[Congressional Record Volume 162, Number 20 (Wednesday, February 3, 2016)]
[Senate]
[Pages S624-S632]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
NOTICE OF ADOPTION OF REGULATIONS AND SUBMISSION FOR APPROVAL
Mr. HATCH. Mr. President, I ask unanimous consent that the attached
documentation from the Office of Compliance be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S. Congress,
Office of Compliance,
Washington, DC, February 3, 2016.
Hon. Orrin Hatch,
President Pro Tempore of the U.S. Senate,
Washington, DC.
Dear Mr. President: 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 Senate 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 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.
[[Page S625]]
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 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
[[Page S626]]
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 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
[[Page S627]]
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 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
[[Page S628]]
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 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
[[Page S629]]
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
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
[[Page S630]]
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.
Sec. 38.2 Equivalent facilitation.
Sec. 38.3 Definitions.
Sec. 38.4 Miscellaneous instructions.
Sec. 38.21 General.
Sec. 38.23 Mobility aid accessibility.
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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).
(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
[[Page S632]]
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.
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