
 

                      DEPARTMENT OF JUSTICE

                 Office of the Attorney General

                         28 CFR PART 35

                      [Order No.         ]


Nondiscrimination on the Basis of Disability in State and Local
Government Services

AGENCY:   Department of Justice.

ACTION:   Final rule.

SUMMARY:  This rule implements subtitle A of title II of the
Americans with Disabilities Act, Pub. L. 101-336, which prohibits
discrimination on the basis of disability by public entities. 
Subtitle A protects qualified individuals with disabilities from
discrimination on the basis of disability in the services,
programs, or activities of all State and local governments.  It
extends the prohibition of discrimination in federally assisted
programs established by section 504 of the Rehabilitation Act of
1973 to all activities of State and local governments, including
those that do not receive Federal financial assistance, and
incorporates specific prohibitions of discrimination on the basis
of disability from titles I, III, and V of the Americans with
Disabilities Act.  This rule, therefore, adopts the general
prohibitions of discrimination established under section 504, as
well as the requirements for making programs accessible to
individuals with disabilities and for providing equally effective
communications.  It also sets forth standards for what constitutes
discrimination on the basis of mental or physical disability,
provides a definition of disability and qualified individual with
a disability, and establishes a complaint mechanism for resolving
allegations of discrimination.

EFFECTIVE DATE:  January 26, 1992.

FOR FURTHER INFORMATION CONTACT:  

     Barbara S. Drake, Deputy Assistant Attorney General, Civil
Rights Division; Stewart B. Oneglia, Chief, Coordination and Review
Section, Civil Rights Division; John L. Wodatch, Director, Office
on the Americans with Disabilities Act, Civil Rights Division; all
of the  U.S. Department of Justice, Washington, D.C. 20530.  These
individuals may be contacted through the Division's ADA Information
Line at (202) 514-0301 (Voice), (202) 514-0381 (TDD), or (202) 514-
0383 (TDD).  These telephone numbers are not toll-free numbers.

SUPPLEMENTARY INFORMATION:

Background.

     The landmark Americans with Disabilities Act ("ADA" or "the
Act"), enacted on July 26, 1990, provides comprehensive civil
rights protections to individuals with disabilities in the areas of
employment, public accommodations, State and local government
services, and telecommunications.

     This regulation implements subtitle A of title II of the ADA,
which applies to State and local governments.  Most programs and
activities of State and local governments are recipients of Federal
financial assistance from one or more Federal funding agencies and,
therefore, are already covered by section 504 of the Rehabilitation
Act of 1973, as amended (29 U.S.C. 794) ("section 504"), which
prohibits discrimination on the basis of handicap in federally
assisted programs and activities.  Because title II of the ADA
essentially extends the nondiscrimination mandate of section 504 to
those State and local governments that do not receive Federal
financial assistance, this rule hews closely to the provisions of
existing section 504 regulations.  This approach is also based on
section 204 of the ADA, which provides that the regulations issued
by the Attorney General to implement title II shall be consistent
with the ADA and with the Department of Health, Education, and
Welfare's coordination regulation, now codified at 28 CFR Part 41,
and, with respect to "program accessibility, existing facilities,"
and "communications," with the Department of Justice's regulation
for its federally conducted programs and activities, codified at 28
CFR Part 39.

     The first regulation implementing section 504 was issued in
1977 by the Department of Health, Education, and Welfare (HEW) for
the programs and activities to which it provided Federal financial
assistance.  The following year, pursuant to Executive Order 11914,
HEW issued its coordination regulation for federally assisted
programs, which served as the model for regulations issued by the
other Federal agencies that administer grant programs.  HEW's
coordination authority, and the coordination regulation issued
under that authority, were transferred to the Department of Justice
by Executive Order 12250 in 1980.

     In 1978, Congress extended application of section 504 to
programs and activities conducted by Federal Executive agencies and
the United States Postal Service.  Pursuant to Executive Order
12250, the Department of Justice developed a prototype regulation
to implement the 1978 amendment for federally conducted programs
and activities.  More than 80 Federal agencies have now issued
final regulations based on that prototype, prohibiting
discrimination based on handicap in the programs and activities
they conduct.

