[Congressional Record Volume 162, Number 20 (Wednesday, February 3, 2016)]
[House]
[Pages H557-H565]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     NOTICE OF PROPOSED RULEMAKING

                                                    U.S. Congress,


                                         Office of Compliance,

                                 Washington, DC, February 3, 2016.
     Hon. Paul D. Ryan,
     Speaker of the House of Representatives,
     Washington, DC.
       Dear Mr. Speaker: Section 304(b)(3) of the Congressional 
     Accountability Act (``CAA''), 2 U.S.C. Sec. 1384(b)(3), 
     requires that, with regard to substantive regulations under 
     the CAA, after the Board of Directors of the Office of 
     Compliance (``Board'') has published a general notice of 
     proposed rulemaking as required by subsection (b)(1), and 
     received comments as required by subsection (b)(2), ``the 
     Board shall adopt regulations and shall transmit notice of 
     such action together with a copy of such regulations to the 
     Speaker of the House of Representatives and the President pro 
     tempore of the Senate for publication in the Congressional 
     Record on the first day on which both Houses are in session 
     following such transmittal.''
       The Board has adopted the regulations in the Notice of 
     Adoption of Substantive Regulations and Transmittal for 
     Congressional Approval which accompany this transmittal 
     letter. The Board requests that the accompanying Notice be 
     published in the House version of the Congressional Record on 
     the first day on which both Houses are in session following 
     receipt of this transmittal.
       The Board has adopted the same regulations for the Senate, 
     the House of Representatives, and the other covered entities 
     and facilities, and therefore recommends that the adopted 
     regulations be approved by concurrent resolution of the 
     Congress.
       All inquiries regarding this notice should be addressed to 
     Barbara J. Sapin, Executive Director of the Office of 
     Compliance, Room LA-200, 110 2nd Street, SE, Washington, DC 
     20540; (202) 724-9250.
           Sincerely,

                                            Barbara L. Camens,

                                  Chair of the Board of Directors,
                                             Office of Compliance.

        From the Board of Directors of the Office of Compliance


     NOTICE OF ADOPTION OF REGULATIONS AND SUBMISSION FOR APPROVAL

 Regulations Extending Rights and Protections Under the Americans with 
      Disabilities Act (``ADA'') Relating to Public Services and 
 Accommodations, Notice of Adoption of Regulations and Submission for 
     Approval as Required by 2 U.S.C. Sec. 1331, the Congressional 
           Accountability Act of 1995, as Amended (``CAA'').

                                Summary:

       The Congressional Accountability Act of 1995, PL 104-1 
     (``CAA''), was enacted into law on January 23, 1995. The CAA, 
     as amended, applies the rights and protections of thirteen 
     federal labor and employment statutes to covered employees 
     and employing offices within the legislative branch of the 
     federal government. Section 210 of the CAA provides that the 
     rights and protections against discrimination in the 
     provision of public services and accommodations established 
     by Titles II and III (sections 201 through 230, 302, 303, and 
     309) of the Americans With Disabilities Act of 1990, 42 
     U.S.C. Sec. Sec. 12131-12150, 12182, 12183, and 12189 
     (``ADA'') shall apply to legislative branch entities covered 
     by the CAA. The above provisions of section 210 became 
     effective on January 1, 1997. 2 U.S.C. Sec. 1331(h).
       The Board of Directors, Office of Compliance, after 
     considering comments to its Notice of Proposed Rulemaking 
     (``NPRM'') published on September 9, 2014 in the 
     Congressional Record, has adopted, and is submitting for 
     approval by the Congress, final regulations implementing 
     section 210 of the CAA.
       For further information contact: Executive Director, Office 
     of Compliance, Room LA 200, John Adams Building, 110 Second 
     Street SE, Washington, D.C. 20540-1999. Telephone: (202) 724-
     9250.

                       Supplementary Information:

     Background and Summary
       Section 210(b) of the CAA provides that the rights and 
     protections against discrimination in the provision of public 
     services and accommodations established by the provisions of 
     Titles II and III (sections 201 through 230, 302, 303, and 
     309) of the Americans With Disabilities Act of 1990, 42 
     U.S.C. Sec. Sec. 12131-12150, 12182, 12183, and 12189 
     (''ADA'') shall apply to specified legislative branch 
     offices. 2 U.S.C. Sec. 1331(b). Title II of the ADA prohibits 
     discrimination on the basis of disability in the provision of 
     services, programs, or activities by any ``public entity.'' 
     Section 210(b)(2) of the CAA defines the term ``public 
     entity'' for Title II purposes as any of the listed 
     legislative branch offices that provide public services, 
     programs, or activities. 2 U.S.C. Sec. 1331(b)(2). Title III 
     of the ADA prohibits discrimination on the basis of 
     disability by public accommodations and requires places of 
     public accommodation and commercial facilities to be 
     designed, constructed, and altered in compliance with the 
     accessibility standards.
       Section 210(e) of the CAA requires the Board of Directors 
     of the Office of Compliance to issue regulations implementing 
     Section 210. 2 U.S.C. Sec. 1331(e). Section 210(e) further 
     states that such regulations ``shall be

[[Page H558]]

     the same as substantive regulations promulgated by the 
     Attorney General and the Secretary of Transportation to 
     implement the statutory provisions referred to in subsection 
     (b) of this section except to the extent that the Board may 
     determine, for good cause shown and stated together with the 
     regulation, that a modification of such regulations would be 
     more effective for the implementation of the rights and 
     protections under this section.'' Id. Section 210(e) further 
     provides that the regulations shall include a method of 
     identifying, for purposes of this section and for different 
     categories of violations of subsection (b), the entity 
     responsible for correction of a particular violation. 2 
     U.S.C. Sec. 1331(e)(3). On September 9, 2014, the Board 
     published in the Congressional Record a NPRM, 160 Cong. Rec. 
     H7363 & 160 Cong. Rec. S5437 (daily ed., Sept. 9, 2014). In 
     response to the NPRM, the Board received four sets of written 
     comments. After due consideration of the comments received in 
     response to the proposed regulations, the Board has adopted 
     and is submitting these final regulations for approval by 
     Congress.
     Summary of Comments and Board's Adopted Rules
       A. Request for additional rulemaking proceedings.
       One commenter requested that the Board withdraw its 
     proposed regulations and ``create'' new regulations. The 
     commenter suggested that the Board's authority to adopt 
     regulations does not include the authority to incorporate 
     existing regulations by reference and also suggested that the 
     Board would be adopting future changes to the incorporated 
     regulations unless it specified that the regulations in 
     existence on the adoption date were the ones being 
     incorporated rather than the regulations in existence on the 
     issuance date (which was proposed in the NPRM and occurs 
     after Congress has approved the regulations). The Board has 
     determined that further rulemaking proceedings are not 
     required because the publication requirements of Section 
     304(b)(1) of the CAA, which requires compliance with 5 U.S.C. 
     Sec. 553(b), is satisfied by incorporating ``material readily 
     available to the class of persons affected'' by the proposed 
     regulation. See, 5 U.S.C. Sec. 552(a)(1)(E). Nonetheless, in 
     response to this comment, the Board has modified the proposed 
     regulation to incorporate the regulations in existence on the 
     adoption date rather than the issuance date. In addition, to 
     further avoid any confusion, the adopted regulations require 
     that the full text of the incorporated regulations be 
     published on the Office of Compliance website.
       B. General comments regarding proposed regulations.
     1. Compliance with both Titles II and III of the ADA.
       Several commenters questioned whether it was necessary to 
     adopt regulations under both Title II and Title III when 
     Title II typically applies only to public entities and Title 
     III typically applies only to private entities. Section 210 
     of the CAA can be confusing because it requires legislative 
     branch offices (which are ``public entities''') to comply 
     with sections of the ADA that are part of both Title II and 
     Title III. Ordinarily, as the commenters suggested, the major 
     distinction between Title II and Title III of the ADA is that 
     Title II solely applies to public entities while Title III 
     solely applies to private entities that are considered public 
     accommodations. In contrast, under the CAA, the legislative 
     branch offices listed in Section 210(a) must comply with 
     Sections 201 through 230 of Title II of the ADA and Sections 
     302, 303 and 309 of Title III of the ADA. 42 U.S.C. 
     Sec. 1331(b)(1). For purposes of the application of Title II 
     of the ADA, the term ``public entity'' means any of these 
     legislative branch offices. 42 U.S.C. Sec. 1331(b)(2). For 
     the purposes of Title III of the ADA, the CAA does not 
     incorporate the definitions contained in Section 301 of Title 
     III, which limits the application of Title III to private 
     entities which own, operate, lease or lease to places of 
     public accommodation. Consequently, since the CAA expressly 
     applies Title III to legislative branch offices that are 
     ``public entities,'' those offices must at all times provide 
     services, programs and activities that are in compliance with 
     Title II of the ADA and, when those services, programs, 
     activities or accommodations are provided directly to the 
     public (as in places of public accommodations), they must 
     also comply with Sections 302, 303 and 309 of Title III of 
     the ADA. In other words, services, programs and activities 
     that involve constituents and other members of the public 
     must comply with both Titles II and III of the ADA, while 
     those services, programs and activities that are not open or 
     available to the public must only comply with Title II (and 
     Title I when employment practices are involved).
       As noted in the NPRM, Congress applied provisions of both 
     Title II and Title III of the ADA to legislative branch 
     offices to ensure that individuals with disabilities are 
     provided the most access to public services, programs, 
     activities and accommodations provided by law. To that end, 
     the NPRM proposed an admittedly simple rule for deciding 
     which regulation applies when there are differences between 
     the applicable Title II and Title III regulations: the 
     regulation providing the most access shall be followed. In 
     response to the concerns expressed by the commenters, the 
     Board has further reviewed the Title II and III regulations 
     and determined that, when the regulations address the same 
     subject, compliance with the applicable Title II regulation 
     will be sufficient to meet the requirements of both Title II 
     and Title III. For this reason, and to eliminate the 
     potential confusion expressed by the commenters, the Board 
     has adopted only the DOJ's Title II regulation when the DOJ's 
     Title II and Title III regulations address the same subject.
     2. Providing services, programs, activities or accommodations 
         directly to the public out of a leased space.
       Several commenters raised questions regarding how the 
     regulations would be applied when a legislative branch office 
     is leasing space from a private landlord. Under the ADA 
     regulations (both Title II and Title III), the space being 
     leased, the building where it is located, the building site, 
     the parking lots and the interior and exterior walkways are 
     all considered to be ``facilities.'' If the facility is being 
     used to meet with members of the public, under the CAA, the 
     facility is a place of public accommodation operated by a 
     public entity and therefore the office must meet the 
     obligations imposed by those sections of Titles II and III of 
     the ADA applied to legislative branch entities under the CAA. 
     Because the private landlord is leasing a facility to a place 
     of public accommodation, the private landlord will also have 
     to comply with the DOJ's Title III regulations, subject to 
     enforcement by the DOJ or by an individual with a disability 
     through legal action. The private landlord is not covered by 
     the CAA.
       Under the DOJ regulations that are incorporated by the 
     adopted regulations, the obligations imposed by Title II and 
     Title III differ depending upon when the leased facility was 
     constructed. Entities covered by either Title II or Title III 
     of the ADA (or both) must have designed and constructed their 
     facilities in strict compliance with the applicable ADA 
     Standards for Accessible Design (ADA Standards) if they were 
     constructed after January 26, 1992. This means that both 
     landlords and tenants are legally obligated to remove all 
     barriers to access in such leased facilities caused by 
     noncompliance with the applicable ADA Standards. Alterations 
     made after January 26, 1992 to facilities constructed before 
     January 26, 1992 must also be in compliance with the ADA 
     Standards to the maximum extent feasible, and any alterations 
     made to primary function areas after this date trigger a 
     separate obligation to make the path of travel to those areas 
     accessible to the extent that it can be made so without 
     incurring disproportionate costs. If barriers to access exist 
     in these alterations and in the path of travel to altered 
     primary function areas, both the landlord and the tenant are 
     legally obligated to remove those barriers. The regulations 
     allow consideration of the provisions of the lease to 
     determine who is primarily responsible for performing the 
     barrier removal work; \1\ however, because the legal duty is 
     jointly imposed upon both of the parties, legal liability for 
     any violation cannot be avoided by a private contract.\2\
       All entities covered by Title III of the ADA who are 
     lessors or lessees of facilities that were both constructed 
     after January 26, 1992, and not altered since that date, must 
     remove access barriers if such removal is ``readily 
     achievable.'' 42 U.S.C. Sec. 12182(b)(2)(A)(iv), 28 C.F.R. 
     Sec. 36.304. The phrase ``readily achievable'' means ``easily 
     accomplishable and able to be carried out without much 
     difficulty or expense.'' 42 U.S.C. Sec. 12181(9); 28 C.F.R. 
     Sec. 36.304(a). Examples of ``readily achievable'' steps for 
     removal of barriers include: installing ramps; making curb 
     cuts in sidewalks and entrances; repositioning shelves, 
     furniture, vending machines, displays, and telephones; adding 
     raised markings and elevator control buttons; installing 
     visual alarms; widening doors; installing accessible door 
     devices; rearranging toilet partitions to increase 
     maneuvering space; raising toilet seats; and creating 
     designated accessible parking spaces. 28 C.F.R. 
     Sec. 36.304(b).
       Because legislative branch offices are ``public entities'' 
     that must always comply with Title II of the ADA, these 
     offices must also operate each of their services, programs 
     and activities so that the service, program or activity, when 
     viewed in its entirety, is readily accessible to and usable 
     by individuals with disabilities. 28 C.F.R. Sec. 35.150(a). 
     While this requirement does not usually require a public 
     entity to make each of its existing facilities accessible and 
     usable by individuals with disabilities [28 C.F.R. 
     Sec. 35.150(a)(1)], a public entity must ``give priority to 
     those methods that offer services, programs, and activities 
     to qualified individuals with disabilities in the most 
     integrated setting appropriate'' when choosing a method of 
     providing readily accessible and usable services, programs 
     and activities. While structural changes in existing 
     facilities are not required when the public entity can show 
     that other methods are effective in meeting this access 
     requirement, when a public entity is renting solely one 
     facility in a locality, the only practical method of 
     providing accessibility is to make sure that this leased 
     facility is readily accessible. When a legislative branch 
     office has only one facility in a particular locality and 
     uses that facility to conduct meetings with constituents, it 
     can be difficult, if not impossible, for that office to show 
     that each of its programs, services and activities meet the 
     accessibility requirements of 28 C.F.R. Sec. 35.150 when that 
     facility is not readily accessible. Constituents using 
     wheelchairs who are unable to attend meetings at a local 
     Congressional office because the facility is not readily 
     accessible do not

