[Congressional Record Volume 169, Number 56 (Tuesday, March 28, 2023)]
[Senate]
[Pages S989-S994]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




  NOTICE OF ADOPTION OF REGULATIONS AND TRANSMITTAL FOR CONGRESSIONAL 
                                APPROVAL

                                          U.S. Congress, Office of


                               Congressional Workplace Rights,

                                   Washington, DC, March 28, 2023.
     Hon. Patty Murray,
     President Pro Tempore of the U.S. Senate,
     The United States Capitol,
     Washington, DC.
       Dear Madam President: Section 304(b)(3) of the 
     Congressional Accountability Act

[[Page S990]]

     (CAA), 2 U.S.C. Sec. 1384(b)(3), requires that, with regard 
     to substantive regulations under the CAA, after the Board of 
     Directors (``Board'') of the Office of Congressional 
     Workplace Rights (``OCWR'') 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 OCWR 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 both the House and Senate versions 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.
       Any inquiries regarding this notice should be addressed to 
     Patrick Findlay, Executive Director of the Office of 
     Congressional Workplace Rights, Room LA-200, 110 2nd Street, 
     S.E., Washington, D.C. 20540; 202-724-9250.
           Sincerely,

                                       Barbara Childs Wallace,

         Chair of the Board of Directors, Office of Congressional 
                                                 Workplace Rights.
       Attachment.

 FROM THE BOARD OF DIRECTORS OF THE OFFICE OF CONGRESSIONAL WORKPLACE 
                                 RIGHTS

  NOTICE OF ADOPTION OF REGULATIONS AND TRANSMITTAL FOR CONGRESSIONAL 
                                APPROVAL

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

       On or about July 26, 2022, the Board of Directors (``the 
     Board'') of the Office of Congressional Workplace Rights 
     (``OCWR'') published a Notice of Proposed Rulemaking 
     (``NPRM'') in the Congressional Record. 168 Cong. Rec. H7158-
     H7163, S3700-3705 (daily ed. July 26, 2022). The Board, after 
     considering comments to the NPRM, has adopted, and is 
     submitting for approval by the Congress, final modified 
     regulations implementing section 210 of the CAA. As set forth 
     in detail below, the OCWR Board previously adopted 
     regulations implementing section 210 of the CAA in 2016. 162 
     Cong. Rec. H557-565, S624-632 (daily ed. February 3, 2016). 
     Because Congress has not acted on the Board's request for 
     approval of its 2016 amendments, the Board now resubmits them 
     for congressional approval.
       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 fourteen 
     federal labor and employment statutes to covered employees 
     and employing offices within the legislative branch of the 
     federal government. 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 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). 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 OCWR Board 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).
       The July 26, 2022 Notice of Proposed Rulemaking included a 
     thirty day comment period, which began on July 26, 2022. The 
     OCWR received two sets of written comments to the proposed 
     substantive regulations from stakeholders. The Board of 
     Directors has reviewed these comments, has made certain 
     changes to the proposed substantive regulations in response 
     to the comments, has adopted the amended regulations, and is 
     submitting these final regulations for approval by Congress.
       Adoption of these substantive regulations by the Board does 
     not complete the promulgation process. Pursuant to section 
     304 of the CAA, 2 U.S.C. Sec. 1384, following the Board's 
     adoption of the regulations, it must transmit notice of such 
     action together with the regulations and a recommendation 
     regarding the method for Congressional approval of the 
     regulations to the Speaker of the House and President pro 
     tempore of the Senate for publication in the Congressional 
     Record. This Notice of Adoption of Substantive Regulations 
     and Submission for Congressional Approval completes this 
     step.
       Pursuant to section 304(b)(4) of the CAA, 2 U.S.C. 
     Sec. 1384(b)(4), the Board of Directors is required to 
     ``include a recommendation in the general notice of proposed 
     rulemaking and in the regulations as to whether the 
     regulations should be approved by resolution of the Senate, 
     by resolution of the House of Representatives, by concurrent 
     resolution, or by joint resolution.'' 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.
       Yes. The first ADA regulations implementing section 210 of 
     the CAA were adopted by the Board and published on January 7, 
     1997, 142 Cong. Rec. H10676-10711, S10984-11019 (daily ed. 
     September 19, 1996) and 143 Cong. Rec. S30-61 (daily ed. 
     January 7, 1997), after providing notice, and receiving and 
     considering comments in accordance with section 304 of the 
     CAA. No congressional action was taken and thus the 1997 
     regulations were not issued. Revised regulations were adopted 
     by the Board and published on February 3, 2016, after 
     providing notice, and receiving and considering comments in 
     accordance with section 304 of the CAA. 160 Cong. Rec. H7363 
     & 160 Cong. Rec. S5437 (daily ed., Sept. 9, 2014), 162 Cong. 
     Rec. H557-565, S624-632 (daily ed. February 3, 2016). No 
     congressional action was taken and thus the regulations were 
     not issued. Because Congress has not acted on the Board's 
     request for approval of its 2016 amendments, the Board now 
     resubmits them for congressional approval.
       Both commenters incorporated by reference comments 
     submitted in response to the Board's 2014 ADA NPRM. In the 
     2022 NPRM, the Board only solicited comments on the 
     modifications being made to the ADA regulations adopted in 
     2016. Because the Board has already considered all of the 
     comments made to the 2014 ADA NPRM and responded to them in 
     its 2016 ADA Notice of Adoption, the Board will not further 
     respond to those comments at this time. 162 Cong. Rec. H557-
     565, S624-632 (daily ed. February 3, 2016).
       The Board notes that the Department of Justice (``DOJ'') 
     regulations now incorporated by reference into the 
     regulations being adopted under section 210 of the CAA have 
     not undergone drastic changes since the opportunity for 
     comments pursuant to the 2014 ADA NPRM. The DOJ regulations, 
     originally published on July 26, 1991 and revised on 
     September 15, 2010, have since undergone only specified 
     changes explained in detail in the July 2022 NPRM involving 
     the definition of ``disability'' as well as movie theater 
     accessibility. The few changes to the pertinent Department of 
     Transportation (``DOT'') regulations since 2014 are described 
     in detail in the July 2022 NPRM as well, and relate to public 
     transportation entities' obligation to make reasonable 
     modifications.
       The Board has modified section 2.102, regarding rules of 
     interpretation, to specify that both the Board's 2016 Notice 
     of Adoption and the instant Notice of Adoption shall be used 
     to interpret the regulations and shall be made part of these 
     Regulations as Appendix A.
       Both commenters expressed concern over the Board's proposal 
     to remove certain substantive regulations in favor of 
     procedural rules to govern unique procedural issues in 
     implementing the ADA mandate under the CAA. Unlike in 2016, 
     the Board's substantive regulations no longer address the 
     procedures

