SEP 14 1992 The Honorable Bill Richardson U.S. House of Representatives 204 Cannon House Office Building Washington, D.C.

20515-3103 Dear Congressman Richardson: This letter is in response to your inquiry on behalf of your constituent, Jack C. Milarch, Jr., who represents the New Mexico Home Builders Association. The Americans with Disabilities Act (ADA) authorizes the Department of Justice to provide technical assistance to individuals and entities having rights or obligations under the Act. This letter provides informal guidance to assist your constituent in understanding the ADA's requirements. However, it does not constitute a legal interpretation, or legal advice, and it is not binding on the Department. Mr. Milarch opposes efforts in the State of New Mexico to adopt the Americans with Disabilities Act Accessibility Guidelines into the State's building code. The attachments to Mr. Milarch's letter indicate that his organization believes that incorporating the ADA's accessibility standards into the State code would impose a greater obligation on entities constructing or altering facilities than would the ADA itself. This rationale confuses the ADA's requirements for new construction and alterations with its requirements for making "readily achievable" changes to existing buildings. Title III of the ADA establishes the following requirements for new construction and alterations to existing facilities: For new construction, the ADA requires that a facility comply with the ADA Accessibility Guidelines. The only exemption from this requirement is where making a particular feature accessible would cc: Records; Chrono; Wodatch; Blizard; Novich; McDowney; FOIA. udd:blizard:ada.interpretation.richardson.2 01-01518​ -2be structurally impracticable. This standard does not permit exemptions based on the financial status of the building owner.

When alterations are performed to existing buildings, the ADA requires that the altered portions be made accessible to the maximum extent feasible. As with new construction, alterations must meet the ADA Accessibility Guidelines. The phrase "to the maximum extent feasible" allows consideration of the existing structure's technical limitations, not the financial status of the covered entity. The only situation in which cost is a factor in determining ADA obligations for alterations is the determination of the amount that a covered entity is required to spend to provide an accessible path of travel to an altered area containing a primary function of the facility. For existing facilities that are not otherwise being altered, title III of the ADA establishes a distinct requirement that covered entities remove architectural, transportation, and communication barriers to access if removal is readily achievable. "Readily achievable" is the least rigorous standard and permits consideration of the financial condition of the covered entity. In undertaking readily achievable barrier removal, places of public accommodation should comply with the ADA Accessibility Guidelines if it is "readily achievable" to do so, but they are permitted to deviate from the standards if strict compliance would not be readily achievable. I have enclosed a copy of the Department's regulation implementing title III and our title III Technical Assistance Manual. You may refer to Section 36.401 at pages 35599-600 and 35574-80 of the title III regulations for a discussion of new construction requirements; sections 36.402 to 36.406 at pages 35600-02 for a discussion of alterations; and section 36.304 at pages 35597-98 and pages 35568-71 for a discussion of barrier removal. The ADA does not require States to amend their building codes to incorporate the ADA Accessibility Guidelines, but it does establish a procedure by which States can have their building codes certified as meeting the ADA's accessibility standards. Certification will not change an entity's obligations under State or Federal law, but it will streamline the process of design and construction for architects and builders by permitting them to rely on the State or local code provisions to determine what is required, rather than having to consult both State and Federal rules. The Department of Justice is working to educate State and local officials about the certification process and to encourage these officials to seek certification of their codes. Certification is discussed in the enclosed title III regulation

at sections 36.601-36.608 at pp. 35603-04 and at pages 35590-92 and in the enclosed Manual at pages 68-73. 01-01519​ -3I hope this information is helpful to you in responding to Mr. Milarch. Sincerely, James P. Turner Acting Assistant Attorney General Civil Rights Division Enclosures (2) 01-01520​NEW MEXICO HOME BUILDER'S ASSOCIATION 5931 Office Blvd. NE*Albuquerque, N.M. 87109 Phone 344-7072 Outside Alburquerque 1-800-523-8421 Alburquerque Office JACK C. MILARCH, JR. Executive Vice-President

May 28, 1992 Congressman Bill Richardson 204 Cannon House Office Building Washington, D.C. 20515

Dear Congressman Richardson, Thank you for taking time out of you busy schedule last week to meet with the delegation from the New Mexico Home Builders Association. We particularly appreciate commitment from you and your staff to investigate problems being created by Americans with Disabilities Act as it relates to our building codes. I have enclosed a packet of information which will give you additional background information on this subject.

We are very concerned about the speed with which efforts to codify strict interpretations of ADA are proceeding. There is no doubt that business operators and building owners know nothing of these efforts, let alone the effect they will have on their buildings. The only backstop for this seems to be the U.S. Department of Justice. You indicated it was your belief that Congress did not intend this interpretation of ADA. We need your help in preventing an unintended reaction to the new law. If you or your staff have questions please call me anytime. Thank you. Sincerely, Jack C. Milarch, Jr. Executive Vice President AFFILIATED WITH THE NATIONAL ASSOCIATION OF HOME BUILDERS 01-01521