[[Page H559]]

     find that each of the office's services, programs or 
     activities, when viewed in its entirety, is readily 
     accessible or usable by them. Offices are usually placed in a 
     locality so that staff can meet personally with constituents 
     who live nearby. Nearby constituents using wheelchairs who 
     find that they cannot personally participate in such meetings 
     upon reaching the facility are effectively being denied the 
     access being provided to other constituents.
       Because the adopted regulations adequately explain the 
     rights and responsibilities of the parties involved in 
     leasing facilities to public entities or public 
     accommodations, the adopted regulations contain no changes 
     based upon these comments.
     3. Access requirements in rural and urban areas.
       One commenter suggested that the Board should recognize 
     that the access requirements in rural areas differ from those 
     in urban areas and should therefore adopt regulations that 
     recognize this distinction. The ADA is a civil rights statute 
     and not a building code, although it is sometimes mistakenly 
     viewed as one. While alterations and construction in rural 
     areas may not be regulated by local building codes, under the 
     ADA, the individuals with disabilities living in those areas 
     are entitled to the same rights and protections as those 
     living in urban areas. This means that public entities and 
     public accommodations must comply with the same applicable 
     ADA access requirements regardless of their location. For 
     this reason, following the DOJ and DOT, the Board has not 
     made any changes in the proposed regulations to reflect 
     distinctions between rural and urban areas.
       4. Accessibility requirements for leased facilities.
       In the NPRM, the Board proposed adoption of an Access Board 
     regulation based on 36 C.F.R. Sec.  1190.34 (2004) which 
     since July 23, 2004 has been incorporated into the Access 
     Board's Architectural Barriers Act Accessibility Guidelines 
     (``ABAAG''). This regulation provides that buildings and 
     facilities leased with federal funds shall contain certain 
     specified accessible features. Buildings or facilities leased 
     for 12 months or less are not required to comply with the 
     regulation as long as the lease cannot be extended or 
     renewed.
       The Access Board's leasing regulation implements a key 
     provision of the Architectural Barriers Act (``ABA'') which 
     Congress originally passed in 1968 and amended in 1976. The 
     ABA was originally enacted ``to insure that all public 
     buildings constructed in the future by or on behalf of the 
     Federal Government or with loans or grants from the Federal 
     Government are designed and constructed in such a way that 
     they will be accessible to and usable by the physically 
     handicapped.'' S.Rep. No. 538, 90th Cong., 1st Sess., 
     reprinted in 1968 U.S. Code Cong. & Admin. News 3214, 3215. 
     Prior to being amended in 1976, the ABA covered only leased 
     facilities that were ``to be leased in whole or in part by 
     the United States after [August 12, 1968], after construction 
     or alteration in accordance with plans and specifications of 
     the United States.'' Pub. L. No. 90-480 Sec. 1, 82 Stat. 718 
     (1968). In 1975, the GAO issued a report to Congress entitled 
     Further Action Needed to Make All Buildings Accessible to the 
     Physically Handicapped which found that ``leased buildings 
     were consistently more inaccessible [than federally-owned 
     buildings] and posed the most serious problems to the 
     handicapped'' and further found that ``[s]ince the Government 
     leases many existing buildings without substantial 
     alteration, the [ABA's] coverage is incomplete to the extent 
     that those buildings are excluded.'' Comptroller General, 
     Further Action Needed to Make All Buildings Accessible to the 
     Physically Handicapped (July 15, 1975) at 25, 28. In response 
     to the GAO Report, Congress amended the ABA by deleting the 
     phrase ``after construction or alteration in accordance with 
     plans and specifications of the United States'' thereby 
     providing coverage for all buildings and facilities ``to be 
     leased in whole or in part by the United States after 
     [January 1, 1977].'' The House Report accompanying the bill 
     that became law described the purpose of the 1976 Amendments 
     as being to ``assure more effective implementation of the 
     congressional policy to eliminate architectural barriers to 
     physically handicapped persons in most federally occupied or 
     sponsored buildings.'' H.R. Rep. No. 1584--Part I, 94th 
     Cong., 2d Sess. 1 (1976). The hearings on the bill also make 
     it clear that Congress amended the ABA in 1976 to close the 
     loophole through which inaccessible buildings and facilities 
     were leased without alteration. See, Public Buildings 
     Cooperative Use: Hearings on HR 15134 Before the Subcommittee 
     on Public Buildings and Grounds of the House Committee on 
     Public Works and Transportation, 94th Cong., 2d Sess. 107 
     (1976) (statement of Representative Edgar).
       Consequently, since 1976, a hallmark of federal policy 
     regarding people with disabilities has been to require 
     accessibility of buildings and facilities constructed or 
     leased using federal funds. Although, in the CAA, Congress 
     required legislative branch compliance with only the public 
     access provisions of the ADA rather than the Rehabilitation 
     Act of 1973 or the ABA, the ADA itself was enacted in 1990 to 
     expand the access rights of individuals with disabilities 
     beyond what was previously provided by the Rehabilitation Act 
     and the ABA. One of the sections of the ADA that Congress 
     incorporated into the CAA is Section 204. Section 204 
     requires that the regulations promulgated under the ADA with 
     respect to existing facilities ``shall be consistent'' with 
     the regulations promulgated by the DOJ in 28 C.F.R. Part 39. 
     42 U.S.C. Sec. 12134(b). Under 28 C.F.R. Sec. 39.150(b), a 
     covered entity is required to meet accessibility requirements 
     to the extent compelled by the Architectural Barriers Act of 
     1968, as amended, and any regulations implementing it.
       As several commenters noted, when the DOJ promulgated its 
     ADA regulations in 1991, it stated in its guidelines that it 
     had intentionally omitted a regulation that required public 
     entities to lease only accessible facilities because to do so 
     ``would significantly restrict the options of State and local 
     governments in seeking leased space, which would be 
     particularly burdensome in rural or sparsely populated 
     areas.'' 29 C.F.R. Pt. 35, App. B Sec. 35.151. In these same 
     guidelines, however, the DOJ also noted that, under the 
     Access Board's regulations, the federal government may not 
     lease facilities unless they meet the minimum accessibility 
     requirements specified in 36 C.F.R. Sec. 1190.34 (2004) (and 
     now in ABAAG Sec. F202.6). This is true even if the facility 
     is located in rural or sparsely populated areas. None of the 
     commenters provided any specific examples of how complying 
     with a regulation regarding leased facilities otherwise 
     applicable to the federal government would be unduly 
     burdensome. Since the supply of accessible facilities has 
     increased during the past twenty-four years through 
     alterations and new construction, the burdensomeness of this 
     regulation is certainly much less than it was in 1991.
       A commenter also noted that under the current House rules a 
     Member may not use representational funds to obtain 
     reimbursement for capital improvements and this might affect 
     the removal of barriers in facilities that are inaccessible. 
     However, the proposed regulation does not require that any 
     Member specifically pay for capital improvements. Instead, 
     prior to entering into a lease with a Member for a facility 
     that is in need of alterations to meet the minimum 
     accessibility requirements, the landlord is obligated to make 
     the needed alterations as a condition of doing business with 
     Congress. While it is likely that the landlord will recover 
     some of the costs associated with these alterations by 
     increasing the rent paid by federal tenants, Congress 
     determined when it amended the ABA to provide coverage for 
     all leased facilities that the increased cost associated with 
     requiring the federal government to lease only accessible 
     facilities would be minimal and well worth the benefit gained 
     by improving accessibility to all federal facilities. H.R. 
     Rep. No. 1584--Part II, 94th Cong., 2d Sess. 9, reprinted in 
     1976 U.S. Code Cong. & Admin. News 5566, 5571-72. In the 
     NPRM, the Board noted that the most common ADA public access 
     complaint received by the OOC General Counsel from 
     constituents relates to the lack of ADA access to spaces 
     being leased by legislative branch offices. Given the 
     frequency of these complaints and the clear Congressional 
     policy embodied in the ABA requiring leasing of only 
     accessible spaces by the United States, the Board found good 
     cause to propose adoption of the Access Board's regulation 
     formerly known as 36 C.F.R. Sec. 1190.34 (2004) and now known 
     as Sec. F202.6 of the ABAAG and the ABAAS. Because, under CAA 
     Sec. 210(e)(2), the OOC Board of Directors (``the Board'') is 
     authorized to propose a regulation that does not follow the 
     DOJ regulations when it determines ``for good cause shown and 
     stated together with the regulation, that a modification of 
     such regulations would be more effective for the 
     implementation of the rights and protections under this 
     section,'' the Board has decided to require the leasing of 
     accessible spaces as required in Sec. F202.6 of the ABAAS.
       5. Regulations regarding the investigation and prosecution 
     of charges of discrimination and regarding periodic 
     inspections and reporting.
       Several commenters suggested that the regulations in Part 
     2, regarding the investigation and prosecution of charges of 
     discrimination, and in Part 3, regarding periodic inspections 
     and reporting, describe powers of the General Counsel that 
     are beyond what is provided in the CAA. These commenters 
     suggested that, under the CAA, the General Counsel does not 
     have the discretion to determine how to conduct 
     investigations and inspections nor the authority to act upon 
     ADA requests for inspection from persons who request 
     anonymity or persons who do not identify themselves as 
     disabled.
       Section 210(d) of the CAA requires the General Counsel to 
     accept and investigate charges of discrimination filed by 
     qualified individuals with disabilities who allege a 
     violation of Section 210 of the CAA by a covered entity. The 
     CAA provides no details regarding how charges shall be 
     investigated. Similarly, while Section 210(f) of the CAA 
     requires that the General Counsel, on a regular basis, at 
     least once each Congress, inspect the facilities of covered 
     entities to ensure compliance with Section 210 of the CAA and 
     submit a report to Congress containing the results of such 
     periodic inspections, the statute provides no details 
     regarding how the inspections are to be conducted.
       ``The power of an administrative agency to administer a 
     congressionally created . . . program necessarily requires 
     the formulation of policy and the making of rules to fill any 
     gap left, implicitly or explicitly, by Congress.'' Morton v. 
     Ruiz, 415 U.S. 199, 231, 94

