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Control No. X93052009925 The Honorable Ike Skelton Member, U.S. House of Representatives 4th District 514 B North 7 Highway Blue Springs, Missouri 64014 Dear Congressman Skelton: This letter is in response to your inquiry on behalf of your constituent, Mr. W.E. Olson, Sr., concerning the requirements of title III of the Americans with Disabilities Act (ADA), 42 U.S.C. 12101 et seq., and this Department's regulation implementing title III, 28 C.F.R. Part 35. Mr. Olson wrote to the Department of Justice on September 29 and December 1, 1992, asking, among other things, for interpretations of the ADA requirements for the design and construction of accessible plumbing elements. Following Mr. Olson's second letter, the Civil Rights Division's Public Access Section convened a meeting at which Mr. Olson (and other plumbing industry representatives selected by Mr. Olson) met with senior staff members to discuss the issues raised in Mr. Olson's letters. Section staff promised to confirm the discussions at the meeting with a written response. This response was sent recently to Mr. Olson. A copy is enclosed for your information. We regret the delay in sending this response. When Mr. Olson initially requested interpretations of the ADA requirements from this Department, we assumed that he was merely seeking clarification of the standards for accessible design. Because the ADA authorizes the Department of Justice to provide technical assistance to individuals and entities that have rights or responsibilities under the Act, we offered to meet with Mr. Olson and the other industry representatives to address plumbing manufacturers' concerns. The technical assistance that we provided at that meeting and in our subsequent response to Mr. Olson's letters is informal guidance, not a legal interpretation by the Department, and it is not binding on the Department Over the course of time, it has become clear to us That Mr. Olson is not seeking an explanation of the rule. His true
concern is that some of the products he manufactures may not conform to the rule's specifications and therefore could not be cc: Records, Chrono, Wodatch, Blizard, McDowney FOIA Friedlander n:\udd\mercado\congltrs\skelton.jlb 01-02436
-2installed in buildings subject to the Act. Therefore, he wants the Department of Justice to issue an "interpretation" of the ADA standards that will permit covered entities (e.g., building owners and contractors) to continue to install, as" accessible," products that do not comply with the ADA regulation. Neither the ADA nor the Administrative Procedure Act permit the Department to modify a regulation in this manner. The ADA, like other Federal civil rights laws, is enforced through compliance reviews, complaint investigations, and litigation initiated by the Department of Justice. (It may also be enforced through litigation initiated by private parties.) The ADA does not authorize the Department of Justice, or any other Federal agency, to function as a "building department" to review plans, to issue permits, or to provide "interpretations" of the standards. The ADA, like all other Federal civil rights laws, requires each covered entity to use its best professional judgment to comply with the applicable regulations. The Administrative Procedure Act, which establishes the formal requirements for issuing Federal regulations, requires amendments to regulations to comply with the same procedures as the initial publication. That is, proposed changes must be made through a rulemaking proceeding that includes public notice, the opportunity for public comment, and the completion of any revisions to the proposal that are deemed to be required after public comment. We have informed Mr. Olson, and others in the plumbing industry, that the appropriate means of seeking changes in the
ADA requirements is to address a petition for further rulemaking to the Architectural and Transportation Barriers Compliance Board (Access Board), which is the Federal agency designated by the ADA to develop the guidelines for the accessible design of buildings and facilities subject to the ADA. The Department of Justice is required by the ADA to adopt enforceable standards that are consistent with the Access Board's guidelines. I hope that this information is helpful to you in responding to your constituent. Sincerely, James P. Turner Acting Assistant Attorney General Civil Rights Division Enclosure 01-02437 CRANE PLUMBING FIAT PRODUCTS Congressman Skelton 514 B N. 7 HWY. Blue Springs, MO 64014 Reference: ADA/DOJ Interpretation Requests Dear Congressman Skelton: I would like to request your help in securing interpretations from the ADA Access Board and/or DOJ in regards to the ADA ("Americans with Disabilities Act"). The following pages cover my attempts to deal directly with the ADAAccess Board and the Dept. of Justice (DOJ) in trying to resolve these areas. The areas of concern apply to plumbing fixtures which we manufacture at various locations all over the country. The whole plumbing fixture industry is in a state of confusion because April 27, 1993 via facsimile to 1-816-228-4814
of the different interpretations that are being given by various agencies (i.e.: federal, state, regional, municipalities, etc.) on the same ADA Law verbage. The way the ADA is currently being strictly interpreted there is not a premanufactured (acrylic/gel-coat) shower stall that meets the ADA. Also the ADA-Access Board nor DOJ will answer the question of whether they will accept the revised CABO/ANST A117.1-1992 standard entitled "American National Standard for Accessible and Usable Buildings and Facilities." The ADA-Access Board was on the Committee that revised the CABO/ANSI A117.1-1992 which was published in December 1992. Some of my questions would be answered by ADA/DOJ accepting the verbage contained in the new CABO/ANSI A117.1. All of the pre-March 10, 1992 information was sent to or hand delivered or both to both the ADA-Access Board and the Dept. of Justice. The first letter written was acknowledged by the DOJ and they had promised to respond "expeditiously." I feel that answers to my letters should not take (7) seven months much less after seven months not even to know when you will receive an answer. (Continued Page 2) CR/PL, INC P.O. Box 389 Nevada, MO. 64772 417-667-6048 01-02438 I. Skelton 4-28-93 Page 2 of 2
If further information is needed or questions arise on the above, please let me know. Thank you. Sincerely, CR/PL, L.P.
W. E. Olson, Sr. Engineering Supervisor WEO/nc cc: R. L. Beidler - Evanston R. L. Klaess - Evanston M. Klimboff - Cincinnati P. L. Thompson - Somerset (Attachmt. 16 pg.) 01-02439 3-10-93 - Called John Murdoch 1-202-272-5434 ext. 733- received answering machine - left message to return my call. 3-10-93 - Faxed Mr. Murdoch my 3-10-93 letter. - Received call from Mr. Murdoch and talked from 4:20 pm to 4:45 p.m. about areas of concern in my letters. Both to work for another ADA/DOJ and Plumbing Industry Meeting. 3-12-93 - Called Mr. Murdoch - received answering machine 2:15 PM and left message to return my call. 3-15-93 - 12:48 PM - Talked with Mr. Murdoch - he is still trying to set up meeting during first week of April. 3-18-93 - Received call from Mr. Murdoch - he is still trying to set up meeting. 3-26-93 - Received call from Mr. Murdoch - I was on vacation. 3-29-93 - Called Mr. Murdoch - received answering machine - left message for him to return my call. 3-30-93 - Received call from Mr. Murdoch - he stated that Ms. Irene Bowen of DOJ, according to his boss Mr. David Capozzi of ADA, was to respond to my 9-17 and 9-29-92 letters - no time table was given. No meeting date could be set until letter was sent to DOJ. Send Mr. Murdoch a copy of ANSI Z124.2. 4-19-93 - Called Mr. Murdoch - received answering machine - left
message for him to return my call. 4-23-93 - Called DOJ - left messages for Ms. Irene Bowen and Mr. John Wodatch to return my call. 4-27-93 - Called Ms. Irene Bowen - left message to return my call. 4-27-93 - Received call from Ms. Janet Blizard - DOJ stating answer to my letters were in review - could not give any idea of when - I received impression that no letter was being written. 4-27-93 - Called Mr. Murdoch - received answering machine - left message to return my call. 4-27-93 - Called Mr. David M. Capozzi of ADA-Access Board 1-202-2725434 ext. #722 - not there - left message to return my call. 01-02440