in Programs
and Activities Assisted or Conducted by the Department of Defense'' by
updating the nondiscrimination obligations that section 504 imposes on
recipients of Federal financial assistance and DoD Components;
modifying this rule to include the obligations that section 508 imposes
on DoD Components; and clarifying the complaint resolution procedures
applicable to allegations of noncompliance.
Congress enacted section 504 to prohibit discrimination on the
basis of disability in federally assisted and federally conducted
programs or activities. Executive Order 11914, ``Nondiscrimination with
Respect to the Handicapped in Federally Assisted Programs,'' authorized
the then Department of Health, Education, and Welfare (HEW) to
coordinate enforcement of section 504. This authority was later
transferred to the Department of Health and Human Services. On November
2, 1980, this authority was transferred to the Attorney General by
Executive Order 12250, ``Leadership and Coordination of
Nondiscrimination Laws'' (45 FR 72995). On August 11, 1981, the
Department of Justice (DOJ) promulgated a final rule, 28 CFR part 41,
transferring the guidelines issued by HEW and designating them as part
of the Attorney General's civil rights coordination regulations.
Consistent with the DOJ section 504 coordination regulation, on
April 8, 1982, DoD promulgated 32 CFR part 56, implementing section 504
within the Department (47 FR 15124). Thirty-seven years later, there is
a compelling need to clarify and update this regulation to ensure that
DoD policies reflect current Federal law and policies regarding
discrimination on the basis of disability.
Congress has amended certain provisions of the Rehabilitation Act
of 1973, Public Law 93-112 (Sept. 26, 1973) (Rehabilitation Act),
necessitating revisions to the Department's Section 504 federally
conducted programs and activities regulation.\1\ The Americans with
Disabilities Act of 1990, Public Law 101-336 (July 26, 1990) (ADA),
revised the Rehabilitation Act to include definitions of the terms
``drugs'' and ``illegal use of drugs,'' explaining that these terms
were to be interpreted consistent with the principles of the Controlled
Substances Act, 21 U.S.C. 801 et seq. See 29 U.S.C. 705(10). The ADA
also amended the Rehabilitation Act to expressly exclude from coverage
an individual who is currently engaging in the illegal use of drugs.
See 29 U.S.C. 705(10), (20)(C). The Rehabilitation Act Amendments of
1992, Public Law 102-569 (Oct. 29, 1992) (the 1992 Amendments), adopted
the use of ``person first'' language+ e by changing the term
``handicapped person'' to ``individual with a disability'' and provided
that the standards applied under title I of the ADA shall apply to
determinations of employment discrimination under section 504. More
recently, the ADA Amendments Act of 2008 (ADA Amendments Act), Public
Law 110-325 (Sept. 25, 2008), revised the meaning and interpretation of
the definition of ``disability'' under section 504 to align them with
the ADA. In addition, there have been significant Supreme Court
decisions interpreting section 504 requirements relating to the
principles of ``direct threat'' and reasonable accommodation. See,
e.g., Sch. Bd. of Nassau Cty. v. Arline, 480
[[Page 43169]]
U.S. 273 (1987); Alexander v. Choate, 469 U.S. 287 (1985); Se. Cmty.
Coll. v. Davis, 442 U.S. 397 (1979). Congress codified both the
principle of direct threat and the requirement for reasonable
modifications in title II of the ADA.
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\1\ See, e.g., Public Law 99-506 (Oct. 21, 1986); Public Law
100-259 (Mar. 22, 1988); Public Law 100-630 (Nov. 7, 1988); Public
Law 101-336 (July 26, 1990); Public Law 102-569 (Oct. 29, 1992);
Public Law 103-382 (Oct. 20, 1994); Public Law 105-220 (Aug. 7,
1998); Public Law 107-110 (Jan. 8, 2002); Public Law 110-325 (Sept.
25, 2008); Public Law 113-128 (July 22, 2014).]
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Below is a summary of some of the major additions, deletions, and
modifications to the 1982 regulation implementing section 504 that are
included in this proposed rule.
The DoD proposes to add a new provision at subpart D that
affirmatively states the longstanding section 504 obligation to provide
reasonable modifications in policies, practices, and procedures, unless
those changes can be shown to pose a fundamental alteration to the
program or activity or an undue financial and administrative burden.
The extent of the obligation to modify policies, practices, or
procedures was first enunciated by the Supreme Court in Southeastern
Community College v. Davis, 442 U.S. 397 (1979). Davis held that while
section 504 prohibits the exclusion of an otherwise qualified
individual with a disability from participation in a federally funded
program solely by reason of the individual's disability, section 504
does not require program or policy modifications that would
fundamentally alter the nature of the provider's program.
Subsequently, in Alexander v. Choate, 469 U.S. 287 (1985), which
addressed a section 504 challenge to a State policy reducing the annual
number of days of inpatient hospital care covered by the State's
Medicaid program, the Court implicitly acknowledged that the obligation
to provide reasonable modifications could be considered as an
affirmative obligation, noting, ``the question of who is `otherwise
qualified' and what actions constitute `discrimination' under the
section would seem to be two sides of a single coin; the ultimate
question is the extent to which a grantee is required to make
reasonable modifications in its programs for the needs of the
handicapped.'' Id. at 299 n.19. Alexander also introduced the concept
of undue financial and administrative burden as a limitation on the
reasonable modification obligation. In responding to the petitioners'
contention that any durational limitation on inpatient coverage in a
State Medicaid plan is a violation of section 504, the Court stated:
``It should be obvious that the administrative costs of implementing
such a regime would be well beyond the accommodations that are required
under Davis.'' Id. at 308.
Over the past several decades, in keeping with these Supreme Court
decisions, Federal courts and Federal agencies have regularly
acknowledged Federal agencies' affirmative obligation to ensure that
recipients of Federal funding provide reasonable modifications in
programs and activities to qualified individuals with disabilities
unless the recipient can demonstrate that making these modifications
would fundamentally alter the program or activity or result in an undue
financial and administrative burden. The Department's existing
regulations include a provision requiring DoD and recipients of federal
financial assistance to provide reasonable modifications in policies,
practices, or procedures when the modifications are necessary to avoid
discrimination on the basis of disability, unless the DoD or the
recipient of federal financial assistance can demonstrate that making
the modifications would fundamentally alter the nature of the service,
program, or activity or result in undue financial and administrative
burdens.
In addition, when Congress enacted the ADA Amendments Act, it
expressly provided that a covered entity need not provide a reasonable
modification to policies, practices, or procedures to an individual who
meets the definition of disability under the ``regarded as'' prong. ADA
Amendments Act, sec. 6(a)(1). While Congress did not specifically apply
this provision of the ADA Amendments Act to section 504, the DoD
believes that it is equally appropriate to apply this limitation to
reasonable modifications under section 504 and proposes to adopt this
limitation in this regulation.
In addition, the DoD notes that the necessary reasonable
modifications will vary based on the need of the individual and the
impact of the modification on the DoD or the recipient of federal
financial assistance.
Lastly, section 508 was enacted in 1986, and subsequent amendments
and implementing regulations require Federal agencies to develop,
procure, use, and maintain accessible information and communication
technology and develop section 508 complaint resolution procedures.
A. Purpose
The proposed rule reaffirms that the purpose of the regulation is
to establish and implement policy, assign responsibilities, and
prescribe procedures to prevent unlawful discrimination on the basis of
disability in programs or activities that receive Federal financial
assistance from, or are conducted by, a DoD Component. Section 56.31
has also been added to establish and implement section 508 policy
regarding the accessibility of DoD information and communication
technology by individuals with disabilities who are Federal employees
or members of the public.
B. Applicability
The proposed rule applies to DoD Components, the programs or
activities conducted by DoD Components and all recipients of Federal
financial assistance from any DoD Component.
C. Definitions
The proposed rule adds and updates definitions of key terms used
within the text of the rule to reflect the most current Federal law and
policies under both sections 504 and 508, including terms such as
disability; information and communication technology; program or
activity; and video remote interpreting services.
D. Prohibition Against Unlawful Discrimination
The section regarding prohibition of discrimination has been
significantly updated to reflect the most current Federal statutes and
regulations, as well as developments in Supreme Court jurisprudence,
regarding unlawful discrimination on the basis of disability.
Consistent with congressional intent, the provisions in the proposed
rule are consistent with the nondiscrimination provisions in Department
of Justice (DOJ) regulations implementing title II of the Americans
with Disabilities Act (applicable to state and local government
entities).
Title II and Section 504 are generally understood to impose similar
requirements, given the similar language employed in the ADA and the
Rehabilitation Act and the congressional directive that the ADA be
construed to grant at least as much protection as provided by the
regulations implementing the Rehabilitation Act. See, e.g., 42 U.S.C.
12201(a).\2\ Many of
[[Page 43170]]
the proposed changes are intended to conform the regulation's
provisions to corresponding provisions in the title II regulation,
which was updated in 2010.
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\2\ The 1992 Amendments revised the Rehabilitation Act's
findings, purpose, and policy provisions to incorporate language
acknowledging the discriminatory barriers faced by persons with
disabilities, and recognizing that persons with disabilities have
the right to ``enjoy full inclusion and integration in the economic,
political, social, cultural and educational mainstream of American
society.'' 29 U.S.C. 701(a)(3) as amended. The legislative history
to the 1992 Amendments states ``[t]he statement of purpose and
policy is a reaffirmation of the precepts of the Americans with
Disabilities Act, which has been referred to as the 20th century
emancipation proclamation for individuals with disabilities. It is
the Committee's intent that these principles guide the policies,
practices, and procedures developed under all titles of the
[Rehabilitation] Act.'' S. Rep. 102-357 at 14 (Aug. 3, 1992); H.R.
Rep. 102-822 at 81 (Aug. 10, 1992).
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Provisions were added or modified to reflect topics including
relationship to other laws, self-evaluation, notice, illegal use of
drugs, maintenance of accessible features, retaliation or coercion,
personal devices and services, service animals, mobility devices,
direct threat, program accessibility, and communications.
E. Information and Communication Technology
Generally, ``electronic and information technology,'' the statutory
term used in section 508, is referred to as ``information and
communication technology,'' consistent with the section 508 regulations
published at 36 CFR part 1194. In the definition of ``auxiliary aids
and services'' at Sec. 56.4, however, the term ``electronic and
information technology'' is used in order to provide consistency with
the Title II regulatory definition at 28 CFR 35.104.
F. Responsibilities of DoD Officials
The proposed rule makes technical and conforming changes to the
responsibilities of DoD officials and DoD Components to reflect changes
in DoD organization structures since 1982 and the added or modified
responsibilities included in other sections of the proposed rule. For
example, the proposed rule adds and then specifies the responsibilities
of the Chief Information Officer regarding policies and procedures
related to the implementation of section 508 as section 508 did not
exist in 1982.
G. Responsibilities of Recipients of Federal Financial Assistance
The proposed rule includes clarifications, updates, and technical
and conforming changes relating to responsibilities of recipients of
Federal financial assistance. It clarifies, for example, that a written
assurance must be submitted by a recipient in accordance with this
proposed rule or the DoD Grant and Agreement Regulations (DoDGARs)
issued by the Under Secretary of Defense for Research and Engineering
(R&E). The clarification reduces burdens on recipients subject to
DoDGARS.
H. Assurance and Compliance Information and Procedures
The proposed rule includes clarifications, updates, and technical
and conforming changes to the policies and procedures applicable to
``Assurances by Recipients and Compliance Information and Procedures
Applicable to Recipients.'' For example, provisions specify that the
assurance must meet the requirements of this rule or DoD Grant and
Agreement Regulations (DoDGARs) issued by the Under Secretary of
Defense for Research and Engineering (R&E). This provision was included
to avoid undue burden on recipients that are subject to DoDGARS. The
provisions in the proposed rule regarding compliance information and
procedures have been clarified and updated to reflect current
approaches regarding: securing compliance, including voluntary
compliance; conducting periodic compliance reviews; and requests for
information from and reports by recipients.
I. Complaint Resolution and Enforcement Procedures Applicable to
Recipients of Federal Financial Assistance
The proposed rule includes clarifications, updates, and technical
and conforming changes relating to ``Complaint Resolution and
Enforcement Procedures Applicable to Recipients.'' For example, under
the ``applicability'' provision, the proposed rule clarifies that
complaints concerning employment against DoD Components must be
processed in accordance with procedures established by the Equal
Employment Opportunity Commission, and not procedures specified in this
proposed rule.
Additional modifications include who may file a complaint; content
of complaints; maintenance of a log; evaluation of complaints
(including the addition of criteria for determining good cause for
rejecting the sufficiency of a complaint); pre-investigation mediation;
investigation of complaints; preliminary findings and decisions;
recommended administrative action; and enforcement. Also, the proposed
rule includes provisions governing coordination with other agencies.
J. Complaint Resolution and Enforcement Procedures Applicable to
Programs and Activities Conducted by DoD Components
The proposed rule includes updates, clarifications, and technical
and conforming changes relating to ``Complaint Resolution and
Enforcement Procedures Applicable to DoD Components.'' For example, it
clarifies that these complaint resolution procedures do not apply to
allegations of employment discrimination, which are subject to other
procedures applicable to DoD and other Federal agencies. Also, the
procedures apply to section 508 complaints in addition to section 504
complaints.