[[Page H560]]

     S.Ct. 1055, 1072, 39 L.Ed.2d 270 (1974) (cited with approval 
     by Chevron v. Nat'l Resources Defense Council, 467 U.S. 837, 
     843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). When Congress 
     expressly leaves a gap for the agency to fill, there is an 
     express delegation of authority to the agency to elucidate 
     the statute. Id. at 844.
       The OOC General Counsel has been conducting ADA inspections 
     since January 23, 1995, when the CAA authorized commencement 
     of such inspections. The OOC General Counsel has been 
     investigating charges of discrimination since January 1, 
     1997, the effective date of Section 210(d). Since the 
     creation of the office, the General Counsel has endeavored to 
     conduct these inspections and investigations in a manner that 
     is not disruptive to the offices involved and has not 
     received complaints or comments indicating that its ADA 
     investigations or inspections have ever been disruptive. The 
     regulations merely propose that the General Counsel conduct 
     investigations and inspections in the manner that they have 
     always been conducted.
       Due to the lack of inspection resources, the General 
     Counsel is unable to conduct ADA inspections of all 
     facilities used by the covered entities at least once each 
     Congress. The General Counsel is unable to inspect all of the 
     facilities located in the Washington, D.C. area, much less 
     all of the facilities used by the district and state offices 
     that are also covered by Section 210 of the CAA. In light of 
     the General Counsel's limited resources and the large number 
     of facilities that are covered by the CAA, the General 
     Counsel must prioritize its ADA inspections. The proposed 
     regulations allow the General Counsel to continue its 
     practice of giving priority to inspection of areas that have 
     raised concerns from constituents. By allowing anyone to file 
     a request for inspection and by allowing requestors to remain 
     anonymous to the covered office (the requestor is required to 
     provide his or her identity to the General Counsel), the 
     General Counsel is better able to identify and examine 
     potential access problems and then pass this information on 
     to the covered offices who are in the best position to 
     address these potential issues. The General Counsel has found 
     that, without exception, covered offices have been very 
     responsive to the access concerns raised by constituents 
     through the request for inspection process and are usually 
     appreciative of information concerning constituent access 
     issues of which they might otherwise be unaware.
       Under the proposed regulations, requests for inspection 
     filed anonymously or by persons without disabilities are not 
     considered ``charges of discrimination'' that could result in 
     a formal complaint being filed by the General Counsel against 
     the covered office. Unlike Section 215 of the CAA, relating 
     to occupational safety and health (``OSH'') inspections and 
     investigations, Section 210 of the CAA does not authorize the 
     General Counsel to initiate enforcement proceedings unless a 
     qualified individual with a disability has filed a charge of 
     discrimination. But like Section 215, Section 210 of the CAA 
     does authorize the General Counsel to inspect any facility 
     and report its findings to the covered offices and to 
     Congress. The proposed regulations merely recognize the 
     General Counsel's long standing and common sense approach 
     that concentrates limited inspection resources on the areas 
     of most concern to constituents.
       The other concern mentioned in the comments is that the 
     proposed regulations define the General Counsel's 
     investigatory authority in a manner that is broader than what 
     Section 210 provides. Section 210 directs the General Counsel 
     to investigate charges of discrimination without specifying 
     how those investigations are to be conducted. To fill this 
     gap, the proposed regulations allow the General Counsel to 
     use modes of inquiry and investigation traditionally employed 
     or useful to execute the investigatory authority provided by 
     the statute which can include conducting inspections, 
     interviewing witnesses, requesting documents and requiring 
     answers to written questions. These methods of investigation 
     are consistent with how other federal agencies investigate 
     charges of discrimination. There is nothing in this proposed 
     regulation that is contrary to the statutory language in 
     Section 210. For this reason, the Board has not made any 
     changes in the adopted regulations in response to these 
     comments.
       6. Request to create new regulations relating to safety and 
     security.
       One commenter suggested that the Board use these 
     regulations to recognize the Capitol Police Board's statutory 
     authority relating to safety and security and create new 
     regulations defining this authority with respect to Section 
     210 of the CAA. In response, the Board does not find any 
     statutory language in the CAA which would allow it to define 
     the authority of the Capitol Police Board by regulation and 
     therefore does not find good cause to modify the language of 
     the DOJ or DOT regulations in the manner requested.
       7. Comments to specific regulations.
       a. Sec. 1.101--Purpose and Scope. One commenter suggested 
     that, when describing how the CAA incorporates sections of 
     Title II and III of the ADA, the regulation should use the 
     language contained in the incorporated statutory sections. 
     The Board has made this change in the adopted regulations. 
     The same commenter suggested that mediation should be 
     mentioned when describing the charge and complaint process. 
     The Board has also made this change in the adopted 
     regulations.
       b. Sec. 1.102--Definitions. One commenter suggested that 
     the incorporated definition of the ``Act'' should be 
     reconciled with the definition of ``ADA'' provided in the 
     proposed definitions. The Board has added ``or Americans with 
     Disabilities Act'' after ``ADA'' in the definition section of 
     the adopted regulations. This will clarify that references to 
     the ``Americans with Disabilities Act'' or the ``Act'' will 
     refer to only those sections of the ADA that are applied to 
     the legislative branch by the CAA. One commenter suggested 
     that there should be some discussion in this section 
     regarding when a covered entity will be considered to be 
     operating a ``place of public accommodation'' within the 
     meaning of Title III. The Board has provided additional 
     guidance on this topic in this Notice of Adoption and has 
     added a provision in the adopted regulations providing that 
     the regulations shall be interpreted in a manner consistent 
     with the Notice of Adoption.
       c. Sec. 1.103--Authority of the Board. One commenter 
     suggested that this section be modified in a way that would 
     allow the Board to adopt the Pedestrian Right of Way 
     Accessible Guidelines (``PROWAG'') as a standard. Because the 
     PROWAG are only proposed guidelines and they have not been 
     adopted by the DOT as standards by regulation, these are not 
     among the current DOT regulations that the Board can adopt 
     under Section 210(e)(2) of the CAA. For this reason, the 
     Board has not acted upon this suggestion.
       d. Sec. 1.104--Method for identifying entity responsible. A 
     commenter suggested that the term ``this section'' refers to 
     both the statutory and regulatory language at different 
     times. In response to this suggestion, the Board has changed 
     the first reference to ``this section'' to ``Section 210 of 
     the CAA'' in the adopted regulation. A commenter has also 
     suggested that the regulation refers to allocating 
     responsibility between covered entities rather than 
     identifying the entity responsible and notes that there may 
     be instances where access issues arise because a private 
     landlord has failed to comply with the lease with the covered 
     entity and the General Counsel would be unable to ``allocate 
     responsibility'' between the covered entity and the private 
     landlord. In response, the Board notes that Section 1.104(c) 
     describes how the entities responsible for correcting 
     violations are identified. Section 1.104(d) describes how 
     responsibility is allocated when more than one covered entity 
     is responsible for the correction. Because a private landlord 
     is not a ``covered entity'' within the meaning of the CAA, 
     Section 1.104(d) would not be applicable when deciding how to 
     allocate responsibility between a private landlord and a 
     covered legislative branch office. To further clarify this 
     distinction, the Board has added the word ``covered'' before 
     ``entity'' in Section 1.104(d) of the adopted regulation. 
     Another commenter requested that this regulation be clarified 
     so that only violations of the sections of the ADA 
     incorporated in the CAA will be considered violations. In 
     response, the Board notes that this has been accomplished by 
     defining the ``ADA'' as including only those sections 
     incorporated by the CAA. Another comment requested a 
     definition of the term ``order'' in the last sentence of 
     Section 1.104(d). In response, this word has been deleted in 
     the adopted regulations.
       e. Sec. 1.105--Title II Regulations incorporated by 
     reference. The Architect of the Capitol suggested a slight 
     modification to the definition of ``historic property'' in 
     Sec. 1.105(a)(4) which would add the word ``properties'' to 
     the list including ``facilities'' and ``buildings.'' The 
     Board has made this change in the adopted regulations. 
     Another commenter requested that the definition of 
     ``historic'' properties be modified to include properties 
     designated as historic by state or local law to cover 
     district offices located in such buildings. In response, the 
     Board notes that the definition contained in Sec. 1.105(a)(4) 
     merely supplements the definition of historic properties 
     contained in Section 35.104, which includes those properties 
     designated as historic under State or local law. To further 
     clarify this, the Board has added the word ``also'' to the 
     definition in the adopted regulation. Another comment 
     suggested that, rather than providing a general rule of 
     interpretation, all potentially conflicting regulations 
     should be rewritten to reconcile all possible conflicts. In 
     response, as noted earlier in response to the general 
     comments, the Board has adopted only the Title II regulation 
     when both a DOJ Title II and Title III regulation address the 
     same subject.
       (1) Section 35.103(a). A comment suggested that this 
     regulation should not be adopted because it references Title 
     V of the Rehabilitation Act which includes employment 
     discrimination issues. In response, the Board notes that 
     Section 35.103(a) is based on Section 204 of the ADA, 42 
     U.S.C. Sec. 12134, which is incorporated by reference into 
     the CAA; consequently, this provision remains in the adopted 
     regulations.
       (2) Section 35.104. A comment suggested that this 
     regulation should be rewritten to delete all terms that are 
     irrelevant, duplicative, or otherwise inapplicable. In 
     response, the Board notes that definitions of terms that are 
     not used in the incorporated regulations are not incorporated 
     by reference, as made clear by the additional language added 
     in Sec. 1.105(a); consequently, there is no need to rewrite 
     the regulation.
       (3) Section 35.105 (Self-Evaluation) and Section 35.106 
     (Notice). A comment suggested