[[Page S991]]

     used to implement the two unique statutory duties imposed by 
     the CAA upon the General Counsel of the OCWR (``General 
     Counsel'') that are not imposed upon the DOJ and DOT: (1) the 
     investigation and prosecution of charges of discrimination 
     using the Office's mediation and hearing processes (section 
     210(d) of the CAA) and (2) the biennial ADA inspection and 
     reporting obligations (section 210(f) of the CAA). The Board 
     has determined that the procedures relating to these duties 
     are best and properly implemented through amendments to the 
     OCWR's Procedural Rules.
       Both commenters suggested that this approach is in direct 
     contradiction to the statutory requirement in 2 U.S.C. 
     Sec. 1331(e)(1) that the Board use the procedures of 2 U.S.C. 
     Sec. 1384 to adopt substantive regulations to implement 
     section 210 of the CAA, rather than the simpler standard for 
     adopting procedural rules under 2 U.S.C Sec. 1383. The Board 
     has determined that rules relating to procedures belong in 
     the procedural rules, not the substantive regulations. 
     Nothing in the CAA prevents the Executive Director, subject 
     to the approval of the Board, from adopting procedural rules 
     pursuant to 2 U.S.C. Sec. 1383 with respect to any particular 
     part of the CAA. Section 1383 does not prescribe what 
     subjects may be addressed in the procedural rules, beyond 
     that they are ``rules governing the procedures of the 
     Office.'' 2 U.S.C Sec. 1383(a). Indeed, as the Rules' Scope 
     states, ``These Rules of the [OCWR] govern the procedures for 
     considering and resolving alleged violations of the laws made 
     applicable by the Congressional Accountability Act of 1995 
     (CAA), as amended by the Congressional Accountability Act of 
     1995 Reform Act of 2018 (CAARA).'' Procedural Rules of the 
     Office of Congressional Workplace Rights as Amended June 
     2019, Sec. 1.01. The Board notes that (1) the investigation 
     and prosecution of charges of discrimination using the 
     Office's mediation and hearing processes and (2) the biennial 
     ADA inspection and reporting obligations relate to ``the 
     procedures of the Office,'' the CAA's only requirement for 
     the content of OCWR's Procedural Rules. 2 U.S.C Sec. 1383(a).
       Both commenters suggested that issuing procedural rules 
     relating to section 210 would deny Congress the authority to 
     assess whether the Board has properly defined the scope of 
     powers it intended to give the General Counsel. The Board 
     responds by noting that the CAA's process for adoption of 
     procedural rules includes publication in the Congressional 
     Record of a notice of proposed rulemaking and a comment 
     period of at least 30 days after publication before adopting 
     rules. 2 U.S.C Sec. 1383(b). Thus, when the Board proposes 
     procedural rules relating to the ADA, employing offices and 
     other parties will have an opportunity to review the proposed 
     procedural rules and provide comments. At this time, the 
     Board has not determined whether the proposed procedures will 
     be the same as what was proposed in the 2016 ADA Notice of 
     Adoption.
       One commenter suggested that incorporation of section 
     35.105 regarding self-evaluation would impose on covered 
     entities an obligation not included in or authorized by the 
     CAA, and that the CAA does not authorize the Board to 
     delegate the General Counsel's inspection duty to covered 
     entities. Section 35.105 was adopted by the Board in 1997 and 
     2016. 143 Cong. Rec. S30-61 (daily ed. January 7, 1997) and 
     162 Cong. Rec. H557-565, S624-632 (daily ed. February 3, 
     2016). Because the Board's 1997 and 2016 regulations were 
     adopted pursuant to the CAA's procedures for proposing and 
     approving substantive regulations, including a comment period 
     of 30 days after publication of the proposed regulations in 
     the Congressional Record, and because the Board has not 
     reopened the comment period on the 2016 adopted regulations 
     that have not been modified, as indicated in the NPRM, the 
     Board will not and has not considered additional comments on 
     those adopted regulations.
       The Board notes that its adoption in 1997 and 2016 of 
     section 35.105's self-evaluation obligation merely 
     incorporates a DOJ regulation that clarifies a legal duty 
     imposed by the ADA as applied by the CAA and that helps 
     ensure covered entities remain accessible even when the 
     General Counsel is unable to inspect a particular facility. 
     By adopting section 35.105 in 1997 and 2016, the Board did 
     not delegate the General Counsel's inspection duty to covered 
     entities (which, as the commenter correctly notes, is not 
     authorized under the CAA). The General Counsel, in accordance 
     with section 210(f)(1) of the CAA (2 U.S.C. Sec. 1331(f)(1)), 
     inspects the facilities of covered entities to ensure 
     compliance with section 210(b) at least once each Congress; 
     adoption of section 35.105 has not changed this. Nor does the 
     General Counsel's inspection responsibility under 2 U.S.C. 