Additional clarifications and updates relate to who may file a
complaint; filing of informal complaints; when and how to file
complaints; acceptance of complaints; maintenance of a log; determining
which complaints to investigate; reports of investigations; voluntary
compliance; final administrative decisions; and coordination with other
agencies. Further, clarifications are included regarding the conduct of
compliance reviews and the submission of compliance reports.
II. Authority for This Regulatory Action
Title 29, United States Code. Chapter 16, subchapter V, sections
794 through 794d, codifies legislation prohibiting discrimination on
the basis of disability under any program or activity receiving Federal
financial assistance or under any program or activity conducted by any
Federal agency, including provisions establishing the United States
Access Board and requiring Federal agencies to ensure that information
and communication technology is accessible to and usable by individuals
with disabilities.
Title 28, Code of Federal Regulations, Part 41 implements Executive
Order 12250, which assigns the Department of Justice responsibility to
coordinate implementation of section 504 of the Rehabilitation Act.
III. Expected Impact of the Proposed Rule
Finalization of this Department-wide rule will clarify the
longstanding policy of the Department and do not change the
Department's practices in addressing issues of discrimination. This
rule updates the Department's prior regulation to include updated
accessibility standards for recipients of federal financial assistance
to be more user-friendly and support individuals with disabilities.
IV. Regulatory Procedures
Executive Order 12866, ``Regulatory Planning and Review'' and Executive
Order 13563, ``Improving Regulation and Regulatory Review''
Executive Orders 12866 and 13563 direct agencies to assess all cost
and benefits of available regulatory alternatives and, if regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health and safety
[[Page 43171]]
effects, distributive impacts, and equity). Executive Order 13563
emphasizes the importance of quantifying both cost and benefits,
reducing cost, harmonizing rules, and promoting flexibility. This rule
is not a significant regulatory action and has not been reviewed by the
Office of Management and Budget (OMB).
Executive Order 13771, ``Reducing Regulation and Controlling Regulatory
Costs''
This rule is not expected to be an E.O. 13771 regulatory action
because this rule is not significant under E.O. 12866.
2 U.S.C. Ch. 25, ``Unfunded Mandates Reform Act''
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) (2
U.S.C. 1532) requires agencies assess anticipated costs and benefits
before issuing any rule whose mandates require spending in any 1 year
of $100 million in 1995 dollars, updated annually for inflation. In
2014, that threshold is approximately $141 million. This rule will not
result in the expenditure by state, local, and Tribal governments, in
the aggregate, or by the private sector, of $141 million or more in any
one years, and it will not significantly or uniquely affect small
governments.
Moreover, section 4(2) of the Unfunded Mandates Reform Act of 1995,
2 U.S.C. 1503(2), excludes from coverage under that Act any proposed or
final Federal regulation that ``establishes or enforces any statutory
rights that prohibit discrimination on the basis of race, color,
religion, sex, national origin, age, handicap, or disability.''
Therefore, this rulemaking is not subject to the provisions of the
Unfunded Mandates Reform Act.
Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. Ch. 6)
The Department of Defense certifies that this proposed rule is not
subject to the Regulatory Flexibility Act because it would not if
promulgated, have a significant economic impact on a substantial number
of small entities. Therefore, the Regulatory Flexibility Act, as
amended, does not require us to prepare a regulatory flexibility
analysis.
Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)
It has been certified that 32 CFR part 56 does impose reporting or
recordkeeping requirements under the Paperwork Reduction Act of 1995.
These reporting requirements have been approved by OMB and assigned
four OMB Control Numbers as per OMB Form 83-C: 4040-0001 (Research and
Related), 4040-0007 (Assurances-Non-Construction Programs, 4040-0010
(Project Performance Site Locations), and 4040-0013 (Disclosure of
Lobbying Activities) for Standard Form series 424 (SF-424). SF-424
refers to a standard form required for use as a cover sheet for
submission of pre-applications and applications and related information
under discretionary programs. There are no changes expected in burden
or content based on the finalization of this rule.
Executive Order 13132, ``Federalism''
Executive Order 13132 establishes certain requirements that an
agency must meet when it promulgates a proposed rule (and subsequent
final rule) that imposes substantial direct requirement costs on State
and local governments, preempts State law, or otherwise has federalism
implications. This proposed rule will not have a substantial effect on
State and local governments.
Executive Order 12250
Under Executive Order 12250, Executive agencies must submit
regulations implementing Section 504 of the Rehabilitation Act to the
Department of Justice to ensure consistent and effective implementation
of various laws prohibiting discriminatory practices in Federal
programs and programs receiving Federal financial assistance. This
proposed rule has been reviewed and cleared by the Department of
Justice in accordance with Executive Order 12250.
List of Subjects in 32 CFR Part 56
Administrative practice and procedure, Buildings and facilities,
Civil rights, Communications, Grant programs, Individuals with
disabilities, Reporting and recordkeeping requirements.
Accordingly, 32 CFR part 56 is proposed to be revised to read as
follows:
PART 56--UNLAWFUL DISCRIMINATION ON THE BASIS OF DISABILITY IN
PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE FROM,
OR CONDUCTED BY, THE DOD AND IN ACCESSIBILITY OF INFORMATION AND
COMMUNICATION TECHNOLOGY
Subpart A--General
Sec.
56.1 Purpose and broad coverage.
56.2 Application.
56.3 Relationship to other laws.
56.4 Definitions.
56.5 Self-evaluation.
56.6 Notice.
Subpart B--General Requirements
56.7 General prohibitions against discrimination.
56.8 Illegal use of drugs.
56.9 Maintenance of accessible features.
56.10 Retaliation or coercion.
56.11 Personal devices and services.
56.12 Service animals.
56.13 Mobility devices.
56.14 Direct threat.
Subpart C--Employment
56.15 Employment discrimination prohibited.
Subpart D--Program Accessibility for Recipients of Federal Financial
Assistance
56.16 Discrimination prohibited.
56.17 Existing facilities.
56.18 New construction and alterations.
Subpart E--Program Accessibility for Programs and Activities Conducted
by DoD Components
56.19 Discrimination prohibited.
56.20 Existing facilities.
56.21 New construction and alterations.
Subpart F--Communications
56.22 General.
56.23 Telecommunications.
56.24 Information and signage.
56.25 Duties.
Subpart G--Information and Communication Technology Requirements
56.26 Information and communication technology requirements.
Subpart H--Compliance Procedures
56.27 Responsibilities.
56.28 Assurance requirements and compliance information and
procedures applicable to recipients of Federal financial assistance.
56.29 Complaint resolution and enforcement procedures applicable to
recipients of Federal financial assistance.
56.30 Complaint resolution and enforcement procedures applicable to
programs and activities conducted by DoD components.
56.31 Complaint resolution and enforcement procedures applicable to
accessibility of information and computer technology.
Authority: 29 U.S.C. 794-794d, 28 CFR part 41, Executive Order
12250.
Subpart A--General
Sec. 56.1 Purpose and broad coverage.
(a) Purpose. (1) The purpose of this part is to implement section
504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794, which
prohibits discrimination on the basis of disability in services,
programs, and activities receiving Federal financial assistance, or
conducted by Executive agencies or the United States Postal Service.
(2) The purpose of this part is also to implement section 508 of
the
[[Page 43172]]
Rehabilitation Act, as amended, 29 U.S.C. 794d, which requires that
when Federal departments and agencies develop, procure, maintain, or
use information and communication technology, they shall ensure
accessibility by individuals with disabilities who are Federal
employees or applicants, or members of the public.
(b) Broad coverage. Consistent with the ADA Amendments Act's
purpose of reinstating a broad scope of protection under both the ADA
and section 504, the definition of ``disability'' in this part shall be
construed broadly in favor of expansive coverage to the maximum extent
permitted by the terms of section 504. The primary object of attention
in cases brought under section 504 should be whether the DoD and
entities receiving federal financial assistance have complied with
their obligations and whether discrimination has occurred, not whether
the individual meets the definition of ``disability.'' The question of
whether an individual meets the definition of ``disability'' under this
part should not demand extensive analysis.
Sec. 56.2 Application.
(a) Where applicable to recipients of Federal financial assistance
from a DoD Component, this part applies to each recipient of Federal
financial assistance from a DoD Component that provides assistance to
services, programs, or activities that involve individuals with
disabilities in the United States. This part also applies to each
service, program, or activity receiving such assistance that involves
individuals with disabilities in the United States. This part does not
apply to recipients of Federal financial assistance from a DoD
Component that provide assistance to services, programs, or activities
outside the United States that do not involve individuals with
disabilities in the United States. In addition, this part does not
apply to services, programs, or activities outside the United States
that receive such assistance that do not involve individuals with
disabilities in the United States.
(b) Where applicable to recipients of Federal financial assistance
from a DoD Component, the requirements of this part do not apply to the
ultimate beneficiaries of any service, program, or activity receiving
Federal financial assistance.
(c) Where applicable to services, programs, and activities
conducted by a DoD Component, this part applies to all services,
programs, and activities that involve individuals with disabilities in
the United States. This part does not apply to services, programs, or
activities conducted outside the United States that do not involve
individuals with disabilities in the United States.
Sec. 56.3 Relationship to other laws.
Other laws. This part does not invalidate or limit the remedies,
rights, and procedures of any other Federal laws, or State or local
laws (including State common law) that provide greater or equal
protection for the rights of individuals with disabilities or
individuals associated with them.
Sec. 56.4 Definitions.
For purpose of this part, these terms mean the following--
2004 ADA Accessibility Guidelines (ADAAG). The requirements set
forth in appendices B and D to 36 CFR part 1191 (2009).
2010 Standards. The 2010 ADA Standards for Accessible Design, which
consist of the 2004 ADAAG and the requirements contained in 28 CFR
35.151.
Applicant. One who submits an application, request, or plan
required to be approved by the designated DoD official or by a primary
recipient, as a condition of eligibility for Federal financial
assistance.
Auxiliary aids and services. Includes--
(1) Qualified interpreters on site or through video remote
interpreting (VRI) services; note takers; real-time computer-aided
transcription services; written materials; exchange of written notes;
telephone handset amplifiers; assistive listening devices; assistive
listening systems; telephones compatible with hearing aids; closed
caption decoders; open and closed captioning, including real-time
captioning; voice, text, and video-based telecommunications products
and systems, including text telephones (TTYs), videophones, and
captioned telephones, or equally effective telecommunications devices;
videotext displays; accessible electronic and information technology;
or other effective methods of making aurally delivered information
available to individuals who are deaf or hard of hearing;
(2) Qualified readers; taped texts; audio recordings; Brailled
materials and displays; screen reader software; magnification software;
optical readers; secondary auditory programs (SAP); large print
materials; accessible electronic and information technology; or other
effective methods of making visually delivered materials available to
individuals who are blind or have low vision;
(3) Acquisition or modification of equipment or devices; and
(4) Other similar services and actions.
Award official. The DoD Component official with the authority to
approve and execute assistance agreements and to take other assistance-
related actions authorized by this part or related DoD regulations.
Current illegal use of drugs. 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.
Department of Defense (``DoD'') component. Office of the Secretary
of Defense, the Military Departments, the Office of the Chairman of the
Joint Chiefs of Staff and the Joint Staff, the Combatant Commands, the
Office of the Inspector General of the Department of Defense, the
Defense Agencies, the DoD Field Activities, and all other
organizational entities within the DoD.
Direct threat. (1) Except as provided in paragraph (2) of this
definition, a significant risk of substantial harm 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 as provided in Sec. 56.11.
(2) With respect to employment as provided in Sec. 56.15, the term
as defined by the Equal Employment Opportunity Commission's regulation
implementing title I of the Americans with Disabilities Act of 1990, at
29 CFR 1630.2(r).
Disability. With respect to an individual:
(1) A physical or mental impairment that substantially limits one
or more of the major life activities of such individual;
(2) A record of such an impairment; or
(3) Being regarded as having such an impairment, as described in 28
CFR 35.108(f).
Drug. A controlled substance, as defined in schedules I through V
of section 202 of the Controlled Substances Act (21 U.S.C. 812).
Existing facility. A facility in existence on any given date,
without regard to whether the facility may also be considered newly
constructed or altered under this part.
Facility. All or any portion of buildings, structures, sites,
complexes, equipment, rolling stock or other conveyances, roads, walks,
passageways, parking lots, or other real or personal property,
including the site where the building, property, structure, or
equipment is located.
Federal financial assistance. Any grant, cooperative agreement,
loan,
[[Page 43173]]
contract (other than a direct Federal procurement contract or a
contract of insurance or guaranty), subgrant, contract under a grant or
any other arrangement by which the DoD Component provides or otherwise
makes available assistance in the form of:
(1) Funds;
(2) Services of Federal personnel;
(3) Real and personal property or any interest in or use of such
property, including:
(i) Transfers or leases of such property for less than fair market
value or for reduced consideration; and
(ii) Proceeds from a subsequent transfer or lease of such property
if the Federal share of its fair market value is not returned to the
Federal Government;
(4) Any other thing of value by way of grant, loan, contract or
cooperative agreement.
