JUN 12 1992 Mr. Jeffrey H. Schiff Executive Director National Association of Towns and Townships 1522 "K" Street, N.W.

Suite 730 Washington, D.C. 20005 Dear Mr. Schiff: This is in response to your March 4, 1992, correspondence regarding the Department's analysis of the economic impact of its regulations implementing title II of the Americans with Disabilities Act (ADA). We regret any misunderstanding or inconvenience that may have occurred because we did not respond to your letter, which we regarded as a "comment letter" on our analysis. It is standard rulemaking practice for the Department not to reply individually to comment letters submitted on pending regulations or accompanying impact analyses. In the July 26, 1991, Federal Register notice containing our final title II regulation, we invited additional comment on the preliminary impact analysis that was prepared in connection with the proposed rule. The notice stated that additional comments would facilitate the development of a final Regulatory Impact Analysis by January 1, 1992. 56 Fed. Reg. 35,694; 35,695. We submitted our final analysis to the Office of Management and Budget in December 1991. At the time we received your letter in March, however, the analysis had not yet been cleared for public release. During the interim, our policy was to treat letters regarding the analysis as comment letters, particularly when, as in the case of your letter, the correspondence explicitly identified itself as a comment letter. We believe that the Department's title II regulation is unlikely to have the severe impact on small governments that you foresee. As mandated by section 204(b) of the ADA, 42 U.S.C. 12134(b), the requirements of the title II regulation track the well-known requirements of section 504 of the Rehabilitation Act, as amended, 29 U.S.C. S794. These obligations had wide

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-2application to small governments during the period prior to the termination of the revenue sharing programs in 1986. During that period, small governments made major efforts to bring their operations into compliance with section 504 and became wellacquainted with such key section 504 concepts as "program accessibility," "effective communication," "integrated setting," "undue hardship," and "undue burden." Interpretation of the title II regulation will be informed by a well-established body of case law and administrative practice under section 504. Even after the termination of the revenue sharing program in 1986, significant portions of local government activity remained subject to section 504 through other Federal funding. Of course, many small governments are also subject to State and local disability rights laws that predate the ADA. By tracking the requirements of section 504, the title II regulation incorporates the inherent flexibility of section 504. Under the program accessibility requirement, small governments do not, as is widely perceived, have to make all of their facilities accessible. Structural changes are only required when the numerous alternatives, such as relocation of activities, home visits, and delivery of services are inadequate to provide access. Even then, the regulation does not require a government to undertake any activity that will result in undue financial and administrative burdens. With respect to new construction, the cost of incorporating accessibility features is generally estimated to add a mere one-half of one percent to construction costs. Because local jurisdictions are already subject to substantial State and local accessible design requirements, the added cost of the title II requirements for new construction and alterations is truly insignificant. Title II's requirements with respect to communications are

similarly flexible. In most situations, creativity, common sense, and training in the art of common courtesy will go a long way in providing effective communication without the need for more costly auxiliary aids. Again, as with respect to physical access, public entities are not required to take any steps that would result in undue financial and administrative burdens. We also believe that you need not be as concerned as your letter suggests regarding our compliance with the Regulatory Flexibility Act. Given the marginal impact that the title II regulation was likely to have on small governments, it was determined that the proposed title II rule would not have a significant economic impact on a substantial number of small entities. 56 Fed. Reg. 8538, 8550. Under the terms of section 3(a) of the Regulatory Flexibility Act, initial and final regulatory flexibility analyses are not required when such a determination is made by the head of the rulemaking agency. 5 U.S.C. 605(b). 01-00914 -3The Office of Management and Budget shared our assessment of the impact of the title II regulation and determined that the proposed rule was not a "major rule" within the meaning of Executive Order 12291. 56 Fed. Reg. 8538, 8550 (1991). Even though the Department was therefore not required to publish a preliminary or final regulatory impact analysis, the Department nevertheless made an analysis available to the public. Upon publication of the final rule, the Department invited additional comment on its analysis. Although a final regulatory flexibility analysis was not required because of the absence of significant impact on small entities, the Federal Register notice indicated that the analysis prepared by the Department contained the information that would be included in a regulatory flexibility analysis if one were required. 56 Fed. Reg. 35,694; 35,695. A copy of our final analysis is enclosed. We share your commitment to the effective implementation of the ADA and your concerns that small governments not be overwhelmed by Federal mandates. Throughout the long process of drafting, enacting, and implementing the ADA, the Administration has worked tirelessly to strike a critical balance between the rights of individuals with disabilities to enjoy equal access to

the mainstream of American life and the legitimate needs of hardpressed State and local governments. We believe that the Department's title II regulations strike that balance and we will monitor their implementation to ensure that this balance is maintained. Sincerely, Stewart B. Oneglia Chief Coordination and Review Section Civil Rights Division Enclosure 01-00915

