ML19296C146
| ML19296C146 | |
| Person / Time | |
|---|---|
| Issue date: | 01/04/1980 |
| From: | Shapar H NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| Shared Package | |
| ML19296C119 | List: |
| References | |
| REF-10CFR9.7, TASK-CC, TASK-SE SECY-80-009, SECY-80-9, NUDOCS 8002250278 | |
| Download: ML19296C146 (32) | |
Text
{{#Wiki_filter:1 9 UN'TED STATES NUCLEAR REGULATORY COMMISSION 4' WASHINGTON, D. C. 20555 SECY-80-9 CONSENT cal.ENDAR ITEM FOR: The Commission FROM: Howard K. Shapar, Executive Legal Director THRU: Executive Director for Operations M L/
SUBJECT:
ISSUANCE OF EFFECTIVE AMENDMENTS TO 10 CFR PART 4 WHICH IMPLEMENT SECTION 504 0F THE REHABILITATION ACT OF 1973, AS AMENDED, BY PR0HIBITING DISCRIMINATION AGAINST THE HANDICAPPED IN FEDERALLY ASSISTED COMMISSION PROGRAMS PURPOSE: To obtain Commission approval of a Federal Register Notice of Final Rulemaking. CATEGORY: This paper covers a routine matter requiring Commission consideration. PROPOSED ACTION: This final rule should be published as soon as practicable to implement Section 504 of the Rehabilitation Act of 1973, as amended. DISCUSSI3; On April 11, 1979, the Commission approved a proposed rule (SECY-79-196) that was published in the Federal Register _on May 8, 1979 (44 FR 26887). The 60-day public comment period ended July 9, 1979. 10 CFR Part 4 now prohibits discrimination in Federally assisted Commission programs on the basis of color, race, national origin, or sex pursuant to Title VI of the Civil Rights Act of 1964 and Title IV of the Energy Reorganization Act of 1974. The proposed rule would amend Part 4 for the purpose of implementing Section 504 of the Rehabilitation Act of 1973, as amended, to pro-hibit discrimination in Federally assisted Commission programs on the basis of a phys 1 cal or mental handicap. As part of the Rehabilitation Act of 1973 (Pub. L. 93-112), Congress enacted Section (04 which prohibits discrimination against handicapped individuals under any program or activity receiving Federal financial assistance. The Act was amended in 1974 by Pub. L. 93-516. On April 28, 1976, the President issued Executive Order 11914 directing the Secretary of the Department of Health, Education and
Contact:
Jay W. Maynard Ext. 28668 8002250 }
e v The Comission Welfare (HEW) to coordinate the implementation of Sec-tion 504 by all Federal departments and agencies that extend financial assistance to any program or activity. On January 13, 1978, HEW published a rule setting forth procedures, standards and guidelines to be followed by other agencies in implementing section 504. The Rehabilitation Act of 1973 was further amended on November C,1978 by Pub. L. 95-602. The proposed rule complies with the statute as amended. Moreover, to assist in ensuring uniformity in Government implementa-tion of section 504, the language of the proposed amend-ets is very similar to that of the HEW Guidelines. The proposed rule creates two subparts in Part 4. Sub-part A contains substantially the same provisions as the current version of Part 4. Subpart B of the proposed rule is devoted exclusively to prohibiting discrimination against the handicapped. Both subparts of Part 4 apply only to recipients of NRC financial assistance. The reciplents that would be affected by Part 4 under current NRC programs are states which participate in training programs as part of, or in preparation for admission to, the Agreement States Program. State or local governments which benefit from NRC-sponsored training programs in emergency preparedness or Agreement States which receive NRC grants under the Uranium Mill Tailings Radiation Control Act of 1978 are also considered recipients of Federal financial assist-ance and must comply with Part 4. Thirteen comment letters were received froa state and Federal agencies, educational institutions, and public interest groups. Eight coment letters, primarily from state recipients of NRC financial assistance, contained no objections to the adoption of the rule as proposed. The remaining five responses suggested editorial and sv,~3ntive changes. Each of the comments is set forth i' # flosure A along with the staff's evaluation as to wq Ge comment should or she'lld not be adopted. Those comments which were accepted resulted in a number of substantive changes which, in essence, add more detailed explanatory language to several sections. Enclosure B sets forth a comparison of the proposed rule and the final rule with additions underlined and deletions bracketed. Among the most significant changes made were the incorporation of examples of " reasonable accommodation"
s v The Commission in section 4.123; a detailed discussion of employment criteria in section 4.124; reference to the standards of the American National Standards Institute, Inc. (ANSI) for making factifties accessible to the handicapped in Section 4.128; and an expanded statement of the specific responsibilities of applicants and recipients in.sec-tion 4.231, including new requirements to maintain certain records for NRC and public inspection and to designate a " responsible employee" to coordinate efforts to comply with the rule. The notice requirement of section 4.231 of the proposed rule also has been expanded and relocated in section 4.232. Responsibility for assuring compliance with Subparts A and B of Part 4 is assigned under the Commission's regulations go a " responsible NRC official." Section4.3(1) present1, defines " responsible NRC official" as "the Executive Director for Operations, and the Directors of Nuclear Material Safety and Safeguards, Nuclear Reactor Regulation and Nuclear Regulatory Research, or any officer to whom they have delegated authority to act." To more accurately reflect present enforcement responsi-bilities under Part 4 within NRC, section 4.3(1) has been revised to define " responsible NRC official" as the Director for Equal Employment Opportunity or any other NRC official to whom the Executive Director for Operations has delegated the authorth to act under Part 4 of the Commission's regulations. '/ A more detailed discussion of the changes to the pro-posed rule may be found in Enclosure C. These changes were deemed necessary to ensure that the NRC rule would closely conform to the procedures, standards and guide-lines followed by other agencies in implementing Sec-tion 504. Where appropriate the changes were adopted from corresponding sections of the Section 504 regula-tions which HEW (now the Department of Health and Human Services) has promulgated for its own programs. If On November 16, 1979, tk Office of Coordination and Review, Department of Justice, sent a letter to the NRC Director of Equal Opportunity in which it reviewed Part A of Part 4 against minimum standards for agency Title VI enforcement programs. As one of their comments, that office noted: "The Title VI regulations as written do not explicitly name the civil rights office as responsible for all civil rights compliance decisions through the initiation of formal enforcement proceedings. Rather, the regulations vest civil rights responsibilities with the ' responsible agency official.' It is our belief that the civil rights office should be responsible for such decisions, as this minimizes the potential conflict between civil rights concerns and a desire to fund a project to achieve primary program concerns."
