[Federal Register Volume 59, Number 115 (Thursday, June 16, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14499]


[[Page Unknown]]

[Federal Register: June 16, 1994]

BILLING CODE 6712-01-M
_______________________________________________________________________

Part V





Department of Housing and Urban Development





_______________________________________________________________________



24 CFR Part 9




Enforcement of Nondiscrimination on the Basis of Disability in Programs 
or Activities Conducted by the Department of Housing and Urban 
Development; Final Rule
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

Office of the Secretary

24 CFR Part 9

[Docket No. R-94-1510; FR-2163-F-05]
RIN 2501-AB04

 
Enforcement of Nondiscrimination on the Basis of Disability in 
Programs or Activities Conducted by the Department of Housing and Urban 
Development

AGENCY: Office of the Secretary, HUD.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This rule makes final a proposed rule published on May 30, 
1991 which proposed to amend title 24 of the Code of Federal 
Regulations to create a new part 9, that would provide for the 
enforcement of section 504 of the Rehabilitation Act of 1973, as 
amended, in programs or activities conducted by HUD. The rule at 24 CFR 
part 9 is distinguished from the rule at 24 CFR part 8, which applies 
to private, State or local programs or activities receiving Federal 
financial assistance from HUD. This final rule at 24 CFR part 9 
establishes standards for what constitutes discrimination on the basis 
of mental or physical disabilities; provides definitions for 
``individuals with disabilities'' and ``qualified individuals with 
disabilities''; establishes a complaint procedure for resolving 
allegations of discrimination; and also incorporates additional changes 
to reflect regulatory implementation of the Americans with Disabilities 
Act.

EFFECTIVE DATE: July 18, 1994.

FOR FURTHER INFORMATION CONTACT: Elizabeth Ryan, Office of Fair Housing 
and Equal Opportunity, room 5214, Department of Housing and Urban 
Development, 451 Seventh Street SW., Washington, DC 20410-5000, 
telephone (202) 708-2333 (voice/TDD). (This is not a toll free number.)

SUPPLEMENTARY INFORMATION:

I. Background

    Section 504 of the Rehabilitation Act of 1973, as amended (section 
504), states in pertinent part that:
    No otherwise qualified individual with disabilities in the United 
States, * * * shall, solely by reason of her or his disability, be 
excluded from the participation in, be denied the benefits of, or be 
subjected to discrimination under any program or activity receiving 
Federal financial assistance or under any program or activity conducted 
by any Executive agency or by the United States Postal Service. The 
head of each such agency shall promulgate such regulations as may be 
necessary to carry out the amendments to this section made by the 
Rehabilitation, Comprehensive Services, and Developmental Disabilities 
Act of 1978. Copies of any proposed regulation shall be submitted to 
appropriate authorizing committees of the Congress, and such regulation 
may take effect no earlier than the thirtieth day after the date on 
which such regulation is so submitted to such committees. (29 U.S.C. 
794 (1978 amendment italicized)).
    On May 30, 1991 (56 FR 24604), HUD published a proposed rule that 
would amend title 24 of the Code of Federal Regulations to create a new 
part 9, that would provide for the enforcement of section 504 as it 
applies to programs or activities conducted by HUD (i.e., HUD conducted 
programs or activities). The part 9 rule is distinguished from the rule 
at 24 CFR part 8, which applies to private, State or local programs or 
activities receiving Federal financial assistance from HUD (HUD 
assisted programs or activities). However, the substantive 
nondiscrimination obligations of the agency as set forth in the part 9 
rule are adapted from, and are very similar to, those contained in the 
part 8 rule. (See 24 CFR part 8; see also 28 CFR part 41, which is the 
section 504 coordination regulation for federally assisted programs 
issued by the Department of Justice (DOJ).) This general parallelism is 
in accord with the intent expressed by supporters of the 1978 amendment 
in House floor debate, including its sponsor, U.S. Rep. James M. 
Jeffords, that the Federal Government should have the same section 504 
obligations as recipients of Federal financial assistance. 124 Cong. 
Rec. 13,901 (1978) (remarks of Rep. Jeffords); 124 Cong. Rec. E2668, 
E2670 (daily ed. May 17, 1978) id.; 124 Cong. Rec. 13,897 (remarks of 
Rep. Brademas); id. at 38,552 (remarks of Rep. Sarasin).
    There are, however, some differences between this part 9 rule and 
the DOJ section 504 coordination regulations for federally assisted 
programs, as well as many other agencies' implementing regulations. 
Many of these changes are based on the Supreme Court's decision in 
Southeastern Community College v. Davis, 442 U.S. 397 (1979) [Davis], 
and the subsequent circuit court decisions interpreting Davis and 
section 504. These differences were discussed in detail in the preamble 
to the part 9 proposed rule at 56 FR 24604-24605. There are also 
differences between the part 9 proposed rule and the part 9 final rule. 
These differences are discussed in the following section.

II. Differences Between Part 9 Proposed Rule and Part 9 Final Rule

    The Department invited public comment on the part 9 proposed rule. 
During the public comment period, which expired July 29, 1991, the 
Department received seven comments. The commenters included: One state 
agency for the visually impaired; a not-for-profit law firm that 
specializes in disability and health law; an organization representing 
the interests of senior citizens; two legal service organizations; and 
two disability advocacy organizations.
    Following careful consideration of the issues raised by the 
commenters, and further consideration of the part 9 rule in light of 
regulatory implementation of the Americans with Disabilities Act 
(Pub.L. 101-336, approved July 26, 1990) (ADA), the Department has 
decided to adopt the part 9 proposed rule substantially as published on 
May 30, 1991. However, the Department has made some changes to the 
proposed rule in response to certain issues raised by the commenters, 
and in response to the final rules published on July 26, 1991, 
implementing titles I, II, and III of the ADA, which address, 
respectively, equal employment opportunity for individuals with 
disabilities (title I); nondiscrimination on the basis of disability in 
State and local government services (title II); and nondiscrimination 
on the basis of disability by public accommodations and in commercial 
facilities (title III). (See 29 CFR part 1630, 56 FR 35726 (title I); 
28 CFR part 35, 56 FR 35694 (title II); and 28 CFR part 36, 56 FR 3544 
(title III).
    A change in terminology that has been made in the part 9 final rule 
(and which also will be made to the rule in 24 CFR part 8) is 
replacement of the term ``handicap'' with ``disability.'' The 
Rehabilitation Amendments of 1992 (Pub.L. 102-569, approved October 29, 
1992) amended the Rehabilitation Act of 1973 to replace ``handicap'' 
with ``disability.''
    The additional changes made to the part 9 proposed rule by this 
final rule include the following.

Applicable Accessibility Standards

    The final rule provides that HUD will follow the Uniform Federal 
Accessibility Standards (UFAS), except where the accessibility 
standards issued under the ADA provide for greater accessibility than 
the UFAS. The accessibility standards issued under the ADA are referred 
to as the ADA Accessibility Guidelines (ADAAG), and are set forth in 
appendix A to 39 CFR part 1191.
    The UFAS implements the accessibility standards required by the 
Architectural Barriers Act (42 U.S.C. 4151-4157) (Barriers Act), and 
these standards are set forth in 24 CFR part 40, appendix A for 
residential structures, and in 41 CFR 101-19.600 to 101.607 for non-
residential structures.
    The DOJ, by memorandum dated June 30, 1993, advised all Federal 
agencies that at a recent meeting, the ATBCB adopted a resolution 
urging Federal agencies to follow the ADAAG whenever it provides equal 
or greater accessibility than UFAS. The DOJ has requested that Federal 
agencies which have not issued their final rules implementing section 
504 in Federally-conducted programs and activities comply with the 
ATBCB's request. The DOJ notes that from a legal point of view, current 
section 504 regulations do not prohibit implementation of such a policy 
because the regulations do not require compliance with UFAS, but, 
rather they simply state that compliance with UFAS is deemed to be 
compliance with section 504 new construction and alteration 
requirements.
    Accordingly, this final rule provides that HUD will follow the 
ADAAG whenever it provides greater accessibility than the UFAS. 
Additionally, the terms ``UFAS'' and ``ADAAG'' will be added to the 
definition section of the part 9 rule--Sec. 9.103.

Revised Definition of ``Accessible''

    A minor revision is made to each of the definitions of accessible 
in Sec. 9.103. Each definition includes the phrase ``complies with 
applicable accessibility standards'' to clarify that the design, 
construction or alteration undertaken must comply with applicable 
accessibility standards.

Revised Definition of ``Accessible Route''

    This final rule revises the definition of accessible route. The 
definition of accessible route in the part 9 proposed rule was modeled 
on the definition of accessible route in 24 CFR part 8. However, on 
further consideration, the Department finds the part 8 definition to be 
too limited for purposes of part 9.
    Part 8 applies solely to HUD-assisted programs. The majority of 
these programs are concerned with assisting individuals and families to 
obtain decent and affordable housing by providing financial assistance 
(through rental subsidies or for the development and operation of 
public housing), or by endorsing a mortgage on a house or the mortgage 
note on a housing project (or both) for insurance. Thus, the part 8 
definition of accessible route reflects part 8's focus on housing 
facilities.
    Part 9, however, applies to all programs or activities conducted by 
HUD. These programs and activities, as noted in the preamble to the 
part 9 proposed rule (56 FR 24605), consist of the following: (1) 
Employment; (2) HUD's contact with the general public as part of 
ongoing agency operations; and (3) those HUD programs directly 
administered by HUD for program beneficiaries and participants. 
Activities within category 2 include communications with the public 
(telephone contacts, office walk-ins or interviews) and the public's 
use of the agency facilities. Activities within category (3) include 
programs that provide Federal services or benefits (e.g., housing 
facilities in HUD's Property Disposition Program, training at both HUD 
and outside facilities, contracting and policy-development). These 
activities involve many types of buildings and facilities, not just 
housing facilities.
    Accordingly, the definition of accessible route route in part 9 is 
revised by replacing it with the definition of accessible route route 
used in the ADAAG. The definition of accessible route route in the 
ADAAG includes examples of interior accessible route routes and 
exterior accessible route routes.

Revised Definition of ``Adaptability''

    The definition of adaptability is also revised by this final rule. 
The definition of adaptability in the proposed part 9 rule was based on 
the definition of adaptability in 24 CFR part 8. The part 8 definition 
is solely concerned with adaptability in dwelling units, and, 
therefore, inappropriate for part 9, for the same reasons stated under 
the discussion of the revised definition of accessible route route. 
Accordingly, the Department is adopting the definition of adaptability 
based on the definition of adaptability provided in the UFAS and ADAAG, 
which provide the same definition for this term.
    As revised in this final rule, adaptability will mean the ability 
of certain elements of a dwelling unit, such as kitchen counters, sinks 
and grab bars, to be added or altered so as to accommodate the needs of 
individuals with or without disabilities or to accommodate the needs of 
persons with different types or degrees of disability. This definition 
differs from the definition in the part 9 proposed rule in that it 
refers to ``building spaces and elements'' instead of ``certain 
elements of a dwelling unit.'' Both UFAS and ADAAG use the phrase 
``building spaces and elements.''

Replacement of Definition of ``Agency-Owned Housing Facility'' With 
``PDP Housing Facility''

    The final rule replaces the term ``agency-owned housing facility'' 
with PDP housing facility. PDP refers to HUD's Property Disposition 
Program, and a definition is also included for this term. (See 
discussion below.) Since the only HUD-owned housing facilities are 
those in the Property Disposition Program, the Department believed use 
of the term ``PDP housing facility'' is a more accurate term.

Revised Definition of ``Alteration''

    The part 9 final rule replaces the definition of alteration set 
forth in the May 30, 1991 proposed rule with that definition provided 
in the ADAAG. This definition is more detailed and therefore provides 
more guidance on what constitutes, and what does not constitute, an 
alteration.

Revised Definition of ``Facility''

    The part 9 final rule also replaces the definition of facility in 
the May 30, 1991 proposed rule with that definition provided in the 
ADAAG. As with the definition of alteration, the ADAAG definition of 
facility is more detailed and therefore more helpful than the 
definition provided in the part 9 proposed rule.

