The publication is reproduced in full below:
NOTICE OF ADOPTION OF REGULATIONS AND TRANSMITTAL FOR CONGRESSIONAL
APPROVAL
U.S. Congress, Office of
Congressional Workplace Rights,
Washington, DC, March 28, 2023. Hon. Patty Murray, President Pro Tempore of the U.S. Senate, The United States Capitol, Washington, DC.
Dear Madam President: Section 304(b)(3) of the Congressional Accountability Act
(CAA), 2 U.S.C. Sec. 1384(b)(3), requires that, with regard to substantive regulations under the CAA, after the Board of Directors (``Board'') of the Office of Congressional Workplace Rights (``OCWR'') has published a general notice of proposed rulemaking as required by subsection (b)(1), and received comments as required by subsection (b)(2), ``the Board shall adopt regulations and shall transmit notice of such action together with a copy of such regulations to the Speaker of the House of Representatives and the President pro tempore of the Senate for publication in the Congressional Record on the first day on which both Houses are in session following such transmittal.''
The OCWR Board has adopted the regulations in the Notice of Adoption of Substantive Regulations and Transmittal for Congressional Approval, which accompany this transmittal letter. The Board requests that the accompanying Notice be published in both the House and Senate versions of the Congressional Record on the first day on which both Houses are in session following receipt of this transmittal. The Board has adopted the same regulations for the Senate, the House of Representatives, and the other covered entities and facilities, and therefore recommends that the adopted regulations be approved by concurrent resolution of the Congress.
Any inquiries regarding this notice should be addressed to Patrick Findlay, Executive Director of the Office of Congressional Workplace Rights, Room LA-200, 110 2nd Street, S.E., Washington, D.C. 20540; 202-724-9250.
Sincerely,
Barbara Childs Wallace,
Chair of the Board of Directors, Office of Congressional
Workplace Rights.
Attachment.
FROM THE BOARD OF DIRECTORS OF THE OFFICE OF CONGRESSIONAL WORKPLACE
RIGHTS
NOTICE OF ADOPTION OF REGULATIONS AND TRANSMITTAL FOR CONGRESSIONAL
APPROVAL
Modification of Regulations Extending Rights and Protections Under the
Americans with Disabilities Act Relating to Public Services and
Accommodations, Notice of Adoption of Regulations and Submission for
Approval as Required by 2 U.S.C. Sec. 1331, Congressional
Accountability Act of 1995, as Amended.
On or about July 26, 2022, the Board of Directors (``the Board'') of the Office of Congressional Workplace Rights
(``OCWR'') published a Notice of Proposed Rulemaking
(``NPRM'') in the Congressional Record. 168 Cong. Rec. H7158- H7163, S3700-3705 (daily ed. July 26, 2022). The Board, after considering comments to the NPRM, has adopted, and is submitting for approval by the Congress, final modified regulations implementing section 210 of the CAA. As set forth in detail below, the OCWR Board previously adopted regulations implementing section 210 of the CAA in 2016. 162 Cong. Rec. H557-565, S624-632 (daily ed. February 3, 2016). Because Congress has not acted on the Board's request for approval of its 2016 amendments, the Board now resubmits them for congressional approval.
The Congressional Accountability Act of 1995, PL 104-1
(``CAA''), was enacted into law on January 23, 1995. The CAA, as amended, applies the rights and protections of fourteen federal labor and employment statutes to covered employees and employing offices within the legislative branch of the federal government. Section 210(b) of the CAA provides that the rights and protections against discrimination in the provision of public services and accommodations established by the provisions of Titles II and III (sections 201 through 230, 302, 303, and 309) of the Americans with Disabilities Act of 1990, 42 U.S.C. Sec. Sec. 12131-12150, 12182, 12183, and 12189 (``ADA'') shall apply to legislative branch entities covered by the CAA. The above provisions of section 210 became effective on January 1, 1997. 2 U.S.C. Sec. 1331(h). Title II of the ADA prohibits discrimination on the basis of disability in the provision of services, programs, or activities by any ``public entity.'' Section 210(b)(2) of the CAA defines the term ``public entity'' for Title II purposes as any of the listed legislative branch offices that provide public services, programs, or activities. 2 U.S.C. Sec. 1331(b)(2). Title III of the ADA prohibits discrimination on the basis of disability by public accommodations and requires places of public accommodation and commercial facilities to be designed, constructed, and altered in compliance with the accessibility standards.