s The Commission The final rule has been coordinated with the Office of Civil Rights, HEW, and the U.S. Architectural and Trans-portation Barriers Compliance Board. A copy of the final regulation has been forwarded to the Office of Interagency Coordination, Equal Employment Opportunity Commission (EE0C), for its review. This rule also will be submitted to the Comptroller General for review of its reporting requirement under the Federal Reports Act, as amended, 44 U.S.C. 3512. Should the Comptroller General or EE0C recommend changes in the regulation, the Commission will be promptly notified. RCCOMMENDATION: The Commission: (a) Approve publication of the final rule (Enclosure B) amending 10 CFR Part 4 to prohildt discrimination against the handicapped in Federally assisted Commission programs. (b) Note 1. The notice of rulemaking (Enclosure C) will be published in the Federal Register to become effective seventy-five days after publication. 2. The approp-iate Congressional Committees will be informed. 3. A public announcement will not be issued. COORDINATION: This paper has been concurred in by the Offices of State Programs and Equal Employment Opportunity. SCHEDULING: As soon as practicable. JL/n/77 / 4 Howard K. Shapar Executive Legal Director
Enclosures:
A. Comment Analysis 8. Comparison of Proposed and Final Rule C. Federal Register Notice of Final Rule
. Commissioners' comments or consent should be provided directly to the Office of the Secretary by c.o.b. Tuesday, January 22, 1980. Commission Staff Office comments, if any, should be submitted to the Commissioners NLT January 15, 1980, with an information copy to the Office of the Secretary. If the paper is of such a nature that it requires additional time for analytical review and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected. This paper is tentatively scheduled for affirmation at an Open Meeting during the Week of January 28, 1980. Please refer to the appropriate Weekly Commission Schedule, when published, for a specific date and time. DISTRIBUTION Commissioners Commission Staff Offices Exec Dir for Operatioas ACRS Secretariat
4 4 6 ,ces1 :s ,x: >p(~.' m,s\\wQ)b ( c % \\ 's ),, y uj - sJ ..NQ- .a i. m\\ g;s' ', u-ENCLOSURE A
e 4 NRC STAFF EVALUATION OF PUBLIC C0tiMENTS ON PROPOSED RULE TO IMPLEMENT SECTION 504 0F THE REHABILITATION ACT OF 1973 The following is a summary of the comments received in response to the publication of the NRC proposed rule to implement Section 504. Each comment is followed by a staff evaluation of the comment and a recommendation with respect to its disposition. The complete text of each comment is attached. Comment #1. West Virginia University Morgantown, West Virginia 26506 Marion F.
Dearnley,
Coordinator, Affirmative Action and Equal Bnployment Opportunity The commenter urges that the NRC pennit the self-evaluation requirement in 5 4.231(e) to be sat'./ied by prior self-evaluations completed for other Federal agencies from whom Federal financial assistance is received. Self Evaluation It is reasonable for recipients to minimize duplication of effort by using self-evaluations that encompass the programs and activities which receive NRC financial assistance and otherwise satisfy NRC requirements. The rule has not been revised because it contains no prohibition on the use of other sel f-evalua t ions. A statement that the use of such self-evaluations is permissible has been incorporated in the proposed preamble to the final rule. Enclosure "A"
The following commenters had no comments or objections to the adoption of the proposed rule: Comment #2. Ross B. Miller, Deputy Director Disaster Preparedness Agency State of South Carolina Comment #3. Billy M. Jones, Director Civil Defense Division Department of Defense State of Georgia Comment #4. Angeles A. Mendoza, Directress State Civil Defense Agency Government of Puerto Rico Comment #5. Eileen Foley, Director Civil Defense Agency State of New Hampshire Comment #6. R. C. Will, Supervisor Radiation Control Program, Department of Social and Health Services State of Washington Comment #7. John T. Law, Comptroller Division of Military and Naval Affairs State of New York Comment #8. Mau ry Neuweg, Chief Division of Radiological Health Department of Public Health State of Illinois Comment #9. Harold D. Kiewel and Kurt E. Strom Minnesota State Council for the Handicapped (a) The State Council has recommended that the NRC proposed regulations be made available in either cassette or braille format and that provisions be made for the use of a teletypewriter (TTY) within NRC for the deaf.
\\\\p. 3-Staff Evaluation Despite the fact that the proposed regulation was not available in cassette or braille fom for review by persons with certain handicaps, comprehensive comments were received from groups representing the interests of handicapped pe rsons. On balance, it may be of more benefit to the handicapped to publish the rule in effective fonn than to de'ay publication until the proposed regulation is transposed in braille or cassette fomat. However, the staff is looking into making available in cassette fomat the final agency regula-tion and the introduction of the teletypewriter into use within NRC. (b) It is recommended by the State Council that the definition of " Federal financial assistance" be included in 5 4.101, and that the definition state that NRC's financial assistance in the fom of personnel for training pro-grams is considered Federal financial assistance. Staff Evaluation Section 4.3(d) of the " General Provisions" contains a definition of " Federal financial assistance." The commenter apparently did not realize that the " General Pruvisions" apply to both Parts A and B, although this was explained in the Federal Register notice of the proposed rule. Moreover, the broad categories of assistance contained in the definition encompass personnel supplied by NRC to conduct training programs. Accordingly, it is not neces-sary to change Subpart B in respor.re to the comment.
4 . (c) The State Counsel objects to the exclusion of contracts of insurance or guarantee from the coverage of any 504 regulations. It is suggested that in 5 4.2(b), which states that procurement contracts are not covered by section 504, an additional note should indicate that such contracts are usually covered by section 503 of the Rehabilitation Act of 1973, as amended. Staff Evaluation The NRC regulations are identical in this regard to the Department of Health, Education and Welfare (HEW) Guidelines published in 43 Fed. Reg. 2131 (Jan-uary 13,1978) (codified at 45 C.F.R. Part 85). Under Executive Order 11914, HEW has primary responsibility for coordinating the implementation of the 504 regulations. The HEW decision to exclude from the Guidelines Federal financial assistance in the form of contracts of insurance or guaranty was based on advice from the Department of Justice. An analysis of the legisla-tive history of Section 504 by the Department of Justice indicated that Congress intended Section 504 to apply only to that type of Federal financial assistance covered by Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972. Titles VI and IX, unlike Section 504, specifically exclude assistance in the form of contracts of insurance or guaranty from their coverage. The staff does not believe the exclusions should be eliminated from the final rule. Section 503 of the Rehabilitation Act of 1973 applies to procurement con-tracts, as indicated by the commenter. There are several statutes and
, Executive orders which prohibit discrimination in areas not covered by Part 4. NRC, its recipients and contractors are bound by these laws, where applicable; and they are enforced through other regulations (e.g., NRC contracts contain clauses implementing Section 503). Therefore, it was deemed unnecessary to cite Section 503 or any other law which covers an area beyond the scope of Part 4. (e) The State Council finds 5 4.2(c), which states that Part 4 does not apply to "suployment practices under any program or activity except as provided in 5 4.13 and 5 4.122", to be redundant and inappropriate. The Council further states that the tone of that section suggests grudging acquiescence by NRC to the implementation of Section 504. Staff Evaluation Section 4.2 is set out under the General Provisions of Part 4 and is appli-cable to both Subparts A and B. It is necessary to clarify the application of Subparts A and B without the user having to examine the full text of the regulations. The recommendation to exclude Q 4.2(c) was not accepted since this provision clearly enumerates those activities not covered by Part 4. The regulations in Part 4 cover no less than is presently authorized by law, and the NRC can extend the Part's coverage to no more than is legally permitted.
4 (d) The State Council recommends that " recipient" be defined in the regula-tion and that the term " qualified handicapped person" be amended to read "with or without reasonable accanmodation." Staff Evaluation " Recipient" is defined in 6 4.3(h) of Part 4 and, as a General Provision, that definition is applicable to each subpart of Part 4. The staff finds that it is implicit in the regulation that a " qualified handicapped person" is one who can perform the essential functions of the job in question with-out reasonable accommodation as well as with such accommodation. The staff therefore concludes that the recommended change is unwarranted. (e) The State Council recommends that more detailed explanatory language be added to several sections of the proposed regulation. The sections are 4.123 " Reasonable accommodation"; @ 4.124 " Employment criteria"; 5 4.125 "Preemployment inquiries"; 5 4.127 " Existing facilities"; 5 4.128 "New construction"; and 5 4.231 " Responsibility of [ applicants and] recipients". The Council also suggests that recipients should be required to designate a " responsible employee" to ensure canpliance with the regulations; to adopt grievance procedures; and give notice to beneficiaries, participants, employ-ees, and unions that the recipient complies with Section 504.