[[Page H561]]

     that these regulations should not be adopted because they 
     might require covered entities to report findings to the OOC 
     or keep and maintain certain records. The Board does not find 
     this reason to be ``good cause'' for modifying the existing 
     DOJ regulation. Unlike some of the other statutes 
     incorporated by the CAA, the ADA does not contain a specific 
     section about recordkeeping that Congress declined to apply 
     to legislative branch entities.
       (4) Section 35.107 (Designation of responsible employee and 
     adoption of grievance procedures). A comment suggested that 
     this regulation should not be adopted because the CAA 
     contains other enforcement provisions. The Board does not 
     find ``good cause'' for modifying the existing DOJ 
     regulation. The DOJ placed these provisions in the 
     regulations even though the ADA contains enforcement 
     provisions. These regulations provide an opportunity to 
     promptly address access issues by allowing individuals with 
     disabilities to complain directly to the covered entity about 
     an access problem.
       (5) Section 35.131 (Illegal use of drugs). A comment 
     suggested that this regulation should not be adopted because 
     it may raise Fourth Amendment issues. The Board finds that 
     there is not ``good cause'' for modifying the existing DOJ 
     regulation. The Fourth Amendment also applies to state and 
     local governments. This regulation exists to make clear that 
     covered entities can legally prohibit participants in 
     government sponsored sport and recreational activities from 
     illegally using drugs.
       (6) Section 35.133 (Maintenance of accessible features). A 
     comment suggested that this regulation should be modified to 
     exclude offices that have no ``direct care and control'' over 
     accessible features because only certain offices control the 
     common areas in buildings. In response, the Board finds that 
     there is not ``good cause'' for modifying the existing DOJ 
     regulation. The entity or entities responsible for correcting 
     violations are identified in accordance with Section 1.104(c) 
     of the Proposed Regulations.
       (7) Section 35.137 (Mobility Devices). A comment suggested 
     that this regulation should be modified to exclude offices 
     that do not have direct control over the daily operation of 
     legislative branch facilities. In response, the Board has 
     failed to find ``good cause'' for modifying the existing DOJ 
     regulation. The entity or entities responsible for correcting 
     violations are identified in accordance with Section 1.104(c) 
     of the Proposed Regulations.
       (8) Section 35.150 (Existing Facilities). A comment 
     suggested that this proposed regulation should be modified so 
     that it requires that only accessible facilities be leased 
     and that Section 35.150(d) be removed because it requires the 
     development of a transition plan which imposes recordkeeping 
     requirements not adopted in the CAA. The Board does not find 
     ``good cause'' for modifying the existing DOJ regulation. The 
     accessibility requirements of leased facilities are addressed 
     in a separate regulation. Regarding transition plans, as 
     noted earlier, unlike some of the other statutes incorporated 
     by the CAA, the ADA does not contain a specific section about 
     recordkeeping that Congress declined to apply to legislative 
     branch entities. The transition planning requirement is a key 
     element of the DOJ regulations since it compels public 
     entities to develop a plan for making all of their facilities 
     accessible.
       (9) Section 35.160 (Communications--General) A comment 
     suggested modifying this regulation so that it is consistent 
     with Section 36.303(c) (Effective communication). In 
     response, the Board notes that the adopted regulations do not 
     include Section 36.303(c) so there is no longer a reason for 
     modifying the existing DOJ Title II regulation.
       (10) Section 35.163 (Information and Signage). A comment 
     suggested excluding offices that do not have direct control 
     over signage in common areas from this regulation. In 
     response, the Board does not find ``good cause'' for 
     modifying the existing DOJ regulation. The entity or entities 
     responsible for correcting violations are identified in 
     accordance with Section 1.104(c) of the adopted regulations.
       (11) Appendices to Part 35 Regulations. A commenter 
     suggested correcting the titles of the Appendices to Parts 35 
     and 36. The titles have been corrected in the adopted 
     regulations.
       f. Sec. 1.105--Title III Regulations incorporated by 
     reference.
       (1) Section 36.101 (Purpose). A comment suggested that this 
     regulation be modified to state that only those sections of 
     Title III incorporated by the CAA are being implemented. The 
     Board finds that this change is not necessary because the 
     adopted regulations define the term ``Americans with 
     Disabilities Act'' as including only those sections of the 
     ADA incorporated by the CAA.
       (2) Section 36.103 (Relationship with other Laws). A 
     comment suggested deleting this regulation because it 
     references Title V of the Rehabilitation Act. In response, 
     the Board notes that Section 36.103 is based in part on 
     Section 204 of the ADA, 42 U.S.C. Sec. 12134, which is 
     incorporated by reference into the CAA, and therefore finds 
     no cause for deleting this regulation.
       (3) Section 36.104 (Definitions). Several comments 
     suggested that this regulation be modified to remove all 
     definitions that are irrelevant, duplicative, or otherwise 
     inapplicable. The Board notes that definitions of terms that 
     are not used in the incorporated regulations are not 
     incorporated by reference and therefore finds no cause for 
     altering the regulation. As noted earlier, because the Notice 
     of Adoption will be included as an appendix to the 
     regulations, the notice will serve as guidance for 
     interpreting the regulations.
       (4) Section 36.209 (Illegal use of drugs). The Board has 
     not responded to comments regarding this regulation because 
     it has not been incorporated into the adopted regulations.
       (5) Section 36.211 (Maintenance of accessible features). 
     The Board has not responded to comments regarding this 
     regulation because it has not been incorporated into the 
     adopted regulations.
       (6) Section 36.303 (Effective communication). The Board has 
     not responded to comments regarding this regulation because 
     it has not been incorporated into the adopted regulations.
       (7) Section 36.304 (Removal of Barriers). A comment 
     suggested modifying this regulation to acknowledge that the 
     General Counsel has no authority over private landlords. The 
     Board does not find good cause for modifying this regulation. 
     As noted earlier, there is nothing in the regulations 
     suggesting that the CAA applies to private landlords. In many 
     cases, barrier removal is the responsibility of both the 
     landlord and the tenant. If the tenant has a lease provision 
     that places this responsibility on the landlord, it is up to 
     the tenant to take appropriate action to enforce this 
     provision.
       (8) Sections 36.402 (Alterations), 36.403 (Alterations: 
     Path of travel), 36.404 (Alterations: Elevator exemption), 
     36.405 (Alterations: Historic preservation) and 36.406 
     (Standards for new construction and alterations). A comment 
     suggested modifying these regulations to consider the limited 
     control that some offices have over capital improvement and 
     alterations to buildings and to modify the historic 
     preservation definition to include buildings designated as 
     historic by state and local governments. The Board does not 
     find good cause for modifying the existing DOJ regulations. 
     The entity or entities responsible for correcting violations 
     are identified in accordance with Section 1.104(c) of the 
     adopted regulations. As noted earlier, the definition 
     contained in Sec. 1.105(a)(4) merely supplements the 
     definition of historic properties contained in Section 
     36.405(a), which includes those properties designated as 
     historic under State or local law.
       (9) Appendices to Part 36 Regulations. A commenter 
     suggested correcting the titles of the Appendices to Parts 35 
     and 36. The titles have been corrected in the adopted 
     regulations.
       g. Section 1.105(e)--36 C.F.R. Part 1190 (2004) & ABAAG 
     Sec. F202.6
       (1) Several commenters suggested that 36 C.F.R. Part 1190 
     (2004) should not be adopted because it is no longer in the 
     Code of Federal Regulations. The Board does not find good 
     cause to reconsider its decision to adopt this regulation. As 
     noted earlier, although the regulation was removed from the 
     C.F.R. in 2004 when the substance of the regulation became 
     part of the ABA Accessibility Guidelines (``ABAAG'') at 
     Sec. F202.6, it is still an enforceable standard applied to 
     the United States Government. Since 1976, when Congress 
     amended the ABA, it has been a hallmark of federal policy 
     regarding people with disabilities to require accessibility 
     of buildings and facilities constructed or leased using 
     federal funds.
       h. Part 2--Matters Pertaining to Investigation and 
     Prosecution of Charges of Discrimination
       (1) Section 2.101 (Purpose and Scope). Several commenters 
     suggested that this regulation explain in more detail how the 
     General Counsel will exercise statutory authority by 
     procedural rule or policy. In response, the Board has deleted 
     this sentence from the adopted regulation.
       (2) Section 2.102(b). A comment suggested that this 
     regulation be modified to further clarify what ``other 
     means'' can be used to ``file a charge'' other than those 
     listed in the regulation. In response, the Board has deleted 
     the reference to ``other means.''
       (3) Section 2.102(c). Commenters suggested that this 
     regulation should be modified because subpart (2) of the 
     definition of ``the occurrence of the alleged violation'' is 
     currently phrased in a way that seems to assume that a 
     violation has occurred and is too broad because it might 
     allow a charge to be filed beyond 180 days of the date of the 
     alleged discrimination. In response to these comments, the 
     adopted regulations retain only the definition of occurrence 
     in subpart (1).
       (4) Section 2.103. Commenters suggested modifying this 
     regulation because it appears to expand the General Counsel's 
     authority beyond what the CAA provides. For the reasons 
     stated earlier in the response to the general comments, the 
     Board disagrees with this assessment and therefore this 
     section has not been changed in the adopted regulations.
       (5) Section 2.107(a)(2). Commenters suggested removing this 
     regulation because they believe that the CAA does not provide 
     compensatory damages as a remedy for violations of Section 
     210. After due consideration of these comments, the Board has 
     decided that the issue of what constitutes an appropriate 
     remedy should be decided on a case-by-case basis through the 
     statutory hearing and appeals process rather than by 
     regulation. It should be noted, however, that the analysis in 
     Lane v. Pena, 518 U.S. 187 (1996) may not be applicable to 
     ADA cases under the CAA by virtue of the language in Section 
     210(b)(2) which defines ``public entity'' as including any of 
     the covered entities