Revised Definition of ``Individual With Disabilities''

    The definition of individual with disabilities (formerly, 
``individual with handicaps'') is also revised by this rule.
    Paragraph (a), which defines the term ``physical and mental 
impairment'' is revised to include the human immunodeficiency virus 
disease.
    A new paragraph (b) is added to this definition to incorporate the 
provisions of former Sec. 9.131 in the proposed rule, which addressed 
applicability of section 504 to current and former illegal use of 
drugs. The DOJ and the Equal Employment Opportunity Commission (EEOC) 
which reviewed the part 9 rule in accordance with Executive Order 12067 
(see Section IV of this preamble) suggested that the exclusion of 
individuals currently engaged in the illegal use of drugs from the 
protection provided by section 504, and the inclusion of individuals 
undergoing, or having successfully completed, drug rehabilitation, are 
more appropriately addressed in the definition of ``individual with 
disabilities.'' Section 9.131 of the proposed rule has been removed as 
a result of incorporation of its provisions in the definition of 
individual with disabilities.
    Former paragraph (b) (paragraph (b) in the part 9 proposed rule), 
which addressed impairments that are not included in the definition of 
``physical or mental impairment'' is redesignated as paragraph (c) in 
this final rule, and is revised to address what is excluded from the 
definition of individual with disabilities for purposes of employment.
    In the part 9 proposed rule, paragraph (b) provided that the term 
``physical or mental impairment'' did not include (1) an individual who 
has a currently contagious disease or infection and who, by reasons of 
such disease or infection, would constitute a direct threat to the 
health or safety of other individuals, and (2) an individual who is an 
alcoholic and whose current use of alcohol prevents the individual from 
performing the duties of the job in question. Although these exclusions 
are appropriate for inclusion under the definition of individual with 
disabilities, they are not appropriate for inclusion in the definition 
of ``physical or mental impairment.''
    Accordingly, new paragraph (c) of the definition of individual with 
disabilities clarifies that the contagious disease and alcohol abuse 
exclusions are part of the definition of ``individual of disabilities'' 
and also clarifies that these exclusions are limited to the employment 
context, in accordance with section 504 which imposes this limitation.

New Definition for ``Property Disposition Program''

    As noted above, the final rule provides a definition for this term. 
Property Disposition Program is defined to mean the HUD program under 
which HUD administers the group of housing facilities that are either 
owned by the Secretary or where, even though the Secretary has not 
obtained title, the Secretary is mortgagee-in-possession. Such 
properties are deemed to be in the possession or control of the agency.

Direct Threat Standard--New Sec. 9.131

    The part 9 final rule adds a new Sec. 9.131 to implement section 
302(b)(3) of the ADA, which addresses the issue of ``direct threat to 
the health or safety of others.'' Section Sec. 9.131 provides that the 
agency (HUD) is not required to permit an individual to participate in 
or benefit from the goods, services, facilities, privileges, advantages 
and accommodations of the agency where the individual poses a direct 
threat to the health or safety of others. Section 9.131 is similar to 
Sec. 36.208 of the final rule implementing title III of the ADA, 
published on July 26, 1991 (56 FR 35544) and codified at 28 CFR part 
36. New Sec. 9.131 is not intended to imply that individuals with 
disabilities pose risks to others. It is intended to address concerns 
that may arise in this area, and to establish a strict standard that 
must be met before denying service to an individual with disabilities 
or excluding that individual from participation in the programs or 
activities conducted by the agency.
    Paragraph (b) of this section defines ``direct threat'' to mean a 
significant risk to the health or safety of others that cannot be 
eliminated by a modification of policies, practices, or procedures, or 
by the provision of auxiliary aids and services. This paragraph 
codifies the standard first applied by the Supreme Court in School 
Board of Nassau County v. Arline, 480 U.S. 273 (1987), in which the 
Court held that an individual with a contagious disease may be an 
individual with disabilities under section 504. In Arline, the Supreme 
Court recognized that there is a need to balance the interests of 
people with disabilities against legitimate concerns for public safety. 
Although individuals with disabilities are generally entitled to the 
protection of part 9, a person who poses a significant risk to others 
may be excluded if reasonable modifications to the agency's policies, 
practices, or procedures will not eliminate or reduce that risk (i.e., 
reduce it so that it is below the level of direct threat). The 
determination that a person poses a direct threat to the health or 
safety of others may not be based on generalizations or stereotypes 
about the effects of a particular disability. This determination must 
be based on an assessment of that individual that conforms to the 
requirements of paragraph (c) of Sec. 9.131.
    Paragraph (c) of Sec. 9.131 establishes the test to be used in 
determining whether an individual poses a direct threat to the health 
or safety of others. The agency is required to make an individualized 
assessment, based on reasonable judgment that relies on current medical 
evidence, or on the best available objective evidence to determine: the 
nature, duration, and severity of the risk; the probability that the 
potential injury will actually occur; and whether reasonable 
modifications of policies, practices or procedures will mitigate the 
risk. This is the test established by the Supreme Court in Arline. This 
type of inquiry is essential if section 504 is to achieve its goal of 
protecting individuals with disabilities from discrimination based on 
prejudice, stereotypes, or unfounded fear, while giving appropriate 
weight to legitimate concerns, such as the need to avoid exposing 
others to significant health and safety risks. Making this assessment 
will not usually require the services of a physician. Sources for 
medical knowledge include guidance from public health authorities, such 
as the U.S. Public Health Service, the Centers for Disease Control, and 
the National Institutes of Health, including the National Institute of 
Mental Health.

Additional Changes

    In addition to the above changes, and as discussed in further 
detail in Section III of this preamble, the final rule also revises 
Sec. 9.170, which concerns the part 9 compliance procedure. A hearing 
procedure is not mandated by statute, and the Department has concluded 
that the compliance procedure set forth in Sec. 9.170 provides an 
adequate remedy. Certain editorial changes were made to Sec. 9.152 to 
clarify the extent of the agency's responsibility to modify existing 
housing.

II. Discussion of Public Comments

    The revisions to the part 9 proposed rule discussed in section II 
above are further addressed in this section III, which addresses the 
issues raised by the public commenters.

Relationship of Section 504 to the Fair Housing Act and the Americans 
With Disabilities Act

    Comment. Six of the commenters stated that the part 9 proposed rule 
did not incorporate the standards and requirements that appear in the 
Fair Housing Act\1\ or in title II of the ADA. Two commenters expressed 
concern that the part 9 rule proposes to implement less stringent 
standards than the Fair Housing Act, and requested that the part 9 
final rule conform to the Fair Housing Act requirements; thus, 
eliminating any conflict in program regulations. Another commenter 
stated that the ADA requires HUD's regulations to ``refer to the ADA so 
that when HUD assumes responsibility for housing enforcement under the 
public services section (title II of the ADA), HUD will be better able 
to ensure consistency among all of its enforcement responsibilities.''
---------------------------------------------------------------------------

    \1\Title VIII of the Civil Rights Act of 1968 as amended by the 
Fair Housing Amendments Act of 1988 is referred to as the ``Fair 
Housing Act.''
---------------------------------------------------------------------------

    Response. As noted in the preamble discussion under Section II, 
which discusses changes made to the part 9 proposed rule, HUD does, in 
several places in the final rule, incorporate the standards and 
requirements of the ADA. However, it is important to note that in 
enacting the Fair Housing Act and the ADA, the Congress did not 
override the specific provisions of section 504. While all three 
statutes (the Fair Housing Act, the ADA, and section 504) provide 
certain civil rights protection to individuals with disabilities, the 
scope and mandate of each statute is different.
    Section 504 is concerned with discrimination against individuals 
with disabilities in federally assisted and federally conducted 
programs and activities. Federal programs or activities subject to 
section 504 include those in the areas of employment, education, 
health, social services, housing and agency facilities. Under section 
504, the mandate that a federally assisted or conducted program or 
activity be ``accessible'' to individuals with disabilities does not, 
in every case, require structural changes. Moreover, when compliance 
with the ``program accessibility'' of section 504 does require 
structural changes, structural changes are not required to the same 
extent as required under the Fair Housing Act. Under section 504, 
accessibility is defined in broader terms, as discussed in the preamble 
to HUD's part 8 interim rule implementing section 504 for HUD assisted 
programs and activities:
    For example, even though a facility in which a federally assisted 
program is conducted is free of architectural barriers and thus meets 
requirements for facility accessibility, the program is not accessible 
if management policies and procedures effectively bar [individuals with 
disabilities] from participating in or otherwise benefiting from the 
program or activity. On the other hand, a program which is conducted in 
an inaccessible existing facility can be made accessible without 
altering the facility, where the program or activity can be delivered 
or otherwise be made available to a [disabled] beneficiary without loss 
of essential program benefits.

(See preamble to part 8 interim rule published on May 6, 1983, 48 FR 
20638 at 20640)
    The Fair Housing Act is concerned with discriminatory housing 
practices, and its provisions apply to all housing, not just federally-
assisted or federally-owned housing. The Fair Housing Act is also 
concerned with structural accessibility. The Fair Housing Act 
establishes accessible design and construction requirements for certain 
new multifamily dwellings for first occupancy on or after March 13, 
1991. These requirements, however, do not extend to existing facilities 
(i.e., alterations to existing facilities are not required).
    The ADA is concerned with discrimination on the basis of disability 
in the areas of employment, public accommodations, State and local 
government services, and telecommunications. With respect to structural 
accessibility, title II of the ADA requires that newly constructed or 
newly altered State or local government facilities be designed and 
constructed or altered so as to be readily accessible to and usable by 
persons with disabilities. (See 56 FR 35574.)
    The different mandates and scopes of section 504, the Fair Housing 
Act and the ADA limit the extent to which the regulations promulgated 
under these statutes can be uniform. Additionally, HUD's section 504 
regulations are subject to the coordinating authority of the DOJ under 
Executive Order 12250 (45 FR 72995, 3 CFR, 1980 Comp., p. 298.) The 
purpose of DOJ's coordinating authority is to ensure that, to the 
greatest extent possible, there is uniformity in the implementation of 
section 504 by all Federal agencies. Accordingly, HUD's section 504 
regulations are obliged to adhere, as closely as possible, to DOJ's 
prototype section 504 regulations for these types of programs, and to 
such other guidance as DOJ may provide in the issuance of section 504 
regulations (for example, see the discussion concerning applicable 
accessibility standards in Section II of the preamble).
    With respect to any conflict among the requirements or the 
accessibility standards of section 504, the Fair Housing Act and the 
ADA, and their respective regulations, HUD notes that an individual or 
entity that is subject to the provisions (including regulatory 
provisions) of more than one of these statutes must comply with the 
provisions that provide for the greater substantive rights or the more 
stringent accessibility standards.

Definition of ``Accessible'' (Sec. 9.103)

    Comment: Definition Requires Clarification. Two commenters stated 
that the definition of ``accessible'' in the part 9 proposed rule lacks 
the specific guidance provided by the definition for this term in 
Sec. 100.201 of HUD's Fair Housing Act regulations (24 CFR 100.201). 
One of the commenters stated that the part 9 definition of 
``accessible'' with respect to individual dwelling units requires that 
a unit be designed to meet the specific needs of a qualified 
individual's particular disability or impairment. The commenter 
requested that HUD clarify that for a unit to be counted toward a 
program's five percent requirement for accessible units, all the 
accessibility requirements for dwelling units, as provided in 24 CFR 
part 40, must be met and not just those which might be adequate to meet 
the needs of the individual's specific disability.
    Response. As discussed above, section 504 and the Fair Housing Act 
have different purposes. The Fair Housing Act's design and construction 
accessibility standards apply only to certain new multifamily housing. 
Section 504 is concerned with overall ``program'' accessibility, which 
includes accessibility standards for multifamily housing and other 
types of facilities, including Federal Government buildings. 
Additionally, the Fair Housing Act, unlike section 504, does not impose 
accessibility standards on alterations to existing housing and 
facilities. Accordingly, the definition of ``accessible'' in HUD's Fair 
Housing Act regulations is not sufficiently broad for section 504 
purposes. However, as noted in Section II of this preamble, which 
discusses changes made to the proposed rule, the Department did make 
some modification to the definitions of ``accessible'' for purposes of 
clarity.
    With respect to the question of whether an individual dwelling 
unit, that is altered to be accessible to a qualified individual with a 
specific disability, counts toward the program's five percent 
requirement, the Department notes that this issue is addressed by 
Sec. 9.152 of the rule. Section 9.152 provides that if HUD undertakes 
alterations to a PDP multifamily housing project, that is subject to 
the accessibility requirements of Sec. 9.152, a minimum of five percent 
of the total dwelling units, or at least one unit, whichever is 
greater, must be made accessible for persons with mobility impairments. 
(Emphasis added.) Section 9.152 also provides that if the unit is on an 
accessible route and is adaptable and otherwise in compliance with 
Sec. 9.152(d) (which requires compliance with the definitions, 
requirements and standards of the UFAS, except where the ADAAG provides 
for greater accessibility) the unit is accessible for purposes of 
Sec. 9.152. Section 9.152 further provides that an additional two 
percent of the units (but not less than one unit) in the project must 
be made accessible for persons with hearing or vision impairments. 
(Emphasis added.) Thus, whether an individual dwelling unit, which is 
altered for a specific qualified individual with disabilities, counts 
toward the program's five percent or two percent requirement depends 
upon the nature of the alterations undertaken to address the 
individual's disability.