     Despite the large number of regulations implementing section
504 for federally assisted and federally conducted programs and
activities, there is very little variation in their substantive
requirements, or even in their language.  Major portions of this
regulation, therefore, are taken directly from the existing
regulations.

     In addition, section 204(b) of the ADA requires that the
Department's regulation implementing subtitle A of title II be
consistent with the ADA.  Thus, the Department's final regulation
includes provisions and concepts from titles I and III of the ADA.

Rulemaking History.

     On February 22, 1991, the Department of Justice published a
notice of proposed rulemaking (NPRM) implementing title III of the
ADA in the Federal Register.  56 FR 7452.  On February 28, 1991,
the Department published a notice of proposed rulemaking
implementing subtitle A of title II of the ADA in the Federal
Register.  56 FR 8538.  Each NPRM solicited comments on the
definitions, standards, and procedures of the proposed rules.  By
the April 29, 1991, close of the comment period of the NPRM for
title II, the Department had received 2,718 comments.  Following
the close of the comment period, the Department received an
additional 222 comments.

     In order to encourage public participation in the development
of the Department's rules under the ADA, the Department held four
public hearings.  Hearings were held in Dallas, Texas on March 4-5,
1991, in Washington, D.C. on March 13-15, 1991, in San Francisco,
California on March 18-19, 1991, and in Chicago, Illinois on March
27-28, 1991.  At these hearings, 329 persons testified and l,567
pages of testimony were compiled.  Transcripts of the hearings were
included in the Department's rulemaking docket.

     The comments that the Department received occupy almost six
feet of shelf space and contain over 10,000 pages.  The Department
received comments from individuals from all fifty States and the
District of Columbia.  Nearly 75% of the comments that the
Department received came from individuals and from organizations
representing the interests of persons with disabilities.  The
Department received 292 comments from entities covered by the ADA
and trade associations representing businesses in the private
sector, and 67 from government units, such as mayors' offices,
public school districts, and various State agencies working with
individuals with disabilities.

     The Department received one comment from a consortium of 540
organizations representing a broad spectrum of persons with
disabilities.  In addition, at least another 25 commenters endorsed
the position expressed by this consortium, or submitted identical
comments on one or both proposed regulations.

     An organization representing persons with hearing impairments
submitted a large number of comments.  This organization presented
the Department with 479 individual comments, each providing in
chart form a detailed representation of what type of auxiliary aid
or service would be useful in the various categories of places of
public accommodation.

     The Department received a number of comments based on almost
ten different form letters.  For example, individuals who have a
heightened sensitivity to a variety of chemical substances
submitted 266 post cards detailing how exposure to various
environmental conditions restricts their access to public and
commercial buildings.  Another large group of form letters came
from groups affiliated with independent living centers.

     The vast majority of the comments addressed the Department's
proposal implementing title III.  Slightly more than 100 comments
addressed only issues presented in the proposed title II
regulation.

     The Department read and analyzed each comment that was
submitted in a timely fashion.  Transcripts of the four hearings
were analyzed along with the written comments.  The decisions that
the Department has made in response to these comments, however,
were not made on the basis of the number of commenters addressing
any one point but on a thorough consideration of the merits of the
points of view expressed in the comments.  Copies of the written
comments, including transcripts of the four hearings, will remain
available for public inspection in Room 854 of the HOLC Building,
320 First Street, N.W., Washington, D.C. from 10:00 a.m. to 5:00
p.m., Monday through Friday, except for legal holidays, until
August 30, 1991.

Overview of the Rule.

     The rule is organized into seven subparts.  Subpart A,
"General," includes the purpose and application sections, describes
the relationship of the Act to other laws, and defines key terms
used in the regulation.  It also includes administrative
requirements adapted from section 504 regulations for self-
evaluations, notices, designation of responsible employees, and
adoption of grievance procedures by public entities.