% Staff Evaluation The staff has adopted most of the recanmended changes to the six sections. The changes are discussed in the preamble to the final rule. Most of the specific language has been extracted from corresponding sections of the Section 504 regulations which HEW has promulgated for its own programs. In adopting these recommended changes, the NRC regulation is more consistent with the regulations of other Federal agencies, particularly those of HEW. The staff has also adopted in the regulations under 5 4.231(f) and 9 4.232 the requirement that recipients designate a responsible employec to coor-dinate compliance with the regulation and give notice to beneficiaries, participants, employees, and unions that the recipient complies with Sec-tion 504. Because of the very limited involvement of NRC in providing Federal finan-cial assistance, the staff did not accept the recommendation that recipients be required to adopt grievance procedures. The staff has concluded that the requirement of establishing grievence procedures would be an undue burden for NRC recipients. Appropriate procedures for the resolution of complaints directly through the NRC are provided by the regulations in il 4.41-4.75. Moreover, we did not accept the recommendations to amend 99 4.125(d)(1) and 4.127(e). It was recommended that 9 4.125(d)(1) be changed to read:
% " Supervisors and managers may be informed only to the extent necessary to apprise them of restrictions on the work or duties of handicapped persons and necessary accanmodations." It was concluded that the language suggested conveyed a thought already implicit in the existing language. With respect to 5 4.127(e), it was recommended that the language be expanded to ensure the availability of information about accessible and usable facilities and services to groups not listed in the subsection. The recommendation was not accepted because the regulation is clear that the groups listed are meant to be only examples. Comment #10. Arabella Martinez, Chairperson United States Architectural and Transportation Barriers Compliance Board Washington, D.C. 20201 (a) The Board recommends that the NRC include in its regulations a state-ment which provides that new construction, including alterations and leases, must comply with the Architectural Barriers Act, and that 5 4.128 should mention that the Architectural Barriers Act requires all new construction and alterations to be accessible and usable. The Boards also recommends that accessibility and usability standards should be specified in 5 4.128. Staff Evaluation Section 4.128, as proposed, requires new facilities to be designed and. constructed in such a way that they are readily accessible to and usable by -
4 _g-handicapped persons. Al terations to existing facilities, to the ma,. :nna extent feasible, are to be made in the same manner. Reference to the appro-priate American National Standards Institute (ANSI) standard has been added to Q 4.128 in accordance with the Board's suggestion that it would be an appropriate standard for accessibility and usability. Current Federal financial assistance programs sponsored by NRC do not fal? w;! Sin the ambit of the Architectural Barriers Act. However, the proposec preamble to the final rule includes a statement that recipients must comply with the Architec-t;ral Barriers Act as implemented by the United States Architectural and Transportation Barriers Compliance Board should NRC in the future fund new construction or alterations to existing facilities. The Board has reviewed the proposed final NRC regulations and has no objection to their publication. (b) It has also been suggested by the Board that examples of " reasonable accommodations" should be added to 5 4.123. S_taf f Evalua tion Examples of reasonable accommodations to the needs of handicapped persons have been adopted from the HEW agency specific regulations and added to 6 4.123. Comment #11: Larry Goldberg, Staff Attorney National Center for Law and the Deaf 7th and Florida Avenue, N.E. Washington, D.C. 20002
A The commenter recommends that 5 4.123 be amended to provide guidance as to what is a reasonable accommodation and what may be a burdensome accommoda-tion. Also recommended were changes to 5 4.127(b) concerning the provision of sign language interpreters and the installation of telecommunications devices (TDDs) and the addition of more explariatory language to E 4.124 concerning employment criteria. Staff Evaluation Section 4.123 has been addressed by several commenters and appropriate changes have been made to provide additional guidance on the meaning of " reasonable accomodation" and standards for detennining " undue hardship." The suggested changes to 5 4.124 also have bean made. The staff, however, does not recommend that the regulations be changed to require recipients to provide sign language interpreters and TDDs. Section 4.123 requires a recipient to make reasonable accommodations to qualified handicapped employ-ees or applicants. In certain instances providing sign language interpreters and TDDs may be reasonable. But the reasonableness of such an accommodation cannot be presumed. It must be determined on a case-by-case basis. To specifically require interpreters and TDDs would necessitate a recipient making such an accennodation whether it was reasonable or not. This would go beyond the intent of 5 504. Comment #12. George M. Brooks, Director Department of Public Safety and Correctional Services Maryland Civil Defense and Disaster Preparedness Agency State of Maryland
4 No comments or objections to the rule as published. Comment #13: Kenneth C. McGuiness, President Equal Baployment Advisory Council Washington, D.C. 20006 The commenter offers several recommendations in regard to the proposed rule: (a) EEAC recommends that the proposed 504 regulations not be finalized until they " reflect the requirements of the 1978 amendments" to the Rehabili-tation Act which, in its view, applies 5 504 to employment discrimination only where the primary objective of Federal financial assistance is to provide employment. The commenter cites as authority for its objection Trageser v. Libbie Rehabilitatit i Center, 590 F.2d 87 (4th Cir.1978), cert.
- denied, U.S.
, 99 S. Ct. 2985 (1979). Staff Evaluation Congress amended Section 504 in 1978 to state that the " remedies, proce-dures, and rights set forth in Title VI of the Civil Rights Act shall be available to any person aggrieved [under Section 504]." The court in Trageser observed that the 1978 amendments made Section 504 coextensive with Title VI of the Civil Rights Act. The court held that since Title VI limits relief in the area of employment discrimination to circumstances where a primary objective of the Federal assistance is to provide employment, relief under the co-extensive Section 504 must be similarly limited.
9, This comment and similar comments made to other Federal agencies have been considered by the former Department of Health, Education, and Welfare (HL s) (now the Department of Health and Human Services). HEW has advised in a recently written opinion that it considers the Trageser decision "poorly reasoned and should not be followed outside of the Fourth Circuit." HEW argues that the legislative history of the 1978 amendments to Section 504 clearly demonstrates that Congress intended only to establish procedural rights of persons aggrieved by violations of Section 504. It does not believe that this amendment to the Act demonstrates Congressional intent to curtail the substantive rights of handicapped persons under Section 504. In light of the lead role granted to that agency by Executive Order 11914, the staff-propose; that the broader proscription in the proposed rule against employment discrimination by any employer receiving NRC financial assistance be maintained in the final rule. (b) EEAC suggested that the finalization of the proposed rule be postponed until inconsistencies between Department of Labor (DOL) regulations imple-menting 503 of the Rehabilitation Act of 1973, as amended, and the HEW-NRC regulations implementing s 504 have been resolved. Staff Evaluation Section 503 of the Rehabilitation Act of 1973, as amended, requires that a party contracting with the Governmer.t for an amount in excess of $2,500 take_ affirmative action with respect to the employment and advancement of quali-
fled handicapped individuals. The commenter (EEAC) represents a broad cross-section of companies and trade associations located throughout the country. They are likely to be Gover1 ment contractors and, therefore, are particularly concerned about D0L regulations which implement section 503. After conferring with the HEW Office of General Counsel, the staff agrees with the HEW position that no significant inconsistencies exist between the regulations implementing the two separate sections of the Rehabilitation Act. Moreover, no objections to the proposed NRC regulations were made by NRC recipients of financial assistance who are also NRC contractors. The staff does not believe a reasonable basis exists for delaying publication of the regulation in final form. Should NRC recipients or contractors call specific problems in this area to our attention in the future, amendment of the regulations will be considered at that time. (c) Proposed 5 4.231 requires recipients to consult with " interested persons" as part of the self-evaluation process, and that all recipients keep records of their self-evaluation. EEAC recommends that the consultation requirement be deleted and recordkeeping be limited to those recipients with 15 or more employees. Staff Evaluation While proposed 9 4.231 required that recipients consult with " interested persons" as part of the self-evaluation process, there was no explicit requirement that records of the self-evaluation be maintained for inspection
by NRC and the public. The final regulation makes it clear that such records must be maintained for a period of three years. It does not limit the recordkeeping requirement to recipients with 15 or more employees. The staff has concluded that these requirements are wholly consistent with the policy and purpose behind section 504. They are modeled, for the most part, on the HEW Guidelines and regulations which are specific to HEW pro-grams. NRC recipients (states and local agencies), have voiced no objection to the self-evaluation requirement. The staff does not believe that main-taining records of such evaluations places a significant additional burden on any of its recipients. By maintaining records of consultations, the recipients will be in a better position to assure NRC of compliance with this portion of the Commission's regulations. Therefore, the commenter's recommendations have not been adopted. (d) EEAC argues that section 504 does not contain a requirement to make " reasonable accommodations" to the needs of "otherwise qualified handicapped individual" and, therefore, 5 4.123 should be deleted from the regulations. Staff Evaluation The requirement to make " reasonable accommodations" is based on the HEW implementation of section 504. The commenter, citing the recent Supreme Court case of Southeastern Community College v. Davis, U.S. , 99 S. Ct. 2361, 47 U.S.L.W. 4689 (1979), attacks the validity of this requirement. The staff believes the final NRC regulation is valid and consistent with the Davis case. In Davis, the Supreme Court noted that "[i]f [ HEW] regulations were to require substantial adjustments in existing programs beyond those necessary to eliminate discrimination against otherwise qualified indivi-duals...they would constitute an unauthorized extension of the obligations imposed by that statute." 47 U.S.L.W. at 4692 [ emphasis supplied.] The NRC regulations do not require substantial adjustments in the administration of its Federal assistance programs. They prohibit discrimination against handicapped persons who, with reasonable accommodation, can perform the essential functions of a job or who meet the essential eligibility require-ments for the receipt of NRC financial assistance. The Court also noted that " identification of those instances where a refusal to accommodate the needs of a disabled person amounts to discrimination against the handicapped continues to be an important responsibility of HEW." Davis at 4693. The NRC regulation requires no more than a reasonable accom-modation of such needs. HEW, in an official opinion forwarded to OELD, has stated that the reasonable accommodation requirement is not inconsistent with Davis and should remain in all agency regulations implementing sec-tion 504. The staff agrees and has therefore retained this requirement.