Historic preservation programs. Programs conducted by a recipient
or DoD Component that have preservation of historic properties as a
primary purpose.
Historic properties. Those properties that are listed or eligible
for listing in the National Register of Historic Places or properties
designated as historic under State or local law.
Illegal use of drugs. 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 a disability. A person who has a disability. The
term individual with a disability does not include an individual who is
currently engaging in the illegal use of drugs, when the recipient or
DoD Component acts on the basis of such use.
Information and communication technology (formerly referred to as
electronic and information technology). Information technology and
other equipment, systems, technologies, or processes, for which the
principal function is the creation, manipulation, storage, display,
receipt, or transmission of electronic data and information, as well as
any associated content. Examples of ICT include, but are not limited
to: Computers and peripheral equipment; information kiosks and
transaction machines; telecommunications equipment; customer premises
equipment; multifunction office machines; software; applications;
websites; videos; and electronic documents.
Other power-driven mobility device. Any mobility device powered by
batteries, fuel, or other engines--whether or not designed primarily
for use by individuals with mobility disabilities--that is used by
individuals with mobility disabilities for the purpose of locomotion,
including golf cars, electronic personal assistance mobility devices
(EPAMDs), such as the Segway[supreg] PT, or any mobility device
designed to operate in areas without defined pedestrian routes, but
that is not a wheelchair within the meaning of this section.
Program or activity receiving Federal financial assistance. All of
the operations of any entity described in paragraphs (1) through (4) of
this definition, any part of which is extended Federal financial
assistance:
(1)(i) A department, agency, special purpose district, or other
instrumentality of a State or of a local government; or
(ii) The entity of such State or local government that distributes
such assistance and each such department or agency (and each other
State or local government entity) to which the assistance is extended,
in the case of assistance to a State or local government;
(2)(i) A college, university, or other postsecondary institution,
or a public system of higher education, or
(ii) A local educational agency (as defined in 20 U.S.C. 7801),
system of vocational education, or other school system;
(3)(i) An entire corporation, partnership, or other private
organization, or an entire sole proprietorship--
(A) If assistance is extended to such corporation, partnership,
private organization, or sole proprietorship as a whole; or
(B) Which is principally engaged in the business of providing
education, health care, housing, social services, or parks and
recreation; or
(ii) The entire plant or other comparable, geographically separate
facility to which Federal financial assistance is extended, in the case
of any other corporation, partnership, private organization, or sole
proprietorship; or
(4) Any other entity which is established by two or more of the
entities described in paragraphs (1), (2), or (3) of this definition.
Qualified individual with a disability. (1) Except as provided in
paragraph (2) of this definition, an individual with a disability who,
with or without reasonable modifications to rules, policies, or
practices, the removal of architectural, communication, or
transportation barriers, or the provision of auxiliary aids and
services, meets the essential eligibility requirements for the receipt
of services or the participation in programs or activities provided by
a recipient or DoD Component; and
(2) With respect to employment, the definition of ``qualified'' in
the Equal Employment Opportunity Commission's regulation implementing
title I of the Americans with Disabilities Act of 1990, at 29 CFR
1630.2(m), applies to this part.
Qualified interpreter. An interpreter who, via a video remote
interpreting (VRI) service or an on-site appearance, is able to
interpret effectively, accurately, and impartially, both receptively
and expressively, using any necessary specialized vocabulary. Qualified
interpreters include, for example, sign language interpreters, oral
transliterators, and cued-language transliterators.
Qualified reader. A person who is able to read effectively,
accurately, and impartially using any necessary specialized vocabulary.
Recipient. Any State or unit of local government, any
instrumentality of a State or unit of local government, any public or
private agency, institution, organization, or other entity, or any
person to which Federal financial assistance is extended directly or
through another recipient, including any successor, assignee, or
transferee of a recipient, but excluding the ultimate beneficiary of
the assistance.
Section 504. Section 504 of the Rehabilitation Act of 1973 (Pub. L.
93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended.
Section 508. Section 508 of the Rehabilitation Act of 1973 (Pub. L.
93-112, Title V, section 508, as added Pub. L. 99-506, Title VI,
section 603(a), Oct. 21, 1986, 100 Stat. 1830), as amended.
Revised 508 standards. The standards for information communication
technology (ICT) developed, procured, maintained, or used by agencies
subject to Section 508 of the Rehabilitation Act as set forth in
Chapters 1 and 2 (36 CFR part 1194, appendix A), and Chapters 3 through
7 (36 CFR part 1194, appendix C).
Service animal. Any dog that is individually trained to do work or
perform tasks for the benefit of an individual with a disability,
including a physical, sensory, psychiatric, intellectual, or other
mental disability. Other species of animals, whether wild or domestic,
trained or untrained, are not service animals for the purposes of this
definition. The work or tasks performed by a service animal must be
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directly related to the individual's disability. Examples of work or
tasks include, but are not limited to, assisting individuals who are
blind or have low vision with navigation and other tasks, alerting
individuals who are deaf or hard of hearing to the presence of people
or sounds, providing non-violent protection or rescue work, pulling a
wheelchair, assisting an individual during a seizure, alerting
individuals to the presence of allergens, retrieving items such as
medicine or the telephone, providing physical support and assistance
with balance and stability to individuals with mobility disabilities,
and helping persons with psychiatric and neurological disabilities by
preventing or interrupting impulsive or destructive behaviors. The
crime deterrent effects of an animal's presence and the provision of
emotional support, well-being, comfort, or companionship do not
constitute work or tasks for the purposes of this definition.
State. Each of the several States, the District of Columbia, the
Commonwealth of Puerto Rico, Guam, American Samoa, the U.S. Virgin
Islands, and the Commonwealth of the Northern Mariana Islands.
Subrecipient. Any of the entities in the definition of
``recipient'' to which a recipient extends or passes on Federal
financial assistance. A subrecipient is generally regarded as a
recipient and has all of the duties of a recipient.
Ultimate beneficiary. One among a class of persons who are entitled
to benefit from, or otherwise participate in, a program or activity
receiving Federal financial assistance and to whom the protections of
this part extend. The ultimate beneficiary class may be the general
public or some narrower group of persons.
Video remote interpreting (VRI) service. An interpreting service
that uses video conference technology over dedicated lines or wireless
technology offering high-speed, wide-bandwidth video connection that
delivers high-quality video images as provided in Sec. 56.22(d).
Wheelchair. A manually-operated or power-driven device designed
primarily for use by an individual with a mobility disability for the
main purpose of indoor, or of both indoor and outdoor locomotion. This
definition does not apply to Federal wilderness areas; wheelchairs in
such areas are defined in section 508(c)(2) of the ADA, 42 U.S.C.
12207(c)(2).
Sec. 56.5 Self-evaluation.
Each recipient shall, within 6 months of first receiving Federal
financial assistance:
(a) Evaluate its policies and practices to evaluate whether such
policies and practices may involve discrimination on the basis of
disability. The self-evaluation must contain a description of:
(1) Any areas examined and any problems identified within those
areas.
(2) Any modification made or remedial steps taken to remedy any
discrimination on the basis of disability.
(b) Modify any policies or practices not meeting the requirements
of section 504 of the Rehabilitation Act and this part or the DoD
Component's policies.
(c) 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.
(d) Take the appropriate remedial steps to eliminate the
discriminatory effects of any such policies or practices.
(e) Maintain the self-evaluation for a period of three years
following its completion and make it available to the DoD Component
award official and the public, should they request it within the three-
year period.
Sec. 56.6 Notice.
A recipient or DoD Component shall make available to employees,
applicants, participants, beneficiaries, and other interested persons
information regarding the provisions of this part and its applicability
to the services, programs, or activities of the recipient or DoD
Component, and make such information available to them in such manner
as the head of the DoD finds necessary to apprise such persons of the
protections against discrimination assured them by section 504 and this
part.
Subpart B--General Requirements
Sec. 56.7 General prohibitions against discrimination.
(a) No qualified individual with a disability shall, solely on the
basis of disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of a recipient or a
DoD Component, or be subjected to discrimination by any recipient or
DoD Component.
(b) A recipient or DoD Component, in providing any aid, benefit, or
service, may not, directly or through contractual, licensing, or other
arrangements, on the basis of disability--
(1) Deny a qualified individual with a disability an opportunity to
participate in or benefit from the aid, benefit, or service;
(2) Afford a qualified individual with a disability an opportunity
to participate in or benefit from the aid, benefit, or service that is
not equal to that afforded others;
(3) Provide a qualified individual with a disability with an 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;
(4) Provide different or separate aids, 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 aids, benefits,
or services that are as effective as those provided to others;
(5) Aid or perpetuate discrimination against a qualified individual
with a disability by providing significant assistance to an agency,
organization, or person that discriminates on the basis of disability
in providing any aid, benefit, or service to beneficiaries of the
recipient's program;
(6) Deny a qualified individual with a disability the opportunity
to participate as a member of planning or advisory boards;
(7) Otherwise limit a qualified individual with a disability in the
enjoyment of any right, privilege, advantage, or opportunity enjoyed by
others receiving the aid, benefit, or service.
(c) A recipient or DoD Component may not deny a qualified
individual with a disability the opportunity to participate in
services, programs, or activities that are not separate or different,
despite the existence of permissibly separate or different programs or
activities.
(d) A recipient or DoD Component may not, directly or through
contractual or other arrangements, utilize criteria or methods of
administration--
(1) That have the effect of subjecting qualified individuals with
disabilities to discrimination on the basis of disability;
(2) That have the purpose or effect of defeating or substantially
impairing accomplishment of the objectives of the recipient's or DoD
Component's program with respect to individuals with disabilities; or
(3) That perpetuate the discrimination of another recipient if both
recipients are subject to common administrative control or are agencies
of the same State.
(e) A recipient or DoD Component may not, in determining the site
or location of a facility, make selections--
(1) That have the effect of excluding individuals with disabilities
from,
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denying them the benefits of, or otherwise subjecting them to
discrimination; or
(2) That have the purpose or effect of defeating or substantially
impairing the accomplishment of the objectives of the service, program,
or activity with respect to individuals with disabilities.
(f) A recipient or DoD Component, in the selection of procurement
contractors, may not use criteria that subject qualified individuals
with disabilities to discrimination on the basis of disability.
(g) A recipient or DoD Component 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
a recipient or DoD Component 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. The programs or activities of entities that are licensed or
certified by a recipient or DoD Component are not, themselves, covered
by this part.
(h) A recipient or DoD Component shall make reasonable
modifications in policies, practices, or procedures when the
modifications are necessary to avoid discrimination on the basis of
disability, unless the recipient or DoD Component can demonstrate that
making the modifications would fundamentally alter the nature of the
service, program, or activity or result in undue financial and
administrative burdens.
(i) A recipient or DoD Component is not required to provide a
reasonable modification to an individual who meets the definition of
``disability'' solely under the ``regarded as'' prong of the definition
of disability at 28 CFR 35.108(a)(1)(iii).
(j) A recipient or DoD Component shall not impose or apply
eligibility criteria that screen out or tend to screen out an
individual with a disability or any class of individuals with
disabilities from fully and equally enjoying any service, program, or
activity, unless such criteria can be shown to be necessary for the
provision of the service, program, or activity being offered.
(k) Nothing in this part prohibits a recipient or DoD Component
from providing benefits, services, or advantages to individuals with
disabilities, or to a particular class of individuals with disabilities
beyond those required by this part.
(l) A recipient or DoD Component shall administer services,
programs, and activities in the most integrated setting appropriate to
the needs of qualified individuals with disabilities.
(m)(1) Nothing in this part shall be construed to require an
individual with a disability to accept an accommodation, aid, service,
opportunity, or benefit provided under section 504 or this part which
such individual chooses not to accept.
(2) Nothing in section 504 or this part authorizes the
representative or guardian of an individual with a disability to
decline food, water, medical treatment, or medical services for that
individual.
(n) A recipient or DoD Component may not place a surcharge on a
particular individual with a disability or any group of individuals
with disabilities to cover the costs of measures, such as the provision
of auxiliary aids or program accessibility, that are required to
provide that individual or group with the nondiscriminatory treatment
required by section 504 or this part.
(o) A recipient or DoD Component shall not exclude or otherwise
deny equal services, programs, or activities to an individual or entity
because of the known disability of an individual with whom the
individual or entity is known to have a relationship or association.
(p) A recipient or DoD Component may impose legitimate safety
requirements necessary for the safe operation of its services,
programs, or activities. However, the recipient or DoD Component must
ensure that its safety requirements are based on actual risks, not on
mere speculation, stereotypes, or generalizations about individuals
with disabilities.
(q) Nothing in this part shall provide the basis for a claim that
an individual without a disability was subject to discrimination
because of a lack of disability, including a claim that an individual
with a disability was granted a reasonable modification that was denied
to an individual without a disability.
(r) The exclusion of individuals without disabilities from the
benefits of a program limited by federal statute or Executive order to
individuals with disabilities or the exclusion of a specific class of
individuals with disabilities from a program limited by federal statute
or Executive order to a different class of individuals with
disabilities is not prohibited by this part.