     Subpart B, "General Requirements," contains the general
prohibitions of discrimination based on the Act and the section 504
regulations. It also contains certain "miscellaneous" provisions
derived from title V of the Act that involve issues such as
retaliation and coercion against those asserting ADA rights,
illegal use of drugs, and restrictions on smoking.  These
provisions are also included in the Department's proposed title III
regulation, as is the general provision on maintenance of
accessible features.

     Subpart C addresses employment by public entities, which is
also covered by title I of the Act.  Subpart D, which is also based
on the section 504 regulations, sets out the requirements for
program accessibility in existing facilities and for new
construction and alterations.  Subpart E contains specific
requirements relating to communications.

     Subpart F establishes administrative procedures for
enforcement of title II.  As provided by section 203 of the Act,
these are based on the procedures for enforcement of section 504,
which, in turn, are based on the enforcement procedures for title
VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d to 2000d-4a). 
Subpart F also restates the provisions of title V of the ADA on
attorneys fees, alternative means of dispute resolution, the effect
of unavailability of technical assistance, and State immunity. 

     Subpart G designates the Federal agencies responsible for
investigation of complaints under this part.  It assigns
enforcement responsibility for particular public entities, on the
basis of their major functions, to eight Federal agencies that
currently have substantial responsibilities for enforcing section
504.  It provides that the Department of Justice would have
enforcement responsibility for all State and local government
entities not specifically assigned to other designated agencies,
but that the Department may further assign specific functions to
other agencies.  The part would not, however, displace the existing
enforcement authorities of the Federal funding agencies under
section 504.

Regulatory Process Matters.

     This final rule has been reviewed by the Office of Management
and Budget under Executive Order 12291.  The Department is
preparing a final regulatory impact analysis (RIA) of this rule and
the Architectural and Transportation Barriers Compliance Board is
preparing an RIA for its Americans with Disabilities Act
Accessibility Guidelines for Buildings and Facilities (ADAAG) that
are incorporated in Appendix A of the Department's final rule
implementing title III of the ADA.  Draft copies of both
preliminary RIAs are available for comment; the Department will
provide copies of these documents to the public upon request. 
Commenters are urged to provide additional information as to the
costs and benefits associated with this rule.  This will facilitate
the development of a final RIA by January 1, 1992.

     The Department's RIA will evaluate the economic impact of the
final rule.  Included among those title II provisions that are
likely to result in significant economic impact are the
requirements for auxiliary aids, barrier removal in existing
facilities, and readily accessible new construction and
alterations.  An analysis of these costs will be included in the
RIA.

     The Preliminary RIA prepared for the notice of proposed
rulemaking contained all of the available information that would
have been included in a preliminary regulatory flexibility
analysis, had one been prepared under the Regulatory Flexibility
Act, concerning the rule's impact on small entities.  The final RIA
will contain all of the information that is required in a final
regulatory flexibility analysis and will serve as such an analysis. 
Moreover, the extensive notice and comment procedure followed by
the Department in the promulgation of this rule, which included
public hearings, dissemination of materials, and provision of
speakers to affected groups, clearly provided any interested small
entities with the notice and opportunity for comment provided for
under the Regulatory Flexibility Act procedures. 

     The Department is preparing a statement of the federalism
impact of the rule under Executive Order 12612 and will provide
copies of this statement on request.

     The reporting and recordkeeping requirements described in the
rule are considered to be information collection requirements as
that term is defined by the Office of Management and Budget in 5
CFR Part 1320.  Accordingly, those information collection
requirements have been submitted to OMB for review pursuant to the
Paperwork Reduction Act.

SECTION-BY-SECTION ANALYSIS:

Subpart A -- General

{35.101   Purpose.

     Section 35.101 states the purpose of the rule, which is to
effectuate subtitle A of title II of the Americans with
Disabilities Act of 1990 (the Act), which prohibits discrimination
on the basis of disability by public entities.  This part does not,
however, apply to matters within the scope of the authority of the
Secretary of Transportation under subtitle B of title II of the
Act.

{35.102   Application.