t s., \\x- \\g A. ' s '.h 3 5,O ( g 'N ,\\ \\ ~)* g s A s. N \\ s ,s.- 3 % g I t k g i s ENCLOSURE B
1. In 10 CFR Part 4 the table of contents and citation of authority are revised to read as follows: PART 4 - NONDISCRIMINATION IN FEDERALLY ASSISTED COMMISSION PROGRAMS GENERAL PROVISIONS Sec. 4.1 Purpose and scope. 4.la Subparts 4.2 Application of this part. 4.3 Definitions 4.4 Canmunications and reports. Subpart A - Regulations Implementing Title VI of the Civil Rights Act of 1964 and Title IV of the Energy Reorganization Act of 1974. DISCRIMINATION PR0HIBITED 4.11 General prohibition. 4.12 Specific discriminatory actions prohibited. 4.13 &nployment practices. 4.14 Medical emergencies. Enclosure "B"
. ASSURANCES REQUIRED 4.21 General requirements. 4.22 Continuing State programs. 4.24 Assurances from institutions. COMPLIANCE INFORMATION 4.31 Cooperation and assistance. 4.32 Compliance reports. 4.33 Access to sources of information. 4.34 Information to bene'iciaries and participants. CONDUCT OF INVESTIGATIONS 4.41 Periodic compliance reviews. 4.42 Complaints. 4.43 Investigations. 4.44 Resolution of matters. 4.45 Intimidatory or retaliatory acts prohibited. HEANS OF EFFECTING COMPLIANCE 4.46 Means available. 4.47 Noncompliance with section 4.21. 4.48 Termination of or refusal to grant or to continue Federal financial assistance. 4.49 Other means authorized by law.
~ OPPORTUNITY FOR HEARING 4.51 Notice of Opportunity for hearing. HEARINGS AND FINDINGS 4.61 Presiding officer. 4.62 Right to counsel. 4.63 Procedures, evidence, and record. 4.64 Consolidated or joint hearings. DECISIONS AND NOTICES 4.71 Initial decision or certification. 4.72 Exceptions and final decision. 4.73 Rulings required. 4.74 Content of orders. 4.75 Post termination proceedings. JUDICIAL REVIEW A.81 Judicial review. EFFECT ON OTHER REGULATIONS; FORMS AND INSTRUCTIONS 4.91 Effect on other regulations. 4.92 Forms and instructions. 4.93 Supervision and coordinat. ion. m
-4_ Subpart B _ Regulations Implementing Section 504 of the Rehabilitation Act of 1973, as amended. 4.1 01 Definitions. DISCRIMINATORY PRACTICES 4.121 General prohibitions against discrimination. 4.122 General prohibitions against employment discrimination. 4.123 Reasonable accommodation. 4.124 Enployment criteria. 4.125 Preemployment inquiries. 4.126 General requirement concerning program accessibili ty. 4.127 Existing facilities. 4.128 New construction. ENFORCEMENT 4.231 Responsibility of applicants and recipients. 4.232 Notice. [Enf67eemeR%-pF0EedWFeS) 4.233 Enforcement procedures. =-
5-Appendix--A Federal Financial Assistance to Which This Part Applies. AUTHORITY: Section 161, Pub. L. 83-703, 68 Stat. 948, as amended (42 U.S.C. 2201); section 274, Pub. L. 86-373, 73 Stat. 688, as amended (42 U.S.C. 2021); section 207. Pub. L_. 95-604, 92_ Stat. 3033; section 201, Pub. L. 93-438, 88 Stat.1242 (42 U.S.C. 5841); Subpart A also issued under sections 602-605, Pub. L. 88-352, 78 Stat. 252, 253 (42 U.S.C. 2000d-1-2000d-4) and section 401, Pub. L. 93-438, 88 Stat.1254 (42 U.S.C. 5891); Subpart B also issued under section 504, Pub. L. 93-112, 87 Sta c. 394 (29 U.S.C. 794); section 111(a), Pub. L. 93-516, 88 Stat.1619 (29 U.S.C. 706); section 119, Pub. L. 95-602, 92 Stat. 2982 (29 U.S.C. 794); and section 122, Pub. L. 95-602, 92 Stat. 2984 (29 U.S.C. 706 (6)). 2. Section 4.la is added and 55 4.1, 4.2, and 4.3(i) are revised to read as follows: GENERAL PROVISIONS 5 4.1 Purpose and scone. The regulations in this part implement: (a) the pro-visions of Title VI of the Civil Rights Act of 1964, Pub. L. 88-352, and Title IV of the Energy Reorganization _ Act of 1974, Pub. L. 93-438, which relate to non-discrimination with respect to race, color, national
origin or sex in any program or activity receiving Federal financial assistance frco NRC; and (b) the provisions of section 504 of the Rehabilitation Act of 1973, as amended, Pub. L. 93-112, Pub. L. 95-602, which relates to nondherimination with respect to the handi-capped in any program or activity receiving Federal financial assistance. 9 4.la Subpa rts. Subpart A sets forth rules applicable to Title VI of the Civil Rights Act of 1964 and Title IV of the Energy Reonjanization Act of 1974. (The Acts are collectively referred to in Subpart A as the "Act"). Subpart B sets forth rules applicable specifically to matters pertaining to section 504 of the Rehabilitation Act of 1973, as amended. 6 4.2 Apolication of this part. This part applies to any program for which Federal financial assistance is authorized under a law admin-istered by NRC. The programs to which this part applies are listed in Appendix A of this part; Appendix A may be revised from time to time by notice published in the __ FEDERAL REGISTER. This part applies to money paid,
. property transferred, or other Federal assistance extended under any program or activity, by way of grant, loan, or contract by NRC, or an authorized contractor or subcontractor of NRC, the terms of which require compli-ance with this part. If any statutes implemented by this part are otherwise applicable, the failure to list a program in Appendix A does not mean the program is not covered by this part. This part does not apply to: (a) Contracts of insurance or guaranty; or (b) Procurement contracts; or (c) Employment practices under any program or activity except as provided in 5 4.13 and 5 4.122. 5 4.3 Definitions. [(1) "Respens4ble-NRG-eff4e4a4"-means-the-Exeeut4ve Direeter-fer-9perat4eRS,-8Rd-the-94 resters-ef Nu e 4 ea r-Ma te r 4 a l-S a fe ty-a n d-S a fe g u a rd s,- Nu s 4 e a r Re a s t e r-Reg u l a t4 e n-a R d -Hu el e a r-Reg u la te ry Researek,-er-any-eff4eer-te-whem-they-have delegated-auther4 ty-te-ast;] ~
. (i) "Resoonsible NRC official" means the Director of the Office of Equal Employment 0poortunity or any other officer to whom the Executive Director for Operations has delecated the authority to act. 3. Immediately following 9 4.4, a new center head is added to read as follows: Subpart A - Regulations Implementing Title VI of the Civil Rights Act of 1964 and Title IV of the Energy Reorganization Act of 1974 4 Section 4.47 is revised to read as follows: 6 4.47 Nonconoliance with @ 4.21. If an applicant fails or refuses to furnish an assurance required under i 4.21 or otherwise fails or refuses to comply with a requirement imposed by or pursuant to that section, Federal financial assistance may be refused in accordance with the procedures of 5 4.48. 5. Sections 4.11, 4.12, 4.13, 4.21, 4.22, 4.31, a.32, 4.33, 4.34, 4.41, 4.42, 4.43, 4.44, 4.45, 4.46, 4.48, 4.49, 4.51, 4.63, 4.64, 4.73, 4.74, 4.75, 4.91, 4.92 and 4.93, are amended by changing "this part", wherever it appears, to "this subpart".