Section 210(e) of the CAA requires the OCWR Board to issue regulations implementing Section 210. 2 U.S.C. Sec. 1331(e). Section 210(e) further states that such regulations ``shall be the same as substantive regulations promulgated by the Attorney General and the Secretary of Transportation to implement the statutory provisions referred to in subsection
(b) of this section except to the extent that the Board may determine, for good cause shown and stated together with the regulation, that a modification of such regulations would be more effective for the implementation of the rights and protections under this section.'' Id. Section 210(e) further provides that the regulations shall include a method of identifying, for purposes of this section and for different categories of violations of subsection (b), the entity responsible for correction of a particular violation. 2 U.S.C. Sec. 1331(e)(3).
The July 26, 2022 Notice of Proposed Rulemaking included a thirty day comment period, which began on July 26, 2022. The OCWR received two sets of written comments to the proposed substantive regulations from stakeholders. The Board of Directors has reviewed these comments, has made certain changes to the proposed substantive regulations in response to the comments, has adopted the amended regulations, and is submitting these final regulations for approval by Congress.
Adoption of these substantive regulations by the Board does not complete the promulgation process. Pursuant to section 304 of the CAA, 2 U.S.C. Sec. 1384, following the Board's adoption of the regulations, it must transmit notice of such action together with the regulations and a recommendation regarding the method for Congressional approval of the regulations to the Speaker of the House and President pro tempore of the Senate for publication in the Congressional Record. This Notice of Adoption of Substantive Regulations and Submission for Congressional Approval completes this step.
Pursuant to section 304(b)(4) of the CAA, 2 U.S.C. Sec. 1384(b)(4), the Board of Directors is required to
``include a recommendation in the general notice of proposed rulemaking and in the regulations as to whether the regulations should be approved by resolution of the Senate, by resolution of the House of Representatives, by concurrent resolution, or by joint resolution.'' The Board has adopted the same regulations for the Senate, the House of Representatives, and the other covered entities and facilities, and therefore recommends that the adopted regulations be approved by concurrent resolution of the Congress.
Yes. The first ADA regulations implementing section 210 of the CAA were adopted by the Board and published on January 7, 1997, 142 Cong. Rec. H10676-10711, S10984-11019 (daily ed. September 19, 1996) and 143 Cong. Rec. S30-61 (daily ed. January 7, 1997), after providing notice, and receiving and considering comments in accordance with section 304 of the CAA. No congressional action was taken and thus the 1997 regulations were not issued. Revised regulations were adopted by the Board and published on February 3, 2016, after providing notice, and receiving and considering comments in accordance with section 304 of the CAA. 160 Cong. Rec. H7363
& 160 Cong. Rec. S5437 (daily ed., Sept. 9, 2014), 162 Cong. Rec. H557-565, S624-632 (daily ed. February 3, 2016). No congressional action was taken and thus the regulations were not issued. Because Congress has not acted on the Board's request for approval of its 2016 amendments, the Board now resubmits them for congressional approval.
Both commenters incorporated by reference comments submitted in response to the Board's 2014 ADA NPRM. In the 2022 NPRM, the Board only solicited comments on the modifications being made to the ADA regulations adopted in 2016. Because the Board has already considered all of the comments made to the 2014 ADA NPRM and responded to them in its 2016 ADA Notice of Adoption, the Board will not further respond to those comments at this time. 162 Cong. Rec. H557- 565, S624-632 (daily ed. February 3, 2016).
The Board notes that the Department of Justice (``DOJ'') regulations now incorporated by reference into the regulations being adopted under section 210 of the CAA have not undergone drastic changes since the opportunity for comments pursuant to the 2014 ADA NPRM. The DOJ regulations, originally published on July 26, 1991 and revised on September 15, 2010, have since undergone only specified changes explained in detail in the July 2022 NPRM involving the definition of ``disability'' as well as movie theater accessibility. The few changes to the pertinent Department of Transportation (``DOT'') regulations since 2014 are described in detail in the July 2022 NPRM as well, and relate to public transportation entities' obligation to make reasonable modifications.
The Board has modified section 2.102, regarding rules of interpretation, to specify that both the Board's 2016 Notice of Adoption and the instant Notice of Adoption shall be used to interpret the regulations and shall be made part of these Regulations as Appendix A.