     Sec. 1331(f)(1) relieve employing offices of one of their 
     primary duties under the ADA as applied by the CAA: to 
     identify and remove barriers to access.
       The Board additionally notes that adoption of section 
     35.105's self-evaluation obligation promotes increased 
     accessibility of legislative branch facilities. Due to very 
     limited inspection resources, the General Counsel is unable 
     to conduct ADA inspections of every facility used by covered 
     entities 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. 
     Adoption of section 35.105 clarifies that the duty of covered 
     entities to identify and remove barriers to access includes a 
     duty to self-evaluate their compliance with the ADA as 
     applied by CAA.
       A commenter suggested that the Board's modification of 
     section 35.107 to impose a duty to designate an employee to 
     coordinate ADA responsibilities on the ``House of 
     Representatives'' as a body and the ``Senate'' as a body is 
     not supported by good cause because those bodies are not 
     among the covered entities enumerated in 2 U.S.C. 
     Sec. 1331(a). Accordingly, the Board has changed its 
     modification of section 35.107 to more closely reflect the 
     language of 2 U.S.C. Sec. 1331(a). Deletions are marked with 
     square [brackets] and added text is within angled 
     <>. Therefore, if these regulations are approved by 
     Congress as adopted, the deletions within square brackets 
     will be removed from the regulations and the added text 
     within angled brackets will remain.
       A commenter suggested that the duty section 35.107 would 
     impose on covered entities employing 50 or more employees--to 
     designate an employee ``to coordinate its efforts to comply 
     with and carry out its responsibilities under this part''--is 
     not included in or authorized by the CAA.
       The Board notes that section 35.107, without modification, 
     was adopted by the Board in 1997 and 2016 pursuant to the 
     CAA's procedures for proposing and approving substantive 
     regulations 143 Cong. Rec. S30-61 (daily ed. January 7, 1997) 
     and 162 Cong. Rec. H557-565, S624-632 (daily ed. February 3, 
     2016). Since the Board has already responded to this comment 
     in its 2016 Notice of Adoption, no further response is 
     warranted at this time.
       The Board additionally notes that the duty imposed by 
     section 35.107 is, in fact, included in and authorized by the 
     CAA: Section 210(e) of the CAA requires that the regulations 
     issued by the OCWR Board, pursuant to section 304 of the CAA, 
     ``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 section 210 of the CAA][,]'' 2 U.S.C. Sec. 1331(e). 
     It is pursuant to this requirement of the CAA that the Board 
     adopted section 35.107 in 1997 and 2016, and does so again 
     now.
       The Board has not responded to comments regarding this 
     regulation because it has not been incorporated into the 
     adopted regulations. The Board intends to propose that 
     Congress amend the CAA to incorporate section 503 of the ADA, 
     on which 28 C.F.R. Sec. 36.206 is based.
       One commenter suggested that incorporation of Sec. F202.6 
     is inconsistent with the Board's authority under 2 U.S.C. 
     Sec. 1384 of the CAA and does not consider current 
     appropriations, procurement, and leasing practices and 
     requirements of the House. Section F202.6 was adopted by the 
     Board in 2016. 162 Cong. Rec. H557-565, S624-632 (daily ed. 
     February 3, 2016). Because the Board's 2016 regulations were 
     adopted pursuant to the CAA's procedures for proposing and 
     approving substantive regulations, including a comment period 
     of 30 days after publication of the proposed regulations in 
     the Congressional Record, and because the Board has not 
     reopened the comment period on the 2016 adopted regulations 
     that have not been modified, as indicated in the NPRM, the 
     Board has not considered comments to regulations already 
     adopted.
       The Board also notes that the recent comments to 
     Sec. F202.6 are largely the same as those made in response to 
     its 2014 NPRM and that its response remains the same as 
     stated in the 2016 Notice of Adoption, which is summarized as 
     follows:
       This Access Board regulation is 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''). The ABAAG became 
     the ABA Accessibility Standards (``ABAAS'') on May 17, 2005 
     when the General Services Administration adopted them as the 
     standards. See 41 C.F.R. Sec. 102-76.65(a) (2005). This 
     regulation provides that buildings and facilities leased with 
     federal funds shall contain certain specified accessible 
     features (including at least one accessible route to primary 
     function areas, accessible toilet facilities, and accessible 
     parking spaces). 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.
       Under Sec. F202.6, ``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 Access Board's leasing regulation implements a key 
     provision of the Architectural Barriers Act (``ABA'') which 
     Congress