. 6. Appendix A, which now follows 6 4.93, is relocated to follow [5 4.232] Q 4.233. 7. Immediately following 5 4.93, a new subpart B is added to read as follows: Subpart B - Regulations Implementing Section 504 of the Rehabilitation Act of 1973, as amended. 6 4.101 Definitions As used in this subpart: (a) " Handicapped person" means any person who has a physical or mental impairment that substan-tially limits one or more major life activi-ties, has a record of such an impairment, or is regarded as having such an impairment. Such term does not include any individual who is an alcoholic or drug abuser whose current use of alcohol or drugs prevents such indivi-dual from performing the duties of the job in question or whose employment, by reason of such current alcohol or drug abuse, would constitute a direct threat to property or the safety of others.
. (b) As used in paragraph (a) of this section, the phrase: (1) " Physical or rental impairment" means (1) any physiological disorder or condi-tion, cosmetic disfigurement, or anatomi-cal loss affecting one or more of the following body systems: neurological; musculeskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive, genitourinary; 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 condi-tions as orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy. multiple sclerosis, cancer, heart disease, diabetes, mental retardation, and emotional, illness, m
c (2) " Major life activities" means functions such as caring for one's self, perfoming manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. (3) "Has a record of such an impaiment" means has a history of, or has been misclassified as having, a mental or physical impaiment that substantially limits one or more major life activities. (4) "Is regarded as having an impaiment" means (i) has a physical or mental impair-ment that does not substantially limit major life activities but is treated by a recipient as constituting such a limita-tion; (ii) has a physical or mental impaiment that substantially limits major life activities only as a result of the attitudes of others toward such impaiment; or (iii) does not have a physical or mentt .iment but is treated by a recipiei.t as having such 1 an impaiment.
. (c) " Qualified handicapped person" means (1) with respect to employment, a handicapped person who, with reasonable accanmodation, can perform essential functions of the job in question and (2) with respect to services, a handicapped person who meets the essential eligibility requirements for the receipt of such services. (d) "Section 504" means section 504 of the Rehabili-tation Act of 1973, Pub. L. 93-112, as amended by the Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978, Pub. L. 95-602 (29 U.S.C. 794). DISCRIMINATORY PRACTICES 9 4.121 General prohibitions aoainst discrimination. (a) No qualified handicapped person, shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or otherwise be subject to discrimination under any program or activity that receives or benetits from Federal financial assistance. t ~
(b)(1) A recipient, in providing any aid, benefit, or service, may not, directly or through contractual, - licensing, or other arrangements, on the basis of handicap: (1) Deny a qualified handicapped person the oppor-tunity to participate in or benefit from the aid, benefit, or service; (ii) Afford a qualified handicapped person an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others; (iii) Provide a qualified handicapped person with an aid, benefit, or service that is not as effec-tive in affording equal opoortunity 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 aid, benefits, or services to handicapped persons or to any class of handicapped persons than is provided to others unless such action is necessary to_ provide qualified handicapped persons with
- aid, benefits, or services that are as effec-tive as those provided to others; (v) Aid or perpetuate discrimination against a qualified handicapped person by providing significant assistance to any agency, organi-zation, or person that discriminates on the basis of handicap in providing any' aid, benefit, or service to beneficiaries of the recipient's program; (vi) Deny a qualified handicapped person the oppor-tunity to participate as a member of planning or advisory boards; or (vii) Otherwise limit a qualified handicapped person in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service. (2) A recipient may not deny a qualified handicapped person the opportunity to participate in programs or activities that are not separate or different, despite the existence of pennissibly sepahate or_ different programs or activities.
. (3) A recipient may not directly or through contractual or other arrangements, utilize criteria or methods - of administration (i) that have the effect of subjecting qualified handicapped persons to discrimi-nation on the basis of handicap, (ii) that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the recipient's program with respect to handicapped persons, or (iii) that perpetuate the discrimina-tion of another recipient if both recipients are subject to common administrative control or are agencies of the same state. (4) A recipient may not, in determining the site or location of a facility, make selections (1) that have the effect of excluding handicapped persons from, denying them the benefits of, or otherwise subjecting them to discrimination under any program or activity that receives or benefits from Federal financial assistance or (ii) that have the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the program or activity with respect to handicapped persons. M
(c) The exclusion of nonhandicapped persons from the benefits of a program limited by Federal statute or Executive order to handicapped persons or the exclusion of a specific class of handicapped persons from a program limited by Federal statute or Executive order to a different class of handicapped persons is not prohibited by this subpart. (d) Recipients shall administer programs and activities in the most integrated setting appropriate to the needs of qualified handicapped persons. (e) Recipients shall take appropriate steps to ensure that communications with their applicants, employees, and beneficiaries are available to persons with impaired vision and hearing. $ 4.122 General prohibitions aoainst employment discrimination. (a) No qualified handicapped person shall, on the basis of handicap, be subjected to discrimination in employ-ment under any program or activity that receives or benefits from Federal financial assistance. m*
- (b) A recipient shall make all decisions concerning employment under any program or activity to which this subpart applies in a manner which ensures that discrimination on the basis of handicap 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 handicap.