Both commenters expressed concern over the Board's proposal to remove certain substantive regulations in favor of procedural rules to govern unique procedural issues in implementing the ADA mandate under the CAA. Unlike in 2016, the Board's substantive regulations no longer address the procedures used to implement the two unique statutory duties imposed by the CAA upon the General Counsel of the OCWR (``General Counsel'') that are not imposed upon the DOJ and DOT: (1) the investigation and prosecution of charges of discrimination using the Office's mediation and hearing processes (section 210(d) of the CAA) and (2) the biennial ADA inspection and reporting obligations (section 210(f) of the CAA). The Board has determined that the procedures relating to these duties are best and properly implemented through amendments to the OCWR's Procedural Rules.
Both commenters suggested that this approach is in direct contradiction to the statutory requirement in 2 U.S.C. Sec. 1331(e)(1) that the Board use the procedures of 2 U.S.C. Sec. 1384 to adopt substantive regulations to implement section 210 of the CAA, rather than the simpler standard for adopting procedural rules under 2 U.S.C Sec. 1383. The Board has determined that rules relating to procedures belong in the procedural rules, not the substantive regulations. Nothing in the CAA prevents the Executive Director, subject to the approval of the Board, from adopting procedural rules pursuant to 2 U.S.C. Sec. 1383 with respect to any particular part of the CAA. Section 1383 does not prescribe what subjects may be addressed in the procedural rules, beyond that they are ``rules governing the procedures of the Office.'' 2 U.S.C Sec. 1383(a). Indeed, as the Rules' Scope states, ``These Rules of the [OCWR] govern the procedures for considering and resolving alleged violations of the laws made applicable by the Congressional Accountability Act of 1995
(CAA), as amended by the Congressional Accountability Act of 1995 Reform Act of 2018 (CAARA).'' Procedural Rules of the Office of Congressional Workplace Rights as Amended June 2019, Sec. 1.01. The Board notes that (1) the investigation and prosecution of charges of discrimination using the Office's mediation and hearing processes and (2) the biennial ADA inspection and reporting obligations relate to ``the procedures of the Office,'' the CAA's only requirement for the content of OCWR's Procedural Rules. 2 U.S.C Sec. 1383(a).
Both commenters suggested that issuing procedural rules relating to section 210 would deny Congress the authority to assess whether the Board has properly defined the scope of powers it intended to give the General Counsel. The Board responds by noting that the CAA's process for adoption of procedural rules includes publication in the Congressional Record of a notice of proposed rulemaking and a comment period of at least 30 days after publication before adopting rules. 2 U.S.C Sec. 1383(b). Thus, when the Board proposes procedural rules relating to the ADA, employing offices and other parties will have an opportunity to review the proposed procedural rules and provide comments. At this time, the Board has not determined whether the proposed procedures will be the same as what was proposed in the 2016 ADA Notice of Adoption.
One commenter suggested that incorporation of section 35.105 regarding self-evaluation would impose on covered entities an obligation not included in or authorized by the CAA, and that the CAA does not authorize the Board to delegate the General Counsel's inspection duty to covered entities. Section 35.105 was adopted by the Board in 1997 and 2016. 143 Cong. Rec. S30-61 (daily ed. January 7, 1997) and 162 Cong. Rec. H557-565, S624-632 (daily ed. February 3, 2016). Because the Board's 1997 and 2016 regulations were adopted pursuant to the CAA's procedures for proposing and approving substantive regulations, including a comment period of 30 days after publication of the proposed regulations in the Congressional Record, and because the Board has not reopened the comment period on the 2016 adopted regulations that have not been modified, as indicated in the NPRM, the Board will not and has not considered additional comments on those adopted regulations.
The Board notes that its adoption in 1997 and 2016 of section 35.105's self-evaluation obligation merely incorporates a DOJ regulation that clarifies a legal duty imposed by the ADA as applied by the CAA and that helps ensure covered entities remain accessible even when the General Counsel is unable to inspect a particular facility. By adopting section 35.105 in 1997 and 2016, the Board did not delegate the General Counsel's inspection duty to covered entities (which, as the commenter correctly notes, is not authorized under the CAA). The General Counsel, in accordance with section 210(f)(1) of the CAA (2 U.S.C. Sec. 1331(f)(1)), inspects the facilities of covered entities to ensure compliance with section 210(b) at least once each Congress; adoption of section 35.105 has not changed this. Nor does the General Counsel's inspection responsibility under 2 U.S.C. Sec. 1331(f)(1) relieve employing offices of one of their primary duties under the ADA as applied by the CAA: to identify and remove barriers to access.