[[Page H562]]

     listed in Section 210(a) and the language in Section 210(c) 
     which provides for ``such remedy as would be appropriate if 
     awarded under section 203 or 308(a) of the American with 
     Disabilities Act of 1990.'' These provisions, when read 
     together, may very well constitute an express waiver of 
     sovereign immunity for all damages that can be appropriately 
     awarded against a public entity, which would include 
     compensatory damages.
       i. Part 3--Matters Pertaining to Periodic Inspections and 
     Reporting
       (1) Section 3.101 (Purpose and Scope). Several commenters 
     suggested that this regulation explain in more detail how the 
     General Counsel will exercise statutory authority by 
     procedural rule or policy. In response, the Board has deleted 
     this sentence from the adopted regulation.
       (2) Section 3.102 (Definitions). A commenter suggested that 
     the definition of ``facilities of a covered entity'' be 
     narrowed so that the General Counsel would only inspect 
     spaces occupied solely by a legislative branch office and 
     would not inspect common spaces, entrances or accessible 
     pathways used to access the solely occupied spaces. The Board 
     finds that such a narrow definition of ``facilities of a 
     covered entity'' would be inconsistent with the DOJ 
     regulations and the purpose of the statutory mandate to 
     inspect facilities for compliance with Titles II and III of 
     the ADA; therefore, it has not modified this definition in 
     the adopted regulations.
       (3) Section 3.103 (Inspection Authority). Commenters 
     suggested that the General Counsel not be allowed to conduct 
     an inspection or investigation initiated by someone who 
     wishes to remain anonymous. For the reasons stated earlier in 
     response to the general comments, the Board rejects this 
     suggestion and has therefore not changed this section in the 
     adopted regulations. The Architect of the Capitol suggested 
     that, in the interest of simplicity and timeliness, Section 
     3.103(d) be shortened to: ``The Office of the Architect of 
     the Capitol shall, within one year from the effective date of 
     these regulations, develop a process with the General Counsel 
     to identify potential barriers to access prior to the 
     completion of alteration and construction projects.'' Because 
     the language used in the NPRM more thoroughly describes what 
     this preconstruction process should entail, the Board does 
     not find good cause to modify this regulation in the manner 
     suggested.

                          Adopted Regulations:

     PART 1--MATTERS OF GENERAL APPLICABILITY TO ALL REGULATIONS 
                   PROMULGATED UNDER SECTION 210 OF THE 
                   CONGRESSIONAL ACCOUNTABILITY ACT OF 1995

     Sec. 1.101 PURPOSE AND SCOPE
     Sec. 1.102 DEFINITIONS
     Sec. 1.103 AUTHORITY OF THE BOARD

     Sec. 1.104 METHOD FOR IDENTIFYING THE ENTITY RESPONSIBLE FOR 
       CORRECTING VIOLATIONS OF SECTION 210

     Sec. 1.105 REGULATIONS INCORPORATED BY REFERENCE

     Sec. 1.101 Purpose and scope.
       (a) CAA. Enacted into law on January 23, 1995, the 
     Congressional Accountability Act (``CAA'') in Section 210(b) 
     provides that the rights and protections against 
     discrimination in the provision of public services and 
     accommodations established by sections 201 through 230, 302, 
     303, and 309 of the Americans with Disabilities Act of 1990, 
     42 U.S.C. Sec. Sec. 12131-12150, 12182, 12183, and 12189 
     (``ADA''), shall apply to the following entities:
       (1) each office of the Senate, including each office of a 
     Senator and each committee;
       (2) each office of the House of Representatives, including 
     each office of a Member of the House of Representatives and 
     each committee;
       (3) each joint committee of the Congress;
       (4) the Office of Congressional Accessibility Services;
       (5) the United States Capitol Police;
       (6) the Congressional Budget Office;
       (7) the Office of the Architect of the Capitol (including 
     the Botanic Garden);
       (8) the Office of the Attending Physician; and
       (9) the Office of Compliance;
       Title II of the ADA prohibits discrimination on the basis 
     of disability in the provision of public services, programs, 
     activities by any ``public entity.'' Section 210(b)(2) of the 
     CAA provides that for the purpose of applying Title II of the 
     ADA the term ``public entity'' means any entity listed above 
     that provides public services, programs, or activities. Title 
     III of the ADA prohibits discrimination on the basis of 
     disability by public accommodations and requires places of 
     public accommodation and commercial facilities to be 
     designed, constructed, and altered in compliance with 
     accessibility standards. Section 225(f) of the CAA provides 
     that, ``[e]xcept where inconsistent with definitions and 
     exemptions provided in [this Act], the definitions and 
     exemptions of the [ADA] shall apply under [this Act.]'' 2 
     U.S.C. Sec. 1361(f)(1).
       Section 210(d) of the CAA requires that the General Counsel 
     of the Office of Compliance accept and investigate charges of 
     discrimination filed by qualified individuals with 
     disabilities who allege a violation of Title II or Title III 
     of the ADA by a covered entity. If the General Counsel 
     believes that a violation may have occurred, the General 
     Counsel may request, but not participate in, mediation under 
     Section 403 of the CAA and may file with the Office a 
     complaint under Section 405 of the CAA against any entity 
     responsible for correcting the violation. 2 U.S.C. 
     Sec. 1331(d).
       Section 210(f) of the CAA requires that the General Counsel 
     of the Office of Compliance on a regular basis, and at least 
     once each Congress, conduct periodic inspections of all 
     covered facilities and to report to Congress on compliance 
     with disability access standards under Section 210. 2 U.S.C. 
     Sec. 1331(f).
       (b) Purpose and scope of regulations. The regulations set 
     forth herein (Parts 1, 2, and 3) are the substantive 
     regulations that the Board of Directors of the Office of 
     Compliance has promulgated pursuant to Section 210(e) of the 
     CAA. Part 1 contains the general provisions applicable to all 
     regulations under Section 210, the method of identifying 
     entities responsible for correcting a violation of Section 
     210, and the list of executive branch regulations 
     incorporated by reference which define and clarify the 
     prohibition against discrimination on the basis of disability 
     in the provision of public services and accommodations. Part 
     2 contains the provisions pertaining to investigation and 
     prosecution of charges of discrimination. Part 3 contains the 
     provisions regarding the periodic inspections and reports to 
     Congress on compliance with the disability access standards.