(c) The prohibition against discrimination in employ-ment applies tp the following activ1 ties: (1) P.ecruitment, 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 fonn of compensation and changes in compensation; (4) Job assignments, job classifications, organiza-tional 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 employ-ment, 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 his the effect of subjecting qualified handicapped applicants or employces 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 prograr.s. I 4.123 Reasonable accommodation. (a) A recipient shall make reasonable accommodation to the known physical or mental limitations of an other-wise qualified handicapped applicant or employee unless the recipient can demonstrate that the accom-modation would impose an undue hardship on the opera-tion of its program. (b) Reasonable acccmmodation may include: (1) makino facilities used by emoloyees readily accessible to and usable by handicaoced persons, and (2) job restructurino, part-time or modified work schedules, acouisition or modification of eouipment or devices2 the provision of readers or interpreters, and other similar actions. This list is neither all-inclusive nor meant to succest that an emolover must follow all the actions l'-ted. MW
(c) In detenminino o!rsuant to paracraph (a) of this section whether an accommodation would imoose an ~ undue hardship on the operation of a recipient's procram, factors to be considered include: (1) The overall size of the recipient's orocran with respect to number of employees, number and type of facilities, and size of budoet; (2) The type of the recioient's operations, includina the composition and structure of the recioient's workforce; and (3) The nature and cost of the accommodation needed. (d) A recipient may not deny any employment occortunity to a qualified handicaoped employee or aoolicant if the basis for denial is the need to make reasonable accommodation to the physical or mental limitations of the emoloyee or apolicant. 6 4.124 Employment criteria. [A-ree4pient-may-met-use-employment-tests-er,GF4teF4a that-d4ser4m4 mate-against-hand 4eapped-peFseRs-and-shall ensure-that-empleyment-tests-are-beth-feh-related-and
a d a p ted - fe r-u s e-by-pe PS S RS -Wh 6-h av e -h a R d 46 a p S -th a t 4mpa47-seesery3-meter,-er-speak 4ng-sk444s.] (a) A recipient may not make use of any employment test or other selection criterion that screens out or tends to screen out handicapped Dersons or any class of handicapped persons unless: (1) the test score or other selection criterion as used by the reciof ent is shown to be job-related for the position in cuestion, and (2) alternative job-related tests or criteria that do not screen out or tend to screen out as many handicapped persons are not available. (b) A recipient shall select and administer tests con-cerning employment so as best to ensure that, when administered to an aoplicant or employee who has a handicap that impairs sensory, manual, or speakina skills, the test results accurately reflect the applicant's or employee's job skills, aptitude, or whatever other factor the test purports to measure, rather than reflecting the applicant's or employee's
. imoaired sensory, manual, or soeakino skills (except where those skills are the factors that the test pur-ports to measure). i 4.125 Preemoloyment inouiries. (a) Except as provided in paragraphs (b) and (c) of this section, a recipient may not conduct a pre-employment medical examination or may not make preemployment inquiry of an applicant as to shether the applicant is a handicapped person or as to the nature of severity of a handicap. A recipient may, however, make preemployment inquiry into an appli-cant's ability to perfonn job-related functions. (b) When a recipient is taking remedial action to correct the effects of past discrimination, or 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 affinnative action pursuant to section 503 of the Rehabilita-tion Act of 1973, the recipient may invite appli-cants for employment to indicate whether and to what extent they are handicapped, Provided. That1-
. (1) The recipient makes clear to the applicant [s ta te s -cl e a rly-en-a ny-w r4 tte n-q u e s t4 e R R a 4 re used-fer-th4s-pwrpose-er-makes-elear-eea44y 4f-ne-wr4tten-quest 4enna4re-4s-used] that the infomation requested is intended for use solely in connection with its remedial action obligations or its voluntary or affirmative action efforts; and (2) The recipient makes clear to the applicant [ states-elearly] 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 [er-empicyee] to any adverse treatment, and that it will be used only in accordance with this subpart. (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) Information obtained in accordance with this section as to the medical condition or history of the applicant shall be collected and maintained on separate forms that shall be accorded confidentiality as medical records, except that: (1) Supervisors and managers may be infomed regarding restrictions on the work or duties that may be assigned to handicapped persons and regarding necessary accommodations; (2) First aid and safety personnel may be infomed, where appropriate, if the condition associated with the handicap might require emergency treatment; and (3) Government officials investigating compliance with the Rehabilitation Act of 1973 shall be provided relevant infomation upon request.
9 - 5 4.126 General reauirement concerning proaran accessibility. No qualified handicapped person shall, because a recipient's facilities are inaccessible to or unusable by handicapped persons, be denied the benefits of, be excluded from participation in, or otherwise be sub-jected to discrimination under any program or activity that receives or benefits from Federal financial assistance. 6 4.127 Existina facilities. (a) Proaram Accessibility. A recipient shall operate each program or activity so that the program or activity, when viewed in its entirety, is readily accessible to and usable by handicapped persons. This paragraph does not necessarily require a recipient to make each of its existing facilities or every part of an existing facility accessible to and usable by handicapped persons. (b) Methods. A recipient may comply with the require-ments of paragraph (a) of this section through such means as redesign of equipment, reassignment of classes or other services to accessible buildings, assignment of aides to beneficiaries, home visitsv delivery of health, welfare or other social
. services at alternate accessible sites, alteration of existing facilities and construction of new facilities in conformance with the requirements of 5 4.128 or any other methods that result in making its program or activitity accessible to and usable h handicapped persons. A recipient is not required to make structural changes in existing facilities where other methods are effective in achieving compliance with paragraph (a) of this section. In choosing among available methods for meeting the requirement of paragraph (a) of this section, a recipient shall give priority to those methods that offer programs and activities to handicapped persons in the most integrated setting appropriate. (c) Time period. A recipient shall comply with the requirement of paragraph (a) of this section within 60 days of the effective date of this subpart except that where structural changes in facilities are necessary, the changes are to be made within three years of the effective date of this subpart, but in any event, as expeditiously as possible.
. (d) Transition plan. In the event that structural ~ changes to facilities are necessary to meet the requirement of paragraph (a) of this section, a recipient shall develop, within 6 months of the effective date of this subpart, a transition plan setting forth the steps necessary to complete the changes. The plan is to be developed with the assistance of interested persons, including handi-capped persons or organizations representing handi-capped persons, and the plan is to meet with the approval of the NRC. A copy of the transition plan is to be made available for public inspection. At a minimum, the plan is to: (1) Identify physical obstacles in the recipient's facilities that limit the accessibility and usability of its program or activity to handi-capped persons; (2) Describe in detail the methods that will be used to make the facilities accessible to and usable g handicapped persons; gm*
~ . (3) Specify the schedule for taking the steps necessary to achieve full program accessibility and, if the time period or the transition plan is longer than 1 year, identify steps that will be taken during each year of the transition period; and (4) Indicate the person responsible for implementa-tion of the plan. (e) Notice. The recipient shall adopt and implement procedures to ensure that interested persons, including persons with impaired vision or hearing, can obtain infomation concerning the existence and location of services, activities, and facilities that are accessible to, and usable by, handicapped pe rs ons. 5 4.128 New Construction. (a) New facilities shall be designed and constructed to be readily accessible to and usable by handicapped pe rs ons. Alterations to existing facilities shall, to the maximum extent feasible, be designed and constructed to be readily accessible to and usable-by handicapped persons.