The Board additionally notes that adoption of section 35.105's self-evaluation obligation promotes increased accessibility of legislative branch facilities. Due to very limited inspection resources, the General Counsel is unable to conduct ADA inspections of every facility used by covered entities each Congress. The General Counsel is unable to inspect all of the facilities located in the Washington, D.C. area, much less all of the facilities used by the district and state offices that are also covered by Section 210 of the CAA. In light of the General Counsel's limited resources and the large number of facilities that are covered by the CAA, the General Counsel must prioritize its ADA inspections. Adoption of section 35.105 clarifies that the duty of covered entities to identify and remove barriers to access includes a duty to self-evaluate their compliance with the ADA as applied by CAA.
A commenter suggested that the Board's modification of section 35.107 to impose a duty to designate an employee to coordinate ADA responsibilities on the ``House of Representatives'' as a body and the ``Senate'' as a body is not supported by good cause because those bodies are not among the covered entities enumerated in 2 U.S.C. Sec. 1331(a). Accordingly, the Board has changed its modification of section 35.107 to more closely reflect the language of 2 U.S.C. Sec. 1331(a). Deletions are marked with square [brackets] and added text is within angled
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A commenter suggested that the duty section 35.107 would impose on covered entities employing 50 or more employees--to designate an employee ``to coordinate its efforts to comply with and carry out its responsibilities under this part''--is not included in or authorized by the CAA.
The Board notes that section 35.107, without modification, was adopted by the Board in 1997 and 2016 pursuant to the CAA's procedures for proposing and approving substantive regulations 143 Cong. Rec. S30-61 (daily ed. January 7, 1997) and 162 Cong. Rec. H557-565, S624-632 (daily ed. February 3, 2016). Since the Board has already responded to this comment in its 2016 Notice of Adoption, no further response is warranted at this time.
The Board additionally notes that the duty imposed by section 35.107 is, in fact, included in and authorized by the CAA: Section 210(e) of the CAA requires that the regulations issued by the OCWR Board, pursuant to section 304 of the CAA,
``shall be the same as substantive regulations promulgated by the Attorney General and the Secretary of Transportation to implement the statutory provisions referred to in subsection
(b) [of section 210 of the CAA][,]'' 2 U.S.C. Sec. 1331(e). It is pursuant to this requirement of the CAA that the Board adopted section 35.107 in 1997 and 2016, and does so again now.
The Board has not responded to comments regarding this regulation because it has not been incorporated into the adopted regulations. The Board intends to propose that Congress amend the CAA to incorporate section 503 of the ADA, on which 28 C.F.R. Sec. 36.206 is based.
One commenter suggested that incorporation of Sec. F202.6 is inconsistent with the Board's authority under 2 U.S.C. Sec. 1384 of the CAA and does not consider current appropriations, procurement, and leasing practices and requirements of the House. Section F202.6 was adopted by the Board in 2016. 162 Cong. Rec. H557-565, S624-632 (daily ed. February 3, 2016). Because the Board's 2016 regulations were adopted pursuant to the CAA's procedures for proposing and approving substantive regulations, including a comment period of 30 days after publication of the proposed regulations in the Congressional Record, and because the Board has not reopened the comment period on the 2016 adopted regulations that have not been modified, as indicated in the NPRM, the Board has not considered comments to regulations already adopted.
The Board also notes that the recent comments to Sec. F202.6 are largely the same as those made in response to its 2014 NPRM and that its response remains the same as stated in the 2016 Notice of Adoption, which is summarized as follows:
This Access Board regulation is based on 36 C.F.R. Sec. 1190.34 (2004) which since July 23, 2004 has been incorporated into the Access Board's Architectural Barriers Act Accessibility Guidelines (``ABAAG''). The ABAAG became the ABA Accessibility Standards (``ABAAS'') on May 17, 2005 when the General Services Administration adopted them as the standards. See 41 C.F.R. Sec. 102-76.65(a) (2005). This regulation provides that buildings and facilities leased with federal funds shall contain certain specified accessible features (including at least one accessible route to primary function areas, accessible toilet facilities, and accessible parking spaces). Buildings or facilities leased for 12 months or less are not required to comply with the regulation as long as the lease cannot be extended or renewed.