Definition of ``Accessible Route'' (Sec. 9.103)

    Comment: Definition Lacks Specific Guidance. Two commenters stated 
that the definition of ``accessible route'' as set forth in HUD's Fair 
Housing regulations provides more guidance than the definition in the 
part 9 proposed rule, and urged the Department to adopt the definition 
in the Fair Housing Act regulation.
    Response. As discussed in the previous response, the differences 
between the mandate and scope of the Fair Housing Act and the mandate 
and scope of section 504 render the definition of ``accessible route'' 
in HUD's Fair Housing Act regulations inappropriate for section 504 
purposes. However, as noted in section II of this preamble, the 
Department has revised the definition of ``accessible route'' to 
require compliance with the ADAAG. The Department believes that the 
ADAAG definition of ``accessible route'' provides more guidance than 
the definition of ``accessible route'' in the part 9 proposed rule, and 
should address the commenters' concerns.
    Comment: Definition Should Reference Architectural Barriers Act. 
One commenter stated that the definitions of ``accessible,'' 
``accessible route,'' and ``adaptability'' should reference the 
Barriers Act, which imposes access requirements on all HUD-owned, 
leased, and managed properties.
    Response. As discussed in section II of this preamble, the 
definitions of ``accessible route'' and ``adaptability'' were revised 
in this final rule to adopt the standards of the ADAAG or UFAS, as 
applicable. Also, Secs. 9.151 and 9.152 of the proposed rule, and of 
this final rule, which establish the requirements for new construction 
and alterations to existing facilities, provide that the definitions, 
requirements, and standards of the UFAS apply to facilities covered by 
this rule, except where the ADAAG may provide for greater 
accessibility.
    Comment: Definition Should Provide Accessibility For Persons Who 
Are Hearing and Sight Impaired. One commenter stated that the 
definition of ``accessible route'' in the part 9 rule provides that 
``an accessible route that serves only accessible units occupied by 
persons with hearing or vision impairments would not be required to 
comply with those requirements intended to effect accessibility for 
persons with mobility impairments.'' The commenter requested that HUD 
revise this definition to include persons who are visually impaired, 
blind, or deaf and blind. The commenter stated that moving about safely 
in one's environment can be a major obstacle to independent living for 
individuals with these disabilities.
    Response. HUD agrees with the commenter and believes that the 
revision made to the definition of ``accessible route'' by this final 
rule, which is to adopt the ADAAG definition of ``accessible route,'' 
addresses the commenter's concern.

Definition of ``Adaptability'' (Sec. 9.103)

    Comment: HUD Should Adopt the Definition of Adaptability Used in 
Fair Housing Regulations. Two commenters urged the Department to adopt 
the definition of ``adaptability'' in the Fair Housing Act regulations 
(24 CFR 100.205), and stated that the part 9 rule should not use a 
different definition than that contained in the Fair Housing Act 
regulations.
    Response. The more explicit description of ``adaptability'' in the 
Fair Housing Act regulations results from the fact that the statutory 
language of the Fair Housing Act is explicit as to what constitutes 
accessibility and adaptability under the Act. The language in 
Sec. 100.205(c) of HUD's Fair Housing Act regulations is taken directly 
from section 804(f)(3)(C) of the Fair Housing Act. However, the 
features of adaptable design and construction described in 
Sec. 100.205(c) do not include all the features that may be required 
under part 9. For example, the accessibility/adaptability requirements 
of the Fair Housing Act do not require adjustable cabinetry, fixtures 
and plumbing. (See discussion of this issue in the preamble to the Fair 
Housing Accessibility Guidelines codified at 24 CFR, Ch. I, Subch. A, 
App. III.) Additionally, the Fair Housing Act does not require 
accessible/adaptable features for individuals with hearing or vision 
impairments. The section 504 definition of ``adaptability'' includes 
adjustable cabinetry and fixtures, and design features for persons with 
impaired hearing and vision. Thus, the Fair Housing Act definition of 
adaptability, which is directed largely to individuals with mobility 
impairments, is inappropriate for section 504 purposes.

Definition of ``Auxiliary Aids'' (Sec. 9.103)

    Comment: Definition Should Include Devices for Persons With 
Impaired Cognitive Skills. Two commenters stated that the definition of 
``auxiliary aids'' in the part 9 rule limits these aids to persons with 
impaired sensory, manual or speaking skills. The commenters stated that 
auxiliary aids and services should not exclude individuals with mental 
disabilities, and suggested that the definition be revised as follows: 
``Auxiliary aids means services or devices that enable persons with 
impaired sensory, manual, cognitive, interpersonal, or speaking skills 
to have equal opportunity . . . .''
    Response. HUD's definition of auxiliary aids and services is 
consistent with the DOJ's definition for these terms. The DOJ 
interprets auxiliary aids and services as those aids and services 
designed to provide effective communication, e.g., making aurally and 
visually delivered information available to persons with hearing, 
speech and vision impairments. This interpretation was recently 
reiterated in DOJ's final rules implementing title II and title III of 
the ADA. (See 28 CFR part 35 (title II); and 28 CFR part 36 (title 
III); see, especially discussion in preamble to title III final rule at 
56 FR 35565). To the extent that individuals with cognitive or learning 
disabilities have impaired sensory, manual, or communication skills, 
these individuals are covered by the definition of auxiliary aids and 
services.

Definition of ``Individuals With Disabilities'' (Sec. 9.103)

    Comment: Definition Omits the Human Immunodeficiency Virus. Four 
commenters stated that the definition for ``individuals with 
disabilities'' in the part 9 rule omits from the list of physical and 
mental impairments the human immunodeficiency virus (HIV). The 
commenters stated that it is important to clarify that individuals who 
test positive for the HIV are covered because subsection (b) of the 
definition for ``individuals with disabilities'' excludes individuals 
who currently have contagious diseases and who pose a direct health and 
safety threat to others, or who, by reasons of the disease, cannot 
perform the duties of the job.
    Response. As noted in section II of this preamble, HUD has revised 
the definition of ``individuals with disabilities'' in the final rule 
to clarify that persons with the human immunodeficiency virus disease 
(symptomatic or asymptomatic) are covered.
    Comment: Direct Threat Standard Excludes Reasonable Accommodation 
Requirement. One commenter stated that the ``direct threat to the 
health or safety of others'' exclusion derives from the case of School 
Board of Nassau County v. Arline, 107 S.Ct. 1123 (1987), but fails to 
include the essential caveat that ``the direct threat not be capable of 
elimination by reasonable accommodation''. The commenter stated that 
the Congress, in its discussion of this direct threat exclusion in the 
legislative history of the Fair Housing Act, was careful to note the 
reasonable accommodation requirement. The commenter requested that the 
reasonable accommodation requirement be explicitly acknowledged in the 
part 9 final rule.
    Response. As discussed in section II of this preamble, the 
Department has added a new Sec. 9.131 to address the issue of ``direct 
threat to the health or safety of others.'' This new section provides 
that the agency must determine whether reasonable modifications of its 
policies, practices or procedures will mitigate the risk posed by the 
individual determined to present a direct threat to the health or 
safety of others. Although the commenter uses the term ``reasonable 
accommodation,'' which is the appropriate term within the context of 
the Fair Housing Act, the appropriate comparable term for section 504, 
generally, is ``reasonable modification,'' which reflects section 504's 
application to a broader range of programs and activities. However, 
reference to reasonable accommodation is appropriate when discussing 
section 504's application to the employment.
    Comment: Delete Reference to ``Inability to Perform the Essential 
Elements of Job or Activity.'' One commenter stated that the exclusion 
from the definition of ``individuals with disabilities'' of the 
following phrase--``persons with a contagious disease who are unable to 
perform the duties of the job''--was unwarranted. The commenter stated 
that inquiries as to whether an individual with disabilities is able to 
perform the duties of a job or activity are relevant only with respect 
to whether the individual is ``qualified''--and then only if the 
individual is unable to perform the essential duties, not all duties, 
of the job or activity. The commenter stated that reasonable 
accommodation must be provided, if necessary, to assist the individual 
in performing the essential duties. The commenter further stated: 
``Because this subsection involves the definition of `individual with 
disabilities,' rather than `qualified individual with disabilities,' 
the reference to inability to perform the duties of job should be 
deleted.''
    Response. The Department agrees with the commenter's statement that 
without reference to the essential duties and reasonable accommodation 
aspects of the analysis, this particular provision of the definition is 
misleading. Accordingly, the Department has revised paragraph 
(c)(1)(ii) of the definition of ``individuals with disabilities'' to 
include the following language: ``An individual * * * is unable to 
perform the essential duties of the job, with or without reasonable 
accommodation.''

Definition of ``Multifamily Housing Project'' (Sec. 9.103)

    Comment: Multifamily Dwellings Covered by Section 504 Should Be the 
Same as Those Covered by the Fair Housing Act. Three commenters noted 
that the part 9 rule defined ``multifamily housing project'' to mean 
``a project containing five or more dwelling units,'' while the Fair 
Housing regulations define covered multifamily dwellings to mean 
buildings consisting of four or more dwelling units, if such buildings 
have one or more elevators, and ground floor units in other buildings 
consisting of four or more units. The commenters stated that the 
dwellings covered by the section 504 regulations should mirror those of 
the Fair Housing Act.
    Response. The definition of ``covered multifamily dwelling'' found 
in the Fair Housing Act regulations is consistent with the definition 
of this term in the Fair Housing Act. The definition of ``multifamily 
housing project'' in the part 9 rule is consistent with the definition 
of this term in section 207(c) of the National Housing Act (12 U.S.C. 
1713), and is the definition with which HUD program participants are 
familiar. The definition is also consistent with HUD's section 504 
regulations for federally assisted activities. (See 24 CFR 8.3) Since 
section 504 extends only to federally assisted and federally conducted 
programs and activities, the Department believes that the definition of 
multifamily housing project, as set forth in the National Housing Act, 
which pertains to Federal housing programs, is the appropriate 
definition for HUD's section 504 regulations.
    Comment: All HUD Housing Should Be Covered by Section 504, 
Including Single Family Homes. One commenter stated that the occupancy 
classification provision of the UFAS defines multifamily housing as 
apartment buildings, without reference to a number of units, and the 
residential section of the UFAS occupancy classification refers to one 
and two family dwellings. The commenter stated that the inclusion of 
the classification of one and two family dwellings in the UFAS 
indicates that these dwellings are also subject to the Barriers Act. 
The commenter requested that HUD make all of its housing, including 
single family homes, subject to the requirements of the Barriers Act.
    Response. The fact that the UFAS contains provisions applicable to 
one or two family dwellings is not determinative of whether one or two 
family dwellings are subject to the requirements of the Barriers Act. 
Whether one or two family dwellings are covered by the Barriers Act 
depends upon whether a statute subjects these types of dwellings to the 
requirements of Barriers Act. One or two family dwellings are subject 
to the requirements of section 504, and possibly the UFAS, to the 
extent that they are part of a HUD conducted program and meet the 
requirements of 24 CFR 9.150(e).

Definition of ``Qualified Individuals With Disabilities'' (Sec. 9.103)

    Comment: Eliminate Definition. Five commenters stated that the 
definition for ``qualified individuals with disabilities'' should be 
removed from the part 9 rule. One commenter stated that HUD concedes in 
the preamble to the proposed part 9 rule that housing programs do not 
require a definition of qualified individual with disabilities (56 FR 
24606). The commenter stated that HUD included this definition so that 
the part 9 rule will cover all programs or activities conducted by HUD 
now and in the future, and so that HUD's regulation will be consistent 
with the DOJ's prototype regulation and the regulations of other 
Federal agencies (56 FR 24606). The commenter stated that HUD could 
achieve its purpose through other ways, such as explicitly describing 
the HUD programs or the kinds of HUD programs to which the definition 
applies, or explaining that this term does not apply to housing 
consumers.
    Response. The term ``qualified individual with disabilities'' is 
taken directly from the language of section 504. The protection 
afforded by section 504 is restricted to ``qualified'' individuals with 
disabilities. As noted in the preamble to the part 9 proposed rule, HUD 
does not conduct programs under which a person is required to perform 
services or achieve a level of accomplishment as a part of his or her 
participation in a particular program or activity (e.g., educational 
programs) (56 FR 24606). Notwithstanding this fact, HUD determined, as 
also noted in the preamble to the part 9 proposed rule, that it is 
important to include a definition for this term so that HUD's 
regulation will cover all programs or activities conducted by HUD now 
and in the future, and so that its section 504 regulation for federally 
conducted programs will be consistent with DOJ's prototype regulation. 
However, the fact that section 504 applies only to ``qualified 
individuals with disabilities'' makes it important to include a 
definition for this term in HUD's section 504 regulations.
    The purpose in defining the term ``qualified individuals with 
disabilities'' is to establish a uniform standard by which an 
individual with disabilities is determined to be ``qualified'' to 
participate in a federally assisted or federally conducted program. The 
standard, as established by DOJ on the basis of Federal case law 
concerning section 504, is whether, with appropriate modifications, an 
individual with disabilities is able to participate in, or achieve the 
purpose of a federally assisted or federally conducted program or 
activity. To be considered qualified, however, the modifications 
required for the individual with disabilities may not be those which 
would result in a fundamental alteration in the nature of the program. 
(See preamble to DOJ's coordination regulation for federally conducted 
programs codified at 28 CFR part 39, Editorial Note, 415-429 (1991) at 
418; and preamble to proposed part 9 rule at 56 FR 24606.) HUD's 
definition of ``qualified individuals with disabilities'' incorporates 
this basic test established by DOJ and Federal case law and is 
consistent with the DOJ's definition of ``qualified individual with 
disabilities'' in its section 504 prototype regulation for federally 
conducted programs.