Sec. 56.8 Illegal use of drugs.
(a) General. (1) Except as provided in paragraph (b) of this
section, this part does not prohibit discrimination against an
individual based on that individual's current illegal use of drugs.
(2) A recipient or DoD Component shall not discriminate on the
basis of illegal use of drugs against an individual who is not engaging
in current illegal use of drugs and who--
(i) Has successfully completed a supervised drug rehabilitation
program or has otherwise been rehabilitated successfully;
(ii) Is participating in a supervised rehabilitation program; or
(iii) Is erroneously regarded as engaging in such use.
(b) Health and drug rehabilitation services. (1) A recipient or DoD
Component shall not deny health services, or services provided in
connection with drug rehabilitation, to an individual on the basis of
that individual's current illegal use of drugs, if the individual is
otherwise entitled to such services.
(2) A drug rehabilitation or treatment program may deny
participation to individuals who engage in illegal use of drugs while
they are in the program.
(c) Drug testing. (1) This part does not prohibit a recipient or
DoD Component from adopting or administering reasonable drug testing
policies or procedures, including, but not limited, to drug testing,
designed to ensure that an individual who formerly engaged in the
illegal use of drugs is not now engaging in the illegal use of drugs.
(2) Nothing in paragraph (c)(1) of this section will be construed
to encourage, prohibit, restrict, or authorize the conduct of testing
for the illegal use of drugs.
Sec. 56.9 Maintenance of accessible features.
(a) A recipient or DoD Component shall maintain in operable working
condition those features of facilities and equipment that are required
to be readily accessible to and usable by persons with disabilities, in
accordance by section 504 or this part.
(b) This section does not prohibit isolated or temporary
interruptions in service or access due to maintenance or repairs.
(c) For a recipient, if the 2010 Standards reduce the technical
requirements or the number of required accessible elements below the
number required by UFAS, the technical requirements or the number of
accessible elements in a facility subject to this part may be reduced
in accordance with the requirements of the 2010 Standards.
Sec. 56.10 Retaliation or coercion.
(a) No recipient or DoD Component shall discriminate against any
individual because that individual has opposed any act or practice made
[[Page 43176]]
unlawful by this part, or because that individual made a charge,
testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under section 504 or this part.
(b) No recipient or DoD Component shall coerce, intimidate,
threaten, or interfere with any individual in the exercise or enjoyment
of, or on account of his or her having exercised or enjoyed, or on
account of his or her having aided or encouraged any other individual
in the exercise or enjoyment of, any right granted or protected by
section 504 or this part.
Sec. 56.11 Personal devices and services.
This part does not require a recipient or DoD Component to provide
to individuals with disabilities personal devices, such as wheelchairs;
individually prescribed devices, such as prescription eyeglasses or
hearing aids; readers for personal use or study; or services of a
personal nature including assistance in eating, toileting, or dressing.
Sec. 56.12 Service animals.
(a) General. Generally, a recipient or DoD Component shall modify
its policies, practices, or procedures to permit the use of a service
animal by an individual with a disability.
(b) Exceptions. The recipient or DoD Component may ask an
individual with a disability to remove a service animal from the
premises if--
(1) The animal is out of control and the animal's handler does not
take effective action to control it; or
(2) The animal is not housebroken.
(c) If an animal is properly excluded. If a recipient or DoD
Component properly excludes a service animal under Sec. 56.12, it
shall give the individual with a disability the opportunity to
participate in the service, program, or activity without having the
service animal on the premises.
(d) Animal under handler's control. A service animal shall be under
the control of its handler. A service animal shall have a harness,
leash, or other tether, unless either the handler is unable because of
a disability to use a harness, leash, or other tether, or the use of a
harness, leash, or other tether would interfere with the service
animal's safe, effective performance of work or tasks, in which case
the service animal must be otherwise under the handler's control (e.g.,
voice control, signals, or other effective means).
(e) Care or supervision. A recipient or DoD Component is not
responsible for the care or supervision of a service animal.
(f) Inquiries. A recipient or DoD Component shall not ask about the
nature or extent of a person's disability, but may make two inquiries
to determine whether an animal qualifies as a service animal. A
recipient or DoD Component may ask if the animal is required because of
a disability and what work or task the animal has been trained to
perform. A recipient or DoD Component shall not require documentation,
such as proof that the animal has been certified, trained, or licensed
as a service animal. Generally, a recipient or DoD Component may not
make these inquiries about a service animal when it is readily apparent
that an animal is trained to do work or perform tasks for an individual
with a disability (e.g., the dog is observed guiding an individual who
is blind or has low vision, pulling a person's wheelchair, or providing
assistance with stability or balance to an individual with an
observable mobility disability).
(g) Access to areas of a recipient or DoD Component. Individuals
with disabilities shall be permitted to be accompanied by their service
animals in all areas of a recipient or DoD Component's facilities where
members of the public, participants in services, programs or
activities, or invitees, as relevant, are allowed to go.
(h) Surcharges. A recipient or DoD Component shall not ask or
require an individual with a disability to pay a surcharge, even if
people accompanied by pets are required to pay fees, or to comply with
other requirements generally not applicable to people without pets. If
the recipient or DoD Component normally charges individuals for the
damage they cause, an individual with a disability may be charged for
damage caused by his or her service animal.
(i) Miniature horses. (1) Reasonable modifications. A recipient or
DoD Component shall make reasonable modifications in policies,
practices, or procedures to permit the use of a miniature horse by an
individual with a disability if the miniature horse has been
individually trained to do work or perform tasks for the benefit of the
individual with a disability.
(2) Assessment factors. In determining whether reasonable
modifications in policies, practices, or procedures can be made to
allow a miniature horse into a specific facility, a recipient or DoD
Component shall consider--
(i) The type, size, and weight of the miniature horse and whether
the facility can accommodate these features;
(ii) Whether the handler has sufficient control of the miniature
horse;
(iii) Whether the miniature horse is housebroken; and
(iv) Whether the miniature horses' presence in a specific facility
compromises legitimate safety requirements that are necessary for safe
operation.
(3) Other requirements. Paragraphs (c) through (h) of this section,
which apply to service animals, shall also apply to miniature horses.
Sec. 56.13 Mobility devices.
(a) A recipient or DoD Component shall permit individuals with
mobility disabilities to use wheelchairs and manually-powered mobility
aids, such as walkers, crutches, canes, braces, or other similar
devices designed for use by individuals with mobility disabilities in
any areas open to pedestrian use.
(b)(1) Use of other power-driven mobility devices. A recipient or
DoD Component shall make reasonable modifications in its policies,
practices, or procedures to permit the use of other power-driven
mobility devices by individuals with mobility disabilities, unless the
recipient or DoD Component can demonstrate that the class of other
power-driven mobility devices cannot be operated in accordance with
legitimate safety requirements that the recipient or DoD Component has
adopted pursuant to Sec. 56.13.
(2) Assessment factors. In determining whether a particular other
power-driven mobility device can be allowed in a specific facility as a
reasonable modification under paragraph (b)(1) of this section, a
recipient or DoD Component shall consider--
(i) The type, size, weight, dimensions, and speed of the device;
(ii) The facility's volume of pedestrian traffic (which may vary at
different times of the day, week, month, or year);
(iii) The facility's design and operational characteristics (e.g.,
whether its service, program, or activity is conducted indoors, its
square footage, the density and placement of stationary devices, and
the availability of storage for the device, if requested by the user);
(iv) Whether legitimate safety requirements can be established to
permit the safe operation of the other power-driven mobility device in
the specific facility; and
(v) Whether the use of the other power-driven mobility device
creates a substantial risk of serious harm to the immediate environment
or natural or cultural resources, or poses a conflict with Federal land
management laws and regulations.
(c)(1) Inquiry about disability. A recipient or DoD Component shall
not ask an individual using a wheelchair or
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other power-driven mobility device questions about the nature and
extent of the individual's disability.
(2) Inquiry into use of other power-driven mobility device. A
recipient or DoD Component may ask a person using another power-driven
mobility device to provide a credible assurance that the mobility
device is required because of the person's disability. The recipient or
DoD Component that permits the use of another power-driven mobility
device by an individual with a mobility disability shall accept the
presentation of a valid, State-issued, disability parking placard or
card, or other State-issued proof of disability as a credible assurance
that the use of the other power-driven mobility device is for the
individual's mobility disability. In lieu of a valid, State-issued
disability parking placard or card, or State-issued proof of
disability, the recipient or DoD Component shall accept as a credible
assurance a verbal representation, not contradicted by observable fact,
that the other power-driven mobility device is being used for a
mobility disability. A ``valid'' disability placard or card is one that
is presented by the individual to whom it was issued and is otherwise
in compliance with the State of issuance's requirements for disability
placards or cards.
Sec. 56.14 Direct threat.
(a) This part does not require a recipient or DoD Component to
permit an individual to participate in or benefit from the services,
programs, or activities of that recipient or DoD Component when that
individual poses a direct threat to the health or safety of others.
(b) In determining whether an individual poses a direct threat to
the health or safety of others, a recipient or DoD Component 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,
or the provision of auxiliary aids or services will mitigate the risk.
Subpart C--Employment
Sec. 56.15 Employment discrimination prohibited.
(a) No qualified individual with a disability shall, on the basis
of disability, be subjected to discrimination in employment under any
service, program, or activity receiving Federal financial assistance
from or conducted by a DoD Component.
(b) The standards used to determine whether paragraph (a) of this
section has been violated shall be the standards applied under Title I
of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. 12111
et seq., and, as such sections relate to employment, the provisions of
sections 501 through 504 and 511 of the ADA of 1990, as amended
(codified at 42 U.S.C. 12201-12204, 12210), as implemented in the Equal
Employment Opportunity Commission's regulation at 29 CFR part 1630.
Subpart D--Program Accessibility for Recipients of Federal
Financial Assistance
Sec. 56.16 Discrimination prohibited.
Except as otherwise provided in Sec. 56.17, no qualified
individual with a disability shall, because a recipient's facilities
are inaccessible to or unusable by individuals with disabilities, be
excluded from participation in, or be denied the benefits of the
services, programs, or activities of a recipient of Federal financial
assistance from a DoD Component, or be subjected to discrimination by
any recipient.
Sec. 56.17 Existing facilities.
(a) General. A recipient shall operate each service, program, or
activity so that the service, program, or activity, when viewed in its
entirety, is readily accessible to and usable by individuals with
disabilities. This paragraph does not--
(1) Necessarily require a recipient to make each of its existing
facilities accessible to and usable by individuals with disabilities;
(2) Require a recipient to take any action that would threaten or
destroy the historic significance of an historic property; or
(3) Require a recipient to take any action that it can demonstrate
would result in a fundamental alteration in the nature of a service,
program, or activity or in undue financial and administrative burdens.
In those circumstances where personnel of the recipient believes that
the proposed action would fundamentally alter the service, program, or
activity or would result in undue financial and administrative burdens,
the recipient has the burden of proving that compliance with Sec.
56.18(a) would result in such alteration or burdens. The decision that
compliance would result in such alteration or burdens must be made by
the head of the recipient after considering all resources available for
use in the funding and operation of the service, 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 recipient 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 or services provided by the recipient.
(b) Methods--(1) General. A recipient may comply with these
requirements through such means as redesign or acquisition 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
other conveyances, or any other methods that result in making its
services, programs, or activities readily accessible to and usable by
individuals with disabilities. A recipient is not required to make
structural changes in existing facilities where other methods are
effective in achieving compliance with this section. A recipient, in
making alterations to existing buildings, shall meet the accessibility
requirements of Sec. 56.18(c). In choosing among available methods for
meeting the requirements of this section, a recipient shall give
priority to those methods that offer services, programs, and activities
to qualified individuals with disabilities in the most integrated
setting appropriate.
(2) Safe harbor. Elements that have not been altered in existing
facilities on or after November 5, 2019, and that comply with the
corresponding technical and scoping specifications for those elements
in the Uniform Federal Accessibility Standards (UFAS), appendix A to 41
CFR 101-19.6 (July 1, 2002 ed.), 49 FR 31528, app. A (Aug. 7, 1984),
are not required to be modified in order to comply with the
requirements set forth in the 2010 Standards.
(3) Historic preservation programs. In meeting the requirements of
Sec. 56.17 in historic preservation programs, a recipient shall give
priority to methods that provide physical access to individuals with
disabilities. In cases where a physical alteration to an historic
property is not required because of paragraph (a)(2) or (3) of this
section, alternative methods of achieving program accessibility
include--
(i) Using audio-visual materials and devices to depict those
portions of an historic property that cannot otherwise be made
accessible;
[[Page 43178]]
(ii) Assigning persons to guide individuals with disabilities into
or through portions of historic properties that cannot otherwise be
made accessible; or
(iii) Adopting other innovative methods.
(c) Time period for compliance. When structural changes are
necessary to make programs or activities in existing facilities
accessible to the extent required by this section, such changes shall
be made as soon as practicable, but not later than 3 years after June
1, 1982.
(d) Transition plan. In the event that structural changes to
facilities will be undertaken to achieve program accessibility, a
recipient that employs 50 or more persons shall develop, with the
assistance of interested persons or organizations and within a period
to be established in each DoD Component's guidelines, a transition plan
setting out the steps necessary to complete the changes.