     Sec. 1.102 Definitions.

       Except as otherwise specifically provided in these 
     regulations, as used in these regulations:
       (a) Act or CAA means the Congressional Accountability Act 
     of 1995 (Pub. L. 104-1, 109 Stat. 3, 2 U.S.C. Sec. Sec. 1301-
     1438).
       (b) ADA or Americans with Disabilities Act means those 
     sections of the Americans with Disabilities Act of 1990 
     incorporated by reference into the CAA in Section 210: 42 
     U.S.C. Sec. Sec. 12131-12150, 12182, 12183, and 12189.
       (c) Covered entity and public entity include any of the 
     entities listed in Sec. 1.101(a) that provide public 
     services, programs, or activities, or operates a place of 
     public accommodation within the meaning of Section 210 of the 
     CAA. In the regulations implementing Title III, private 
     entity includes covered entities.
       (d) Board means the Board of Directors of the Office of 
     Compliance.
       (e) Office means the Office of Compliance.
       (f) General Counsel means the General Counsel of the Office 
     of Compliance.

     Sec. 1.103 Authority of the Board.

       Pursuant to Sections 210 and 304 of the CAA, the Board is 
     authorized to issue regulations to implement the rights and 
     protections against discrimination on the basis of disability 
     in the provision of public services and accommodations under 
     the ADA. Section 210(e) of the CAA directs the Board to 
     promulgate regulations implementing Section 210 that are 
     ``the same as substantive regulations promulgated by the 
     Attorney General and the Secretary of Transportation to 
     implement the statutory provisions referred to in subsection 
     (b) except to the extent that the Board may determine, for 
     good cause shown and stated together with the regulation, 
     that a modification of such regulations would be more 
     effective for the implementation of the rights and 
     protections under this section.'' 2 U.S.C. Sec. 1331(e). 
     Specifically, it is the Board's considered judgment, based on 
     the information available to it at the time of promulgation 
     of these regulations, that, with the exception of the 
     regulations adopted and set forth herein, there are no other 
     ``substantive regulations promulgated by the Attorney General 
     and the Secretary of Transportation to implement the 
     statutory provisions referred to in subsection (b) [of 
     Section 210 of the CAA]'' that need be adopted.
       In promulgating these regulations, the Board has made 
     certain technical and nomenclature changes to the regulations 
     as promulgated by the Attorney General and the Secretary of 
     Transportation. Such changes are intended to make the 
     provisions adopted accord more naturally to situations in the 
     Legislative Branch. However, by making these changes, the 
     Board does not intend a substantive difference between these 
     regulations and those of the Attorney General and/or the 
     Secretary of Transportation from which they are derived. 
     Moreover, such changes, in and of themselves, are not 
     intended to constitute an interpretation of the regulations 
     or of the statutory provisions of the CAA upon which they are 
     based.

     Sec. 1.104 Method for identifying the entity responsible for 
       correction of violations of section 210.

       (a) Purpose and scope. Section 210(e)(3) of the CAA 
     provides that regulations under Section 210(e) include a 
     method of identifying, for purposes of Section 210 of the CAA 
     and for categories of violations of Section 210(b), the 
     entity responsible for correcting a particular violation. 
     This section sets forth the method for identifying 
     responsible entities for the purpose of allocating 
     responsibility for correcting violations of Section 210(b).
       (b) Violations. A covered entity may violate Section 210(b) 
     if it discriminates against a qualified individual with a 
     disability within the meaning of Title II or Title III of the 
     ADA.
       (c) Entities Responsible for Correcting Violations. 
     Correction of a violation of the rights and protections 
     against discrimination is the responsibility of the entities 
     listed in subsection (a) of Section 210 of the CAA that 
     provide the specific public service, program, activity, or 
     accommodation that forms the basis for the particular 
     violation of Title II or Title III rights and protections

[[Page H563]]

     and, when the violation involves a physical access barrier, 
     the entities responsible for designing, maintaining, 
     managing, altering or constructing the facility in which the 
     specific public service program, activity or accommodation is 
     conducted or provided.
       (d) Allocation of Responsibility for Correction of Title II 
     and/or Title III Violations. Where more than one covered 
     entity is found to be an entity responsible for correction of 
     a violation of Title II and/or Title III rights and 
     protections under the method set forth in this section, as 
     between those parties, allocation of responsibility for 
     correcting the violations of Title II or Title III of the ADA 
     may be determined by statute, contract, or other enforceable 
     arrangement or relationship.

     Sec. 1.105 Regulations incorporated by reference.

       (a) Technical and Nomenclature Changes to Regulations 
     Incorporated by Reference. The definitions in the regulations 
     incorporated by reference (``incorporated regulations''') 
     shall be used to interpret these regulations except: (1) when 
     they differ from the definitions in Sec. 1.102 or the 
     modifications listed below, in which case the definition in 
     Sec. 1.102 or the modification listed below shall be used; or 
     (2) when they define terms that are not used in the 
     incorporated regulations. The incorporated regulations are 
     hereby modified as follows:
       (1) When the incorporated regulations refer to ``Assistant 
     Attorney General,'' ``Department of Justice,'' ``FTA 
     Administrator,'' ``FTA regional office,'' ``Administrator,'' 
     ``Secretary,'' or any other executive branch office or 
     officer, ``General Counsel'' is hereby substituted.
       (2) When the incorporated regulations refer to the date 
     ``January 26, 1992,'' the date ``January 1, 1997'' is hereby 
     substituted.
       (3) When the incorporated regulations otherwise specify a 
     date by which some action must be completed, the date that is 
     three years from the effective date of these regulations is 
     hereby substituted.
       (4) When the incorporated regulations contain an exception 
     for an ``historic'' property, building, or facility, that 
     exception shall also apply to properties, buildings, or 
     facilities designated as an historic or heritage asset by the 
     Office of the Architect of the Capitol in accordance with its 
     preservation policy and standards and where, in accordance 
     with its preservation policy and standards, the Office of the 
     Architect of the Capitol determines that compliance with the 
     requirements for accessible routes, entrances, or toilet 
     facilities (as defined in 28 C.F.R. Parts 35 and 36) would 
     threaten or destroy the historic significance of the 
     property, building or facility, the exceptions for 
     alterations to qualified historic property, buildings or 
     facilities for that element shall be permitted to apply.
       (b) Rules of Interpretation. When regulations in (c) 
     conflict, the regulation providing the most access shall 
     apply. The Board's Notice of Adoption shall be used to 
     interpret these regulations and shall be made part of these 
     Regulations as Appendix A.
       (c) Incorporated Regulations from 28 C.F.R. Parts 35 and 
     36. The Office shall publish on its website the full text of 
     all regulations incorporated by reference. The following 
     regulations from 28 C.F.R. Parts 35 and 36 that are published 
     in the Code of Federal Regulations on the date of the Board's 
     adoption of these regulations are hereby incorporated by 
     reference as though stated in detail herein:

     Sec. 35.101 Purpose.
     Sec. 35.102 Application.
     Sec. 35.103 Relationship to other laws.
     Sec. 35.104 Definitions.
     Sec. 35.105 Self-evaluation
     Sec. 35.106 Notice.

     Sec. 35.107 Designation of responsible employee and adoption 
       of grievance procedures.

     Sec. 35.130 General prohibitions against discrimination.

     Sec. 35.131 Illegal use of drugs.
     Sec. 35.132 Smoking.
     Sec. 35.133 Maintenance of accessible features.
     Sec. 35.135 Personal devices and services.
     Sec. 35.136 Service animals
     Sec. 35.137 Mobility devices.
     Sec. 35.138 Ticketing
     Sec. 35.139 Direct threat.
     Sec. 35.149 Discrimination prohibited.
     Sec. 35.150 Existing facilities.
     Sec. 35.151 New construction and alterations.

     Sec. 35.152 Jails, detention and correctional facilities.

     Sec. 35.160 General.
     Sec. 35.161 Telecommunications.
     Sec. 35.162 Telephone emergency services.
     Sec. 35.163 Information and signage.
     Sec. 35.164 Duties.

   Appendix A to Part 35--Guidance to Revisions to ADA Regulation on 
    Nondiscrimination on the Basis of Disability in State and Local 
                          Government Services.

Appendix B to Part 35--Guidance on ADA Regulation on Nondiscrimination 
   on the Basis of Disability in State and Local Government Services 
                  Originally Published July 26, 1991.

     Sec. 36.101 Purpose.
     Sec. 36.102 Application.
     Sec. 36.103 Relationship to other laws.
     Sec. 36.104 Definitions.
     Sec. 36.201 General.
     Sec. 36.202 Activities.
     Sec. 36.203 Integrated settings.
     Sec. 36.204 Administrative methods.
     Sec. 36.205 Association.

     Sec. 36.207 Places of public accommodations located in 
       private residences.

     Sec. 36.208 Direct threat.
     Sec. 36.210 Smoking.

     Sec. 36.213 Relationship of subpart B to subparts C and D of 
       this part.

     Sec. 36.301 Eligibility criteria.

     Sec. 36.302 Modifications in policies, practices, or 
       procedures.

