[Federal Register Volume 68, Number 204 (Wednesday, October 22, 2003)]
[Proposed Rules]
[Pages 60313-60316]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-26614]


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NATIONAL ARCHIVES AND RECORDS ADMINISTRATION

36 CFR Part 1208

RIN 3095-AB09


Nondiscrimination in Federally Assisted Programs--Implementation 
of Section 504 of the Rehabilitation Act of 1973

AGENCY: National Archives and Records Administration (NARA).

ACTION: Proposed rule.

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SUMMARY: NARA is proposing to modify its regulations on 
nondiscrimination on the basis of disability to make it clear that the 
rules apply to recipients of NARA's National Historical Publications 
and Records Commission (NHPRC) grants, not just programs and activities 
conducted by NARA. We also propose to add detailed rules on 
nondiscrimination in employment practices that grant recipients must 
follow when they hire staff for the programs and projects. This 
proposed rule also updates compliance procedures, which apply to NARA 
and NHPRC grant recipients. Last, we are replacing the term 
``handicap'' with ``disability'' throughout the entire regulation. This 
part applies to NARA and NHPRC grant recipients.

DATES: Comments are due by December 22, 2003.

ADDRESSES: Comments must be sent to Regulation Comments Desk (NPOL), 
Room 4100, Policy and Communications Staff, National Archives and 
Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001. 
They may be faxed to (301) 837-0319. Electronic comments may be 
submitted through Regulations.gov. You may also comment via e-mail to 
[email protected]. See the SUPPLEMENTARY INFORMATION for details.

FOR FURTHER INFORMATION CONTACT: Kim Richardson at telephone number 
301-837-2902.

SUPPLEMENTARY INFORMATION: NARA's National Historical Publications and 
Records Commission (NHPRC) awards approximately 100 grants per year. 
Our program includes grants to:
    [sbull] Publish historical editions of the records of the Founding 
Era;

[[Page 60314]]

    [sbull] Address electronic records challenges and opportunities;
    [sbull] Work with the State Historical Records Advisory Boards;
    [sbull] Publish historically significant records relating to the 
history of the United States;
    [sbull] Preserve and provide access to records; provide educational 
programs; and,
    [sbull] Provide subvention assistance for the costs of 
manufacturing and distributing documentary volumes produced by projects 
that have been supported or formally endorsed by the NHPRC.
    Every NHPRC grantee must sign Standard Form 424B, ``Assurances-Non-
Construction Programs,'' which includes agreeing to comply with all 
Federal statutes relating to nondiscrimination, of which Section 504 of 
the Rehabilitation Act of 1973 is a part. However, because our existing 
regulations on nondiscrimination on the basis of disability do not 
directly address NHPRC grants recipients, only NARA, we are proposing 
to make it clear that these regulations apply also to NHPRC grant 
recipients.
    We identified the need to revise part 1208 to directly address 
NHPRC grantees after conducting a regulatory review of our regulations. 
During the regulatory review, we identified that other agencies have 
common rules on nondiscrimination on the basis of disability which 
directly address grant recipients.
    We also propose to add detailed rules on nondiscrimination on the 
basis of disability in employment practices that grant recipients 
follow when they hire staff for the programs and projects. We propose 
to add these employment nondiscrimination rules to:
    [sbull] Conform to the Government-wide common rules for grant 
programs; and
    [sbull] Be in compliance with Section 504 of the Rehabilitation Act 
of 1973, which prohibits employment discrimination against individuals 
with disabilities.
    This proposed rule also updates compliance procedures, which apply 
to NARA and grant recipients. Previously, complaints were sent to the 
Assistant Archivist for Management and Administration. Now, we propose 
that complaints be sent to the Director, Equal Employment Opportunity 
and Diversity Programs.
    This proposed rule updates an obsolete reference. Existing NARA 
regulations cite 29 CFR 1613.702(f) for the definition of ``qualified 
handicap person''. However, this citation is obsolete, and we are 
updating the citation to 28 CFR 41.32.
    Last, we are replacing the term ``handicap'' with ``disability'' 
throughout the entire regulation because it is in keeping with the 
terminology used in guidances and directives issued by the Equal 
Employment Opportunity Commission, which are applicable throughout the 
Federal sector.
    Please submit e-mail comments within the body of your email message 
or attach comments avoiding the use of any form of encryption. Please 
also include ``Attn: 3095-AB17'' and your name and return address in 
your Internet message. If you do not receive a confirmation that we 
have received your email message, contact the Regulation Comment Desk 
at (301) 837-2902.
    This proposed rule is not a significant regulatory action for the 
purposes of Executive Order 12866 and has not been reviewed by the 
Office of Management and Budget. As required by the Regulatory 
Flexibility Act, I certify that this rule will not have a significant 
impact on a substantial number of small entities. This regulation does 
not have any federalism implications.

List of Subjects in 36 CFR Part 1208

    Individuals with disabilities, Equal employment opportunity.