(1) A copy of the transition plan shall be made available for
public inspection.
(2) The plan shall, at a minimum:
(i) Identify physical obstacles in the recipient's facilities that
limit the accessibility of its programs or activities to individuals
with disabilities;
(ii) Describe in detail the methods that will be used to make the
facilities accessible;
(iii) 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
(iv) Identify the official responsible for implementation of the
plan.
Sec. 56.18 New construction and alterations.
(a) Design and construction. Each facility or part of a facility
constructed by, on behalf of, or for the use of a recipient shall be
designed and constructed in such manner that the facility or part of
the facility is readily accessible to and usable by individuals with
disabilities, if the construction was commenced after June 1, 1982.
(b) Alterations. Each facility or part of a facility altered by, on
behalf of, or for the use of a recipient in a manner that affects or
could affect the usability of the facility or part of the facility
shall, to the maximum extent feasible, be altered in such manner that
the altered portion of the facility is readily accessible to and usable
by individuals with disabilities, if the alteration was commenced after
June 1, 1982.
(c) Accessibility standards and compliance dates for recipients
that are public entities. (1) If physical construction or alterations
commence after June 1, 1982, but before [EFFECTIVE DATE OF THE FINAL
RULE], then new construction and alterations subject to this section
must comply with UFAS. Departures from particular requirements of UFAS
by the use of other methods shall be permitted when it is clearly
evident that equivalent access to the facility or part of the facility
is thereby provided.
(2) If physical construction or alterations commence on or after
[EFFECTIVE DATE OF THE FINAL RULE], but before [DATE ONE YEAR AFTER
EFFECTIVE DATE OF THE FINAL RULE], then new construction and
alterations subject to this section may comply with either UFAS or the
2010 Standards. Departures from particular requirements of either
standard by the use of other methods shall be permitted when it is
clearly evident that equivalent access to the facility or part of the
facility is thereby provided.
(3) If physical construction or alterations commence on or after
[DATE ONE YEAR FROM EFFECTIVE DATE OF THE FINAL RULE], then new
construction and alterations subject to this section shall comply with
the 2010 Standards.
(4) For the purposes of this section, ceremonial groundbreaking or
razing of structures prior to site preparation do not commence physical
construction or alterations.
(d) Accessibility standards and compliance dates for recipients
that are private entities.
(1) New construction and alterations subject to this section shall
comply with UFAS if the date when the last application for a building
permit or permit extension is certified to be complete by a State,
county, or local government (or, in those jurisdictions where the
government does not certify completion of applications, if the date
when the last application for a building permit or permit extension is
received by the State, county, or local government) is before
[EFFECTIVE DATE OF THE FINAL RULE], or if no permit is required, if the
start of physical construction or alterations occurs before [EFFECTIVE
DATE OF THE FINAL RULE].
(2) New construction and alterations subject to this section shall
comply either with UFAS or the 2010 Standards if the date when the last
application for a building permit or permit extension is certified to
be complete by a State, county, or local government (or, in those
jurisdictions where the government does not certify completion of
applications, if the date when the last application for a building
permit or permit extension is received by the State, county, or local
government) is on or after [EFFECTIVE DATE OF THE FINAL RULE], and
before [DATE ONE YEAR FROM EFFECTIVE DATE OF THE FINAL RULE], or if no
permit is required, if the start of physical construction or
alterations occurs on or after [EFFECTIVE DATE OF THE FINAL RULE], and
before [DATE ONE YEAR FROM EFFECTIVE DATE OF THE FINAL RULE].
(3) New construction and alterations subject to this section shall
comply with the 2010 Standards if the date when the last application
for a building permit or permit extension is certified to be complete
by a State, county, or local government (or, in those jurisdictions
where the government does not certify completion of applications, if
the date when the last application for a building permit or permit
extension is received by the State, county, or local government) is on
or after [EFFECTIVE DATE OF THE FINAL RULE], or if no permit is
required, if the start of physical construction or alterations occurs
on or after [DATE ONE YEAR FROM EFFECTIVE DATE OF THE FINAL RULE].
(4) For the purposes of this section, ceremonial groundbreaking or
razing of structures prior to site preparation do not commence physical
construction or alterations.
(e) Noncomplying new construction and alterations. (1) Newly
constructed or altered facilities or elements covered by Sec. Sec.
56.18(a) and (b) that were constructed or altered before [EFFECTIVE
DATE OF THE FINAL RULE], and that do not comply with UFAS, shall before
[DATE ONE YEAR FROM EFFECTIVE DATE OF THE FINAL RULE], be made
accessible in accordance with either UFAS or the 2010 Standards.
(2) Newly constructed or altered facilities or elements covered by
Sec. Sec. 56.18(a) and (b) that were constructed or altered before
[EFFECTIVE DATE OF THE FINAL RULE] and that do not comply with UFAS
shall, on or after [DATE ONE YEAR FROM EFFECTIVE DATE OF THE FINAL
RULE], be made accessible in accordance with the 2010 Standards.
(3) New construction and alterations of buildings or facilities
undertaken in compliance with the 2010 Standards will comply with the
scoping and technical requirements for a ``public building or
facility'' regardless of whether the recipient is a public entity as
defined in 28 CFR 35.104 or a private entity.
[[Page 43179]]
(f) Compliance with the Architectural Barriers Act of 1968. Nothing
in this section relieves recipients whose facilities are covered by the
Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151-4157),
from their responsibility of complying with the requirements of that
Act and any implementing regulations.
(g) Mechanical rooms. For purposes of this section, section
4.1.6(1)(g) of UFAS will be interpreted to exempt from the requirements
of UFAS only mechanical rooms and other spaces that, because of their
intended use, will not require accessibility to the public or
beneficiaries or result in the employment or residence therein of
individuals with physical disabilities.
Subpart E--Program Accessibility for Programs and Activities
Conducted by DoD Components
Sec. 56.19 Discrimination prohibited.
Except as otherwise provided in Sec. 56.20, no qualified
individual with a disability shall, because a DoD Component's
facilities are inaccessible to or unusable by individuals with
disabilities, be excluded from participation in, or be denied the
benefits of the services, programs, or activities conducted by a DoD
Component, or be subjected to discrimination by any DoD Component.
Sec. 56.20 Existing facilities.
(a) General. A DoD Component shall operate each service, program,
or activity so that the service, program, or activity, when viewed in
its entirety, is readily accessible to and usable by individuals with
disabilities. This paragraph does not--
(1) Necessarily require a DoD Component to make each of its
existing facilities accessible to and usable by individuals with
disabilities;
(2) Require a DoD Component to take any action that would threaten
or destroy the historic significance of an historic property; or
(3) Require a DoD Component to take any action that it can
demonstrate would result in a fundamental alteration in the nature of a
service, program, or activity, or in undue financial and administrative
burdens. In those circumstances where personnel of the DoD Component
believe that the proposed action would fundamentally alter the service,
program, or activity or would result in undue financial and
administrative burdens, the DoD Component has the burden of proving
that compliance with Sec. 56.20(a) would result in such alteration or
burdens. The decision that compliance would result in such alteration
or burdens must be made by the head of the DoD Component after
considering all resources available for use in the funding and
operation of the service, 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 DoD
Component 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 or services provided
by the DoD Component.
(b) Methods--(1) General. A DoD Component may comply with the
requirements of this section through such means as redesign or
acquisition 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 other conveyances, or any other methods that result in
making its services, programs, or activities readily accessible to and
usable by individuals with disabilities. A DoD Component is not
required to make structural changes in existing facilities where other
methods are effective in achieving compliance with this section. A DoD
Component, in making alterations to existing buildings, shall meet the
accessibility requirements of the Architectural Barriers Act of 1968,
as amended (42 U.S.C. 4151-4157), and federal regulations implementing
it. In choosing among available methods for meeting the requirements of
this section, a DoD Component shall give priority to those methods that
offer services, programs, and activities to qualified individuals with
disabilities in the most integrated setting appropriate.
(2) Historic preservation programs. In meeting the requirements of
Sec. 56.20(a) in historic preservation programs, a DoD Component shall
give priority to methods that provide physical access to individuals
with disabilities. In cases where a physical alteration to an historic
property is not required because of paragraph (a)(2) of this section,
alternative methods of achieving program accessibility include--
(i) Audio-visual materials and devices. Using audio-visual
materials and devices to depict those portions of an historic property
that cannot otherwise be made accessible;
(ii) Guides. Assigning persons to guide individuals with handicaps
into or through portions of historic properties that cannot otherwise
be made accessible; or
(iii) Innovation. Adopting other innovative methods.
(iv) Time period for compliance. When structural changes are
necessary to make programs or activities in existing facilities
accessible to the extent required by this section, such changes shall
be made as soon as practicable, but not later than 3 years after June
1, 1982.
(v) Transition plan. In the event that structural changes to
facilities will be undertaken to achieve program accessibility, a DoD
Component shall develop, with the assistance of interested persons or
organizations and within a period to be established in each DoD
Component's guidelines, a transition plan setting out the steps
necessary to complete the changes.
(A) A copy of the transition plan shall be made available for
public inspection.
(B) The plan shall, at a minimum:
(1) Identify physical obstacles in the DoD Component'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 1 year, identify steps that will be taken during
each year of the transition period; and
(4) Identify the official responsible for implementation of the
plan.
Sec. 56.21 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 DoD component shall be
designed, constructed, or altered so as to be readily accessible to and
usable by individuals with disabilities. The definitions, requirements,
and standards of the Architectural Barriers Act (42 U.S.C. 4151-4157),
as established in the Architectural Barriers Act Accessibility
Standards at 41 CFR 102-76.60, apply to buildings covered by this
section.
Subpart F--Communications
Sec. 56.22 General.
(a)(1) A recipient or DoD Component shall take appropriate steps to
ensure that communications with applicants, participants, members of
the public, and companions with disabilities are as effective as
communications with others.
(2) For purposes of this section, ``companion'' means a family
member,
[[Page 43180]]
friend, or associate of an individual seeking access to a service,
program, or activity of a recipient or DoD Component, who, along with
such individual, is an appropriate person with whom the public entity
should communicate.
(b)(1) A recipient or DoD Component shall furnish appropriate
auxiliary aids and services when necessary to afford qualified
individuals with disabilities, including applicants, participants,
companions, and members of the public, an equal opportunity to
participate in, and enjoy the benefits of, a service, program, or
activity of a recipient or DoD Component.
(2) The type of auxiliary aid or service necessary to ensure
effective communication will vary in accordance with the method of
communication used by the individual; the nature, length, and
complexity of the communication involved; and the context in which the
communication is taking place. In determining what types of auxiliary
aids and services are necessary, a recipient or DoD Component shall
give primary consideration to the requests of individuals with
disabilities. In order to be effective, auxiliary aids and services
must be provided in accessible formats, in a timely manner, and in such
a way as to protect the privacy and independence of the individual with
a disability.
(c)(1) A recipient or DoD Component shall not require an individual
with a disability to bring another individual to interpret for him or
her.
(2) A recipient or DoD Component shall not rely on an adult
accompanying an individual with a disability to interpret or facilitate
communication except--
(i) In an emergency involving an imminent threat to the safety or
welfare of an individual or the public where there is no interpreter
available; or
(ii) Where the individual with a disability specifically requests
that the accompanying adult interpret or facilitate communication, the
accompanying adult agrees to provide such assistance, and reliance on
that adult for such assistance is appropriate under the circumstances.
(3) A recipient or DoD Component shall not rely on a minor child to
interpret or facilitate communication, except in an emergency involving
an imminent threat to the safety or welfare of an individual or the
public where there is no interpreter available.
(d) A recipient or DoD Component that chooses to provide qualified
interpreters via VRI services shall ensure that it provides--
(1) Real-time, full-motion video and audio over a dedicated high-
speed, wide-bandwidth video connection or wireless connection that
delivers high-quality video images that do not produce lags, choppy,
blurry, or grainy images, or irregular pauses in communication;
(2) A sharply-delineated image that is large enough to display the
interpreter's face, arms, hands, and fingers, and the participating
individual's face, arms, hands, and fingers, regardless of his or her
body position;
(3) A clear, audible transmission of voices; and
(4) Adequate training to users of the technology and other involved
individuals so that they may quickly and efficiently set up and operate
the VRI.
Sec. 56.23 Telecommunications.
(a) Where a recipient or DoD Component communicates by telephone
with applicants and beneficiaries, text telephones (TTYs) or equally
effective telecommunications systems shall be used to communicate with
individuals who are deaf or hard of hearing or have speech impairments.
(b) When a recipient or DoD Component uses an automated-attendant
system, including, but not limited to, voice mail and messaging, or an
interactive voice response system, for receiving and directing incoming
telephone calls, that system must provide effective real-time
communication with individuals using auxiliary aids and services,
including TTYs and all forms of FCC-approved telecommunications relay
system, including internet-based relay systems.
(c) A recipient or DoD Component shall respond to telephone calls
from a telecommunications relay service established under Title IV of
the ADA in the same manner that it responds to other telephone calls.
Sec. 56.24 Information and signage.
