. 7-8-94                                       DATE ILLEGIBLE
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

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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

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        ABIL                             Arizona Bridge to Independent Living
                                        1229 E. Washington, Phoenix, AZ 85034

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
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

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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

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