JUN 12 1992

Mr. Jeffrey H. Schiff

Executive Director
National Association of Towns
and Townships
1522 "K" Street, N.W.
Suite 730
Washington, D.C. 20005

Dear Mr. Schiff:

This is in response to your March 4, 1992, correspondence

regarding the Department's analysis of the economic impact of its
regulations implementing title II of the Americans with
Disabilities Act (ADA). We regret any misunderstanding or
inconvenience that may have occurred because we did not respond
to your letter, which we regarded as a "comment letter" on our
analysis. It is standard rulemaking practice for the Department
not to reply individually to comment letters submitted on pending
regulations or accompanying impact analyses.

In the July 26, 1991, Federal Register notice containing our

final title II regulation, we invited additional comment on the
preliminary impact analysis that was prepared in connection with
the proposed rule. The notice stated that additional comments
would facilitate the development of a final Regulatory Impact
Analysis by January 1, 1992. 56 Fed. Reg. 35,694; 35,695.

We submitted our final analysis to the Office of Management

and Budget in December 1991. At the time we received your letter
in March, however, the analysis had not yet been cleared for
public release. During the interim, our policy was to treat
letters regarding the analysis as comment letters, particularly
when, as in the case of your letter, the correspondence
explicitly identified itself as a comment letter.

We believe that the Department's title II regulation is

unlikely to have the severe impact on small governments that you
foresee. As mandated by section 204(b) of the ADA, 42 U.S.C.
12134(b), the requirements of the title II regulation track the
well-known requirements of section 504 of the Rehabilitation Act,
as amended, 29 U.S.C. S794. These obligations had wide
:udd:breen:natt

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application to small governments during the period prior to the

termination of the revenue sharing programs in 1986. During that
period, small governments made major efforts to bring their
operations into compliance with section 504 and became well-
acquainted with such key section 504 concepts as "program
accessibility," "effective communication," "integrated setting,"
"undue hardship," and "undue burden." Interpretation of the
title II regulation will be informed by a well-established body
of case law and administrative practice under section 504. Even
after the termination of the revenue sharing program in 1986,
significant portions of local government activity remained
subject to section 504 through other Federal funding. Of course,
many small governments are also subject to State and local
disability rights laws that predate the ADA.

By tracking the requirements of section 504, the title II

regulation incorporates the inherent flexibility of section 504.
Under the program accessibility requirement, small governments do
not, as is widely perceived, have to make all of their facilities
accessible. Structural changes are only required when the
numerous alternatives, such as relocation of activities, home
visits, and delivery of services are inadequate to provide
access. Even then, the regulation does not require a government
to undertake any activity that will result in undue financial and
administrative burdens. With respect to new construction, the
cost of incorporating accessibility features is generally
estimated to add a mere one-half of one percent to construction
costs. Because local jurisdictions are already subject to
substantial State and local accessible design requirements, the
added cost of the title II requirements for new construction and
alterations is truly insignificant.

Title II's requirements with respect to communications are

similarly flexible. In most situations, creativity, common
sense, and training in the art of common courtesy will go a long
way in providing effective communication without the need for
more costly auxiliary aids. Again, as with respect to physical
access, public entities are not required to take any steps that
would result in undue financial and administrative burdens.

We also believe that you need not be as concerned as your

letter suggests regarding our compliance with the Regulatory
Flexibility Act. Given the marginal impact that the title II
regulation was likely to have on small governments, it was
determined that the proposed title II rule would not have a
significant economic impact on a substantial number of small
entities. 56 Fed. Reg. 8538, 8550. Under the terms of section
3(a) of the Regulatory Flexibility Act, initial and final
regulatory flexibility analyses are not required when such a
determination is made by the head of the rulemaking agency.
5 U.S.C. 605(b).
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The Office of Management and Budget shared our assessment of

the impact of the title II regulation and determined that the
proposed rule was not a "major rule" within the meaning of
Executive Order 12291. 56 Fed. Reg. 8538, 8550 (1991). Even
though the Department was therefore not required to publish a
preliminary or final regulatory impact analysis, the Department
nevertheless made an analysis available to the public.

Upon publication of the final rule, the Department invited

additional comment on its analysis. Although a final regulatory
flexibility analysis was not required because of the absence of
significant impact on small entities, the Federal Register notice
indicated that the analysis prepared by the Department contained
the information that would be included in a regulatory
flexibility analysis if one were required. 56 Fed. Reg. 35,694;
35,695. A copy of our final analysis is enclosed.

We share your commitment to the effective implementation of

the ADA and your concerns that small governments not be
overwhelmed by Federal mandates. Throughout the long process of
drafting, enacting, and implementing the ADA, the Administration
has worked tirelessly to strike a critical balance between the
rights of individuals with disabilities to enjoy equal access to
the mainstream of American life and the legitimate needs of hard-
pressed State and local governments. We believe that the
Department's title II regulations strike that balance and we will
monitor their implementation to ensure that this balance is
maintained.