Comment: Eliminate Language Concerning Essential Eligibility 
Requirements

    Five commenters objected to the language concerning ``essential 
eligibility requirements'' set forth in paragraph (b) of the 
definition. One commenter stated that the essential eligibility 
requirement language included ``implicit'' eligibility requirements.
    Response. In defining ``qualified individual with disabilities,'' 
HUD adheres to DOJ's guidance on the meaning and interpretation of this 
term, which guidance is set forth in DOJ's preamble to the final rule 
implementing its section 504 prototype regulation for federally 
conducted programs, codified at 28 CFR part 39, Editorial Note, 415-429 
(1991). In this preamble, DOJ advises that the concept of ``qualified 
individual with disabilities'' includes the notion of ``essential 
eligibility requirements''. (Id at 419). Under section 504, a qualified 
individual with disabilities must be able to meet the essential 
eligibility requirements of a federally assisted or federally conducted 
program, with the recognition that reasonable modification may need to 
be made to the program for the individual with disabilities to meet the 
essential eligibility requirements of the program.
    The inclusion of the term ``implicit requirements'' in the 
definition is to clarify that the essential eligibility requirements do 
not include only stated program eligibility requirements, but also 
those requirements that are inherent in the nature of the program. 
However, in including implicit requirements in the definition, HUD does 
not intend a program's eligibility requirements to include requirements 
that are not intrinsic to the program or that are applied solely to 
individuals with disabilities--and not to other tenants.
    Comment: ``All Obligations of Occupancy'' Are Not Essential. One 
commenter stated that the ``essential eligibility requirements'' 
include the requirement to comply with ``all obligations of 
occupancy.'' The commenter stated that all obligations of occupancy 
cannot possibly be essential. The commenter stated: ``Rather than 
clarifying the obligations of program operators under section 504, this 
definition will mislead operators into believing that they can exclude 
any individual with disabilities who cannot fully satisfy every term of 
the lease, however incidental or unimportant.''
    Response. The phrase ``all obligations of occupancy,'' as with the 
phrase ``implicit eligibility requirements'' discussed above, is 
intended to refer only to those requirements or obligations that are 
imposed on all tenants or residents, regardless of whether the tenants 
or residents are individuals with disabilities. The Department believes 
that it is important to retain the phrase ``all obligations of 
occupancy'' within the definition of ``qualified individual with 
disabilities'' because it is embodied in the concept of ``essential 
eligibility requirements''. To be eligible to participate in a HUD 
housing program, an applicant must be able to comply with all 
obligations of occupancy. Typical occupancy obligations include those 
related to rent, security deposits, use of premises, subletting, and 
utility charges. It is inappropriate for the Department to list in a 
regulation which obligations constitute ``important'' obligations of 
occupancy, because of the difficulty in ensuring the comprehensiveness 
of such a list, and because certain multifamily housing projects as a 
result of their location or use may require the inclusion of 
obligations (or terms) that are not generally found in leases for other 
multifamily housing projects. For the foregoing reasons, the Department 
declines to state which obligations of occupancy are those with which 
an individual with disabilities must comply.
    Comment: Definition Fails to Note the Obligation of HUD to Provide 
Reasonable Accommodations. Two commenters stated that the definition 
fails to note the obligation of HUD to provide reasonable accommodation 
to individuals who would be able to satisfy essential program 
requirements with such assistance.
    Response. HUD's definition of ``qualified individual with 
disabilities'' is consistent with the definition for this term found in 
DOJ's section 504 prototype regulation for federally conducted programs 
and in the section 504 regulations of other Federal agencies. The fact 
that the definition of qualified individual with disabilities does not 
explicitly refer to the ``reasonable modification'' requirement does 
not mean that the requirement is inapplicable to Federal programs 
covered by section 504. As noted earlier in this preamble, reasonable 
modification is required under section 504. The reasonable modification 
requirement, although not explicitly referred to in the definition of 
``qualified individual with disabilities,'' is referred to in the 
definition of ``individual with disabilities'' and is implicitly 
referenced in the language of the definition of ``qualified individual 
with disabilities'' that provides that modifications in the program or 
activity, which result in a fundamental alteration in the nature of the 
program, are not required. Conversely, modifications to the program 
that would not result in a fundamental alteration in the nature of the 
program are required.
    Comment: Definition Should Include Direct Threat Standard and 
Eliminate Standard of Significant Risk of Substantial Interference with 
the Safety of Others. Five commenters supported incorporating the 
``direct threat'' standard that is included in the Fair Housing Act, 
rather than the standard of ``significant risk of substantial 
interference with the safety or enjoyment of others or with his own 
health or safety,'' as set forth in the part 9 rule. One commenter 
stated that it was absolutely improper to permit evaluation of whether 
an individual is a potential risk to his or her own health or safety. 
The commenter stated that: ``In the housing context, such a concern can 
never be related to an essential eligibility requirement. Where an 
individual may pose a risk to him or herself and to others, the Fair 
Housing Act standard of direct threat to the health and safety of 
others is adequate.''
    Response. As discussed in section II of this preamble, the 
Department has added a new Sec. 9.131, which addresses the direct 
threat standard.

Self-Evaluation (Sec. 9.110)

    Section 9.110(a) provides that HUD shall, within one year of the 
effective date of the part 9 final rule, evaluate its current policies 
and practices, and the effects of those policies and practices, 
including regulations, handbooks, notices and other written guidance, 
that do not or may not meet the requirements of part 9, and, to the 
extent modification of any such policies is required, HUD shall take 
the necessary corrective actions.
    Comment: Self-Evaluation Section Should Be Delayed by Final Rule 
Deadlines. Two commenters suggested that this section be revised to 
state that remedial actions, which HUD has begun or is planning, will 
not be delayed by the ``deadlines in this section.'' One of the 
commenters stated that the part 9 final rule should clearly state that 
HUD will complete the self-evaluation of its policies and practices 
within one year of the effective date of the final rule.
    Response. The Department periodically reviews the requirements of 
its various programs, and the policies and practices of these programs, 
to ensure that all HUD programs, both HUD assisted and HUD conducted, 
reflect existing statutory requirements. Given this periodic review 
process, the Department does not intend or foresee any delay in the 
evaluation of HUD conducted programs to ensure that these programs meet 
the requirements of part 9, as required by Sec. 9.110.
    Comment: HUD Should Review Its Federal Preference Criteria, As Part 
of Its Self-Evaluation Process. One commenter urged the Department to 
review its Federal preference criteria for housing programs funded by 
the Department. The commenter stated that the current criteria are not 
clear on the definition of what is not a ``regular sleeping 
accommodation'' and that Federal preferences should be revised to give 
top preference to individuals released from institutions, such as 
hospitals, nursing homes and rehabilitation facilities.
    Response. A review of Federal preference criteria for housing 
programs is not appropriate in connection with the development and 
implementation of this part 9 rule. This rule is concerned with the 
implementation of section 504 solely as it applies to HUD conducted 
programs. Federal preferences in housing affect all HUD housing 
programs, not only housing owned by HUD. Any changes to the list of 
individuals that should be given preferences in federally-assisted or 
federally-conducted housing is more appropriate for proposed rulemaking 
that provides for advance notice to, and solicitation of comment from, 
the public.
    Comment: Expand Public Participation in the Self-Evaluation Process 
to Include Comments on Fair Housing Issues. Section 9.110(b) of the 
part 9 rule provides that HUD shall provide an opportunity to 
interested persons, including individuals with disabilities or 
organizations representing individuals with disabilities, to 
participate in the self-evaluation process by submitting comments, both 
oral and written. One commenter recommended that HUD expand this 
section of the self-evaluation process to include fair housing issues 
that relate to people with disabilities.
    Response. As discussed throughout this preamble, the mandate and 
the scope of the Fair Housing Act and section 504 are different. 
Accordingly, it is inappropriate for issues specifically related to the 
Fair Housing Act to be included in the section 504 self-evaluation 
process. However, to the extent that section 504 incorporates or 
overlaps with the Fair Housing Act, these issues may be raised in 
connection with the self-evaluation process.
    Comment: Files Should Be Maintained Permanently. Section 9.110(c) 
of the part 9 rule provides that HUD shall, for a period of at least 
three years following the completion of the self-evaluation, maintain 
on file and make available for public inspection: (1) A list of 
interested persons; (2) a description of the areas examined and any 
problems identified; and (3) a description of any modifications made or 
to be made. Two commenters recommended that HUD maintain this file 
permanently. The commenters stated that HUD may make progress in the 
implementation and enforcement of section 504 if HUD's efforts are 
permanently catalogued, and that this progress is more important than 
maintaining consistency with the DOJ's coordination regulation.
    Response. The Department believes that successful implementation 
and enforcement of section 504 will not be hindered by the rule's 
requirement to maintain the ``self-evaluation'' files for a period of 
three years. The Department notes that under Sec. 9.110, HUD is not 
required to discard the self-evaluation files after the three year 
period has expired. Rather, HUD is required to maintain these files for 
a period of at least three years following the completion of the self-
evaluation. HUD may maintain these files permanently or indefinitely. 
Accordingly, the Department believes that the minimum three-year 
requirement is sufficient.

Notice (Sec. 9.111)

    Comment: This Section Should Clarify How HUD Will Communicate with 
People with Disabilities. Section 9.111 provides that HUD shall make 
available to employees, applicants, participants, beneficiaries, and 
other interested persons, information regarding the provisions of part 
9. One commenter stated that although the preamble to the part 9 
proposed rule indicated that certain HUD materials will be made 
available on tape and in Braille, nothing in the regulation makes that 
clear. The commenter requested that the part 9 proposed rule describe 
the specific ways in which HUD will communicate effectively with 
applicants, participants, personnel or other Federal entities, and 
members of the public who have disabilities.
    Response. To make available to individuals with disabilities the 
information required by Sec. 9.111, HUD will use, to the extent 
necessary, the auxiliary aids and services described in Sec. 9.103. The 
definition of ``auxiliary aids'' in Sec. 9.103 provides in relevant 
part as follows: ``Although auxiliary aids are required explicitly only 
by Sec. 9.160(a)(1), they may also be necessary to meet other 
requirements of the proposed regulation.''

General Prohibitions Against Discrimination (Sec. 9.130)

    Section 9.130 lists the general prohibitions against discrimination 
under section 504. Subsection (b)(vi) of Sec. 9.130 states that it is 
discriminatory to:
    ``Deny a dwelling to an otherwise qualified buyer or renter because 
of a disability of that buyer or renter or a person residing or 
intending to reside in that dwelling after it is sold, rented or made 
available.'' (Sec. 9.130(b)(vi))
    Comment: Sec. 9.130 Should Include Relatives, Friends and 
Associates of Individuals with Disabilities. Three commenters stated 
that this paragraph was similar to language in the Fair Housing Act, 
except that the Fair Housing Act adds a third category of 
discrimination--``or because of a disability of any person associated 
with that person.'' The commenters urged adoption of this category of 
individuals so that the section 504 regulations, like the Fair Housing 
regulations (24 CFR 100.202), will prohibit discrimination against 
buyers and renters who have relatives, friends or associates who have 
disabilities.
    Response. The Fair Housing Act prohibits, inter alia, 
discrimination against any person on the basis of disability, whether 
or not it is the aggrieved person or an associate or relative of that 
person who is disabled. Because of differences in the language and 
structure of the Fair Housing Act and section 504, the Fair Housing Act 
language is not necessarily transferable to section 504.
    Comment: This Section Should Incorporate Language Concerning 
Reasonable Accommodation. One commenter requested that HUD incorporate 
the language of Sec. 100.204 of the Fair Housing Act regulations 
concerning reasonable accommodation in the part 9 rule's provision 
establishing the general prohibitions against discrimination under 
section 504.
    Response. HUD's Fair Housing Act regulation concerning reasonable 
accommodation is not appropriate for the section 504 regulations. The 
reasonable accommodation requirements of the Fair Housing Act are 
narrower than the ``reasonable modification'' requirements of section 
504, because the Fair Housing Act requirements only refer to reasonable 
modifications and the rules, policies, practices or services associated 
with a dwelling unit. (See 24 CFR 100.204.) Under section 504, 
reasonable modifications will vary in the context of each Federal 
program or activity. Accordingly, it is important that the 
interpretation of reasonable modification with respect to a program or 
activity covered by section 504 not be limited to the interpretation 
provided by HUD's Fair Housing Act regulations. Additionally, as noted 
previously, the term, ``qualified individuals with disabilities,'' used 
throughout the part 8 and part 9 rules implicitly incorporates the 
concept of reasonable accommodation or reasonable modification.

