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This rule would propose to amend the Department's regulations implementing section 504 of the Rehabilitation Act of 1973, as amended, 28 CFR part 39 and part 42, subpart G, and its regulation implementing Executive Order 12250, 28 CFR part 41, to reflect statutory amendments to the definition of disability applicable to section 504 of the Rehabilitation Act, which were enacted in the ADA Amendments Act of 2008, Public Law 110-325, 122 Stat. 3553 (Sep. 25, 2008). The ADA Amendments Act took effect on January 1, 2009. The ADA Amendments Act revised 29 U.S.C. section 705, to make the definition of disability used in the nondiscrimination provisions in title V of the Rehabilitation Act consistent with the amended ADA requirements. These amendments (1) add illustrative lists of "major life activities," including "major bodily functions," that provide more examples of covered activities and covered conditions than are now contained in agency regulations (sec. 3[2]); (2) clarify that a person who is "regarded as" having a disability does not have to be regarded as being substantially limited in a major life activity (sec. 3[3]); and (3) add rules of construction regarding the definition of disability that provide guidance in applying the term "substantially limits" and prohibit consideration of mitigating measures in determining whether a person has a disability (sec. 3[4]). The Department anticipates that these changes will be published for comment in a proposed rule within the next 12 months. During the drafting of these revisions, the Department will also review the currently published rules to ensure that any other legal requirements under the Rehabilitation Act have been properly addressed in these regulations.

Statement of Need:

This rule is necessary to bring the Department's prior section 504 regulations into compliance with the ADA Amendments Act of 2008, which became effective on January 1, 2009.

Summary of the Legal Basis:

The summary of the legal basis of authority for this regulation is set forth above in the abstract.

Alternatives:

Because this NPRM implements statutory changes to the section 504 definition of disability, there are no appropriate alternatives to issuing this NPRM.

Anticipated Costs and Benefits:

The Department's preliminary assessment in this early stage of the rulemaking process is that this rule will not be "economically significant," that is, that the rule will not have an annual effect on the economy of $100 million, or adversely affect in a material way the economy, a sector of the economy, the environment, public health or safety or State, local or tribal Governments or communities. The Department's section 504 rule will incorporate the same changes made by the ADA Amendments Act to the definition of disability as are included in the proposed changes to the ADA title II and title III rules (1190-AA59), which will be published in the Federal Register in the near future. Therefore, we do not believe that the revisions to the Department's existing section 504 federally assisted regulations will have any additional economic impact, because public and private entities that receive federal financial assistance from the Department are also likely to be subject to titles II or III of the ADA. The Department expects to consider further the economic impact of the proposed rule on the Department's existing section 504 federally conducted regulations, but anticipates that the rule will not be economically significant within the meaning of Executive Order 12866. This is because the revisions to these regulations will only apply to the Department's programs and activities and how those programs and activities are operated so as to ensure compliance with the nondiscrimination requirements of section 504. In the NPRM, the Department will be soliciting public comment in response to its initial assessment of the impact of the proposed rule.

Risks:

Failure to update the Department's section 504 regulations to conform to statutory changes will interfere with the Department's enforcement efforts and lead to confusion about the law's requirements among entities that receive Federal financial assistance from the Department or who participate in its federally conducted programs.