    For the reasons set forth in the preamble, NARA proposes to amend 
part 1208 of title 36, Code of Federal Regulations, chapter XII, as 
follows:

PART 1208--ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF 
DISABILITY IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE NATIONAL 
ARCHIVES AND RECORDS ADMINISTRATION

    1. The heading of part 1208 is revised to read as set forth above.
    2. The authority citation for part 1208 continues to read as 
follows:

    Authority: 29 U.S.C. 794.

    3. Remove reserved Sec. Sec.  1208.104 through 1208.109, 1208.112 
through 1208.129, 1208.131 through 1208.139, 1208.141 through 1208.148, 
1208.152 through 1208.159, 1208.161 through 1208.169, and 1208.171 
through 1208.999.
    4. In part 1208 remove the words ``basis of handicap'' wherever 
they appear and add in their place the words ``basis of disability':
    5. In part 1208 remove the words ``individual with handicaps'' 
wherever they appear and add in their place the words ``individual with 
disabilities'.
    6. In part 1208 remove the words ``individuals with handicaps'' 
wherever they appear and add in their place the words ``individuals 
with disabilities'.


Sec.  1208.130  [Amended]

    7. Amend Sec.  1208.130 (c) by removing the words ``nonhandicapped 
persons'' and adding in their place, the words ``persons without 
disabilities'.
    8. Sections 1208.101 through 1208.103 are designated as Subpart A--
General.
    9. Revise Sec.  1208.102 to read as follows:


Sec.  1208.102  Application.

    (a) NARA. Sections 1208.101 through 1208.160 and Sec.  1208.184 of 
this regulation apply to all programs or activities conducted by NARA, 
except for programs or activities conducted outside the United States 
that involve individuals with disabilities in the United States.
    (b) Grant recipients. Sections 1208.130 through 1208.184 in this 
regulation apply to grant recipients. (The term ``agency'', used in 
Sec. Sec.  1208.130 through 1208.184, also includes grant recipients.)
    10. Amend Sec.  1208.103 by revising subparagraph (4) under the 
definition of ``qualified individual with a disability'' to read as 
follows:


Sec.  1208.103  Definitions.

* * * * *
    Qualified individual with a disability * * *
    (4) Qualified person with a disability as that term is defined for 
purposes of employment in 28 CFR 41.32, which is made applicable to 
this regulation by Sec.  1208.140.
* * * * *
    11. Sections 1208.110 and 1208.111 are designated as Subpart B--
Agency Responsibilities.
    12. Sections 1208.130 and 1208.140 are designated as Subpart C--
General Nondiscrimination Rules (Applicable to the Agency and National 
Historical Publications and Records Commission [NHPRC] Grant 
Recipients).
    13. Revise Sec.  1208.140 to read as follows:


Sec.  1208.140  Employment.

    No qualified individual with a disability shall, on the basis of 
the 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) shall apply to employment in agency programs 
and activities.
    14. Sections 1208.149 through 1208.160 are designated as Subpart 
D--Program Accessibility (Applicable to the Agency and NHPRC Grant 
Recipients).
    15. Section 1208.170 is redesignated as Sec.  1208.184.

[[Page 60315]]

    16. Add Subpart E to read as follows:

Subpart E--Employment Practices for Grant Recipients

Sec.
1208.170 General prohibitions against employment discrimination.
1208.171 Reasonable accommodation.
1208.172 Employment criteria.
1208.173 Preemployment inquiries.


Sec.  1208.170  General prohibitions against employment discrimination.

    (a) No qualified individual with a disability shall, on the basis 
of a disability, be subjected to discrimination in employment under any 
program or activity that receives or benefits from NHPRC grants.
    (b) A recipient must make all decisions concerning employment under 
any program or activity to which this part applies in a manner which 
ensures that discrimination on the basis of a disability does not occur 
and may not limit, segregate, or classify applicants or employees in 
any way that adversely affects their opportunities or status because of 
a disability.
    (c) The prohibition against discrimination in employment applies to 
the following activities:
    (1) Recruitment, advertising, and the processing of applications 
for employment;
    (2) Hiring, upgrading, promotion, award of tenure, demotion, 
transfer, layoff, termination, right of return from layoff, and 
rehiring;
    (3) Rates of pay or any other form of compensation and changes in 
compensation;
    (4) Job assignments, job classifications, organizational 
structures, position descriptions, lines of progression, and seniority 
lists;
    (5) Leaves of absence, sick leave, or any other leave;
    (6) Fringe benefits available by virtue of employment, whether or 
not administered by the recipient;
    (7) Selection and financial support for training, including 
apprenticeship, professional meetings, conferences, and other related 
activities, and selection for leaves of absence to pursue training;
    (8) Employer sponsored activities, including social or recreational 
programs; and
    (9) Any other term, condition, or privilege of employment.
    (d) A recipient may not participate in a contractual or other 
relationship that has the effect of subjecting qualified applicants or 
employees with disabilities to discrimination prohibited by this 
subpart. The relationships referred to in this paragraph include 
relationships with employment and referral agencies, with labor unions, 
with organizations providing or administering fringe benefits to 
employees of the recipient, and with organizations providing training 
and apprenticeship programs.