.. Q.. (b) Desian, construction, or alteration of facilities in conformar. e with the "American National Standard Specifications for Makino Buildinas and Facilities Accessible to, and Usable by, the Physically Handi-capped," published by the American National Standards Institute, Inc taNSI A117.1-1961(R1971)), which is incorporated by reference in this subpart, shall consti-tute compliance with paraaraph (a) of this section. Departures from particular requirements of those standards by the use of other methods shall be per-mitted when it is clearly evident that equivalent access to and use of the facility or part of the facility is thereby provided. ENFORCEMENT 5 4.231 Responsibility of Applicants and Reckpients. (a) As su rances. An applicant for Federal financial assistance for a program or activity to which this subpart app?ies shall submit an assurance, on a form specified by the responsible NRC official, that the program will be operated in compliance with the subpart. An applicant may incorporate these assurances by reference in subsequent applications to the NRC. =-
(b) Duration of oblication. The assurance will obligate the recipient for the period during which Federal financial assistance is extended. (c) Remedial action. (1) If the responsible NRC official finds that a recipient has discriminated against persons on the basis of handicao in violation of section 504 or this subpart, the recipient shall take such remedial action as the responsible NRC official deems necessary to overcome the effect of the discrimination. ,(21 Where a recipient is found to have discrimi-nated aoainst persons on the basis of handicao in violation of secticn,504 or this suboart and where another recipient exercises control over the recipient that has discriminated, the respon, sible NRC official, where aporooriate, may recuire either or both recipients to take remedial action. (3) The responsible NRC official may, where necessary to overcome the effects of discrimination in violation of section 504 or this subpart, reauf re a recipient to take remedial action (1) with respect to handicapped persons who are no lon' er partici-o pants in the recipient's program but who wer
- 31 participants in the program when such discrimi-nation occurred or (ii) with respect to handi capped persons who would have been participants in the program had the discrimination not occurred. (d) Voluntary action. A recipient may take steos, in addition to any action that is required by this subcart, to overcome the effects of conditions that resulted in limited participation in the recipient's program or activity by qualified handicapped persons. (e) Sel f-evalua tion. (1) A recipient shall as soon as practicable: (1) Evaluate, with the assistance of inter-ested persons, including handicapped per-sons or organizations representing handi-capped persons, its current policies and practices and the effects thereof that do not or may not meet the requirements of this subpart; (ii) Modify, after consultation with interested persons, includina handicapped persons or
. organizations representina handicapped per-sons, any policies and practices that do not meet the requirements of this subpart; and (iii) Take, after consultation with interested persons, includina handicapped persons or organizations representina handicapped persons, appropriate remedial steps to eliminate the effects of any discrimina-tion that resulted from adherence to those policies and practices _. (2) A recipient shall, for at least three years following completion of the evaluation required under paragraph (e)(1) of this section, maintain on file, make available for public inspection, and provide to the responsible NRC official upon reques t: (1) A list of the interested persons consulted, (ii) a description of areas examined and any problems identified, and (iii) a description of any modifications made and of any remeddal steps taken.
i. (f) Designation of responsible employee. A recipient shall designate at least one person to coordinate ~ its efforts to comply with this suboart. [Reseens4b434ty-ef-ree4pients.] [ A-re s 4 pi e n t-w( 44 -{ a )-s 4 g n - a n-a s s u ra n e e-of-e em p44 a ne ? w4th-seet4en-EQ4-(b)-net 4fy-employees-and-beneficacies 3 of-the4r-r4ghts-under-sest4en-EG4r-(e)-eendwet-a-self-evalwat4eR-ef-s9Apl4anse-W4th-seet4eR-EG4 -W4th-the 3 a s s 4 s ta n s e-ef-4 n t e re s ted-pe rs o ns,-4 n siw ding-ha n d 4 e a pped persens,-er-ergan4 rat 4 ens-represent 4mg-hand 4eapped pe rs e ns i-a n d-( d)- e th e rwi s e -e e n s w i t-wi th-4n te res ted pe rs ens i-4 n el u d4 mg - h a n d 4 e a p p ed-pe rs ens-e r-erg a n 4 r a t4 en s re p r e s e n t 4 n 5 - h a R d i s a p p e d - pe rs e n s y - t e - e f fe s t-e em pI 4 a n s e w4th-seet4en-EG4.] i 4.232 Notice. (a) A recipient shall take appropriate initial and continuing steps to notify participants, bene-ficiaries, applicants, and employees, includina those with impaired vision or hearing, and unions or professional orcanizaticas holding collective bargaining or professional aareements with the recipient that it does not discriminate on the =-
. basis of handicap in violation of section 504 and this subpart. The notification shall state, where appropriate, that the recipient does not discrimi-nate in admission or access to, or treatment or employment in, its programs and activities. The notification shall also include an identification of the responsible snployee designato) pursuant to 6 4.231 (f). A present recipient shall make the initial notification recuired by this paragraph within 90 days of the effective date of this subpart. Methods of initial and continuing notification may include the posting of notices, publication in news-papers and magazines, placement of notices in recip-ients' publications, and distribution of memoranda or other written cunmunications. (b) If a recipient publishes or uses recruitment materials or publications containing aeneral information that it makes available to participants, beneficiaries, appli-cants, or emoloyees, it shall include in those materials or publications a statement of the policy described in paragraph (a) of this section. A recipient may meet the requirement of this paragraph either by including appro-priate inserts in existing materials and publications or by revisino and reprinting the materials and publications.
[4,232] 9 4.233 Enforcement procedures. The enforcement and hearing procedures set forth in SS 4.41-4.75 of Subpart A with respect to discrimination based sex, race, color or national origin shall be used for the enforcement of the regulations in Subpart B with respect to discrimination based on handicap. APPENDIX A--FEDERAL FINANCIAL ASSISTANCE TO WHICH THIS PART APPLIES (e) The Uranium Mill Tailinas Radiation Control Act of 1978, section 207, Pub. L. 95-604, 92 Stat. 3033, authorizes grants to eligible Aareement States to aid in the development of state regulatory proarams to implement those provisions of the Act which amended section 274 of the Atomic Enerav Act of 1954, as amended. Dated at Washington, D.C. this day of ,1979 FOR THE NUCLEAR REGULATORY COMMISSION Samuel J. Chilk Secretary of the Commission i T
9 e t i /,%\\ .. c 7 y ,,i n ' f:. - .v f e ( 1 \\ -f x EllCLOSURE C
NUCLEAR REGULATORY COMMISSION [10 CFR Part 4] NONDISCRIMINATION IN FEDERALLY ASSISTED COMMISSION PROGRAMS Application to the Handicapped AGENCY: U. S. Nuclear Regulatory Commission ACTION: Final Rule
SUMMARY
The Nuclear Regulatory Commission is amending its regulations to implement the requirements of Section 504 of the Rehabilita-tion Act of 1973, as amended. The amendment makes it unlawful for any recipient of Federal financial assistance to discrimi-nate against a qualified handicapped person, on the basis of handicap, in employment or the receipt of services. EFFECTIVE DATE: The amendment becomes effective on
- FOR FURTHER INFORMATION CONTACT: Jay W. Maynard, Office of the Executive Legal Director, U. S. Nuclear Regulatory Commission, Washington, D.C. 20555 (phone: 301-492-8668).
- Insert date 75 days from publication in FEDERAL REGISTER.
Enclosure "C"
.2-SUPPLEMENTARY INFORT1ATION: On May 8,1979, the NRC published for a 60-day comment period a proposed rule (44 FR 26887) to amend its regulations in 10 CFR Part 4. The proposed rule implements Section 504 of the Rehabilitation Act of 1973, as amended, by prohibiting discrimination in federally assisted Commission programs on the basis of a physical or mental handicap. In Executive Order 11914, " Nondiscrimination with Respect to the Handicapped in Federally Assisted Programs," dated April 28, 1976, the President directed that all Federal agencies empowered to provide Federal financial assistance issue rules, regulations, and directives consistent with standards and procedures established by the Secretary of Health, Education and Welfare (HEW). The rule is consistent with that directive and the HEW Guidelines published ir. the FEDERAL REGISTER, January 13, 1978 (43 FR 2131), codified at 45 CFR Part 85. The amendments restructure 10 CFR Part 4 into two subparts. Except for minor changes, Subpart A reflects those regulations previously promulgated by the Commission to implement Title VI of the Civil Rights Act of 1964 and Title IV of the Enenjy Reorganization Act of 1974, which relate to non-discrimination with respect to sex, race, color, or national origin in any program or activity receiving financial assistance from the NRC. The new Subpart B implements Section 504 of the Rehabilitation Act of 1973, as amended, and is Jevoted exclusively to prohibiting discrimination against qualified handicapped persons in employment and in the operation of programs-and activities receiving financial assistance from the NRC.