National Association of Towns and Townships March 4, 1992 Mr. John Wodatch, Director Office of ADA Department of Justice P.O. Box 66738 Washington, D.C. 20035-6118 Dear Mr. Wodatch: On behalf of the National Association of Towns and Townships (NATaT), I am writing to offer comments on the Department of Jus-

tice's analysis of the impact of the Americans with Disabilities Act (ADA) on small local governments. NATaT represents approximately 13,000 mostly small, mostly rural local governments. In a sense, NATaT represents the typical local government, since the vast majority (78 percent) of the 39,000 gen eral purpose units of local government in the United States have fewer than 5,000 residents. Let me begin by stating, emphatically, that NATaT supports the goals of the ADA. We are currently developing technical assistance materials for use by small local governments so that they will be able to implement the ADA regulations to the letter of the law. We also have a history of working with small governments so that they could comply with Section 504 requirements during the days of the General Revenue Sharing program. RegFlex Law Not Followed NATaT has several concerns with the Department of Justice's (DoJ) evaluation of the impact of the ADA on local governments. First, the supplementary information accompanying the proposed ADA Title II regulations states that the Department determined that the proposed rules will not have a significant economic impact on a substantial number of small business entities and therefore are not subject to the Regulatory Flexibility Act. It is certainly true that the proposed rules have no significant impact on small business entities because the rules pertain to state and local government service. Nevertheless, the proposed rules have a most significant impact on small local governments, which are also defined 1522 K ILLEGIBLE, N.W., Suite 730, Washington, D.C. 20005 (202) 737-5200 01-00916 Mr. John Wodatch March 4, 1992 Page 2 as small entities under the Regulatory Flexibility Act. Since the DoJ is silent on the impact of the rules on small local governments and did not exempt itself from the requirements of the RegFlex Act. It should

have conducted a regulatory flexibility analysis for small local governments. Secondly, the supplementary information to the proposed regulations goes on to reveal that the Department did prepare a preliminary Regulatory Impact Analysis (RIA) pursuant to Executive Order 12291. However, the supplementary information accompanying the final Title II regulations curiously observes that the preliminary RIA contained "all the available information that would have been included in a preliminary regulatory flexibility analysis, had one been prepared under the Regulatory Flexibility Act, concerning the rule's impact on small entities" and that "[t]he final RIA will contain all of the information that is required in a final regulatory flexibility analysis and will serve as such an analysis." These comments certainly seem to indicate that the Department believes that it now has the obligation to conduct a regulatory flexibility analysis, since DoJ would have the final RIA serve as a regulatory flexibility analysis. Putting aside the point that an RIA is not a regulatory flexibility analysis, what does the Department's RIA say of the impact of Title II on small local governments? Since the final RIA was not made available at the time the final Title II regulations were published, and has yet to be released, one must go to the preliminary RIA for guidance. RIA Assumptions Are Unfounded That document notes that "there is considerable uncertainty regarding the precise impact of the Title II regulations..." It goes on to state that Title II extends the program accessibility standards of the Rehabilitation Act of 1973 " ... to the last small remaining portion of the public sector not yet covered by those standards. Virtually all of the public sector ... is already subject to the Rehabilitation Act on account of receipt of Federal funding." That assumption led the authors of the RIA to believe that the reach of the regulations seems to be limited to state and local court systems not receiving federal aid " ... and to the central 'town hall' operations of those local and special purpose governmental entities that do not receive Federal aid for administrative and other purposes." The fact of the matter is that since the end of the General Revenue Sharing program in 1986, the vast majority of the 39,000 general purpose units of local governments in the United States -- we estimate 80 percent -- do not receive federal funds, for administrative or any