Program Accessibility: Existing Facilities (Sec. 9.150)

    Comment: The Department Should Consider the Impact of the Americans 
with Disabilities Act on Existing Facilities. Section 9.150(b) provides 
that HUD is not required to make structural changes in existing 
facilities where other methods are effective in achieving compliance 
with this section. Three commenters stated that HUD should consider the 
impact of the ADA on HUD programs and activities. Two commenters stated 
that it would be helpful both to consumers and to HUD and Justice 
enforcement personnel if these regulations referred to the ADA and to 
the ADA title II regulations and standards.
    Response. In developing this final rule, the Department in 
consultation with the DOJ and EEOC, has considered the impact of the 
ADA on HUD conducted programs and activities, and where appropriate, 
incorporated those requirements of the ADA that are applicable to these 
programs and activities.
    Comment: Section 9.150(e) Should Clarify HUD's Responsibility to 
Make Reasonable Modifications in Housing Sold to Buyers with 
Disabilities. Section 9.150(e) provides that HUD is not required to 
make alterations to existing facilities that are part of HUD's Property 
Disposition Programs, unless such alterations are necessary to meet the 
needs of a current or prospective tenant during the time when the 
Department expects to retain legal possession of the facilities and 
there is no alternative method to meet the needs of that tenant. 
Section 9.150(e) further provides that nothing in this section shall be 
construed to require alterations to make facilities accessible to 
persons with disabilities who are expected to occupy the facilities 
only after HUD relinquishes legal possession.
    One commenter stated that this section relieves HUD of all 
responsibility to make any modifications for buyers with disabilities 
who purchase housing through HUD's Property Disposition Program. The 
commenter stated that Sec. 9.150(e) should be revised to clarify HUD'S 
responsibility to make reasonable modifications in housing sold to 
buyers with disabilities.
    Another commenter stated that the part 9 final rule should be 
revised to provide that HUD will exert its best efforts to assist a 
purchaser in obtaining the funding and expertise that HUD is able to 
provide in making the building usable for tenants and owners with 
disabilities.
    Response. Section 9.150 requires the housing provider to 
demonstrate that physical alterations to make a unit accessible would 
result in a fundamental alteration in the nature of the program or 
activity or in an undue financial and administrative burden. This 
section requires that where physical alterations would result in a 
fundamental alteration or undue financial and administrative burden, 
alternative action must be taken that would not result in such an 
alteration or such burdens, but nevertheless would ensure that 
individuals with disabilities receive the benefits and services of the 
program or activity.
    In the preamble to the part 9 proposed rule, HUD explained why the 
traditional approach to program accessibility with respect to existing 
facilities is not appropriate for the Property Disposition Programs 
because HUD holds the properties only temporarily and for an 
unpredictable amount of time (56 FR 24611). Since HUD does not know how 
long it will be in possession of the property, the agency cannot 
identify a time period within which it can assess the needs of those 
who might wish to live there in the future. However, HUD recognizes 
that during the time that the agency retains possession of a housing 
property under this program, HUD provides a housing service to the 
residents and also has a section 504 obligation to those who apply for 
housing in the facility.

Program Accessibility: Alterations of Property Disposition Program 
Multifamily Housing Facilities (Sec. 9.152)

    Section 9.152 imposes accessibility requirements on HUD when HUD 
undertakes alterations to multifamily housing facilities that are part 
of HUD's Property Disposition Program. This section would require that 
once HUD undertakes alterations that cost 75 percent or more of the 
replacement value of the building, HUD must make at least five percent 
of the units accessible to tenants with mobility disabilities and two 
percent of the units accessible to tenants with sight and hearing 
disabilities.
    Comment: Section 9.152 Should Include the Fair Housing Act 
Standards for New Construction. One commenter stated that HUD adopted 
the 75 percent figure for its section 504 federally assisted 
regulations, because it purposely wanted the level of alterations to 
``be tantamount to new construction'' (53 FR 20224). The commenter 
stated that the Department is now required to meet the Fair Housing Act 
new construction standards when altering housing facilities. The 
commenter further stated that this section requires the five percent/
two percent standard only in buildings with 15 or more units that are 
undergoing significant alteration, and that this requirement conflicts 
with HUD's UFAS standards for federally owned residential property 
which has no minimum 15 unit requirement.
    Response. As previously discussed, it is inappropriate for HUD to 
incorporate the standards and requirements of the Fair Housing Act in a 
regulation implementing section 504 because the purposes and goals of 
these two statutes are not identical. To the extent that newly 
constructed HUD multifamily housing is subject to the requirements of 
the Fair Housing Act and section 504, HUD will adhere to the standards 
that provide for greater accessibility.
    The UFAS standards were promulgated under the Barriers Act. (See 24 
CFR part 40, App. A, 4.1; 49 FR 31528; 53 FR 20228.) Because section 
504 requires compliance with accessibility standards in certain 
circumstances, the DOJ recommended that Federal agencies provide that 
new construction and alterations comply with the ADAAG or the UFAS 
(that is, compliance with the ADAAG whenever the ADAAG provides for 
greater accessibility than the UFAS). Compliance with the UFAS or the 
ADAAG therefore is deemed to be compliance with section 504. The DOJ 
recommended the UFAS and the ADAAG as the applicable accessibility 
standards for section 504 to reduce potential conflict between 
standards enforced under the Barriers Act and section 504. However, the 
degree of accessibility required by the Barriers Act and that required 
by section 504 are not identical, and the regulations and standards 
promulgated under section 504 and the Barriers Act reflect these 
differences.
    Comment: Replacement Cost Cap of Section 9.152 Should Be Lowered 
from 75 percent to 50 percent. One commenter recommended lowering the 
replacement cost cap in Sec. 9.152 because many states and cities 
nationwide have a lower triggering percentage. The commenter stated 
that HUD projects should not be allowed to remain inaccessible until a 
renovation totals 75 percent of replacement cost when private buildings 
are subject to a more stringent standard.
    Response. The 75 percent replacement cost cap set forth in 
Sec. 9.152 is also contained in Sec. 8.23 of HUD's section 504 
regulation for HUD assisted programs. The replacement cost cap issue 
was carefully considered by the Department during development of the 
final part 8 rule. The Department received 290 comments on this issue 
following publication of the proposed part 8 rule (53 FR 20224). In the 
preamble to the final part 8 rule, the Department explained in detail 
the reasons behind its decision to retain the 75 percent replacement 
cost cap. (See 53 FR 20224.) The comment made by the commenter on this 
issue in the context of the part 9 rule has not persuaded the 
Department to revise its initial decision that the 75 percent 
replacement cost cap is an appropriate standard for section 504 
purposes. The Department points out, however, that HUD projects in 
jurisdictions which impose more stringent accessibility standards, than 
those prescribed in HUD's section 504 regulations, must comply with the 
more stringent requirements.
    Comment: Section 9.152(b) is Unclear As to When Responsibility to 
Modify Existing Housing Ends. One commenter stated that paragraph (b) 
of Sec. 9.152 is confusing. The commenter stated that housing providers 
who read the regulation do not understand when their responsibility to 
modify existing housing ends. The commenter stated that paragraph (b) 
should be revised to clarify that each time a building is altered, 
accessibility requirements apply.
    Response. The Department believes that part of the confusion 
concerning Sec. 9.152 results from the fact that the subheadings were 
inadvertently omitted at the time of publication of the part 9 proposed 
rule. Paragraph (a) of Sec. 9.152 should be titled ``Substantial 
Alterations,'' and paragraph (b) of this section should be titled 
``Other Alterations.'' The final rule includes these subheadings which 
indicates the extent of the provider's responsibility to modify 
existing housing. The Department believes that no further revisions to 
this section are necessary. The issue raised by the commenter, like the 
issue in the preceding comment, was the subject of considerable public 
comment at the time of publication of the proposed part 8 rule. (See 24 
CFR 20224.) The Department believes that the lack of substantial public 
comment on Sec. 9.152(b), which is identical to Sec. 8.23(b), indicates 
that the provisions of this section are not confusing for the majority 
of HUD program participants. Accordingly, except for the inclusion of 
the subheadings, the Department declines to amend the language in this 
section.

Distribution of Accessible Dwelling Units (Sec. 9.153)

    This section requires accessible units to be distributed throughout 
projects ``to the maximum extent feasible and subject to reasonable 
health and safety requirements''.
    Comment: Eliminate Language Concerning ``To the Maximum Extent 
Feasible''. Two commenters recommended that the Department delete the 
language beginning ``to the maximum extent feasible.'' The commenters 
stated that the Fair Housing Act prohibits segregating all tenants with 
disabilities into one area or into one part of a building.
    Response. The language in Sec. 9.153 is identical to the language 
in Sec. 8.26 of HUD's section 504 regulation for federally assisted 
programs. Section 8.26 was the subject of considerable public comment 
following publication of the part 8 proposed rule. (See 53 FR 20226.) 
The commenters on the part 8 rule expressed concerns similar to those 
expressed by the commenters on this rule. In the preamble to the part 8 
proposed rule, the Department stated that this provision does not allow 
``the unnecessary segregation of qualified individuals with 
disabilities'' (53 FR 20226). The Department reaffirms that prohibition 
here, and notes that this prohibition is contained in 
Sec. 9.130(b)(1)(iv), which prohibits the agency from providing 
different or separate housing, aid, benefits, or services to 
individuals with disabilities, or to any class of individuals with 
disabilities than is provided to others unless such action is necessary 
to provide qualified individuals with disabilities with housing, aid, 
benefits, or services that are as effective as those provided to 
others.

Occupancy of Accessible Dwelling Units (Sec. 9.154)

    Section 9.154(b) provides that when offering an accessible unit to 
an applicant who is not disabled and does not require the accessibility 
features of the unit, the Department may require the applicant to agree 
(and may incorporate this agreement in the lease) to move to a non-
accessible unit when available.
    Comment: Department Should Require All Leases to Incorporate 
``Agreement to Move'' Clause as Standard Practice. One commenter 
recommended that the Department incorporate this provision in the lease 
as standard practice.
    Response. The Department believes that it is unnecessary to require 
that this provision be incorporated in the lease as standard practice. 
The Department believes that the language in Sec. 9.154, which provides 
that this provision may be incorporated in the lease is adequate. The 
Department notes that this language was contained in Sec. 8.26 of HUD's 
part 8 interim rule published on May 6, 1983 (48 FR 20655) and was 
retained in Sec. 8.27(b) of the part 8 final rule, published on June 2, 
1988 (53 FR 20240). Because this provision has been in HUD's section 
504 regulations for approximately 10 years, the Department believes 
that HUD managers are aware that they are legally empowered to--and 
will--require an applicant without disabilities to agree to move to a 
non-accessible unit when one becomes available.

Housing Adjustments (Sec. 9.155)

    This section requires the Department to modify its housing policies 
and practices to ensure that they do not limit the participation of 
tenants with disabilities.
    Comment: New Housing Policies Implemented In Response to Fair 
Housing Act Should be Included in Sec. 9.155. One commenter stated that 
since the passage of both section 504 and the Fair Housing Act, HUD has 
changed some of its housing policies, as for example, making FHA 
mortgages available to non-profit organizations for the purchase of 
single-family homes that are to be used by groups of unrelated tenants 
with disabilities. The commenter recommended that these new policies be 
listed in the regulation.
    Response. The Department does not believe that the part 9 rule is 
the proper place to enunciate any policy revisions resulting from the 
Fair Housing Act. All new policies have been or will be announced in a 
more appropriate forum.
    Comment: Section 9.155(a) Should Include Reference to Reasonable 
Accommodation. Four commenters stated that the last sentence of 
Sec. 9.155(a) discusses fundamental alterations and undue financial and 
administrative burdens but not reasonable accommodation, which 
indicates that HUD has no duty to reasonably accommodate an 
individual's disability.
    Response. Again, the appropriate term, generally, for purposes of 
section 504 is ``reasonable modification.'' The reasonable modification 
issue has been raised in connection with other sections of the part 9 
rule. The Department refers the commenters to its previous response on 
this issue as set forth in this preamble.

Communications (Sec. 9.160)

    Section 9.160 would require HUD to take appropriate steps to ensure 
effective communication with personnel of other Federal entities, 
applicants, participants and members of the public.
    Comment: Section 9.160 Should Address the Communication Needs of 
Individuals with Impaired Cognitive Skills. One commenter stated that 
this section focuses on individuals with hearing and sight 
disabilities, and excludes individuals with impaired cognitive skills.
    Response. The provisions of this section are not intended to 
exclude individuals who have disabilities other than hearing and vision 
impairments. Because hearing and vision impairments present easily 
identifiable communication difficulties, a number of auxiliary aids and 
services have been designed to overcome these communication 
difficulties, and serve as clear examples of how effective 
communication may be achieved under the requirements of section 504. 
However, the provisions of Sec. 9.160 clearly provide that HUD shall, 
where necessary, furnish the auxiliary aid appropriate to an 
individual's disability, and in determining what type of auxiliary aid 
is necessary, shall give primary consideration to the request of the 
individual with disabilities.