[[Page S992]]

     originally passed in 1968 and amended in 1976 to require 
     accessibility of facilities leased (in addition to those 
     owned) by the federal government. 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 ABA and any regulations 
     implementing it.
       As the commenter 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. 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 facilities are located 
     in rural or sparsely populated areas. The commenter did not 
     provide 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 thirty-one years through alterations and new 
     construction, the burdensomeness of this regulation is 
     certainly much less than it was in 1991.
       The commenter also noted that attempting to apply the ABA 
     to cover district office leases entered into by Members of 
     Congress could result in violations of both the 
     Antideficiency Act, 31 U.S.C. Sec. 1341, and the Adequacy of 
     Appropriations Act, 41 U.S.C. Sec. 11, where an individual 
     Member office does not have funding to address potential non-
     compliance with ABA standards. The Board reiterates its 2016 
     response to the similar comment received in response to the 
     2014 NPRM, 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. The proposed 
     regulation does not require that any Member specifically pay 
     for alterations to ensure compliance with ABA standards. 
     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. The Board 
     notes that one of the most common ADA public access 
     complaints received by the OCWR 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 finds good 
     cause to adopt 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 section 210(e)(2) 
     of the CAA, the Board is authorized to adopt 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.
       In an additional comment that is somewhat different from 
     the comments received in 2014, the commenter noted that the 
     method of incorporation of Sec. F202.6 Leases is problematic 
     because the subsection includes language that is not relevant 
     to House offices and because adoption of only Sec. F202.6 
     fundamentally distorts the intended scope of application of 
     the requirements set forth in that subsection. The Board 
     notes that this method of incorporation is inherent in the 
     way the CAA incorporates the ADA. Rather than incorporate the 
     ADA in its entirety, the CAA incorporates select sections of 
     the ADA. 2 U.S.C. Sec. 1331(b)(1). The CAA further obligates 
     the Board's regulations to be the same as the DOJ and DOT 
     regulations promulgated to implement those select sections 
     (except to the extent that the Board may determine that a 
     modification would be more effective in implementing ADA 
     public access protections). 2 U.S.C. Sec. 1331(e)(2). 
     Congress therefore did not intend that the ADA regulations 
     applicable to the executive branch would apply wholesale 
     through the CAA, but rather that only specific regulations 
     would be adopted. Accordingly, the Board has only adopted 
     specified regulations incorporated from 28 C.F.R. Parts 35 
     and 36, 49 C.F.R. Parts 37 and 38, and, with the adoption of 
     Sec. F202.6, the Architectural Barriers Act Accessibility 
     Standards.