(a) A recipient or DoD Component 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.
(b) A recipient or DoD Component shall provide signage at all
inaccessible entrances to each of its facilities, directing users to an
accessible entrance or to a location at which they can obtain
information about accessible facilities. The international symbol for
accessibility shall be used at each accessible entrance of a facility.
Sec. 56.25 Duties.
This subpart does not require a recipient or DoD Component to take
any action that it can demonstrate would result in a fundamental
alteration in the nature of a service, program, or activity or in undue
financial and administrative burdens. In those circumstances where
personnel of the recipient or DoD Component believe that the proposed
action would fundamentally alter the service, program, or activity or
would result in undue financial and administrative burdens, the
recipient or DoD Component has the burden of proving that compliance
with this subpart would result in such alteration or burdens. The
decision that compliance would result in such alteration or burdens
must be made by the head of the recipient or DoD Component or his or
her designee after considering all resources available for use in the
funding and operation of the service, 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 subpart would
result in such an alteration or such burdens, the recipient or DoD
Component 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 or services provided by the recipient or DoD Component.
Subpart G--Information and Communication Technology Requirements
Sec. 56.26 Information and communication technology requirements.
(a) Accessible information and communication technology. A DoD
Component must make information and communication technology accessible
to individuals with disabilities in accordance with section 508 of the
Rehabilitation Act.
(b) Development, procurement, maintenance, or use of information
and communication technology. When developing, procuring, maintaining,
or using information and communication technology, DoD Components shall
ensure, unless an undue burden would be imposed on it, that the
information and communication technology allows, regardless of the type
of medium of the technology--
(1) Individuals with disabilities who are employees of DoD
Components to have access to and use of information and data that is
comparable to the access to and use of the information and data by
employees of DoD Components
[[Page 43181]]
who are not individuals with disabilities; and
(2) Individuals with disabilities who are members of the public
seeking information or services from DoD Components to have access to
and use of information and data that is comparable to the access to and
use of the information and data by such members of the public who are
not individuals with disabilities.
(c) Alternative means of access when undue burden is imposed. When
development, procurement, maintenance, or use of information and
communication technology that meets the standards published by the
Access Board at 36 CFR part 1194 would impose an undue burden, the DoD
Component shall provide individuals with disabilities covered by this
section with the information and data involved by an alternative means
of access that allows the individual to use the information and data.
Subpart H--Compliance Procedures
Sec. 56.27 Responsibilities.
(a) The Under Secretary of Defense for Personnel and Readiness
(USD(P&R)), through the Executive Director, Force Resiliency (EDFR),
reviews recommended administrative decisions proposed by the Office of
Diversity, Equity, and Inclusion (ODEI) and issues final administrative
decisions, when necessary, in accordance with Sec. Sec. 56.29 through
56.31.
(b) Under the authority, direction, and control of the USD(P&R),
the EDFR:
(1) Exercises authority, direction, and control over the Director,
ODEI.
(2) Provides guidance to DoD Components when developing policies,
procedures, and guidelines in support of this part.
(c) Under the authority, direction, and control of the EDFR, ODEI:
(1) Serves as the primary point of contact for the DoD Components,
including when disseminating nondiscrimination policies, programs, and
initiatives.
(2) Administers an effective civil rights program prohibiting
discrimination on the basis of disability by:
(i) Overseeing the full implementation of and compliance with
section 504 of the Rehabilitation Act, this part, and policies and
plans related to unlawful discrimination on the basis of disability in
federally assisted and conducted programs.
(ii) Ensuring no person is excluded from participation in, denied
the benefits of, or subjected to unlawful discrimination on the basis
of disability in any program or activity receiving Federal financial
assistance from the DoD or conducted by DoD.
(iii) Overseeing DoD Component compliance reviews and collection of
assurances as described in Sec. 56.28 from recipients.
(iv) Reviewing compliance reports generated by the DoD Component
heads in accordance with Sec. 56.28.
(v) Ensuring all complaints of unlawful discrimination on the basis
of disability in any recipient are referred to the appropriate DoD
Component head and resolved in a timely manner.
(vi) Providing education, training, and technical assistance to the
DoD Components on issues related to nondiscrimination policies,
programs, and initiatives.
(vii) Providing advice to the USD(P&R) regarding the issuance of
final administrative decisions resolving complaints of unlawful
discrimination on the basis of disability and complaints of failure to
make information and communication technology accessible to individuals
with disabilities.
(viii) Managing formal mediation of complaints of unlawful
discrimination on the basis of disability and complaints of failure to
make information and communication technology accessible to individuals
with disabilities.
(ix) Monitoring compliance with this part by personnel under the
authority, direction, and control of the USD(P&R).
(3) Notifies and provides updates to the Civil Rights Division of
the Department of Justice (DOJ) when, with regard to recipients, a DoD
Component head:
(i) Defers an application.
(ii) Schedules a hearing.
(iii) Refuses or terminates assistance.
(iv) Undertakes an enforcement action.
(d) The Director, Defense Legal Services Agency, under the
authority, direction, and control of the General Counsel of the
Department of Defense, and in addition to the responsibilities in
paragraph (e) of this section, the Director, Defense Legal Services
Agency, provides for fair and impartial administrative procedures,
including, but not limited to, conducting hearings and issuing
decisions as required in Sec. 56.29.
(e) The DoD Component heads:
(1) In coordination with the EDFR, develop and maintain internal
policies, procedures, and guidance to promote nondiscrimination on the
basis of disability in programs or activities receiving Federal
financial assistance from or conducted by the DoD Component.
(2) Oversee:
(i) Dissemination of all relevant internal policies and procedures
and ensure implementation at all levels within their respective DoD
Components.
(ii) Compliance with applicable DOJ and Equal Employment
Opportunity Commission guidance, this part, and all implementing DoD
Component parts.
(iii) Development of an effective compliance review program of
applicants for and recipients of Federal financial assistance, in
accordance with Sec. 56.28.
(iv) Collection of assurances from recipients, as described in
Sec. 56.28.
(v) Compliance with the reporting requirements of this or other
parts.
(vi) The complaint process for allegations of discrimination in
violation of section 504 of the Rehabilitation Act against recipients
of Federal financial assistance, which are processed in accordance with
Sec. 56.29.
(vii) The complaint process for allegations of discrimination in
violation of section 504 of the Rehabilitation Act against DoD
Components and allegations of failure by DoD Components to make
information and communication technology accessible to individuals with
disabilities in in violation of section 508 of the Rehabilitation Act,
which are processed in accordance with Sec. Sec. 56.30 and 56.31.
(3) Ensure the cooperation of applicants and recipients of Federal
financial assistance with this part. Enforce the provisions of this
part in accordance with Sec. 56.31 if a recipient violates the policy
of this section.
(4) Establish internal procedures for the prompt processing and
disposition of complaints, including notice to both complainant and
recipient regarding the respective rights and obligations of each
party.
(5) Promptly review and investigate all complaints filed in
accordance with this part unless the complainant and the party
complained against agree to delay the investigation pending settlement
negotiations.
(6) Provide technical assistance to recipients, when necessary, to
aid them in complying with this part.
(7) Provide educational materials setting out the rights of
beneficiaries, including the right to file complaints in accordance
with this part, and obligations of recipients in accordance with this
part.
(8) Prepare recommended administrative decisions, when applicable,
for complaints of a violation of sections 504 or 508 of the
Rehabilitation Act, for review and
[[Page 43182]]
consideration by the USD(P&R) when issuing final administrative
decisions.
(f) The Chief Information Officer of the Department of Defense (DoD
CIO):
(1) Develops policies and procedures related to achieving
implementation of and compliance with section 508 of the Rehabilitation
Act.
(2) Provides advice regarding complaints for failure to make
information and communication technology accessible to individuals with
disabilities.
(g) Listed below are responsibilities of recipients of Federal
financial assistance. Each recipient must:
(1) Submit to the DoD Component head a written assurance in
accordance with Sec. 56.28 or 32 CFR 22.510(b) and appendix B, where
applicable.
(2) Designate at least one person to coordinate its efforts to
comply with the obligations of section 504 of the Rehabilitation Act,
who will:
(i) Investigate any complaints communicated to the recipient
alleging the recipient's noncompliance with or any actions prohibited
by section 504 of the Rehabilitation Act.
(ii) Make available to all interested individuals the name, office
address, and telephone number of the employee or employees designated
to coordinate its efforts.
(3) Notify applicants for employment, employees, beneficiaries,
subrecipients, and participants, regardless of disability, of their
rights. The notification must:
(i) State that the recipient does not discriminate on the basis of
disability in violation of section 504 and this part. The notification
shall state, where appropriate, that the recipient does not
discriminate in its programs or activities with respect to access,
treatment, or employment.
(ii) Be transmitted via methods which may include the posting of
notices, transmission via electronic mail or text message, publication
on the recipient's internet website, or in newspapers and magazines,
placement of notices in recipient's publication, and distribution of
memoranda or other written communications.
(4) Develop, adopt, and disseminate internal complaint procedures
for the prompt processing and disposition of informal and formal
complaints and appeals of violations of section 504 of the
Rehabilitation Act. The procedures must:
(i) Comply with Sec. Sec. 56.29 through 56.31.
(ii) Include directions on how and where to file complaints and
appeal decisions made by DoD.
(5) Provide to the DoD Component award official in the application
for Federal financial assistance:
(i) Notice of any lawsuit pending against the applicant alleging
unlawful discrimination on the basis of disability related to the
financial assistance received from DoD.
(ii) A statement regarding the applicant describing any compliance
review relating to unlawful discrimination on the basis of disability
conducted during the two-year period before the application and
information concerning the agency or organization performing the
reviews.
(iii) Reports of any compliance reviews conducted by other Federal
agencies.
(6) Conduct a self-evaluation in accordance with Sec. 56.5.
(7) Maintain compliance information.
Sec. 56.28 Assurance requirements and compliance information and
procedures applicable to recipients of Federal financial assistance.
(a) Assurance requirements for applicants and recipients: General.
(1) Subject to the option described in paragraph (a)(3) of this
section, applicants for and recipients of Federal financial assistance
must include with their submission to the DoD Component a written
assurance certification that meets the requirements of this section.
The assurance must certify that, with respect to programs or activities
that receive Federal financial assistance, such applicants or
recipients will comply with the requirements of section 504 of the
Rehabilitation Act and this part. Applicants also must submit any
additional information that the DoD Component determines is necessary
for a pre-award review. The applicant or recipient's acceptance of
federal financial assistance is an acceptance of the obligation of the
assurance certification and this section.
(2) At a minimum, the assurance submitted for purposes of
compliance with this section of the part must state that:
(i) It is provided as a condition for the receipt of Federal funds.
(ii) The applicant or recipient agrees to:
(A) Compile and maintain records pursuant to Sec. 56.28(g)(1)(i).
(B) Submit reports on its programs, as may be required by the DoD
Component.
(iii) Where a recipient makes the funds available to sub
recipients, subcontractors, or subgrantees, the applicant or recipient
must notify and require the sub recipients, subcontractors or sub
grantees to comply with section 504 of the Rehabilitation Act and this
part.
(iv) Provide a basis for judicial enforcement.
(3) An applicant subject to 32 CFR part 22 who submits an assurance
which meets the requirements in 32 CFR 22.510(b) and appendix B will be
considered to have satisfied the requirements of this section of the
part pertaining to the submission of assurances. For Federal financial
assistance awards subject to the DoD Grant and Agreement Regulations,
award officials:
(i) May include, in accordance with 32 CFR 22.510(b), an award term
in each award that makes compliance with the requirements in this part
a condition of receipt of funding under the award in order to satisfy
the requirement for obtaining an assurance from recipients.
(ii) Follow the pre-award procedures in 32 CFR 22.420, which
indicate that a DoD grant's officer (i.e., award official) must ensure
that the recipient has provided all certifications and assurances
required by Federal statute, Executive order, or codified regulation--
unless they are to be addressed in award terms and conditions at the
time of award--before determining that a potential recipient is
qualified to receive an award.
(iii) If the DoD award official has reason to question the
potential recipient's compliance with this part based on a review of
any pre-award assurance received from the potential recipient in
accordance with this section or compliance review of the potential
recipient received before issuing the award, the award official should
consult the personnel from the Component that is responsible for
handling the civil rights' compliance review. Those personnel will
inform the award official whether they have sufficient information to
issue a written determination of compliance or if they will take
additional steps in accordance with paragraph (e) or (f) of this
section before making such a determination or taking any enforcement
actions.
(iv) The DoD award official will maintain for each potential
recipient the signed copy of any or all certifications and assurances,
or proof of an electronic signature, in an easily accessible location
for not less than the duration of the assistance and any additional
time that reasonably may be necessary to enforce the terms, such as
through an enforcement action.
(b) Duration of assurance--(1) Real property. When a DoD Component
awards an assurance in the form of real property or assistance to
acquire real property or structures on the property,
[[Page 43183]]
the assurance will obligate the recipient or transferee during the
period the real property or structures are used for the purpose for
which Federal financial assistance is extended, or for another purpose
in which similar services or benefits are provided. The transfer
instrument must contain covenants running with the land which assure
that the property will be used for such purposes and that
nondiscrimination on the basis of disability will be enforced. Where
applicable, the covenants must also retain a right for the DoD
Component to recover the property if either covenant is broken.
