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. 7-8-94 AF:MM:NM J 204-8-0


The Honorable John McCain United States Senate 111 Russell Senate Office Building Washington, D.C. 20510-0303 Dear Senator McCain: This is in response to your letter on behalf of your constituent, Ms. Susan Webb, regarding the implementation of title II of the Americans with Disabilities Act (ADA) by the Department of Justice. We apologize for the delay in responding. On June 20, 1994, the Architectural and Transportation Barriers Compliance Board (Access Board) published an Interim Rule that added four new sections to the ADA Accessibility Guidelines. On the same date, the Department of Justice published a Notice of Proposed Rulemaking to amend the Department's title II regulation to adopt the Access Board's new Guidelines. The Access Board's rule is only effective on the Departments of Justice and Transportation, which must use the Guidelines as the basis for issuing standards. Therefore, the new Guidelines are unenforceable until such time as the Department of Justice issues a final rule adopting them as standards. Ms. Webb is concerned that the publishing of a Notice of Proposed Rulemaking, along with the concomitant comment period, will delay the effective date of the new Guidelines. Ms. Webb should be aware, however, that the Department of Justice is under a legal obligation to propose new rules and request public comment. Section 553 of the Administrative Procedure Act requires Federal agencies to publish general notice of proposed rulemaking in the Federal Register and to give interested persons an opportunity to participate in the rulemaking through submission of written data, views, or arguments (5 USC S 553(b), (c)). Because the Department has not previously given notice of our intent to adopt the Access Board's new Guidelines, we are cc: Records CRS Chrono NM McDowney FOIA MAF NM udd:Milton Congress NPRMVFIN.MCC 01-03330 ​ -2-

obligated to do so now. Ms. Webb should be assured, however, that we intend to publish a final rule as soon as possible after the comment period has ended and the comments have been thoroughly considered. I hope this information is helpful to you in responding to your constituent. Sincerely, Sheila F. Anthony Assistant Attorney General 01-03331 ABIL June 14, 1994 Senator John McCain 111 Russell Senate Office Bldg. Washington DC 20510 Dear Senator McCain, I am writing to express concern about the Americans with Disabilities Act Title II regulations for State and Local Government Services (28 CFR Part 35). The ADA mandates that the Access Board and the Department of Justice issue regulations for access to public buildings and facilities. The Department of Justice issued a Final Rule on July 26, 1991 that allowed these entities to use either the newly developed ADA Accessibility Guidelines (ADAAG) or the old Uniform Federal Accessibility Standards (UFAS). It was the intent that Government entities use ADAAG; however, since certain facilities (e.g. public housing) were not yet addressed in ADAAG, UFAS was allowed as an alternate for guidance. Unfortunately, that has not been the way State and Local Government entities interpret the requirements. Generally, they feel that UFAS is a lesser standard and, therefore, a loophole. Because of this interpretation, some State and Local Government entities have been using a less stringent standard than that required of the private sector under Title III. In November, 1993 The Access Board approved four new sections of ADAAG targeted specifically at Title II entities. These rules will be published in the Federal Register on June 20, nearly three years late! However, it is only an INTERIM rule as DOJ Arizona Bridge to Independent Living 1229 E. Washington, Phoenix, AZ 85034

must adopt the Access Board's guidelines for them to have the force of law. According to a source at the Access Board, DOJ will publish a Notice of Proposed Rulemaking on June 20 with a 60-day comment period for their own Title II accessibility rules. This translates into more delay of these new sections of ADAAG. While I realize and concur that perhaps there are some additional requirements that DOJ would like to include, I see no reason to delay adopting the Board's guidelines while DOJ works on some of the other details. (602) 256-2245 Voice/TDD * (602) 254-6407 FAX * 1-800-280-2245 01-03332

Senator John McCain June 14, 1994 Page Two These delays are especially problematic as government buildings and facilities are still not being built or renovated to be fully accessible to the same extent that privately owned facilities are required to be accessible. Your help would be appreciated in urging the DOJ to publish the Board's interim rule as their own and continue to work on the other issues separately. Sincerely, Susan Webb Executive Director 01-03333