Sec.  1208.171  Reasonable accommodation.

    (a) A recipient must make reasonable accommodation to the known 
physical or mental limitations of an otherwise qualified applicant or 
employee with a disability unless the recipient can demonstrate, based 
on the individual assessment of the applicant or employee, that the 
accommodation would impose an undue hardship on the operation of its 
program.
    (b) Reasonable accommodation may include making facilities used by 
employees readily accessible to and usable by persons with 
disabilities, job restructuring, part-time or modified work schedules, 
acquisition or modification of equipment or devices (e.g., 
telecommunication or other telephone devices), the provisions of 
readers or qualified interpreters, and other similar actions.
    (c) Whether an accommodation would impose an undue hardship on the 
operation of a recipient's program depends upon a case-by-case analysis 
weighing factors that include:
    (1) The overall size of the recipient's program with respect to 
number of employees, number and type of facilities, and size of budget;
    (2) The type of the recipient's operation, including the 
composition and structure of the recipient's workforce; and
    (3) The nature and cost of the accommodation needed.
    (d) A recipient may not deny any employment opportunity to a 
qualified employee or applicant with a disability if the basis for the 
denial is the need to make reasonable accommodation to the physical or 
mental limitations of the employee or applicant.


Sec.  1208.172  Employment criteria.

    A recipient may not use employment tests or criteria that 
discriminate against persons with disabilities and must ensure that 
employment tests are adapted for use by persons with disabilities that 
impair sensory, manual, or speaking skills.


Sec.  1208.173  Preemployment inquiries.

    (a) Except as provided in paragraphs (b) and (c) of this section, a 
recipient may not conduct a preemployment medical examination or make a 
preemployment inquiry as to whether an applicant is a person with a 
disability or as to the nature or severity of a disability. A recipient 
may, however, make preemployment inquiry into an applicant's ability to 
perform job-related functions.
    (b) When a recipient is taking remedial action to correct the 
effects of past discrimination, when a recipient is taking voluntary 
action to overcome the effects of conditions that resulted in limited 
participation in its Federally assisted program or activity, or when a 
recipient is taking affirmative action pursuant to section 504 of the 
Act, the recipient may invite applicants for employment to indicate 
whether and to what extent they are disabled, provided that:
    (1) The recipient states clearly on any written questionnaire used 
for this purpose or makes clear orally if no written questionnaire is 
used that the information requested is intended for use solely in 
connection with its remedial action obligations or its voluntary 
efforts;
    (2) The recipient states clearly that the information is being 
requested on a voluntary basis, that it will be kept confidential as 
provided in paragraph (d) of this section, that refusal to provide it 
will not subject the applicant or employee to any adverse treatment, 
and that it will be used only in accordance with this part.
    (c) Nothing in this section shall prohibit a recipient from 
conditioning an offer of employment on the results of a medical 
examination conducted prior to the employee's entrance on duty, 
provided that:
    (1) All entering employees are subjected to such an examination 
regardless of handicap, and
    (2) The results of such an examination are used only in accordance 
with the requirements of this subpart.
    (d) The applicant's medical record shall be collected and 
maintained on separate forms and kept confidential, except that the 
following persons may be informed:
    (1) Supervisors and managers regarding restrictions on the work of 
persons with disabilities and necessary accommodations;
    (2) First aid and safety personnel if the condition might require 
emergency treatment; and
    (3) Government officials investigating compliance with the Act upon 
request for relevant information.
    17. Designate newly redesignated Sec.  1208.184 as Subpart F--
Compliance Procedures.
    18. Amend the newly redesignated Sec.  1208.184 by revising 
paragraphs (a), (b), (c) and (h) to read as follows:

[[Page 60316]]

Sec.  1208.184  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 and activities conducted by the agency, 
including those programs and activities funded by NHPRC grants.
    (b) The agency must process complaints alleging violations of 
section 504 with respect to employment according to the procedures 
established by the Equal Employment Opportunity Commission pursuant to 
section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791). The 
agency will refer complaints alleging employment discrimination by 
NHPRC grant recipients, in violation of section 504 of the 
Rehabilitation Act, to the appropriate Government entity, pursuant to 
paragraph (e) of this section.
    (c) The Director, Equal Employment Opportunity and Diversity 
Programs (NEEO), is responsible for coordinating implementation of this 
section. Complaints may be sent to the Director, NEEO (address: 
National Archives and Records Administration (NEEO), 8601 Adelphi Road, 
College Park, MD 20740-6001).
* * * * *
    (h) The complainant has the right to file an appeal; however, 
appeals must be filed within 90 days of receipt from the agency of the 
letter required by Sec.  1208.184 (g). The agency may extend this time 
for good cause. Appeals may be sent to the Archivist of the United 
States for reconsideration (address: National Archives and Records 
Administration (N), 8601 Adelphi Road, College Park, MD 20740-6001).
* * * * *

    Dated: October 16, 2003.
John W. Carlin,
Archivist of the United States.
[FR Doc. 03-26614 Filed 10-21-03; 8:45 am]
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