(2) Personal property. When a DoD Component provides assistance in
the form of personal property, the assurance will obligate the
recipient for as long as it continues to own or possess the property.
(3) Other forms of assistance. In all other cases, the assurance
will obligate the recipient for as long as Federal financial assistance
is extended.
(c) Continuing state and block grant programs. As a condition for
the extension of Federal financial assistance, any recipient, State, or
State agency administering a program that receives continuing Federal
financial assistance subject to this part must provide to the DoD
Component an assurance.
(1) Primary recipients. Primary recipients must sign an assurance
agreeing to conduct the program in compliance with section 504 of the
Rehabilitation Act and this part. Where applicable, a primary recipient
must collect assurances from sub recipients.
(2) Assurance requirements. (i) All recipients must sign an
assurance complying with the requirements of paragraph (a)(2) of this
section.
(ii) Assurances for primary recipients disbursing funds to sub
recipients must include a requirement to collect assurances from sub
recipients.
(d) Compliance information and procedures: Policies, procedures,
and guidelines. (1) Whenever necessary, DoD Components will publish
supplementary guidelines for nondiscrimination on the basis of
disability in the programs and activities to which it disburses Federal
financial assistance.
(2) The EDFR must review and approve policies and procedures before
DoD Components may issue them.
(3) At a minimum, all relevant policies, procedures, and guidance
must:
(i) Contain a description of the:
(A) Types of programs and activities covered.
(B) Form of the assurances that must be executed in accordance with
paragraph (a)(2) of this section or an assurance which meets the
requirements in 32 CFR 22.510(b) and appendix B.
(ii) List the data collection and reporting requirements for
recipients, all of which must be cleared by the Office of Management
and Budget pursuant to 44 U.S.C. 3501 (also known and referred to in
this part as ``The Paperwork Reduction Act.'')
(iii) Identify procedures for filing, processing, investigating,
and resolving complaints of discrimination on the basis of disability.
Such procedures must include, at a minimum:
(A) The requirements for filing a complaint. The requirements must
comply with Sec. 56.30(b).
(B) Notification that the DoD Component may require or permit a
recipient to investigate a complaint if the recipient can comply with
the investigation procedures in Sec. 56.28 and internal DoD Component
procedures.
(C) Notification of the right, at any time, to file suit in a
Federal district court of competent jurisdiction and that such action
immediately terminates the administrative process.
(iv) Include requirements:
(A) For recipients to designate a responsible official to
coordinate the implementation of the policies, procedures, and
guidelines.
(B) For recipients to conduct a self-evaluation in compliance with
self-evaluation requirements in Sec. 56.5.
(C) For suggestions for affirmative action on behalf of qualified
individuals with a disability.
(D) For the dissemination of program and complaint information to
the public.
(E) About the frequency and nature of post-approval reviews
conducted pursuant to paragraph (f) of this section.
(F) For any other actions or procedures necessary to implement this
part.
(v) Contain examples of prohibited practices likely to arise with
respect to those types of programs and activities.
(4) When the head of a DoD Component determines that it will not be
appropriate to include one or more of the provisions described in this
section in the supplementary guidelines issued by that DoD Component,
or that it is not necessary to issue such guidelines at all, the DoD
Component must:
(i) State the reasons for such omissions in writing.
(ii) Submit the reasons to the EDFR for review and approval.
(e) Pre-award compliance.--(1) Notice of lawsuits and compliance
reviews. To show compliance with the requirements of section 504 of the
Rehabilitation Act and this part regarding the program or activity
receiving federal financial assistance, each applicant for DoD federal
financial assistance must provide to the DoD Component award official
in the application for federal financial assistance, who will furnish
such submissions to ODEI upon written request:
(i) Notice of any lawsuit pending against the applicant alleging
unlawful discrimination on the basis of disability.
(ii) A statement describing any civil rights compliance reviews
regarding the applicant conducted during the two-year period before the
application, and information concerning the agency or organization
performing the reviews.
(iii) If the applicant has any information to report from paragraph
(e)(1)(i) or (ii) of this section at the time the application is
submitted, he or she must provide that information with the application
in accordance with any directions in the relevant notices of funding
opportunity (e.g., program announcements, funding opportunity
announcements, and broad agency announcements). If the announcement
does not provide specific directions, applicants with information to
report from paragraph (e)(1)(i) or (ii) at the time of proposal
submission must include that information in the portion of the
application that includes any certifications, representations, or
assurances (e.g., attached to Block 18 of the Standard Form 424).
(2) Failure to file an adequate assurance. If an applicant for
Federal financial assistance fails to file an adequate assurance in
accordance with this section or an assurance which meets the
requirements in 32 CFR 22.510(b) and appendix B, or breaches its terms,
the DoD Component must:
(i) Notify the applicant promptly of its noncompliance and state
the reason for noncompliance.
(ii) Make an immediate effort to secure voluntary compliance in
accordance with Sec. 56.28(f).
(3) Written determination of compliance. (i) Within the application
processing period, the DoD Component will make a written determination
of whether the applicant is in compliance with Sec. 56.28(a) and
inform the awarding official. In accordance with 32 CFR 22.420(c)(2),
the grant officer is responsible for ensuring that the potential
recipient has provided all assurances required by section 504 of the
Rehabilitation Act and the implementing regulations unless they are to
be addressed at the time of award, in accordance with 32 CFR 22.510(b).
[[Page 43184]]
(ii) The DoD Component will base its determination on the
submissions required by paragraph (a) of this section and any other
information the DoD Component receives during this time (including
complaints) or has on file about the applicant.
(iii) When the DoD Component cannot make a determination on the
basis of this information, the DoD Component may also conduct an on-
site review. The DoD Component may request additional information from
the applicant, local government officials, or interested persons or
organizations, including individuals with disabilities or organizations
representing such individuals.
(iv) If, after examination, the DoD Component finds enough evidence
to support a finding of noncompliance, it must seek voluntary
compliance.
(4) Voluntary compliance. If the review indicates noncompliance
with this part, an applicant may agree in writing to take the steps
recommended by the DoD Component in order to come into compliance. The
DoD Component must approve the written agreement before any award is
made.
(5) Refusal to comply. If the applicant refuses to enter into such
an agreement, the DoD Component must follow the procedure established
by Sec. 56.29.
(6) Deferment. A DoD Component may choose to defer action on an
application for assistance pending initiation and completion of the
procedures in Sec. 56.29.
(i) An action may only be deferred for initial or non-continuing
assistance applications.
(ii) An action may not be deferred if Federal financial assistance
is due and payable pursuant to a previously-approved application.
(f) Periodic compliance reviews of recipients--(1) Periodic review
of recipients. (i) The DoD Component or Director, ODEI, may conduct
periodic nondiscrimination compliance reviews, including on-site
reviews, of any recipient's programs or activities receiving Federal
financial assistance, including requests for data and information.
(ii) Whenever possible, the DoD Components or Director, ODEI,
should perform this periodic compliance review in conjunction with its
review and audit efforts to implement, in programs or activities
receiving Federal financial assistance, similar CFR parts dealing with
discrimination on the basis of race, color, sex, national origin, and
age.
(2) Notice of review. After selecting a recipient for review or
initiating an investigation, the DoD Component or Director, ODEI, must:
(i) Notify the recipient of the nature of the review or
investigation.
(ii) Request relevant records for the review.
(iii) If applicable, notify the recipient of its opportunity,
before the determination is made, to make a written submission
responding to, rebutting, or denying the allegations raised in the
review or complaint.
(3) Post-review report. (i) The DoD Component or Director, ODEI,
must deliver a written report to the recipient that includes:
(A) Findings of fact and deficiencies.
(B) Recommendations for achieving voluntary compliance.
(C) The determination of the recipient's compliance status.
(D) Notice of the recipient's right to engage in compliance
negotiation, if applicable.
(ii) The DoD Component's civil rights program official should
approve the reports.
(iii) The DoD Component must forward reports of findings of
noncompliance to the U.S. Assistant Attorney General for the Civil
Rights Division of the DOJ, the EDFR, and ODEI.
(g) Requests for data and information from or investigations by
recipients. (1) If necessary, the DoD Component may require recipients
to:
(i) Submit records or data and information specific to certain
programs or activities to determine if a program or activity receiving
Federal financial assistance is in compliance with this part.
(ii) Investigate a complaint alleging unlawful discrimination on
the basis of a disability in a program or activity receiving Federal
financial assistance.
(2) Requests must be limited to data and information relevant in
determining compliance and must be accompanied by a written statement
summarizing the complaint or setting forth the basis for the belief
that unlawful discrimination on the basis of disability may exist.
(3) A DoD Component conducting a compliance review or investigating
a complaint of a violation of the procedures in this part must notify
any other affected agency upon discovery of its jurisdiction and inform
the agency of the findings made. Such reviews or investigations may be
conducted jointly between the DoD Component and other affected agency.
(4) If a DoD Component requests that a recipient investigate a
complaint, the DoD Component is still responsible for ensuring that the
complaint is resolved in accordance with this part.
(h) Reports. (1) Recipients (through DoD Components) and DoD
Components must submit annual reports to ODEI:
(i) Listing all programs and activities receiving Federal financial
assistance subject to this part.
(ii) Summarizing the complaint information required by Sec. 56.28.
(iii) Containing the information submitted by recipients in
accordance with paragraphs (e)(1)(i) and (ii) of this section.
(2) Additionally, within 5 business days of commencing any of the
actions in Sec. 56.29, DoD Components must notify ODEI, in writing.
Sec. 56.29 Complaint resolution and enforcement procedures applicable
to recipients of Federal financial assistance.
(a) Applicability. (1) Except as provided in paragraph (a)(2) of
this section, this section applies to all allegations of discrimination
on the basis of disability under section 504 of the Rehabilitation Act
in programs, services, or activities receiving Federal financial
assistance.
(2) Complaints alleging violations of section 504 of the
Rehabilitation Act with respect to employment will be processed in
accordance with the procedures established by the Equal Employment
Opportunity Commission in 29 CFR part 1640 and Sec. 56.29(b).
(b) Enforcement procedures. The investigative, compliance, and
enforcement procedural provisions of Title VI of the Civil Rights Act
of 1964 (42 U.S.C. 2000d) (``Title VI'') apply to these section 504
regulations. The procedures at 32 CFR 195.7 through 195.12 are hereby
adopted.
Sec. 56.30 Complaint resolution and enforcement procedures applicable
to programs and activities conducted by DoD components.
(a) Applicability. (1) Except as provided in paragraph (a)(2) of
this section, this section applies to all allegations of discrimination
on the basis of disability in violation of section 504 of the
Rehabilitation Act in a program or activity conducted by a DoD
Component.
(2) DoD shall process complaints alleging violations of section 504
with respect to employment according to the procedures established by
EEOC in 29 CFR part 1614 pursuant to section 501 of the Rehabilitation
Act of 1973 (29 U.S.C. 791).
(3) This section also applies to all complaints alleging a
violation of a DoD Component's responsibility to procure information
and computer technology in compliance with section 508.
[[Page 43185]]
(b) Filing a complaint--(1) Who may file. An individual, alone or
through a representative, may file a written complaint with ODEI in
accordance with the procedures prescribed in this section on any of the
following grounds:
(i) He or she has been subjected to discrimination prohibited by
section 504 of the Rehabilitation Act in a program or activity
conducted by a DoD Component.
(ii) The DoD Component has failed to make information and
communication technology accessible to individuals with disabilities in
accordance with section 508 of the Rehabilitation Act.
(iii) He or she is a member of a specific class of individuals that
has been subjected to discrimination prohibited by section 504 of the
Rehabilitation Act or denied accessible information and communication
technology in violation of section 508 of the Rehabilitation Act.
(2) Exhaustion. A complainant will first exhaust informal
administrative procedures in paragraph (b)(3) of this section before
filing a formal complaint.
(3) Informal complaints. (i) Before filing a formal complaint with
ODEI alleging discrimination on the basis of disability in violation of
section 504 of the Rehabilitation Act, the complainant must attempt to
resolve the complaint informally with the DoD Component.
(ii) Before filing a formal complaint with ODEI alleging a failure
to make information and communication technology accessible to
individuals with disabilities in violation of section 508 of the
Rehabilitation Act, an individual with a disability must use the
informal procedures for resolving issues and concerns with the DoD
Component in accordance with DoD Manual 8400.01, ``Accessibility of
Information and Communications Technology (ICT),'' (November 14, 2017).
(iii) The process for resolving informal complaints may include the
use of a mediator.
(4) Confidentiality. DoD officials must hold in confidence the
identify of any person submitting a complaint, unless the person
submits written authorization otherwise or except to the extent
necessary to carry out the purposes of this section, including the
conduct of any investigation, hearing, or proceeding conducted pursuant
to this section.