     This provision specifies that, except as provided in paragraph
(b), the regulation applies to all services, programs, and
activities provided or made available by public entities, as that
term is defined in {35.104.  Section 504 of the Rehabilitation Act
of 1973 (29 U.S.C. 794), which prohibits discrimination on the
basis of handicap in federally assisted programs and activities,
already covers those programs and activities of public entities
that receive Federal financial assistance.  Title II of the ADA
extends this prohibition of discrimination to include all services,
programs, and activities provided or made available by State and
local governments or any of their instrumentalities or agencies,
regardless of the receipt of Federal financial assistance.  Except
as provided in {35.134, this part does not apply to private
entities.

     The scope of title II's coverage of public entities is
comparable to the coverage of Federal Executive agencies under the
1978 amendment to section 504, which extended section 504's
application to all programs and activities "conducted by" Federal
Executive agencies, in that title II applies to anything a public
entity does.  Title II coverage, however, is not limited to
"Executive" agencies, but includes activities of the legislative
and judicial branches of State and local governments.  All
governmental activities of public entities are covered, even if
they are carried out by contractors.  For example, a State is
obligated by title II to ensure that the services, programs, and
activities of a State park inn operated under contract by a private
entity are in compliance with title II's requirements.  The private
entity operating the inn would also be subject to the obligations
of public accommodations under title III of the Act and the
Department's title III regulations at 28 CFR Part 36.

     Aside from employment, which is also covered by title I of the
Act, there are two major categories of programs or activities
covered by this regulation:  those involving general public contact
as part of ongoing operations of the entity and those directly
administered by the entities for program beneficiaries and
participants.  Activities in the first category include
communication with the public (telephone contacts, office walk-ins,
or interviews) and the public's use of the entity's facilities. 
Activities in the second category include programs that provide
State or local government services or benefits.

     Paragraph (b) of {35.102 explains that to the extent that the
public transportation services, programs, and activities of public
entities are covered by subtitle B of title II of the Act, they are
subject to the regulation of the Department of Transportation (DOT)
at 49 CFR Part 37, and are not covered by this part.  The
Department of Transportation's ADA regulation establishes specific
requirements for construction of transportation facilities and
acquisition of vehicles.  Matters not covered by subtitle B, such
as the provision of auxiliary aids, are covered by this rule.  For
example, activities that are covered by the Department of
Transportation's regulation implementing subtitle B are not
required to be included in the self-evaluation required by {35.105. 
In addition, activities not specifically addressed by DOT's ADA
regulation may be covered by DOT's regulation implementing section
504 for its federally assisted programs and activities at 49 CFR
Part 27.  Like other programs of public entities that are also
recipients of Federal financial assistance, those programs would be
covered by both the section 504 regulation and this part.  Although
airports operated by public entities are not subject to DOT's ADA
regulation, they are subject to subpart A of title II and to this
rule.

     Some commenters asked for clarification about the
responsibilities of public school systems under section 504 and the
ADA with respect to programs, services, and activities that are not
covered by the Individuals with Disabilities Education Act (IDEA),
including, for example, programs open to parents or to the public,
graduation ceremonies, parent-teacher organization meetings, plays
and other events open to the public, and adult education classes. 
Public school systems must comply with the ADA in all of their
services, programs, or activities, including those that are open to
parents or to the public.  For instance, public school systems must
provide program accessibility to parents and guardians with
disabilities to these programs, activities, or services, and
appropriate auxiliary aids and services whenever necessary to
ensure effective communication, as long as the provision of the
auxiliary aids results neither in an undue burden or in a
fundamental alteration of the program.

{35.103   Relationship to other laws.