Compliance Procedures (Sec. 9.170)

    Section 9.170 would establish the procedures for processing 
complaints arising under section 504. In the preamble to the proposed 
rule, the Department specifically solicited comment on whether the 
compliance procedures for part 9 should include a hearing before an 
Administrative Law Judge. (See 56 FR 24613.)
    Comment: Procedures Should Include Full Evidentiary Hearing Before 
an Administrative Law Judge. One commenter recommended that HUD provide 
complainants with the opportunity for a full evidentiary hearing before 
an Administrative Law Judge in appeals from the Assistant Secretary's 
determination.
    Response. The issue of whether the part 9 rule should provide for 
an administrative law judge was carefully considered by the Department 
during development of the proposed part 9 rule, and again, after 
receiving this comment. The Department has concluded that the complaint 
processing procedure set forth in Sec. 9.170 will provide for an 
adequate remedy, and therefore, it is not necessary to provide for a 
hearing before an administrative law judge. Accordingly, the ``right to 
request a hearing'' has been deleted from Sec. 9.170 of the final rule.

IV. Other Matters

    Coordination. This final rule has been reviewed by the Department 
of Justice. It is an adaptation of a prototype prepared by the 
Department of Justice under Executive Order 12250 (45 FR 72995, 3 CFR, 
1980 Comp., p. 298) and distributed to Executive agencies. This final 
rule also has been reviewed by the Equal Employment Opportunity 
Commission under Executive Order 12067 (43 FR 28967, 3 CFR, 1978 Comp., 
p. 206).
    Environmental Impact. At the time of development of the proposed 
part 9 rule, a Finding of No Significant Impact with respect to the 
environment was made in accordance with HUD regulations at 24 CFR part 
50, which implement section 102(2)(C) of the National Environmental 
Policy Act of 1969. That Finding of No Significant Impact remains 
applicable to this final rule and is available for public inspection 
during regular business hours in the Office of the Rules Docket Clerk 
at the above address.
    Impact on Small Entities. The Secretary, in accordance with the 
Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this rule 
before publication, and by approving it, certifies that this rule does 
not have a significant economic impact on small entities. The purpose 
of this rule is to provide for the enforcement of section 504 of the 
Rehabilitation Act of 1973 as it applies to programs or activities 
conducted by HUD.
    Executive Order 12612, Federalism. The General Counsel, as the 
Designated Official under section 6(a) of Executive Order 12612, 
Federalism, has determined that the policies contained in this rule 
would not, if implemented, have substantial direct effects on States or 
their political subdivisions, or the relationship between the Federal 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government. Specifically, 
the requirements of this rule are directed to HUD programs and 
activities, and do not impinge upon the relationship between the 
Federal government and State and local governments. Accordingly, the 
rule is not subject to review under the Order.
    Executive Order 12606, the Family. The General Counsel, as the 
Designated Official under Executive Order 12606, the Family, has 
determined that this rule does not have potential for significant 
impact on family formation, maintenance, and general well-being, and, 
thus, is not subject to review under the Order. The rule establishes 
requirements prohibiting discrimination against individuals with 
disabilities in programs and activities conducted by HUD.
    Semiannual Agenda of Regulations. This rule was listed as sequence 
number 1528 in the Department's Semiannual Agenda of Regulations 
published on April 25, 1994 (59 FR 20424, 20434) pursuant to Executive 
Order 12866 and the Regulatory Flexibility Act.

List of Subjects in 24 CFR Part 9

    Blind, Buildings, Civil rights, Employment, Equal employment 
opportunity, Federal buildings and facilities, Government employees, 
Persons with disabilities.

    Accordingly, title 24 of the Code of Federal Regulations is amended 
by adding a new part 9, consisting of Secs. 9.101 through 9.170, to 
read as follows:

PART 9--ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF DISABILITY 
IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE DEPARTMENT OF HOUSING 
AND URBAN DEVELOPMENT

Sec.
9.101  Purpose.
9.102  Applicability.
9.103  Definitions.
9.110  Self-evaluation.
9.111  Notice.
9.112--9.129 [Reserved]
9.130  General prohibitions against discrimination.
9.131  Direct threat.
9.132--9.139 [Reserved]
9.140  Employment.
9.141--9.148 [Reserved]
9.149  Program accessibility: discrimination prohibited.
9.150  Program accessibility: existing facilities.
9.151  Program accessibility: new construction and alterations.
9.152  Program accessibility: Alterations of Property Disposition 
Program multifamily housing facilities.
9.153  Distribution of accessible dwelling units.
9.154  Occupancy of accessible dwelling units.
9.155  Housing adjustments.
9.160  Communications.
9.170  Compliance procedures.

    Authority: 29 U.S.C. 794; 42 U.S.C. 3535(d).


Sec. 9.101  Purpose.

    The purpose of this part is to effectuate section 119 of the 
Rehabilitation, Comprehensive Services, and Developmental Disabilities 
Amendments of 1978, which amended section 504 of the Rehabilitation Act 
of 1973 to prohibit discrimination on the basis of disability in 
programs or activities conducted by Executive agencies or the United 
States Postal Service.


Sec. 9.102  Applicability.

    This part applies to all programs or activities conducted by the 
agency, except for programs or activities conducted outside the United 
States that do not involve individuals with disabilities in the United 
States.


Sec. 9.103  Definitions.

    For purposes of this part:
    Accessible: (1) When used with respect to the design, construction, 
or alteration of a facility or a portion of a facility other than an 
individual dwelling unit, means that the facility or portion of the 
facility when designed, constructed or altered, complies with 
applicable accessibility standards and can be approached, entered, and 
used by individuals with physical disabilities. The phrase ``accessible 
to and usable by'' is synonymous with accessible.
    (2) When used with respect to the design, construction, or 
alteration of an individual dwelling unit, means that the unit is 
located on an accessible route and, when designed, constructed, altered 
or adapted, complies with applicable accessibility standards, and can 
be approached, entered, and used by individuals with physical 
disabilities. A unit that is on an accessible route and is adaptable 
and otherwise in compliance with the standards set forth in Sec. 9.151 
is ``accessible'' within the meaning of this definition. When a unit in 
an existing facility which is being made accessible as a result of 
alterations is intended for use by a specific qualified individual with 
disabilities (e.g., a current occupant of such unit or of another unit 
under the control of the same agency, or an applicant on a waiting 
list), the unit will be deemed accessible if it meets the requirements 
of applicable standards that address the particular disability or 
impairment of such person.
    Accessible route means a continuous unobstructed path connecting 
accessible elements and spaces of a building or facility. Interior 
accessible routes may include corridors, floors, ramps, elevators, 
lifts, and clear floor space at fixtures. Exterior accessible routes 
may include parking access aisles, curb ramps, crosswalks at vehicular 
ways, walks, ramps and lifts.
    ADA means the Americans with Disabilities Act of 1990 (42 U.S.C. 
12101 through 12213)
    ADA Accessibility Guidelines (ADAAG) means the Accessibility 
Guidelines issued under the ADA, and which are codified in the Appendix 
to 39 CFR part 1191.
    Adaptability means the ability of certain building, spaces and 
elements, such as kitchen counters, sinks, and grab bars, to be added 
or altered, to accommodate the needs of persons with or without 
disabilities, or to accommodate the needs of persons with different 
types or degrees of disability. For example, in a unit adaptable for a 
person with impaired hearing, the wiring for visible emergency alarms 
may be installed but the alarms need not be installed until such time 
as the unit is made ready for occupancy by a person with impaired 
hearing.
    Agency means the Department of Housing and Urban Development.
    Alteration means a change to a building or facility or its 
permanent fixtures or equipment that affects or could affect the 
usability of the building or facility or part thereof. Alterations 
include, but are not limited to, remodeling, renovation, 
rehabilitation, reconstruction, historic restoration, changes or 
rearrangements of the structural parts and changes or rearrangements in 
the plan configuration of walls and full-height partitions. Normal 
maintenance, re-roofing, painting, or wallpapering or changes to 
mechanical and electrical systems are not alterations unless they 
affect the usability of the building or facility.
    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, United States Department of Justice.
    Assistant Secretary means the Assistant Secretary of Housing and 
Urban Development for Fair Housing and Equal Opportunity.
    Auxiliary aids means services or devices that enable persons with 
impaired sensory, manual, or communication skills to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by the agency. For example, auxiliary aids useful 
for persons with impaired vision include readers, Brailled materials, 
audio recordings, and other similar services and devices. Auxiliary 
aids useful for persons with impaired hearing include telephone handset 
amplifiers, telephones compatible with hearing aids, telecommunication 
devices for deaf persons (TDD's), interpreters, note takers, written 
materials, and other similar services and devices.
    Complete complaint means a written statement that contains the 
complainant's name and address and describes the agency's alleged 
discriminatory action in sufficient detail to inform the agency of the 
nature and date of the alleged violation of section 504. It shall be 
signed by the complainant or by someone authorized to do so on his or 
her behalf. Complaints filed on behalf of classes or third parties 
shall describe or identify (by name, if possible) the alleged victims 
of discrimination.
    Current illegal use of drugs means illegal use of drugs that 
occurred recently enough to justify a reasonable belief that a person's 
drug use is current or that continuing use is a real and ongoing 
problem.
    Drug means a controlled substance, as defined in schedules I 
through V of section 202 of the Controlled Substances Act (21 U.S.C. 
812).
    Facility means all or any portion of buildings, structures, site 
improvements, complexes, equipment, roads, walks, passageways, parking 
lots, rolling stock or other conveyances, or other real or personal 
property located on a site.
    Historic properties means those properties that are listed or are 
eligible for listing in the National Register of Historic Places, or 
such properties designated as historic under a statute of the 
appropriate State or local government body.
    Illegal use of drugs means the use of one or more drugs, the 
possession or distribution of which is unlawful under the Controlled 
Substances Act (21 U.S.C. 812). The term ``illegal use of drugs'' does 
not include the use of a drug taken under supervision by a licensed 
health care professional, or other uses authorized by the Controlled 
Substances Act or other provisions of Federal law.
    Individual with disabilities means any person who has a physical or 
mental impairment that substantially limits one or more major life 
activities, has a record of such an impairment, or is regarded as 
having such an impairment. As used in this definition, the phrase:
    (1) ``Physical or mental impairment'' includes:
    (i) Any physiological disorder or condition, cosmetic 
disfigurement, or anatomical loss affecting one or more of the 
following body systems: Neurological; musculoskeletal; special sense 
organs; respiratory, including speech organs; cardiovascular; 
reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and 
endocrine; or
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities. The term ``physical or mental 
impairment'' includes, but is not limited to, such diseases and 
conditions as orthopedic, visual, speech, and hearing impairments, 
cerebral palsy, autism, epilepsy, muscular dystrophy, multiple 
sclerosis, cancer, heart disease, diabetes, Human Immunodeficiency 
Virus disease (symptomatic or asymptomatic), mental retardation, 
emotional illness, drug addiction and alcoholism.
    (2) The term ``individual with disabilities'' does not include:
    (i) An individual who is currently engaging in the illegal use of 
drugs, when the agency acts on the basis of such use. This exclusion, 
however, does not exclude an individual with disabilities who--
    (A) Has successfully completed a supervised drug rehabilitation 
program, and is no longer engaging in the illegal use of drugs, or has 
otherwise been rehabilitated successfully, and is no longer engaging in 
such use;
    (B) Is participating in a supervised rehabilitation program, and is 
no longer engaging in such use; or
    (C) Is erroneously regarded as engaging in such use, but is not 
engaging in such use.
    (ii) Except that it shall not violate this part for the agency to 
adopt or administer reasonable policies and procedures, including but 
not limited to drug testing, designed to ensure than an individual 
described in paragraphs (2)(i) (A) and (B) of this definition is no 
longer engaging in the illegal use of drugs.
    (iii) Nothing in paragraph (2) of this definition shall be 
construed to encourage, prohibit, restrict or authorize the conduct of 
testing for illegal use of drugs.
    (iv) The agency shall not deny health services provided under 
titles I, II and III of the Rehabilitation Act of 1973 (29 U.S.C. 701 
through 777f) to an individual with disabilities on the basis of that 
individual's current illegal use of drugs, if the individual is 
otherwise entitled to such services.
    (3) For purposes of employment, the term ``individual with 
disabilities'' does not include:
    (i) An individual who has a currently contagious disease or 
infection and who, by reason of such disease or infection--
    (A) Has been determined, in accordance with the provisions of 
Sec. 9.131, to pose a direct threat to the health or safety of other 
individuals, which threat cannot be eliminated or reduced by reasonable 
accommodation, or
    (B) Is unable to perform the essential duties of the job, with or 
without reasonable accommodation; or
    (ii) An individual who is an alcoholic and whose current use of 
alcohol prevents him or her from performing the duties of the job in 
question or whose employment would constitute a direct threat to the 
property or the safety of others by reason of his or her current 
alcohol abuse.
    (4) ``Major life activities'' means functions such as caring for 
one's self, performing manual tasks, walking, seeing, hearing, 
speaking, breathing, learning, and working.
    (5) ``Has a record of such an impairment'' means has a history of, 
or has been misclassified as having, a mental or physical impairment 
that substantially limits one or more major life activities.
    (6) ``Is regarded as having an impairment'' means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by the agency as 
constituting such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others 
toward such impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this 
definition but is treated by the agency as having such an impairment.
    Multifamily housing project means a project containing five or more 
dwelling units.
    Official or Responsible Official means the Assistant Secretary of 
HUD for Fair Housing and Equal Opportunity.
    PDP housing facility means a housing facility administered under 
HUD's Property Disposition Program.
    Project means the whole of one or more residential structures and 
appurtenant structures, equipment, roads, walks, and parking lots which 
are covered by a single mortgage or contract or otherwise treated as a 
whole by the agency for processing purposes, whether or not located on 
a common site.
    Property Disposition Program (PDP) means the HUD program which 
administers the housing facilities that are either owned by the 
Secretary or where, even though the Secretary has not obtained title, 
the Secretary is mortgagee-in-possession. Such properties are deemed to 
be in the possession or control of the agency.
    Qualified individual with disabilities means:
    (1) With respect to any agency non-employment program or activity 
under which a person is required to perform services or to achieve a 
level of accomplishment, an individual with disabilities who meets the 
essential eligibility requirements and who can achieve the purpose of 
the program or activity without modifications in the program or 
activity that the agency can demonstrate would result in a fundamental 
alteration in its nature; or
    (2) With respect to any other agency non-employment program or 
activity, an individual with disabilities who meets the essential 
eligibility requirements for participation in, or receipt of benefits 
from, that program or activity.
    (3) ``Essential eligibility requirements'' include stated 
eligibility requirements such as income, as well as other explicit or 
implicit requirements inherent in the nature of the program or 
activity, such as requirements that an occupant of a PDP multifamily 
housing facility be capable of meeting selection criteria and be 
capable of complying with all obligations of occupancy with or without 
supportive services provided by persons other than the agency.
    (4) ``Qualified person with disabilities'' as that term is defined 
for purposes of employment in 29 CFR 1613.702(f), which is made 
applicable to this part by Sec. 9.140.
    Replacement cost of the completed facility means the current cost 
of construction and equipment for a newly constructed housing facility 
of the size and type being altered. Construction and equipment costs do 
not include the cost of land, demolition, site improvements, non-
dwelling facilities and administrative costs for project development 
activities.
    Secretary means the Secretary of Housing and Urban Development.
    Section 504 means section 504 of the Rehabilitation Act of 1973, as 
amended (29 U.S.C. 794). As used in this part, section 504 applies only 
to programs or activities conducted by the agency and not to federally 
assisted programs.
    Substantial impairment means a significant loss of the integrity of 
finished materials, design quality, or special character resulting from 
a permanent alteration.
    UFAS means the Uniform Federal Accessibility Standards, which 
implement the accessibility standards required by the Architectural 
Barriers Act (42 U.S.C. 4151 through 4157), and which are established 
at 24 CFR part 40, Appendix A for residential structures, and 41 CFR 
101-19.600 through 101-19.607, and Appendix A to these sections, for 
non-residential structures.