Under Sec. F202.6, ``Buildings or facilities for which new leases are negotiated by the Federal government after the effective date of the revised standards issued pursuant to the Architectural Barriers Act, including new leases for buildings or facilities previously occupied by the Federal government, shall comply with F202.6.'' F202.6 then proceeds to describe the requirements for an accessible route to primary function areas, toilet and bathing facilities, parking, and other elements and spaces.
The Access Board's leasing regulation implements a key provision of the Architectural Barriers Act (``ABA'') which Congress originally passed in 1968 and amended in 1976 to require accessibility of facilities leased (in addition to those owned) by the federal government. Since 1976, a hallmark of federal policy regarding people with disabilities has been to require accessibility of buildings and facilities constructed or leased using federal funds. Although, in the CAA, Congress required legislative branch compliance with only the public access provisions of the ADA rather than the Rehabilitation Act of 1973 or the ABA, the ADA itself was enacted in 1990 to expand the access rights of individuals with disabilities beyond what was previously provided by the Rehabilitation Act and the ABA. One of the sections of the ADA that Congress incorporated into the CAA is Section 204. Section 204 requires that the regulations promulgated under the ADA with respect to existing facilities ``shall be consistent'' with the regulations promulgated by the DOJ in 28 C.F.R. Part 39. 42 U.S.C. Sec. 12134(b). Under 28 C.F.R. Sec. 39.150(b), a covered entity is required to meet accessibility requirements to the extent compelled by the ABA and any regulations implementing it.
As the commenter noted, when the DOJ promulgated its ADA regulations in 1991, it stated in its guidelines that it had intentionally omitted a regulation that required public entities to lease only accessible facilities because to do so
``would significantly restrict the options of State and local governments in seeking leased space, which would be particularly burdensome in rural or sparsely populated areas.'' 29 C.F.R. Pt. 35, App. B. In these same guidelines, however, the DOJ also noted that, under the Access Board's regulations, the federal government may not lease facilities unless they meet the minimum accessibility requirements specified in 36 C.F.R. Sec. 1190.34 (2004) (and now in ABAAG Sec. F202.6). This is true even if the facilities are located in rural or sparsely populated areas. The commenter did not provide any specific examples of how complying with a regulation regarding leased facilities otherwise applicable to the federal government would be unduly burdensome. Since the supply of accessible facilities has increased during the past thirty-one years through alterations and new construction, the burdensomeness of this regulation is certainly much less than it was in 1991.
The commenter also noted that attempting to apply the ABA to cover district office leases entered into by Members of Congress could result in violations of both the Antideficiency Act, 31 U.S.C. Sec. 1341, and the Adequacy of Appropriations Act, 41 U.S.C. Sec. 11, where an individual Member office does not have funding to address potential non- compliance with ABA standards. The Board reiterates its 2016 response to the similar comment received in response to the 2014 NPRM, that under the current House rules a Member may not use representational funds to obtain reimbursement for capital improvements and this might affect the removal of barriers in facilities that are inaccessible. The proposed regulation does not require that any Member specifically pay for alterations to ensure compliance with ABA standards. Instead, prior to entering into a lease with a Member for a facility that is in need of alterations to meet the minimum accessibility requirements, the landlord is obligated to make the needed alterations as a condition of doing business with Congress. While it is likely that the landlord will recover some of the costs associated with these alterations by increasing the rent paid by federal tenants, Congress determined when it amended the ABA to provide coverage for all leased facilities that the increased cost associated with requiring the federal government to lease only accessible facilities would be minimal and well worth the benefit gained by improving accessibility to all federal facilities. H.R. Rep. No. 1584-Part II, 94th Cong., 2d Sess. 9, reprinted in 1976 U.S. Code Cong. & Admin. News 5566, 5571-72. The Board notes that one of the most common ADA public access complaints received by the OCWR General Counsel from constituents relates to the lack of ADA access to spaces being leased by legislative branch offices. Given the frequency of these complaints and the clear Congressional policy embodied in the ABA requiring leasing of only accessible spaces by the United States, the Board finds good cause to adopt the Access Board's regulation formerly known as 36 C.F.R. Sec. 1190.34 (2004) and now known as Sec. F202.6 of the ABAAG and the ABAAS. Because, under section 210(e)(2) of the CAA, the Board is authorized to adopt a regulation that does not follow the DOJ regulations when it determines
``for good cause shown and stated together with the regulation, that a modification of such regulations would be more effective for the implementation of the rights and protections under this section,'' the Board has decided to require the leasing of accessible spaces as required in Sec. F202.6 of the ABAAS.