     Sec. 36.304 Removal of barriers.
     Sec. 36.305 Alternatives to barrier removal.
     Sec. 36.307 Accessible or special goods.
     Sec. 36.308 Seating in assembly areas.
     Sec. 36.309 Examinations and courses.

     Sec. 36.310 Transportation provided by public accommodations.

     Sec. 36.402 Alterations.
     Sec. 36.403 Alterations: Path of travel.
     Sec. 36.404 Alterations: Elevator exemption.
     Sec. 36.405 Alterations: Historic preservation.

     Sec. 36.406 Standards for new construction and alterations.

   Appendix A to Part 36--Guidance on Revisions to ADA Regulation on 
 Nondiscrimination on the Basis of Disability by Public Accommodations 
                       and Commercial Facilities.

    Appendix B to Part 36--Analysis and Commentary on the 2010 ADA 
                    Standards for Accessible Design.

       (d) Incorporated Regulations from 49 C.F.R. Parts 37 and 
     38. The following regulations from 49 C.F.R. Parts 37 and 38 
     that are published in the Code of Federal Regulations on the 
     effective date of these regulations are hereby incorporated 
     by reference as though stated in detail herein:

     Sec. 37.1 Purpose.
     Sec. 37.3 Definitions.
     Sec. 37.5 Nondiscrimination.
     Sec. 37.7 Standards for accessible vehicles.
  


     Sec. 37.9 Standards for accessible transportation facilities.

     Sec. 37.13 Effective date for certain vehicle specifications.

     Sec. 37.21 Applicability: General.
     Sec. 37.23 Service under contract.

     Sec. 37.27 Transportation for elementary and secondary 
       education systems.

     Sec. 37.31 Vanpools.
     Sec. 37.37 Other applications.

     Sec. 37.41 Construction of transportation facilities by 
       public entities.

     Sec. 37.43 Alteration of transportation facilities by public 
       entities.

     Sec. 37.45 Construction and alteration of transportation 
       facilities by private entities.

  


     Sec. 37.47 Key stations in light and rapid rail systems.

     Sec. 37.61 Public transportation programs and activities in 
       existing facilities.

     Sec. 37.71 Purchase or lease of new non-rail vehicles by 
       public entities operating fixed route systems.

  


     Sec. 37.73 Purchase or lease of used non-rail vehicles by 
       public entities operating fixed route systems.

     Sec. 37.75 Remanufacture of non-rail vehicles and purchase or 
       lease of remanufactured non-rail vehicles by public 
       entities operating fixed route systems.

     Sec. 37.77 Purchase or lease of new non-rail vehicles by 
       public entities operating a demand responsive system for 
       the general public.

  


     Sec. 37.79 Purchase or lease of new rail vehicles by public 
       entities operating rapid or light rail systems.

     Sec. 37.81 Purchase or lease of used rail vehicles by public 
       entities operating rapid or light rail systems.

     Sec. 37.83 Remanufacture of rail vehicles and purchase or 
       lease of remanufactured rail vehicles by public entities 
       operating rapid or light rail systems.

  


     Sec. 37.101 Purchase or lease of vehicles by private entities 
       not primarily engaged in the business of transporting 
       people.

     Sec. 37.105 Equivalent service standard.

     Sec. 37.121 Requirement for comparable complementary 
       paratransit service.

     Sec. 37.123 ADA paratransit eligibility: Standards.

     Sec. 37.125 ADA paratransit eligibility: Process.

     Sec. 37.127 Complementary paratransit service for visitors.

     Sec. 37.129 Types of service.

     Sec. 37.131 Service criteria for complementary paratransit.

     Sec. 37.133 Subscription service.
     Sec. 37.135 Submission of paratransit plan.
     Sec. 37.137 Paratransit plan development.
     Sec. 37.139 Plan contents.

     Sec. 37.141 Requirements for a joint paratransit plan.

     Sec. 37.143 Paratransit plan implementation.
     Sec. 37.147 Considerations during FTA review.
     Sec. 37.149 Disapproved plans.
     Sec. 37.151 Waiver for undue financial burden.
     Sec. 37.153 FTA waiver determination.

     Sec. 37.155 Factors in decision to grant an undue financial 
       burden waiver.

     Sec. 37.161 Maintenance of accessible features: General.

     Sec. 37.163 Keeping vehicle lifts in operative condition: 
       Public entities.

     Sec. 37.165 Lift and securement use.
     Sec. 37.167 Other service requirements.

     Sec. 37.171 Equivalency requirement for demand responsive 
       service operated by private entities not primarily engaged 
       in the business of transporting people.

     Sec. 37.173 Training requirements.

   Appendix A to Part 37--Modifications to Standards for Accessible 
                       Transportation Facilities.

Appendix D to Part 37--Construction and Interpretation of Provisions of 
                            49 CFR Part 37.

     Sec. 38.1 Purpose.

[[Page H564]]

     Sec. 38.2 Equivalent facilitation.
     Sec. 38.3 Definitions.
     Sec. 38.4 Miscellaneous instructions.
     Sec. 38.21 General.
     Sec. 38.23 Mobility aid accessibility.
     Sec. 38.25 Doors, steps and thresholds.
     Sec. 38.27 Priority seating signs.

     Sec. 38.29 Interior circulation, handrails and stanchions.

     Sec. 38.31 Lighting.
     Sec. 38.33 Fare box.
     Sec. 38.35 Public information system.
     Sec. 38.37 Stop request.
     Sec. 38.39 Destination and route signs.
     Sec. 38.51 General.
     Sec. 38.53 Doorways.
     Sec. 38.55 Priority seating signs.

     Sec. 38.57 Interior circulation, handrails and stanchions.

     Sec. 38.59 Floor surfaces.
     Sec. 38.61 Public information system.
     Sec. 38.63 Between-car barriers.
     Sec. 38.71 General.
     Sec. 38.73 Doorways.
     Sec. 38.75 Priority seating signs.

     Sec. 38.77 Interior circulation, handrails and stanchions.

     Sec. 38.79 Floors, steps and thresholds.
     Sec. 38.81 Lighting.
     Sec. 38.83 Mobility aid accessibility.
     Sec. 38.85 Between-car barriers.
     Sec. 38.87 Public information system.
     Sec. 38.171 General.

     Sec. 38.173 Automated guideway transit vehicles and systems.

     Sec. 38.179 Trams, and similar vehicles, and systems.

     FIGURES TO PART 38.

                Appendix to Part 38--Guidance Material.

       (e) Incorporated Standard from the Architectural Barriers 
     Act Accessibility Standards (``ABAAS'') (May 17, 2005). The 
     following standard from the ABAAS is adopted as a standard 
     and hereby incorporated as a regulation by reference as 
     though stated in detail herein:

     Sec. F202.6 Leases.

     PART 2--MATTERS PERTAINING TO INVESTIGATION AND PROSECUTION 
                   OF CHARGES OF DISCRIMINATION.

     Sec. 2.101 PURPOSE AND SCOPE
     Sec. 2.102 DEFINITIONS
     Sec. 2.103 INVESTIGATORY AUTHORITY
     Sec. 2.104 MEDIATION
     Sec. 2.105 COMPLAINT

     Sec. 2.106 INTERVENTION BY CHARGING INDIVIDUAL

     Sec. 2.107 REMEDIES AND COMPLIANCE

     Sec. 2.108 JUDICIAL REVIEW

     Sec. 2.101 Purpose and scope.

       Section 210(d) of the CAA requires that the General Counsel 
     accept and investigate charges of discrimination filed by 
     qualified individuals with disabilities who allege a 
     violation of Title II or Title III of the ADA by a covered 
     entity. Part 2 of these regulations contains the provisions 
     pertaining to investigation and prosecution of charges of 
     discrimination.

     Sec. 2.102 Definitions.

       (a) Charge means any written document from a qualified 
     individual with a disability or that individual's designated 
     representative which suggests or alleges that a covered 
     entity denied that individual the rights and protections 
     against discrimination in the provision of public services 
     and accommodations provided in Section 210(b)(1) of the CAA.
       (b) File a charge means providing a charge to the General 
     Counsel in person, by mail, or by electronic transmission. 
     Charges shall be filed within 180 days of the occurrence of 
     the alleged violation.
       (c) The occurrence of the alleged violation means the date 
     on which the charging individual was allegedly discriminated 
     against.
       (d) The rights and protections against discrimination in 
     the provision of public services and accommodations means all 
     of the rights and protections provided by Section 210(b)(1) 
     of the CAA through incorporation of Sections 201 through 230, 
     302, 303, and 309 of the ADA and by the regulations issued by 
     the Board to implement Section 210 of the CAA.

     Sec. 2.103 Investigatory Authority.

       (a) Investigatory Methods. When investigating charges of 
     discrimination and conducting inspections, the General 
     Counsel is authorized to use all the modes of inquiry and 
     investigation traditionally employed or useful to execute 
     this investigatory authority. The authorized methods of 
     investigation include, but are not limited to, the following: 
     (1) requiring the parties to provide or produce ready access 
     to: all physical areas subject to an inspection or 
     investigation, individuals with relevant knowledge concerning 
     the inspection or investigation who can be interviewed or 
     questioned, and documents pertinent to the investigation; and 
     (2) requiring the parties to provide written answers to 
     questions, statements of position, and any other information 
     relating to a potential violation or demonstrating 
     compliance.
       (b) Duty to Cooperate with Investigations. Charging 
     individuals and covered entities shall cooperate with 
     investigations conducted by the General Counsel. Cooperation 
     includes providing timely responses to reasonable requests 
     for information and documents (including the making and 
     retention of copies of records and documents), allowing the 
     General Counsel to review documents and interview relevant 
     witnesses confidentially and without managerial interference 
     or influence, and granting the General Counsel ready access 
     to all facilities where covered services, programs and 
     activities are being provided and all places of public 
     accommodation.

     Sec. 2.104 Mediation.