Sec. 9.110  Self-evaluation.

    (a) The agency shall, within one year of the effective date of this 
part, evaluate its current policies and practices, and the effects of 
those policies and practices, including regulations, handbooks, notices 
and other written guidance, that do not or may not meet the 
requirements of this part. To the extent modification of any such 
policies is required, the agency shall take the necessary corrective 
actions.
    (b) The agency shall provide an opportunity to interested persons, 
including individuals with disabilities or organizations representing 
individuals with disabilities, to participate in the self-evaluation 
process by submitting comments (both oral and written).
    (c) The agency shall, for at least three years following the 
completion of the self-evaluation, maintain on file and make available 
for public inspection:
    (1) A list of interested persons;
    (2) A description of the areas examined and any problems 
identified; and
    (3) A description of any modifications made or to be made.


Sec. 9.111  Notice.

    The agency shall make available to employees, applicants, 
participants, beneficiaries, and other interested persons information 
regarding the provisions of this part and its applicability to the 
programs or activities conducted by the agency. The agency shall make 
such information available to such persons in such manner as the 
Secretary finds necessary to apprise them of the protections against 
discrimination assured them by section 504 and this part. All 
publications and recruitment materials distributed to participants, 
beneficiaries, applicants or employees shall include a statement that 
the agency does not discriminate on the basis of disability. The notice 
shall include the name of the person or office responsible for the 
implementation of section 504.


Secs. 9.112-9.129  [Reserved]


Sec. 9.130  General prohibitions against discrimination.

    (a) No qualified individual with disabilities shall, on the basis 
of disability, be excluded from participation in, be denied the 
benefits of, or otherwise be subjected to discrimination under any 
program or activity conducted by the agency.
    (b) (1) The agency, in providing any housing, aid, benefit, or 
service, may not, directly or through contractual, licensing, or other 
arrangements, on the basis of disability--
    (i) Deny a qualified individual with disabilities the opportunity 
to participate in or benefit from the housing, aid, benefit, or 
service;
    (ii) Afford a qualified individual with disabilities an opportunity 
to participate in or benefit from the housing, aid, benefit, or service 
that is not equal to that afforded others;
    (iii) Provide a qualified individual with disabilities with any 
housing, aid, benefit, or service that is not as effective in affording 
equal opportunity to obtain the same result, to gain the same benefit, 
or to reach the same level of achievement as that provided to others;
    (iv) Provide different or separate housing, aid, benefits, or 
services to individuals with disabilities or to any class of 
individuals with disabilities than is provided to others unless such 
action is necessary to provide qualified individuals with disabilities 
with housing, aid, benefits, or services that are as effective as those 
provided to others;
    (v) Deny a qualified individual with disabilities the opportunity 
to participate as a member of planning or advisory boards;
    (vi) Deny a dwelling to an otherwise qualified buyer or renter 
because of a disability of that buyer or renter or a person residing in 
or intending to reside in that dwelling after it is sold, rented or 
made available; or
    (vii) Otherwise limit a qualified individual with disabilities in 
the enjoyment of any right, privilege, advantage, or opportunity 
enjoyed by others receiving the housing, aid, benefit, or service.
    (2) For purposes of this part, housing, aids, benefits, and 
services, to be equally effective, are not required to produce the 
identical result or level of achievement for individuals with 
disabilities and for persons without disabilities, but must afford 
individuals with disabilities equal opportunity to obtain the same 
result, to gain the same benefit, or to reach the same level of 
achievement.
    (3) The agency may not deny a qualified individual with 
disabilities the opportunity to participate in programs or activities 
that are not separate or different, despite the existence of programs 
or activities that are permissibly separate or different for persons 
with disabilities.
    (4) The agency may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration the purpose 
or effect of which would:
    (i) Subject qualified individuals with disabilities to 
discrimination on the basis of disability; or
    (ii) Defeat or substantially impair accomplishment of the 
objectives of a program or activity with respect to individuals with 
disabilities.
    (5) The agency may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would:
    (i) Exclude individuals with disabilities from, deny them the 
benefits of, or otherwise subject them to discrimination under any 
program or activity conducted by the agency; or
    (ii) Defeat or substantially impair the accomplishment of the 
objectives of a program or activity with respect to individuals with 
disabilities.
    (6) The agency, in the selection of procurement contractors, may 
not use criteria that subject qualified individuals with disabilities 
to discrimination on the basis of disability.
    (7) The agency may not administer a licensing or certification 
program in a manner that subjects qualified individuals with 
disabilities to discrimination on the basis of disability, nor may the 
agency establish requirements for the programs or activities of 
licensees or certified entities that subject qualified individuals with 
disabilities to discrimination on the basis of disability. However, the 
programs or activities of entities that are licensed or certified by 
the agency are not, themselves, covered by this part.
    (c) (1) Notwithstanding any other provision of this part, persons 
without disabilities may be excluded from the benefits of a program if 
the program is limited by Federal statute or Executive order to 
individuals with disabilities. A specific class of individuals with 
disabilities may be excluded from a program if the program is limited 
by Federal statute or Executive order to a different class of 
individuals.
    (2) Certain agency programs operate under statutory definitions of 
``persons with disabilities'' that are more restrictive than the 
definition of ``individual with disabilities'' contained in Sec. 9.103. 
Those definitions are not superseded or otherwise affected by this 
regulation.
    (d) The agency shall administer programs and activities in the most 
integrated setting appropriate to the needs of qualified individuals 
with disabilities.
    (e) The obligation to comply with this part is not obviated or 
alleviated by any State or local law or other requirement that, based 
on disability, imposes inconsistent or contradictory prohibitions or 
limits upon the eligibility of qualified individuals with disabilities 
to receive services or to practice any occupation or profession.
    (f) The enumeration of specific forms of prohibited discrimination 
in paragraphs (b) and (d) of this section does not limit the general 
prohibition in paragraph (a) of this section.


Sec. 9.131  Direct threat.

    (a) This part does not require the agency to permit an individual 
to participate in, or benefit from the goods, services, facilities, 
privileges, advantages and accommodations of that agency when that 
individual poses a direct threat to the health or safety of others.
    (b) ``Direct threat'' means a significant risk to the health or 
safety of others that cannot be eliminated by a modification of 
policies, practices, or procedures, or by the provision of auxiliary 
aids or services.
    (c) In determining whether an individual poses a direct threat to 
the health or safety of others, the agency must make an individualized 
assessment, based on reasonable judgment that relies on current medical 
knowledge or on the best available objective evidence to ascertain: the 
nature, duration, and severity of the risk; the probability that the 
potential injury will actually occur; and whether reasonable 
modifications of policies, practices, or procedures will mitigate the 
risk.


Secs. 9.132--9.139  [Reserved]


Sec. 9.140  Employment.

    No qualified individual with disabilities shall, on the basis of 
disability, be subjected to discrimination in employment under any 
program or activity conducted by the agency. The definitions, 
requirements, and procedures of section 501 of the Rehabilitation Act 
of 1973 (29 U.S.C. 791), as established by the Equal Employment 
Opportunity Commission in 29 CFR part 1613 (subpart G), shall apply to 
employment in federally conducted programs or activities.


Secs. 9.141--9.148  [Reserved]


Sec. 9.149  Program accessibility: discrimination prohibited.

    Except as otherwise provided in Sec. 9.150, no qualified individual 
with disabilities shall, because the agency's facilities are 
inaccessible to or unusable by individuals with disabilities, be denied 
the benefits of, be excluded from participation in, or otherwise be 
subjected to discrimination under any program or activity conducted by 
the agency.


Sec. 9.150  Program accessibility: existing facilities.

    (a) General. Except as otherwise provided in paragraph (e) of this 
section, the agency shall operate each program or activity so that the 
program or activity, when viewed in its entirety, is readily accessible 
to and usable by individuals with disabilities. This section does not--
    (1) Necessarily require the agency to make each of its existing 
facilities accessible to and usable by individuals with disabilities;
    (2) In the case of historic properties, require the agency to take 
any action that would result in a substantial impairment of significant 
historic features of an historic property; or
    (3) Require the agency to take any action that it can demonstrate 
would result in a fundamental alteration in the nature of a program or 
activity or in undue financial and administrative burdens. In those 
circumstances where agency personnel believe that the proposed action 
would fundamentally alter the program or activity or would result in 
undue financial and administrative burdens, the agency has the burden 
of proving that compliance with Sec. 9.150(a) would result in such 
alteration or burdens. The decision that compliance would result in 
such alteration or burdens must be made by the Secretary or his or her 
designee after considering all agency resources available for use in 
the funding and operation of the conducted program or activity, and 
must be accompanied by a written statement of the reasons for reaching 
that conclusion. If an action would result in such an alteration or 
such burdens, the agency shall take any other action that would not 
result in such an alteration or such burdens but would nevertheless 
ensure that individuals with disabilities receive the benefits and 
services of the program or activity.
    (b) Methods. The agency may comply with the requirements of this 
section through such means as redesign of equipment, reassignment of 
services to accessible buildings, assignment of aides to beneficiaries, 
home visits, delivery of services at alternate accessible sites, 
alteration of existing facilities and construction of new facilities, 
use of accessible rolling stock, or any other methods that result in 
making its programs or activities readily accessible to and usable by 
individuals with disabilities. The agency is not required to make 
structural changes in existing facilities where other methods are 
effective in achieving compliance with this section. The agency, in 
making alterations to existing buildings, also shall meet accessibility 
requirements to the extent compelled by the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151 through 4157), and any regulations 
implementing it. In choosing among available methods for meeting the 
requirements of this section, the agency shall give priority to those 
methods that offer programs and activities to qualified individuals 
with disabilities in the most integrated setting appropriate.
    (c) Time period for compliance. The agency shall comply with the 
obligations established under this section within sixty days of July 
18, 1994 except that where structural changes in facilities are 
undertaken, such changes shall be made within three years of July 18, 
1994, but in any event as expeditiously as possible.
    (d) Transition plan. In the event that structural changes to 
facilities will be undertaken to achieve program accessibility, the 
agency shall develop, within six months of July 18, 1994, a transition 
plan setting forth the steps necessary to complete such changes. The 
agency shall provide an opportunity to interested persons, including 
individuals with disabilities or organizations representing individuals 
with disabilities, to participate in the development of the transition 
plan by submitting comments (both oral and written). A copy of the 
transition plan shall be made available for public inspection. The plan 
shall, at a minimum--
    (1) Identify physical obstacles in the agency's facilities that 
limit the accessibility of its programs or activities to individuals 
with disabilities;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve 
compliance with this section and, if the time period of the transition 
plan is longer than one year, identify steps that will be taken during 
each year of the transition period; and
    (4) Indicate the official responsible for implementation of the 
plan.
    (e) The requirements of paragraphs (a), (b), and (c) of this 
section shall apply to the Property Disposition Programs. However, this 
section does not require HUD to make alterations to existing facilities 
that are part of the Property Disposition Programs unless such 
alterations are necessary to meet the needs of a current or prospective 
tenant during the time when HUD expects to retain legal possession of 
the facilities, and there is no alternative method to meet the needs of 
that current or prospective tenant. Nothing in this section shall be 
construed to require alterations to make facilities accessible to 
persons with disabilities who are expected to occupy the facilities 
only after HUD relinquishes legal possession.