Sincerely,

Stewart B. Oneglia
Chief
Coordination and Review Section
Civil Rights Division

Enclosure

01-00915

National
Association of
Towns and Townships

March 4, 1992

Mr. John Wodatch, Director

Office of ADA
Department of Justice
P.O. Box 66738
Washington, D.C. 20035-6118

Dear Mr. Wodatch:

On behalf of the National Association of Towns and Townships

(NATaT), I am writing to offer comments on the Department of Jus-
tice's analysis of the impact of the Americans with Disabilities Act
(ADA) on small local governments.

NATaT represents approximately 13,000 mostly small, mostly rural

local governments. In a sense, NATaT represents the typical local
government, since the vast majority (78 percent) of the 39,000 gen
eral purpose units of local government in the United States have fewer
than 5,000 residents.

Let me begin by stating, emphatically, that NATaT supports the goals

of the ADA. We are currently developing technical assistance materials
for use by small local governments so that they will be able to imple-
ment the ADA regulations to the letter of the law. We also have a his-
tory of working with small governments so that they could comply
with Section 504 requirements during the days of the General Rev-
enue Sharing program.

RegFlex Law Not Followed

NATaT has several concerns with the Department of Justice's (DoJ)

evaluation of the impact of the ADA on local governments. First, the
supplementary information accompanying the proposed ADA Title II
regulations states that the Department determined that the proposed
rules will not have a significant economic impact on a substantial
number of small business entities and therefore are not subject to the
Regulatory Flexibility Act.

It is certainly true that the proposed rules have no significant impact

on small business entities because the rules pertain to state and local
government service. Nevertheless, the proposed rules have a most
significant impact on small local governments, which are also defined

1522 K ILLEGIBLE, N.W., Suite 730, Washington, D.C. 20005

(202) 737-5200

01-00916

Mr. John Wodatch

March 4, 1992
Page 2

as small entities under the Regulatory Flexibility Act. Since the DoJ is
silent on the impact of the rules on small local governments and did
not exempt itself from the requirements of the RegFlex Act. It should
have conducted a regulatory flexibility analysis for small local
governments.

Secondly, the supplementary information to the proposed regulations

goes on to reveal that the Department did prepare a preliminary Reg-
ulatory Impact Analysis (RIA) pursuant to Executive Order 12291.
However, the supplementary information accompanying the final Title
II regulations curiously observes that the preliminary RIA contained
"all the available information that would have been included in a pre-
liminary regulatory flexibility analysis, had one been prepared under
the Regulatory Flexibility Act, concerning the rule's impact on small
entities" and that "[t]he final RIA will contain all of the information
that is required in a final regulatory flexibility analysis and will serve as
such an analysis."

These comments certainly seem to indicate that the Department be-

lieves that it now has the obligation to conduct a regulatory flexibility
analysis, since DoJ would have the final RIA serve as a regulatory
flexibility analysis. Putting aside the point that an RIA is not a
regulatory flexibility analysis, what does the Department's RIA say of
the impact of Title II on small local governments? Since the final RIA
was not made available at the time the final Title II regulations were
published, and has yet to be released, one must go to the preliminary
RIA for guidance.

RIA Assumptions Are Unfounded

That document notes that "there is considerable uncertainty regarding

the precise impact of the Title II regulations..." It goes on to state that
Title II extends the program accessibility standards of the Rehabilita-
tion Act of 1973 " ... to the last small remaining portion of the public
sector not yet covered by those standards. Virtually all of the public
sector ... is already subject to the Rehabilitation Act on account of re-
ceipt of Federal funding." That assumption led the authors of the RIA
to believe that the reach of the regulations seems to be limited to state
and local court systems not receiving federal aid " ... and to the central
'town hall' operations of those local and special purpose governmental
entities that do not receive Federal aid for administrative and other
purposes."

The fact of the matter is that since the end of the General Revenue
Sharing program in 1986, the vast majority of the 39,000 general
purpose units of local governments in the United States -- we estimate
80 percent -- do not receive federal funds, for administrative or any
01-00917

Mr. John Wodatch

March 4, 1992
Page 3

other purpose. Therefore, they have not been subject to the provi-
sions of Section 504 for quite some time and have had no financial
incentive to make their programs and services accessible for disabled
persons since that time.

It follows, then, that the impact of Title II on the majority of local gov-
ernments -- and virtually all small local governments -- is quite signifi-
cant. All programs must be accessible, physical facilities must be ac-
cessible, local governments may have to incur higher costs to
construct new buildings or rehabilitate old ones in order to meet
certain access requirements, emergency numbers must have TDD
access and so forth. To say that there is no significant impact on small
local governments simply flies in the face of the facts.