In an additional comment that is somewhat different from the comments received in 2014, the commenter noted that the method of incorporation of Sec. F202.6 Leases is problematic because the subsection includes language that is not relevant to House offices and because adoption of only Sec. F202.6 fundamentally distorts the intended scope of application of the requirements set forth in that subsection. The Board notes that this method of incorporation is inherent in the way the CAA incorporates the ADA. Rather than incorporate the ADA in its entirety, the CAA incorporates select sections of the ADA. 2 U.S.C. Sec. 1331(b)(1). The CAA further obligates the Board's regulations to be the same as the DOJ and DOT regulations promulgated to implement those select sections
(except to the extent that the Board may determine that a modification would be more effective in implementing ADA public access protections). 2 U.S.C. Sec. 1331(e)(2). Congress therefore did not intend that the ADA regulations applicable to the executive branch would apply wholesale through the CAA, but rather that only specific regulations would be adopted. Accordingly, the Board has only adopted specified regulations incorporated from 28 C.F.R. Parts 35 and 36, 49 C.F.R. Parts 37 and 38, and, with the adoption of Sec. F202.6, the Architectural Barriers Act Accessibility Standards.
PART 1--MATTERS OF GENERAL APPLICABILITY TO ALL REGULATIONS PROMULGATED
UNDER SECTION 210 OF THE CONGRESSIONAL ACCOUNTABILITY ACT OF 1995 AS
AMENDED BY THE CONGRESSIONAL ACCOUNTABILITY ACT OF 1995 REFORM ACT
(a) CAA. Enacted into law on January 23, 1995 and amended on December 21, 2018, the Congressional Accountability Act
(``CAA'') in Section 210(b) provides that the rights and protections against discrimination in the provision of public services and accommodations established by sections 201 through 230, 302, 303, and 309 of the Americans with Disabilities Act of 1990, 42 U.S.C. Sec. Sec. 12131-12150, 12182, 12183, and 12189 (``ADA''), shall apply to the following entities:
(1) each office of the Senate, including each office of a Senator and each committee;
(2) each office of the House of Representatives, including each office of a Member of the House of Representatives and each committee;
(3) each joint committee of the Congress;
(4) the Office of Congressional Accessibility Services;
(5) the United States Capitol Police;
(6) the Congressional Budget Office;
(7) the Office of the Architect of the Capitol (including the Botanic Garden);
(8) the Office of the Attending Physician;
(9) the Office of Congressional Workplace Rights; and
(10) the Library of Congress.
Title II of the ADA prohibits discrimination on the basis of disability in the provision of public services, programs, activities by any ``public entity.'' Section 210(b)(2) of the CAA provides that for the purpose of applying Title II of the ADA the term ``public entity'' means any entity listed above that provides public services, programs, or activities. Title III of the ADA prohibits discrimination on the basis of disability by public accommodations and requires places of public accommodation and commercial facilities to be designed, constructed, and altered in compliance with accessibility standards. Section 225(e) of the CAA provides that, ``[e]xcept where inconsistent with definitions and exemptions provided in [this Act], the definitions and exemptions of the [ADA] shall apply under [this Act.]'' 2 U.S.C. Sec. 1361(e)(1).
(b) Purpose and scope of regulations. The regulations set forth herein (Parts 1 and 2) are the substantive regulations that the Board of Directors of the Office of Congressional Workplace Rights has promulgated pursuant to section 210(e) of the CAA. Part 1 contains the general provisions applicable to all regulations under section 210 and the method of identifying entities responsible for correcting a violation of section 210. Part 2 contains the list of executive branch regulations incorporated by reference which define and clarify the prohibition against discrimination on the basis of disability in the provision of public services and accommodations.
Except as otherwise specifically provided in these regulations, as used in these regulations:
(a) Act or CAA means the Congressional Accountability Act of 1995, Pub. L. No. 104-1, amended by Congressional Accountability Act of 1995 Reform Act, Pub. L. No. 115-397.