. The NRC currently provides financial assistance in the form of training programs for state personnel. The training is performed pursuant to Section 274 of the Atomic Energy Act of 1954, as amended, which provides for state assumption of certain areas of NRC regulatory activity. This " Agreement States Program" is designed to improve the state employees' technical and administrative skills as well as develop an understanding and ability to apply regulatory concepts and procedures. NRC also provides financial assistance through programs designed to train state and local government personnel in developing or improving their radiological emergency response plans. More recent authorization for NRC involvement in financial assist-ance derives from the Uraniura Mill Tailings Radiation Control Act of 1978, Pub. L. 95-604, 92 Stat. 3021. Section 207 of the Act authorizes the NRC to provide grants in Fiscal Year 1980 to eligible Agreement States to aid in the development of state regulatory programs which implement certain pro-visions of the Act. Thirteen comment letters were received from state and Federal agencies, educational institutions, and public interest groups. Eight comment letters, primarily from state recipients of NRC financial assistance, contained no objections to the adoption of the rule as proposed. The remaining commenters made a number of suggestions which have been adopted in the final rule. Following is a summary of the principal substantive revisions to the reg-ulations.
The term " responsible NRC official" is used in Subparts A and B of Part 4. To more accurately reflect the present responsibilities within NRC for assuring compliance with Part 4, 6 4.3(i) of the General Provisions has been revised to define " responsible NRC official" as the Director for Equal Employment Opportunity or any other NRC official to whom the Executive Director for Operations has delegated the authority to act under Part 4 of the Commission's regulations. The requirement found in 6 4.123 that recipients make " reasonable accommoda-tion" to the limitations of the handicapped unless the recipient can demon-strate " undue hardship" has been clarified. Subsections (b) and (c) have been added which set forth examples of " reasonable accomodation" and factors to be considered in detennining whether an accommodation would impose an " undue hardship" on the operations of a recipient's program. Subsection (d) also has been added to state explicitly that employment may not be denied to a qualified handicapped employee or applicant if the basis for denial is the need to make reasonable accommodation. Section 4.124, " Employment Criteria," also has been clarified. Subsection (a) now states that job-related employment tests or criteria which screen out handicapped persons may not be used unless alternative job-related tests or criteria that do not have that effect are not available. Subsection (b) requires recipients to ensure that employment tests administered to handi-capped applicants or employees accurately reflect aptitude or other factors _
the tests purport to measure, rather than reflect the applicant's or employee's handicap (except where those impaired skills are the factors that the tests seek to measure). Subsection (b) of 9 4.128 is a new provision. It states that the American National Standards Institute specification ANSI A117.1-1961 (R1971) may be utilized in coaplying with the requirement in subsection (a) that new facilities and, to the maximum extent feasible, alterations to existing facilities be constructed so that they are readily accessible to and usable by handicapped persons. Federal financial assistance which the NRC currently provides does not include assistance for construction or alteration of facilities by recipients. Should NRC fund such assistance in the future, recipients will be required to comply with the provisions of Section 504 as well as the Archite.tural Barriers Act (42 USC 55 4151 etseq.),asimple-mented by the Architectural and Transportation Barriers Compliance Board. Section 4.231 has been divided into six subsections. Subsections (a)and (b) clarify that the assurance of compliance submitted by a recipient will obligate the recipient for the period during which financial assistance is extended and allow the assurance to be incorporated by reference in a subse-quent application for assistance. Subparagraph (c) makes clear a recipient's responsibility to take remedial action when the responsible NRC official finds a violation of Section 504 or Subpart B of Part 4 of the Commission's regulations. Where another recipient exercises control wer the recipient that has discriminated, the responsible official may require either or both
o recipients to take remedial action. Remedial action may be required with respect to fomer participants in the recipient's program or persons who would have been participants had the discrimination not occurred. Subsec-tion (d) clarifies that a recipient may voluntarily undertake action to overcome effects of limited participation of handicapped persons in the recipient's program without a fomal finding of discrimination by the responsible NRC official. Subsection (e) adds the requirement that the records of self-evaluations conducted by recipients shall be maintained for public and NRC inspection for a period of three years and specifies the contents of those records. Subsection (f) requires each recipient to designate at least one person to coordinate its efforts to comply with Subpart 8 of Part 4. The notice requirement of 5 4.231 of the proposed rule has been expanded and relocated in 9 4.232. Those who must be notified that the recipient does not discriminate on the basis of handicap now include participants in federally assisted programs, applicants, and unions or professional organizations holding collective bargaining or professional agreements with recipients. The section also sets forth approved methods for providing notice; certain provisions which must be included in the notice; and g utdance with respect to certain materials published by recipients of Federal assistance. Several comments were made which did not result in changes to the final rule. One commenter urged that the self-study requirements in the proposed regulations be met by prior self-studies completed for other Federal agencies. The NRC will accept prior self-studies comple' for other Federal agencies 4
to the extent they encompass the programs and activities which receive NRC financial assistance and otherwise satisfy NRC requirenents. It was not believed necessary to change the rule to incorporate the comment because the rule does not prohibit the use of such self-evaluations. Another commenter recommended that the proposed 504 regulations not be finalized until they " reflect the requirements of the 1978 amendments" to the Rehabilitation Act, which according to the commenter, applies Section 504 to employment discrimination only where the primary objective of Federal financial assistance is to provide employment. The commenter cited as authority for its objection the ruling of the Fourth Circuit Court of Appeals in "Trageser v. Libbie Rehabilitation Center, Inc." 590 F.2d 87 (4th Cir. 1978), cert. denied U.S. , 99 S.Ct. 2985 (1979). Congress amended Section 504 in 1978 to state that the " remedies, proce-dures, and rights set forth in Title VI of the Civil Rights Act of 1964 shall be available to any person aggrieved [under Section 504]." The court in "Trageser" observed that the 1978 amendments made Section 504 coextensive with Title VI of the Civil Rights Act. The court held that since Title VI limits relief in the area of employment discrimination to circumstances where a primary objective of the Federal assistance is provide employment, relief under the coextensive Section 504 must be similarly limited. This comment and similar comments made to other Federal agencies have been considered by the fomer Department of Health, Education, and Welfare (HEW)
e' (now the Department of Health and Human Services). HEW has advised in a recently written opinion that it considers the "Trageser" decision "poorly reasoned and should not be followed outside the Fourth Circuit...." HEW argues that the legislative history of the 1978 amendments to Section 504 clearly demonstrates that Congress intended to establish only procedural rights of persons aggrieved by violations of Section 504. It does not believe that this amendment to the Act demonstrates Congressional intent to curtail the substantive rights of handicapped persons under Section 504. In light of the lead role granted to that agency by Executive Order 11914, the NRC has decided not to change its regulations in this area from those which were originally proposed. Changes to the proposed regulations are summarized as follows: 1. The definition of " Responsible NRC official" in 9 4.3 has been amended. 2. Subsections (b), (c), and (d) have been added to 9 4.123. 3. Sectioa 4.124 has been revised and divided into two paragraphs. 4. The language of subsections 4.125(b) and 4.127(b) and (d) has been clarified. 5. A new paragraph (b) has %en added to 9 4.128.
.:\\ 6. Section 4.231 has been expanded and divided into six subsections. 7. The notice provision formerly found in 5 4.231 has been revised and renumbered as 5 4.232. 8. Section 4.232 in the proposed rule regarding enforcement procedures has been renumbered and appears as 5 4.233 in the final rule. 9. Appendix A has been revised to reflect NRC financial assistance which is granted under the authority of the Uranium Mill Tailings Radiation Coctrol Act of 1978. The final rule has been reviewed by the Office of Civil Rights, HEW; Office of Interagency Coordination, Equal Employment Opportunity Commission; and the Architectural and Transportation Barriers Compliance Board. Pursuant to the Atomic Energy Act of 1954, as amended, the Energy Reorgani-zation Act of 1974, as amended, and 55 522 and 553 of Title 5 of the United States Code, the following amendments to Title 10, Chapter 1, Code of Federal Regulations, Part 4, are published as a document subject to codification. _}}