(5) When to file. An individual must file a formal complaint with
ODEI no later than 30 calendar days after he or she receives a decision
denying the requested relief under the informal complaint procedure in
paragraph (b)(3) of this section, or 180 calendar days after the date
of the alleged discrimination or failure to make information and
communication technology accessible, whichever date is later, unless
the time for filing is extended by ODEI, in its sole discretion. For
purposes of determining when a complaint is timely filed under this
paragraph, a complaint mailed to ODEI will be considered filed on the
date it is postmarked. Any other complaint will be considered filed on
the date it is received by the agency.
(6) How to file. Complaints alleging a violation of sections 504 or
508 of the Rehabilitation Act may be emailed, mailed, or delivered in
person to ODEI. If any other official receives a complaint, he or she
must forward the complaint to ODEI, within five calendar days. ODEI
must submit a copy of any complaint alleging a failure to make
information and communication technology accessible in violation of
section 508 of the Rehabilitation Act to the DoD CIO within seven days
of receipt.
(7) Notification to U.S. Access Board. In accordance with paragraph
(g)(2) of this section, ODEI will promptly send to the U.S. Access
Board any complaint alleging that a building or facility that is
subject to the ABA or section 502 of the Rehabilitation Act is not
readily accessible to and usable by individuals with disabilities.
(8) Acceptance of complaint. For the complaint to be complete, it
must contain:
(i) The complainant's contact information, including name, postal
address and, if available, email address, and telephone number, if
available.
(ii) The basis of the complaint, including:
(A) In the case of a complaint involving section 504 of the
Rehabilitation Act, a detailed description of the alleged unlawful
discrimination, on the basis of disability, that contains sufficient
information to understand the facts that led the complainant to believe
that discrimination occurred and when the discrimination took place.
The description should include the how, why, where, and when of the
alleged discrimination.
(B) In the case of a complaint by a DoD employee or member of the
public involving section 508 of the Rehabilitation Act, a detailed
description of the alleged violation that contains sufficient
information to understand the facts that led the complainant to believe
that the violation occurred and when the violation took place, if
known. The description should include the how, why, where, and when of
the alleged violation.
(C) The nature of the individual's disability, insofar as it
relates to a complaint involving section 504 of the Rehabiliation Act.
(D) Identification of the individual, agency, or organization
alleged to have discriminated unlawfully on the basis of disability or
failed to make information and communication technology accessible. At
a minimum, include the name and address.
(iii) The complainant's electronic or physical signature.
(iv) The names of and basic contact information for any
individuals, if known, that the investigating agency could contact for
additional information to support or clarify the complainant's
allegations.
(9) Maintenance of a log. (i) DoD Components must maintain a log of
informal complaints filed with the Component involving sections 504 and
508 of the Rehabilitation Act. Each entry should identify:
(A) Each complainant described in the informal complaint.
(B) The individual, party, or organization charged with the alleged
discriminatory behavior or failure to make electronic or information
technology accessible.
(C) The nature of the informal complaint.
(D) The date the informal complaint was filed.
(E) The current status or disposition, including the date, of the
informal complaint investigation.
(F) Other pertinent information, such as resolution of the informal
complaint, a formal complaint being filed, and the date the informal
complaint was closed.
(ii) ODEI must maintain a log of formal complaints filed with ODEI
consistent with the requirements identified in paragraph (b)(9)(i) of
this section.
(c) Receipt of complaints. Upon receiving a formal complaint
alleging discrimination on the basis of disability or failure to make
information and communication technology accessible by a DoD employee
or a member of the public, the Director, ODEI must:
(1) Evaluate the complaint to determine whether the complaint:
(i) May be dismissed without investigation for failure to state a
claim, in accordance with paragraph (b)(8) of this section. The
Director, ODEI must notify the complainant, the DoD Component, and the
DoD CIO (where appropriate), in writing, if the complaint is dismissed
without investigation.
(ii) Will not be investigated because the complaint lacks good
cause to investigate.
[[Page 43186]]
(A) Examples of a complaint that lacks good cause to investigate
include a complaint that:
(1) Is already the basis of a pending civil action in a United
States District Court.
(2) Is moot or premature.
(3) Alleges dissatisfaction with the processing of a previously-
filed complaint.
(4) Is filed as part of a clear pattern of misuse of the complaint
process for a purpose other than the prevention and elimination of
discrimination on the basis of disability. A clear pattern of misuse of
the complaint process requires:
(i) Allegations that are similar or identical, lack specificity, or
involve matters previously resolved; or
(ii) Evidence of circumventing other administrative processes,
retaliating against the DoD Component's in-house administrative
processes, or overburdening the complaint system.
(B) ODEI must notify the complainant, the DoD Component, the DoD
Component CIO and the DoD CIO, where appropriate, if it does not refer
the complaint for investigation because the complaint lacks good cause.
The notice must be in writing and include ODEI's reason for not
referring the complaint.
(iii) Requires additional information for the DoD Component to
begin an investigation. Within 30 calendar days of receipt of the
complaint, ODEI must request any additional information needed from a
complainant to fulfill the requirements of paragraph (b)(8) of this
section. If ODEI does not receive this additional information within 30
calendar days of the request, the complaint may be dismissed.
(2) Refer complaints that are complete in accordance with paragraph
(b)(8) of this section within seven days to the appropriate DoD
Component or Components for investigation unless, in accordance with
paragraph (d)(1) of this section, ODEI retains responsibility for
conducting the investigation.
(3) With respect to a complaint alleging a violation of section 508
of the Rehabilitation Act, transmit an information copy of the
complaint to the DoD CIO within seven days of receipt.
(4) Forward complaints alleging discrimination on the basis of
disability or failure to make information and communication technology
accessible that should have been filed with another government agency
to the correct agency, in accordance with paragraph (g) of this
section.
(5) Send written notification to the complainant, if ODEI does not
refer the complaint for investigation in accordance with paragraphs
(c)(1)(i), (ii), or (c)(4) of this section.
(d) Investigation of complaints.--(1) Prompt investigation. If ODEI
determines that the complainant has adequately stated a claim of
unlawful discrimination in violation of section 504 of the
Rehabilitation Act or failure to make information and communication
technology accessible in violation of section 508 of the Rehabilitation
Act, it must delegate the responsibility to conduct a prompt
investigation to the DoD Component or, at the discretion of ODEI,
retain responsibility for conducting the investigation:
(i) Of all accepted complaints filed in accordance with this part.
(ii) Following the procedures in this section.
(iii) Unless all parties agree to delay the investigation pending
settlement negotiations.
(2) Report of investigation. (i) Within 180 calendar days of
receipt of the complaint, the DoD Component or ODEI, whichever agency
has conducted the investigation, must prepare a report of
investigation, including a written recommended administrative decision,
in accordance with paragraph (f) of this section. Within the 180
calendar day time period, ODEI may grant an extension of not more than
90 calendar days. The DoD Component may unilaterally extend the time
period or any period of extension for not more than 30 calendar days
where it must sanitize a complaint file that may contain information
classified as secret pursuant to Executive Order 12356 in the interest
of national security. The DoD Component must notify all involved
parties and ODEI of any such extension.
(ii) The report of investigation should include:
(A) Complaint claim and allegations.
(B) Procedural history.
(C) Findings of fact.
(D) Names of individuals interviewed during the investigation.
(E) Evidence reviewed.
(F) Investigation assessment.
(G) Analysis and determinations.
(H) Additional relevant information.
(I) Investigator's recommendation for disposition.
(e) Voluntary compliance. (1) At the completion of an investigation
in accordance with paragraph (d) of this section, if the DoD Component
or ODEI, whichever agency has conducted the investigation, has made a
finding of noncompliance, the DoD Component may voluntarily agree to
come into compliance.
(2) If the DoD Component and ODEI (after consultation with the DoD
CIO in the case of complaints alleging violation of section 508 of the
Rehabilitation Act) reach a mutually-satisfactory resolution of the
complaint:
(i) The agreement must be in writing and signed by ODEI and the DoD
Component head.
(ii) The DoD Component must send a copy of the signed settlement to
the complainant and notify the complainant of his or her right to
pursue relief in U.S. district court.
(f) Final administrative decision--(1) Recommended administrative
decision. (i) When the investigation is performed by a DoD Component in
accordance with paragraph (d) of this section:
(A) At the completion of the investigation resulting in a finding
of compliance or a finding of noncompliance and completion of efforts
to secure voluntary compliance in accordance with paragraph (e) of this
section, the DoD Component must:
(1) Coordinate with the DoD Component's legal counsel.
(2) Provide ODEI with the report of investigation, including the
recommended administrative decision.
(B) ODEI will review the DoD Component's recommended administrative
decision and accept, reject, or modify the recommended administrative
decision based on the report of investigation prepared by the DoD
Component or, if necessary, based on additional investigation conducted
by ODEI or the DoD Component pursuant to a request by ODEI.
(ii) When the investigation is performed by ODEI, it must recommend
an administrative decision after coordinating with ODEI's legal
counsel.
(2) Final administrative decision. After reviewing ODEI's
recommended administrative decision, which may include justifications
for accepting, rejecting, or modifying the recommended administrative
decision by the DoD Component, the USD(P&R) may:
(i) Request further investigation by the DoD Component or ODEI.
(ii) Issue a DoD final administrative decision which includes a
finding of noncompliance by the DoD Component and requires the DoD
Component to take appropriate corrective action by an identified
suspense date, to include establishing a monitoring plan that will
continue until the corrective action is completed, in accordance with
this section.
(iii) Issue a DoD final administrative decision in which the DoD
Component is found to be in compliance.
(iv) Issue, as the need arises, affirmative recommendations
regarding exemplary practices and proactive
[[Page 43187]]
measures that could reduce the risk of future complaints.
(3) Notice. After the USD(P&R) issues the final administrative
decision, ODEI must notify the complainant in writing of the final
administrative decision. The written notice must include notice of the
complainant's right to appeal the decision to a U.S. district court of
competent jurisdiction in the case of unlawful discrimination on the
basis of disability in violation of section 504 of the Rehabilitation
Act or a failure to make information and communication technology
accessible to individuals with disabilities in violation of section 508
of the Rehabilitation Act.
(g) Coordination with other agencies--(1) Cooperation with other
agencies. If, while conducting a compliance review or investigation of
a complaint, it becomes evident that another agency has joint
jurisdiction over the subject matter, the DoD Component will cooperate
with that agency during the investigation. Pursuant to 28 CFR 42.413,
the DoD Component must:
(i) Forward the complaint to the other agency, if it determines
that the complaint was filed incorrectly with the DoD.
(ii) Coordinate its efforts with the other agency, to the extent
consistent with the Federal statutes under which the assistance is
provided.
(iii) Designate one of the agencies, via written delegation
agreement, to be the lead agency for this purpose. When an agency other
than ODEI serves as the lead agency, any action taken, requirement
imposed, or determination made by the lead agency must have the same
effect as though the action had been taken by ODEI. Both agencies must
adopt written procedures to assure that the same standards of
compliance with sections 504 and 508 of the Rehabilitation Act are used
at the operational levels by each of the agencies.
(2) Cooperation with the U.S. Access Board. The U.S. Access Board
and Deputy USD(P&R) will enter into an agreement regarding the referral
and resolution of complaints relating to accessibility of DoD
facilities under the ABA.
(h) Coordination between DoD components. When two or more DoD
Components have joint responsibility for a program or activity, the DoD
Components may negotiate a proposed written delegation agreement.
(1) The delegation agreement must:
(i) Assign responsibility to one of the DoD Components to ensure
compliance with this part.
(ii) Provide for the notification to responsible program officials
of the assignment of enforcement responsibility.
(2) No delegation agreement will be effective until it is approved
in writing by the USD(P&R).
(i) Prevention and resolution of complaints. The DoD Component
equal opportunity officials and DoD Component section 508 program
managers will facilitate, with ODEI, pre-complaint resolution of claims
of unlawful discrimination on the basis of disability and failure to
make information and communication technology accessible in violation
of sections 504 or 508 of the Rehabilitation Act.
(j) Periodic compliance reports of Components. (1) ODEI is overall
responsible for implementation of this part and the conduct of
investigations and compliance reviews, including with respect to
compliance with section 508 of the Rehabilitation Act.
(2) Whenever possible, ODEI will perform this periodic compliance
review in conjunction with its review and audit of similar regulations
concerning nondiscrimination on the basis of race, color, sex, national
origin, and age in programs or activities conducted by a Component.
(3) If, as a result of an investigation or in connection with any
other compliance activity, ODEI determines that a DoD Component appears
to be in noncompliance with its responsibilities pursuant to this part,
ODEI will undertake appropriate action with the DoD Component to assure
compliance.
(4) In the event that ODEI and the DoD Component are unable to
agree on a resolution of any particular matter, the matter will be
submitted to the USD(P&R) for resolution.
Sec. 56.31 Complaint resolution and enforcement procedures applicable
to accessibility of information and computer technology.
(a) Applicability. This section applies to all complaints alleging
a violation of a DoD Component's responsibility to procure information
and communication technology in compliance with section 508, whether
filed by members of the public or DoD employees.
(b) Enforcement procedures. DoD Components will process complaints
alleging violations of section 508 of the Rehabilitation Act according
to the procedures at Sec. 56.30.
Dated: June 11, 2020.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2020-12999 Filed 7-15-20; 8:45 am]
BILLING CODE 5001-06-P