The Department, by not conducting a preliminary regulatory flexibility

analysis, disingenuously avoids the key requirements of the Regulatory
Flexibility Act. Accompanying the proposed rules should be a prelimi-
nary regulatory flexibility analysis, which includes a list of significant
alternatives which would accomplish the stated objectives of the ADA
and minimize the economic impact of the regulations upon small enti-
ties. A preliminary regulatory flexibility analysis was not published in
the Federal Register along with the proposed rules.

No one could have known that the preliminary RIA was to serve as a
preliminary regulatory flexibility analysis, since that wasn't stated until
the final regulations were issued six months later. And in any case,
the preliminary RIA was not published in the Federal Register for
public scrutiny and comment. The public was required to request it
from the Department, and even then, the preliminary RIA contains
virtually none of the most important information of a preliminary
regulatory flexibility analysis, especially proposed alternatives for small
entities that accomplish the goals of the ADA while taking into
consideration the limited resources of small entities. This is a key
difference between an RIA and a regulatory flexibility analysis.

Public Was Denied the Chance to Participate

The final regulatory flexibility analysis which accompanies the final

regulations should, by statute, include public comments in response to
the preliminary analysis, as well as changes made in response to those
comments. Most importantly, the final analysis should include a de-
scription of each of the significant alternatives to the rule which was
considered by the agency, and the reason(s) why each was either ac-
cepted or rejected.

By neither performing a preliminary regulatory flexibility analysis nor

availing itself of the exemption for small governmental entities, and

01-00918

Mr. John Wodatch

March 4, 1992
Page 4

implying the need for one upon issuing the final regulations, the
Department subverted the regulatory flexibility analysis process.
Alternatives weren't proposed -- an obligation placed on the federal
government by the Regulatory Flexibility Act -- so there was never a
question of small entities being allowed to implement the regulations
flexibly.

Groups such as NATaT certainly would have challenged an assertion of

no impact on small local governments and, if a RegFlex analysis had
been performed, would have participated vigorously in the examina-
tion of proposed alternatives. Unfortunately, we were not permitted
either of these opportunities specified in the RegFlex law.
The sole flexibility that the regulations give small communities is that
they must "reasonably accommodate" a disabled person unless it
causes "undue hardship." Unfortunately, those terms are not well-de-
fined and can only be clarified on a case-by-case basis. Small
communities are essentially being told by the federal government:
"Comply with the law. We won't tell you how, but we will tell you if you
do it wrong."

Such an approach can only result in communities complying by in-

vesting more than is necessary, in the face of uncertainty, to avoid le-
gal challenges, or by communities learning the hard way through
costly lawsuits. Either alternative seems inefficient, uneconomical and
unnecessary. This approach is also inequitable for local governments.

For example, two local governments in different states are found to be

out of compliance with ADA under the exact same circumstances and
must make physical modifications to their town hall. The courts could
compel each jurisdiction to make very different modifications, thereby
incurring very different costs. Until there is a wealth of case history,
there will be no agreed-upon common approach to resolving such an
issue. The same holds true for the employment provisions of the ADA
that apply to local governments: what might be a reasonable ac-
commodation or an undue hardship for one local government could be
judged the complete opposite elsewhere.

With virtually all small governments responsible for constructing new

facilities or rehabilitating existing ones according to set standards,
ensuring that their programs -- including new programs mandated by
federal and state authorities since the end of General Revenue Sharing
-- are accessible to the disabled, and installing TDD or similar equip-
ment to ensure that the hearing impaired can access emergency num-
bers, it is difficult to believe that the cost of interpreters is going to be
the primary program accessibility cost for local governments, as the
Department stated in its preliminary RIA.

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Mr. John Wodatch

March 4, 1992
Page 5

RegFlex Strongly Supported by President Bush

Given the Department's assumption that virtually all public entities

were already covered by Section 504 of the Rehabilitation Act (which
they are clearly not) it is incumbent upon the Department of Justice to
re-evaluate its conclusions about the impact of the Title II regulations
on small local governments. We would certainly expect this to be the
case for two reasons. First, this is an enormous and all encompassing
piece of legislation, directed specifically at local governments.
Secondly, at our annual conference this past year, our keynote
speaker, President Bush, told our membership that he would instruct
all federal departments and agencies to implement the Regulatory
Flexibility Act to the full extent of its spirit and intent.

Again, let me reiterate that we support the ADA fully. We are not
seeking exemptions for small local governments. We are asking the
Department to properly consider the ADA regulations in light of the
Regulatory Flexibility Act, specifically the act's requirements that al-
ternative, flexible approaches be proposed and considered that will
allow small entities to meet the ADA's requirements. NATaT staff
would be glad to offer the Department any assistance we can regarding
the impact of Title II on local governments.

Sincerely,

Jeffrey H. Schiff
Executive Director

cc: The Honorable William P. Barr, Attorney General of the United

States

Debra Anderson, Deputy Assistant to the President for

Intergovernmental Affairs

01-00920