Sec. 9.151  Program accessibility: new construction and alterations.

    Each building or part of a building that is constructed or altered 
by, on behalf of, or for the use of the agency shall be designed, 
constructed, or altered and provide emergency egress so as to be 
readily accessible to and usable by individuals with disabilities. The 
definitions, requirements, and accessibility standards that apply to 
buildings covered by this section are those contained in the UFAS, 
except where the ADAAG provides for greater accessibility for the type 
of construction or alteration being undertaken, and in this case, the 
definitions, requirements and standards of the ADAAG shall apply.


Sec. 9.152  Program accessibility: alterations of Property Disposition 
Program multifamily housing facilities.

    (a) Substantial alteration. If the agency undertakes alterations to 
a PDP multifamily housing project that has 15 or more units and the 
cost of the alterations is 75 percent or more of the replacement cost 
of the completed facility, then the project shall be designed and 
altered to be readily accessible to and usable by individuals with 
disabilities. Subject to paragraph (c) of this section, a minimum of 
five percent of the total dwelling units, or at least one unit, 
whichever is greater, shall be made accessible for persons with 
mobility impairments. A unit that is on an accessible route and is 
adaptable and otherwise in compliance with the standards set forth in 
paragraph (d) of this section is accessible for purposes of this 
section. An additional two percent of the units (but not less that one 
unit) in such a project shall be accessible for persons with hearing or 
vision impairments. If state or local requirements for alterations 
require greater action than this paragraph, those requirements shall 
prevail.
    (b) Other alteration. (1) Subject to paragraph (c) of this section, 
alterations to dwelling units in a PDP multifamily housing project 
shall, to the maximum extent feasible, be made to be readily accessible 
to and usable by individuals with disabilities. If alterations of 
single elements or spaces of a dwelling unit, when considered together, 
amount to an alteration of a dwelling unit, the entire dwelling unit 
shall be made accessible. Once five percent of the dwelling units in a 
project are readily accessible to and usable by individuals with 
mobility impairments, then no additional elements of dwelling units, or 
entire dwelling units, are required to be accessible under this 
paragraph. Once two percent of the dwelling units in a project are 
readily accessible to or usable by individuals with hearing or vision 
impairments, then no additional elements of dwelling units, or entire 
dwelling units, are required to be accessible under this paragraph.
    (2) Alterations to common areas or parts of facilities that affect 
accessibility of existing housing facilities, shall, to the maximum 
extent feasible, be made to be accessible to and usable by individuals 
with disabilities.
    (c) The agency may establish a higher percentage or number of 
accessible units than that prescribed in paragraphs (a) or (b) of this 
section if the agency determines that there is a need for a higher 
percentage or number, based on census data or other available current 
data. In making such a determination, HUD shall take into account the 
expected needs of eligible persons with and without disabilities.
    (d) The definitions, requirements, and accessibility standards that 
apply to PDP multifamily housing projects covered by this section are 
those contained in the UFAS, except where the ADAAG provides for 
greater accessibility for the type of alteration being undertaken, and, 
in this case, the definitions, requirements and standards of the ADAAG 
shall apply.
    (e) With respect to multifamily housing projects operated by HUD, 
but in which HUD does not have an ownership interest, alterations under 
this section need not be made if doing so would impose undue financial 
and administrative burdens on the operation of the multifamily housing 
project.


Sec. 9.153  Distribution of accessible dwelling units.

    Accessible dwelling units required by Sec. 9.152 shall, to the 
maximum extent feasible, be distributed throughout projects and sites 
and shall be available in a sufficient range of sizes and amenities so 
that a qualified individual with disabilities' choice of living 
arrangements is, as a whole, comparable to that of other persons 
eligible for housing assistance under the same agency conducted 
program. This provision shall not be construed to require (but does 
allow) the provision of an elevator in any multifamily housing project 
solely for the purpose of permitting location of accessible units above 
or below the accessible grade level.


Sec. 9.154  Occupancy of accessible dwelling units.

    (a) The agency shall adopt suitable means to assure that 
information regarding the availability of accessible units in PDP 
housing facilities reaches eligible individuals with disabilities, and 
shall take reasonable nondiscriminatory steps to maximize the 
utilization of such units by eligible individuals whose disability 
requires the accessibility features of the particular unit. To this 
end, when an accessible unit becomes vacant, the agency (or its 
management agent) before offering such units to an applicant without 
disabilities shall offer such unit:
    (1) First, to a current occupant of another unit of the same 
project, or comparable projects under common control, having 
disabilities requiring the accessibility features of the vacant unit 
and occupying a unit not having such features, or, if no such occupant 
exists, then
    (2) Second, to an eligible qualified applicant on the waiting list 
having a disability requiring the accessibility features of the vacant 
unit.
    (b) When offering an accessible unit to an applicant not having 
disabilities requiring the accessibility features of the unit, the 
agency may require the applicant to agree (and may incorporate this 
agreement in the lease) to move to a non-accessible unit when 
available.


Sec. 9.155  Housing adjustments.

    (a) The agency shall modify its housing policies and practices as 
they relate to PDP housing facilities to ensure that these policies and 
practices do not discriminate, on the basis of disability, against a 
qualified individual with disabilities. The agency may not impose upon 
individuals with disabilities other policies, such as the prohibition 
of assistive devices, auxiliary aids, alarms, or guides in housing 
facilities, that have the effect of limiting the participation of 
tenants with disabilities in any agency conducted housing program or 
activity in violation of this part. Housing policies that the agency 
can demonstrate are essential to the housing program or activity will 
not be regarded as discriminatory within the meaning of this section if 
modifications would result in a fundamental alteration in the nature of 
the program or activity or undue financial and administrative burdens.
    (b) The decision that compliance would result in such alteration or 
burdens must be made by the Secretary or his or her designee after 
considering all agency resources available for use in the funding and 
operation of the conducted program or activity, and must be accompanied 
by a written statement of the reasons for reaching that conclusion. If 
an action required to comply with this section would result in such an 
alteration or such burdens, the agency shall take any other action that 
would not result in such an alteration or such burdens but would 
nevertheless ensure that, to the maximum extent possible, individuals 
with disabilities receive the benefits and services of the program or 
activity.


Sec. 9.160  Communications.

    (a) The agency shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The agency shall furnish appropriate auxiliary aids where 
necessary to afford an individual with disabilities an equal 
opportunity to participate in, and enjoy the benefits of, a program or 
activity conducted by the agency.
    (i) In determining what type of auxiliary aid is necessary, the 
agency shall give primary consideration to the requests of the 
individual with disabilities.
    (ii) The agency need not provide individually prescribed devices, 
readers for personal use or study, or other devices of a personal 
nature.
    (2) Where the agency communicates with applicants and beneficiaries 
or members of the public by telephone, telecommunication devices for 
deaf persons (TDD's) or equally effective telecommunication systems 
shall be used to communicate with persons with impaired hearing.
    (b) The agency shall ensure that interested persons, including 
persons with impaired vision or hearing, can obtain information as to 
the existence and location of accessible services, activities, and 
facilities.
    (c) The agency shall provide signage at a primary entrance to each 
of its inaccessible facilities, directing users to a location at which 
they can obtain information about accessible facilities. The 
international symbol for accessibility shall be used at each primary 
entrance of an accessible facility.
    (d) This section does not require the agency to take any action 
that it can demonstrate would result in a fundamental alteration in the 
nature of a program or activity or in undue financial and 
administrative burdens. In those circumstances where agency personnel 
believe that the proposed action would fundamentally alter the program 
or activity or would result in undue financial and administrative 
burdens, the agency has the burden of proving that compliance with this 
section would result in such alteration or burdens. The decision that 
compliance would result in such alteration or burdens must be made by 
the Secretary or his or her designee after considering all agency 
resources available for use in the funding and operation of the 
conducted program or activity and must be accompanied by a written 
statement of the reasons for reaching that conclusion. If an action 
required to comply with Sec. 9.160 would result in such an alteration 
or such burdens, the agency shall take any other action that would not 
result in such an alteration or such burdens but would nevertheless 
ensure that, to the maximum extent possible, individuals with 
disabilities receive the benefits and services of the program or 
activity.


Sec. 9.170  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, this 
section applies to all allegations of discrimination on the basis of 
disability in programs or activities conducted by the agency.
    (b) The agency shall process complaints alleging violations of 
section 504 with respect to employment according to the procedures 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1613 under section 501 of the Rehabilitation Act of 1973 (29 
U.S.C. 791).
    (c) The Responsible Official shall coordinate implementation of 
this section.
    (d) Persons may submit complete complaints to the Assistant 
Secretary for Fair Housing and Equal Opportunity, 451 Seventh St., SW., 
Washington, DC 20410, or to any HUD Area Office. The agency shall 
accept and investigate all complete complaints for which the agency has 
jurisdiction. All complete complaints shall be filed within 180 days of 
the alleged act of discrimination. The agency may extend this time 
period for good cause. For purposes of determining when a complaint is 
filed, a complaint mailed to the agency shall be deemed filed on the 
date it is postmarked. Any other complaint shall be deemed filed on the 
date it is received by the agency. The agency shall acknowledge all 
complaints, in writing, within ten (10) working days of receipt of the 
complaint.
    (e) If the agency receives a complaint over which it does not have 
jurisdiction, it shall promptly notify the complainant and shall make 
reasonable efforts to refer the complaint to the appropriate Government 
entity.
    (f) The agency shall notify the Architectural and Transportation 
Barriers Compliance Board upon receipt of any complaint alleging that a 
building or facility that is subject to the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151 through 4157), is not readily 
accessible to and usable by individuals with disabilities. The agency 
shall delete the identity of the complainant from the copy of the 
complaint.
    (g)(1) Within 180 days of the receipt of a complete complaint for 
which it has jurisdiction, the Office of Fair Housing and Equal 
Opportunity shall complete the investigation of the complaint, attempt 
informal resolution, and if no informal resolution is achieved, issue a 
letter of findings. If a complaint is filed against the Office of Fair 
Housing and Equal Opportunity, the Secretary or a designee of the 
Secretary shall investigate and resolve the complaint through informal 
agreement or letter of findings.
    (2) If a complaint is resolved informally, the terms of the 
agreement shall be reduced to writing and made part of the complaint 
file, with a copy of the agreement provided to the complainant and the 
agency. The written agreement may include a finding on the issue of 
discrimination and shall describe any corrective action to which the 
complainant and the respondent have agreed.
    (3) If a complaint is not resolved informally, the Office of Fair 
Housing and Equal Opportunity or a person designated under this 
paragraph shall notify the complainant of the results of the 
investigation in a letter containing--
    (i) Findings of fact and conclusions of law;
    (ii) A description of a remedy for each violation found;
    (iii) A notice of the right to appeal to the Secretary;
    (h)(1) Appeals of the findings of fact and conclusions of law or 
remedies must be filed by the complainant within 90 days of receipt 
from the agency of the letter required by Sec. 9.170(g). The Assistant 
Secretary or the person designated by the Secretary to decide an appeal 
of a complaint filed against the Office of Fair Housing and Equal 
Opportunity may extend this time for good cause.
    (2) Timely appeals shall be accepted and processed by the Assistant 
Secretary. Decisions on an appeal shall not be issued by the person who 
made the initial determination.
    (i) The Assistant Secretary or the person designated by the 
Secretary to decide an appeal of a complaint filed against the Office 
of Fair Housing and Equal Opportunity shall notify the complainant of 
the results of the appeal within 60 days of the receipt of the request. 
If the agency determines that it needs additional information from the 
complainant, it shall have 60 days from the date it receives the 
additional information to make its determination on the appeal.
    (j) The time limits cited in paragraphs (g) and (i) of this section 
may be extended with the permission of the Assistant Attorney General.
    (k) The agency may delegate its authority for conducting complaint 
investigations to other Federal agencies, except that the authority for 
making the final determination may not be delegated to another agency.

    Dated: June 9, 1994.
Henry G. Cisneros,
Secretary.
[FR Doc. 94-14499 Filed 6-15-94; 8:45 am]
BILLING CODE 4210-32-P