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

       (a) CAA. Enacted into law on January 23, 1995 and amended 
     on December 21, 2018, 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;
       (9) the Office of Congressional Workplace Rights; and
       (10) the Library of Congress.
       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(e) 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(e)(1).
       (b) Purpose and scope of regulations. The regulations set 
     forth herein (Parts 1 and 2) are the substantive regulations 
     that the Board of Directors of the Office of Congressional 
     Workplace Rights has promulgated pursuant to section 210(e) 
     of the CAA. Part 1 contains the general provisions applicable 
     to all regulations under section 210 and the method of 
     identifying entities responsible for correcting a violation 
     of section 210. Part 2 contains 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.
       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. No. 104-1, amended by Congressional 
     Accountability Act of 1995 Reform Act, Pub. L. No. 115-397.
       (b) ADA or Americans with Disabilities Act means those 
     sections of the Americans with Disabilities Act of 1990 as 
     amended by the ADA Amendments Act of 2008 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 provides 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 
     Congressional Workplace Rights.
       (e) Office means the Office of Congressional Workplace 
     Rights.
       (f) General Counsel means the General Counsel of the Office 
     of Congressional Workplace Rights.
       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

[[Page S993]]

     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.
       (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 the ADA may be determined by 
     statute, contract, or other enforceable arrangement or 
     relationship.

             PART 2--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.
       When regulations in Sec. 2.103 conflict, the regulation 
     providing the most access shall apply. The Board's 2016 
     Notice of Adoption and the instant Notice of Adoption shall 
     be used to interpret these regulations and shall be made part 
     of these Regulations as Appendix A.
       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:
       But modify as follows:
       <> [A 
     public entity] that employs 50 or more persons shall 
     designate at least one employee to coordinate its efforts to 
     comply with and carry out its responsibilities under this 
     part, including <> [any investigation of any complaint communicated to it 
     alleging its noncompliance with this part or alleging any 
     actions that would be prohibited by this part]. The public 
     entity shall make available to all interested individuals the 
     name, office address, and telephone number of the employee or 
     employees designated pursuant to this paragraph. <>

   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.

APPENDIX C TO PART 35--GUIDANCE TO REVISIONS TO ADA TITLE II AND TITLE 
    III REGULATIONS REVISING THE MEANING AND INTERPRETATION OF THE 
     DEFINITION OF ``DISABILITY'' AND OTHER PROVISIONS IN ORDER TO 
         INCORPORATE THE REQUIREMENTS OF THE ADA AMENDMENTS ACT

       But modify as follows:

[[Page S994]]

       Subpart B of this part <<(Sec. 36.201 through 
     Sec. 36.213)>> sets forth the general principles of 
     nondiscrimination applicable to all entities subject to this 
     part. Subparts C <<(Sec. 36.301 through Sec. 36.310)>> and D 
     <<(Sec. 36.405 through Sec. 36.406)>> of this part provide 
     guidance on the application of the statute to specific 
     situations. The specific provisions, including the 
     limitations on those provisions, control over the general 
     provisions in circumstances where both specific and general 
     provisions apply.

   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.

Appendix C to Part 36--Guidance on ADA Regulation on Nondiscrimination 
 on the Basis of Disability by Public Accommodations and in Commercial 
           Facilities Originally Published on July 26, 1991.

    Appendix D to Part 36--1991 Standards for Accessible Design as 
                 Originally Published on July 26, 1991.

Appendix E to Part 36--Guidance to Revisions to ADA Title II and Title 
    III Regulations Revising the Meaning and Interpretation of the 
     Definition of ``Disability'' and Other Provisions in Order to 
        Incorporate the Requirements of the ADA Amendments Act.

    Appendix F to Part 36--Guidance and Section-By-Section Analysis.

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

Sec. 37.169 Process to be used by public entities providing designated 
 public transportation service in considering requests for reasonable 
                             modification.

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

   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.

        Appendix E to Part 37--Reasonable Modification Requests.

                Appendix to Part 38--Guidance Material.

       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.

                          ____________________