       (a) Belief that violation may have occurred. If, after 
     investigation, the General Counsel believes that a violation 
     of the ADA may have occurred and that mediation may be 
     helpful in resolving the dispute, prior to filing a 
     complaint, the General Counsel may request, but not 
     participate in, mediation under subsections (b) through (d) 
     of Section 403 of the CAA between the charging individual and 
     any entity responsible for correcting the alleged violation.
       (b) Settlement. If, prior to the filing of a complaint, the 
     charging individual and the entity responsible for correcting 
     the violation reach a settlement agreement that fully 
     resolves the dispute, the General Counsel shall close the 
     investigation of the charge without taking further action.
       (c) Mediation Unsuccessful. If mediation under (a) has not 
     succeeded in resolving the dispute, and if the General 
     Counsel believes that a violation of the ADA may have 
     occurred, the General Counsel may file with the Office a 
     complaint against any entity responsible for correcting the 
     violation.

     Sec. 2.105 Complaint.

       The complaint filed by the General Counsel shall be 
     submitted to a hearing officer for decision pursuant to 
     subsections (b) through (h) of Section 405 of the CAA. The 
     decision of the hearing officer shall be subject to review by 
     the Board pursuant to Section 406 of the CAA.

     Sec. 2.106 Intervention by Charging Individual.

       Any person who has filed a charge may intervene as of 
     right, with the full rights of a party, whenever a complaint 
     is filed by the General Counsel.

     Sec. 2.107 Remedies and Compliance.

       (a) Remedy. The remedy for a violation of Section 210 of 
     the CAA shall be such remedy as would be appropriate if 
     awarded under Section 203 or 308(a) of the ADA.
       (b) Compliance Date. Compliance shall take place as soon as 
     possible, but no later than the fiscal year following the end 
     of the fiscal year in which the order requiring correction 
     becomes final and not subject to further review.

     Sec. 2.108 Judicial Review.

       A charging individual who has intervened or any respondent 
     to the complaint, if aggrieved by a final decision of the 
     Board, may file a petition for review in the United States 
     Court of Appeals for the Federal Circuit, pursuant to Section 
     407 of the CAA.

     PART 3--MATTERS PERTAINING TO PERIODIC INSPECTIONS AND 
                   REPORTING.

     Sec. 3.101 PURPOSE AND SCOPE

     Sec. 3.102 DEFINITIONS

     Sec. 3.103 INSPECTION AUTHORITY

     Sec. 3.104 REPORTING, ESTIMATED COST & TIME, AND COMPLIANCE 
       DATE

     Sec. 3.101 Purpose and scope.

       Section 210(f) of the CAA requires that the General 
     Counsel, on a regular basis, at least once each Congress, 
     inspect the facilities of covered entities to ensure 
     compliance with the Titles II and III of the ADA and to 
     prepare and submit a report to Congress containing the 
     results of the periodic inspections, describing any 
     violations, assessing any limitations in accessibility, and 
     providing the estimated cost and time needed for abatement. 
     Part 3 of these regulations contains the provisions 
     pertaining to these inspection and reporting duties.

     Sec. 3.102 Definitions.

       (a) The facilities of covered entities means all facilities 
     used to provide public programs, activities, services or 
     accommodations that are designed, maintained, altered or 
     constructed by a covered entity and all facilities where 
     covered entities provide public programs, activities, 
     services or accommodations.
       (b) Violation means any barrier to access caused by 
     noncompliance with the applicable standards.
       (c) Estimated cost and time needed for abatement means cost 
     and time estimates that can be reported as falling within a 
     range of dollar amounts and dates.

     Sec. 3.103 Inspection authority.

       (a) General scope of authority. On a regular basis, at 
     least once each Congress, the General Counsel shall inspect 
     the facilities of covered entities to ensure compliance with 
     Titles II and III of the ADA. When conducting these 
     inspections, the General Counsel has the discretion to decide 
     which facilities will be inspected and how inspections will 
     be conducted. The General Counsel may receive requests for 
     ADA inspections, including anonymous requests, and conduct 
     inspections for compliance with Titles II and III of the ADA 
     in the same manner that the General Counsel receives and 
     investigates requests for inspections under Section 215(c)(1) 
     of the CAA.
       (b) Review of information and documents. When conducting 
     inspections under Section 210(f) of the CAA, the General 
     Counsel may request, obtain, and review any and all 
     information or documents deemed by the General Counsel to be 
     relevant to a determination of whether the covered entity is 
     in compliance with Section 210 of the CAA.
       (c) Duty to cooperate. Covered entities shall cooperate 
     with any inspection conducted by the General Counsel in the 
     manner provided by Sec. 2.103(b).

[[Page H565]]

       (d) Pre-construction review of alteration and construction 
     projects. Any project involving alteration or new 
     construction of facilities of covered entities are subject to 
     inspection by the General Counsel for compliance with Titles 
     II and III of the ADA during the design, pre-construction, 
     construction, and post construction phases of the project. 
     The Office of the Architect of the Capitol shall, within one 
     year from the effective date of these regulations, develop a 
     process with the General Counsel to identify potential 
     barriers to access prior to the completion of alteration and 
     construction projects that may include the following 
     provisions:
       (1) Design review or approval;
       (2) Inspections of ongoing alteration and construction 
     projects;
       (3) Training on the applicable ADA standards;
       (4) Final inspections of completed projects for compliance; 
     and
       (5) Any other provision that would likely reduce the number 
     of ADA barriers in alterations and new construction and the 
     costs associated with correcting them.

     Sec. 3.104 Reporting, estimating cost & time, and compliance 
       date.

       (a) Reporting duty. On a regular basis, at least once each 
     Congress, the General Counsel shall prepare and submit a 
     report to Congress containing the results of the periodic 
     inspections conducted under Sec. 3.103(a), describing any 
     violations, assessing any limitations in accessibility, and 
     providing the estimated cost and time needed for abatement.
       (b) Estimated cost & time. Covered entities shall cooperate 
     with the General Counsel by providing information needed to 
     provide the estimated cost and time needed for abatement in 
     the manner provided by Sec. 2.103(b).
       (c) Compliance date. All barriers to access identified by 
     the General Counsel in its periodic reports shall be removed 
     or otherwise corrected as soon as possible, but no later than 
     the fiscal year following the end of the fiscal year in which 
     the report describing the barrier to access was issued by the 
     General Counsel.

                    Recommended Method of Approval:

       The Board has adopted the same regulations for the Senate, 
     the House of Representatives, and the other covered entities 
     and facilities, and therefore recommends that the adopted 
     regulations be approved by concurrent resolution of the 
     Congress.
       Signed at Washington, D.C., on this 3rd day of February, 
     2016.

                                            Barbara L. Camens,

                         Chair of the Board, Office of Compliance.


                                endnotes

       1. 28 C.F.R. Sec. 36.201(b) reads as follows: ``Landlord 
     and tenant responsibilities. Both the landlord who owns the 
     building that houses a place of public accommodation and the 
     tenant who owns or operates the place of public accommodation 
     are public accommodations subject to the requirements of this 
     part. As between the parties, allocation of responsibility 
     for complying with the obligations of this part may be 
     determined by lease or other contract.''
       2. The DOJ's illustrations and descriptions in its 
     Technical Assistance Manuals regarding compliance with Titles 
     II and Title III by tenants and landlords make this clear. 
     See, U.S. Dept. of Justice, ADA Title III Technical 
     Assistance Manual Sec. III.-1.2000 (Nov. 1993) (``The title 
     III regulation permits the landlord and the tenant to 
     allocate responsibility, in the lease, for complying with 
     particular provisions of the regulation. However, any 
     allocation made in a lease or other contract is only 
     effective as between the parties, and both landlord and 
     tenant remain fully liable for compliance with all provisions 
     of the ADA relating to that place of public 
     accommodation.''); U.S. Dept. of Justice, ADA Title II 
     Technical Assistance Manual Sec. II.-1.3000 (Nov. 1993) (Both 
     manuals are available online at www.ada.gov). Also see, 
     Gabreille P. Whelan, Comment, The ``Public Access'' 
     Provisions of Title III of the Americans with Disabilities 
     Act, 34 Santa Clara L. Rev. 215, 217-18 (1993).
       3. Several commenters correctly noted that the NPRM 
     contains a technical error because the year (2004) was 
     omitted from the C.F.R. citation, which was a potential 
     source of confusion because the regulation was removed from 
     the C.F.R. in 2004 when the substance of the regulation 
     became part of the ABA Guidelines at Sec. F202.6. 
     Fortunately, all of the commenters were sufficiently able to 
     ascertain the subject matter of the proposed regulation to 
     participate fully in the rulemaking process by providing 
     detailed comments about the proposed regulation, which is all 
     that is required of a NPRM. See e.g., Am. Iron & Steel Inst. 
     v. EPA, 568 F.2d 284, 293 (3d Cir. 1977); United Steelworkers 
     v. Marshall, 647 F.2d 1189, 1121 (D.C. Cir. 1980); and Am. 
     Med. Ass'n v. United States, 887 F.2d 760, 767 (7th Cir. 
     1989).
       4. Under Sec. F202.6 of the ABAAG, ``Buildings or 
     facilities for which new leases are negotiated by the Federal 
     government after the effective date of the revised standards 
     issued pursuant to the Architectural Barriers Act, including 
     new leases for buildings or facilities previously occupied by 
     the Federal government, shall comply with F202.6.'' F202.6 
     then proceeds to describe the requirements for an accessible 
     route to primary function areas, toilet and bathing 
     facilities, parking, and other elements and spaces. The ABAAG 
     became the ABA Accessibility Standards (``ABAAS'') on May 17, 
     2005 when the GSA adopted them as the standards. See 41 
     C.F.R. Sec. 102 76.65(a) (2005).
       5. These features include at least one accessible route to 
     primary function areas, at least one accessible toilet 
     facility for each sex (or an accessible unisex toilet 
     facility if only one toilet is provided), accessible parking 
     spaces, and, where provided, accessible drinking fountains, 
     fire alarms, public telephones, dining and work surfaces, 
     assembly areas, sales and service counters, vending and 
     change machines, and mail boxes.

                          ____________________