(b) ADA or Americans with Disabilities Act means those sections of the Americans with Disabilities Act of 1990 as amended by the ADA Amendments Act of 2008 incorporated by reference into the CAA in section 210: 42 U.S.C. Sec. Sec. 12131-12150, 12182, 12183, and 12189.
(c) Covered entity and public entity include any of the entities listed in Sec. 1.101(a) that provides public services, programs, or activities, or operates a place of public accommodation within the meaning of section 210 of the CAA. In the regulations implementing Title III, private entity includes covered entities.
(d) Board means the Board of Directors of the Office of Congressional Workplace Rights.
(e) Office means the Office of Congressional Workplace Rights.
(f) General Counsel means the General Counsel of the Office of Congressional Workplace Rights.
Pursuant to sections 210 and 304 of the CAA, the Board is authorized to issue regulations to implement the rights and protections against discrimination on the basis of disability in the provision of public services and accommodations under the ADA. Section 210(e) of the CAA directs the Board to promulgate regulations implementing section 210 that are
``the same as substantive regulations promulgated by the Attorney General and the Secretary of Transportation to implement the statutory provisions referred to in subsection
(b) except to the extent that the Board may determine, for good cause shown and stated together with the regulation, that a modification of such regulations would be more effective for the implementation of the rights and protections under this section.'' 2 U.S.C. Sec. 1331(e). Specifically, it is the Board's considered judgment, based on the information available to it at the time of promulgation of these regulations, that, with the exception of the regulations adopted and set forth herein, there are no other
``substantive regulations promulgated by the Attorney General and the Secretary of Transportation to implement the statutory provisions referred to in subsection (b) [of Section 210 of the CAA]'' that need be adopted.
In promulgating these regulations, the Board has made certain technical and nomenclature changes to the regulations as promulgated by the Attorney General and the Secretary of Transportation. Such changes are intended to make the provisions adopted accord more naturally to situations in the legislative branch. However, by making these changes, the Board does not intend a substantive difference between these regulations and those of the Attorney General and/or the Secretary of Transportation from which they are derived. Moreover, such changes, in and of themselves, are not intended to constitute an interpretation of the regulations or of the statutory provisions of the CAA upon which they are based.
(a) Purpose and scope. Section 210(e)(3) of the CAA provides that regulations under section 210(e) include a method of identifying, for purposes of section 210 of the CAA and for categories of violations of section 210(b), the entity responsible for correcting a particular violation. This section sets forth the method for identifying responsible entities for the purpose of allocating responsibility for correcting violations of section 210(b).
(b) Violations. A covered entity may violate section 210(b) if it discriminates against a qualified individual with a disability within the meaning of Title II or Title III of the ADA.
(c) Entities Responsible for Correcting Violations. Correction of a violation of the rights and protections against discrimination is the responsibility of the entities listed in subsection (a) of section 210 of the CAA that provide the specific public service, program, activity, or accommodation that forms the basis for the particular violation of Title II or Title III rights and protections and, when the violation involves a physical access barrier, the entities responsible for designing, maintaining, managing, altering, or constructing the facility in which the specific public service program, activity, or accommodation is conducted or provided.
(d) Allocation of Responsibility for Correction of Title II and/or Title III Violations. Where more than one covered entity is found to be an entity responsible for correction of a violation of Title II and/or Title III rights and protections under the method set forth in this section, as between those parties, allocation of responsibility for correcting the violations of the ADA may be determined by statute, contract, or other enforceable arrangement or relationship.
PART 2--REGULATIONS INCORPORATED BY REFERENCE
The definitions in the regulations incorporated by reference (``incorporated regulations'') shall be used to interpret these regulations except: (1) when they differ from the definitions in Sec. 1.102 or the modifications listed below, in which case the definition in Sec. 1.102 or the modification listed below shall be used; or (2) when they define terms that are not used in the incorporated regulations. The incorporated regulations are hereby modified as follows:
(1) When the incorporated regulations refer to ``Assistant Attorney General,'' ``Department of Justice,'' ``FTA Administrator,'' ``FTA regional office,'' ``Administrator,''
``Secretary,'' or any other executive branch office or officer, ``General Counsel'' is hereby substituted.
(2) When the incorporated regulations refer to the date
``January 26, 1992,'' the date ``January 1, 1997'' is hereby substituted.