01-00917 Mr. John Wodatch March 4, 1992 Page 3 other purpose. Therefore, they have not been subject to the provisions of Section 504 for quite some time and have had no financial incentive to make their programs and services accessible for disabled persons since that time. It follows, then, that the impact of Title II on the majority of local governments -- and virtually all small local governments -- is quite significant. All programs must be accessible, physical facilities must be accessible, local governments may have to incur higher costs to construct new buildings or rehabilitate old ones in order to meet certain access requirements, emergency numbers must have TDD access and so forth. To say that there is no significant impact on small local governments simply flies in the face of the facts. The Department, by not conducting a preliminary regulatory flexibility analysis, disingenuously avoids the key requirements of the Regulatory Flexibility Act. Accompanying the proposed rules should be a preliminary regulatory flexibility analysis, which includes a list of significant alternatives which would accomplish the stated objectives of the ADA and minimize the economic impact of the regulations upon small entities. A preliminary regulatory flexibility analysis was not published in the Federal Register along with the proposed rules. No one could have known that the preliminary RIA was to serve as a preliminary regulatory flexibility analysis, since that wasn't stated until the final regulations were issued six months later. And in any case, the preliminary RIA was not published in the Federal Register for public scrutiny and comment. The public was required to request it from the Department, and even then, the preliminary RIA contains virtually none of the most important information of a preliminary regulatory flexibility analysis, especially proposed alternatives for small entities that accomplish the goals of the ADA while taking into consideration the limited resources of small entities. This is a key difference between an RIA and a regulatory flexibility analysis. Public Was Denied the Chance to Participate The final regulatory flexibility analysis which accompanies the final regulations should, by statute, include public comments in response to

the preliminary analysis, as well as changes made in response to those comments. Most importantly, the final analysis should include a description of each of the significant alternatives to the rule which was considered by the agency, and the reason(s) why each was either accepted or rejected. By neither performing a preliminary regulatory flexibility analysis nor availing itself of the exemption for small governmental entities, and 01-00918 Mr. John Wodatch March 4, 1992 Page 4 implying the need for one upon issuing the final regulations, the Department subverted the regulatory flexibility analysis process. Alternatives weren't proposed -- an obligation placed on the federal government by the Regulatory Flexibility Act -- so there was never a question of small entities being allowed to implement the regulations flexibly. Groups such as NATaT certainly would have challenged an assertion of no impact on small local governments and, if a RegFlex analysis had been performed, would have participated vigorously in the examination of proposed alternatives. Unfortunately, we were not permitted either of these opportunities specified in the RegFlex law. The sole flexibility that the regulations give small communities is that they must "reasonably accommodate" a disabled person unless it causes "undue hardship." Unfortunately, those terms are not well-defined and can only be clarified on a case-by-case basis. Small communities are essentially being told by the federal government: "Comply with the law. We won't tell you how, but we will tell you if you do it wrong." Such an approach can only result in communities complying by investing more than is necessary, in the face of uncertainty, to avoid legal challenges, or by communities learning the hard way through costly lawsuits. Either alternative seems inefficient, uneconomical and unnecessary. This approach is also inequitable for local governments. For example, two local governments in different states are found to be out of compliance with ADA under the exact same circumstances and must make physical modifications to their town hall. The courts could compel each jurisdiction to make very different modifications, thereby

incurring very different costs. Until there is a wealth of case history, there will be no agreed-upon common approach to resolving such an issue. The same holds true for the employment provisions of the ADA that apply to local governments: what might be a reasonable accommodation or an undue hardship for one local government could be judged the complete opposite elsewhere. With virtually all small governments responsible for constructing new facilities or rehabilitating existing ones according to set standards, ensuring that their programs -- including new programs mandated by federal and state authorities since the end of General Revenue Sharing -- are accessible to the disabled, and installing TDD or similar equipment to ensure that the hearing impaired can access emergency numbers, it is difficult to believe that the cost of interpreters is going to be the primary program accessibility cost for local governments, as the Department stated in its preliminary RIA. 01-00919 Mr. John Wodatch March 4, 1992 Page 5 RegFlex Strongly Supported by President Bush Given the Department's assumption that virtually all public entities were already covered by Section 504 of the Rehabilitation Act (which they are clearly not) it is incumbent upon the Department of Justice to re-evaluate its conclusions about the impact of the Title II regulations on small local governments. We would certainly expect this to be the case for two reasons. First, this is an enormous and all encompassing piece of legislation, directed specifically at local governments. Secondly, at our annual conference this past year, our keynote speaker, President Bush, told our membership that he would instruct all federal departments and agencies to implement the Regulatory Flexibility Act to the full extent of its spirit and intent. Again, let me reiterate that we support the ADA fully. We are not seeking exemptions for small local governments. We are asking the Department to properly consider the ADA regulations in light of the Regulatory Flexibility Act, specifically the act's requirements that alternative, flexible approaches be proposed and considered that will allow small entities to meet the ADA's requirements. NATaT staff would be glad to offer the Department any assistance we can regarding

the impact of Title II on local governments. Sincerely, Jeffrey H. Schiff Executive Director cc: The Honorable William P. Barr, Attorney General of the United States Debra Anderson, Deputy Assistant to the President for Intergovernmental Affairs 01-00920