(3) When the incorporated regulations otherwise specify a date by which some action must be completed, the date that is three years from the effective date of these regulations is hereby substituted.
(4) When the incorporated regulations contain an exception for an ``historic'' property, building, or facility, that exception shall also apply to properties, buildings, or facilities designated as an historic or heritage asset by the Office of the Architect of the Capitol in accordance with its preservation policy and standards and where, in accordance with its preservation policy and standards, the Office of the Architect of the Capitol determines that compliance with the requirements for accessible routes, entrances, or toilet facilities (as defined in 28 C.F.R. Parts 35 and 36) would threaten or destroy the historic significance of the property, building, or facility, the exceptions for alterations to qualified historic property, buildings, or facilities for that element shall be permitted to apply.
When regulations in Sec. 2.103 conflict, the regulation providing the most access shall apply. The Board's 2016 Notice of Adoption and the instant Notice of Adoption shall be used to interpret these regulations and shall be made part of these Regulations as Appendix A.
The Office shall publish on its website the full text of all regulations incorporated by reference. The following regulations from 28 C.F.R. Parts 35 and 36 that are published in the Code of Federal Regulations on the date of the Board's adoption of these regulations are hereby incorporated by reference as though stated in detail herein:
But modify as follows:
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Appendix A to Part 35--Guidance to Revisions to ADA Regulation on
Nondiscrimination on the Basis of Disability in State and Local
Government Services.
Appendix B to Part 35--Guidance on ADA Regulation on Nondiscrimination on the Basis of Disability in State and Local Government Services
Originally Published July 26, 1991.
APPENDIX C TO PART 35--GUIDANCE TO REVISIONS TO ADA TITLE II AND TITLE
III REGULATIONS REVISING THE MEANING AND INTERPRETATION OF THE DEFINITION OF ``DISABILITY'' AND OTHER PROVISIONS IN ORDER TO
INCORPORATE THE REQUIREMENTS OF THE ADA AMENDMENTS ACT
But modify as follows:
Subpart B of this part <<(Sec. 36.201 through Sec. 36.213)>> sets forth the general principles of nondiscrimination applicable to all entities subject to this part. Subparts C <<(Sec. 36.301 through Sec. 36.310)>> and D
<<(Sec. 36.405 through Sec. 36.406)>> of this part provide guidance on the application of the statute to specific situations. The specific provisions, including the limitations on those provisions, control over the general provisions in circumstances where both specific and general provisions apply.
Appendix A to Part 36--Guidance on Revisions to ADA Regulation on
Nondiscrimination on the Basis of Disability by Public Accommodations and Commercial Facilities.
Appendix B to Part 36--Analysis and Commentary on the 2010 ADA
Standards for Accessible Design.
Appendix C to Part 36--Guidance on ADA Regulation on Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial
Facilities Originally Published on July 26, 1991.
Appendix D to Part 36--1991 Standards for Accessible Design as
Originally Published on July 26, 1991.
Appendix E to Part 36--Guidance to Revisions to ADA Title II and Title
III Regulations Revising the Meaning and Interpretation of the Definition of ``Disability'' and Other Provisions in Order to
Incorporate the Requirements of the ADA Amendments Act.
Appendix F to Part 36--Guidance and Section-By-Section Analysis.
The following regulations from 49 C.F.R. Parts 37 and 38 that are published in the Code of Federal Regulations on the effective date of these regulations are hereby incorporated by reference as though stated in detail herein:
Sec. 37.101 Purchase or lease of vehicles by private entities not primarily engaged in the business of transporting people.
Sec. 37.169 Process to be used by public entities providing designated public transportation service in considering requests for reasonable modification.
Sec. 37.171 Equivalency requirement for demand responsive service operated by private entities not primarily engaged in the business of transporting people.
Appendix A to Part 37--Modifications to Standards for Accessible
Transportation Facilities.
Appendix D to Part 37--Construction and Interpretation of Provisions of
49 CFR Part 37.
Appendix E to Part 37--Reasonable Modification Requests.
Appendix to Part 38--Guidance Material.
The following standard from the ABAAS is adopted as a standard and hereby incorporated as a regulation by reference as though stated in detail herein:
Sec. F202.6 Leases.
____________________
SOURCE: Congressional Record Vol. 169, No. 56
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