     Section 35.103 is derived from sections 501(a) and (b) of the
ADA.  Paragraph (a) of this section provides that, except as
otherwise specifically provided by this part, title II of the ADA
is not intended to apply lesser standards than are required under
title V of the Rehabilitation Act of 1973, as amended (29 U.S.C.
790-94), or the regulations implementing that title.  The standards
of title V of the Rehabilitation Act apply for purposes of the ADA
to the extent that the ADA has not explicitly adopted a different
standard than title V.  Because title II of the ADA essentially
extends the antidiscrimination prohibition embodied in section 504
to all actions of State and local governments, the standards
adopted in this part are generally the same as those required under
section 504 for federally assisted programs.  Title II, however,
also incorporates those provisions of titles I and III of the ADA
that are not inconsistent with the regulations implementing section
504.  Judiciary Committee report, H.R. Rep. No. 485, 101st Cong.,
2d Sess., pt.3, at 51 (1990) [hereinafter "Judiciary report"];
Education and Labor Committee report, H.R. Rep. No. 485, 101st
Cong., 2d Sess., pt. 2, at 84 (1990) [hereinafter "Education and
Labor report"].  Therefore, this part also includes appropriate
provisions derived from the regulations implementing those titles. 
The inclusion of specific language in this part, however, should
not be interpreted as an indication that a requirement is not
included under a regulation implementing section 504.

     Paragraph (b) makes clear that Congress did not intend to 
displace any of the rights or remedies provided by other Federal
laws (including section 504) or other State laws (including State
common law) that provide greater or equal protection to individuals
with disabilities.  As discussed above, the standards adopted by
title II of the ADA for State and local government services are
generally the same as those required under section 504 for
federally assisted programs and activities.  Subpart F of the
regulation establishes compliance procedures for processing
complaints covered by both this part and section 504.

     With respect to State law, a plaintiff may choose to pursue
claims under a State law that does not confer greater substantive
rights, or even confers fewer substantive rights, if the alleged
violation is protected under the alternative law and the remedies
are greater.  For example, a person with a physical disability
could seek damages under a State law that allows compensatory and
punitive damages for discrimination on the basis of physical
disability, but not on the basis of mental disability.  In that
situation, the State law would provide narrower coverage, by
excluding mental disabilities, but broader remedies, and an
individual covered by both laws could choose to bring an action
under both laws.  Moreover, State tort claims confer greater
remedies and are not preempted by the ADA.  A plaintiff may join a
State tort claim to a case brought under the ADA.  In such a case,
the plaintiff must, of course, prove all the elements of the State
tort claim in order to prevail under that cause of action.

{35.104   Definitions.

     "Act."  The word "Act" is used in this part to refer to the
Americans with Disabilities Act of 1990, Pub. L. 101-336, which is
also referred to as the "ADA."

     "Assistant Attorney General."  The term "Assistant Attorney
General" refers to the Assistant Attorney General of the Civil
Rights Division of the Department of Justice.

     "Auxiliary aids and services."  Auxiliary aids and services
include a wide range of services and devices for ensuring effective
communication.  The proposed definition in {35.104 provided a list
of examples of auxiliary aids and services that was taken from the
definition of auxiliary aids and services in section 3(1) of the
ADA and was supplemented by examples from regulations implementing
section 504 in federally conducted programs (see 28 CFR 39.103).  

     A substantial number of commenters suggested that additional
examples be added to this list.  The Department has added several
items to this list but wishes to clarify that the list is not an
all-inclusive or exhaustive catalogue of possible or available
auxiliary aids or services.  It is not possible to provide an
exhaustive list, and an attempt to do so would omit the new devices
that will become available with emerging technology.

     Subparagraph (1) lists several examples, which would be
considered auxiliary aids and services to make aurally delivered
materials available to individuals with hearing impairments.  The
Department has changed the phrase used in the proposed rules,
"orally delivered materials," to the statutory phrase, "aurally
delivered materials," to track section 3 of the ADA and to include
non-verbal sounds and alarms, and computer generated speech.  

     The Department has added videotext displays, transcription
services, and closed and open captioning to the list of examples. 
Videotext displays have become an important means of accessing
auditory communications through a public address system. 
Transcription services are used to relay aurally delivered material
almost simultaneously in written form to persons who are deaf or
hearing-impaired.  This technology is often used at conferences,
conventions, and hearings.  While the proposed rule expressly
included television decoder equipment as an auxiliary aid or
service, it did not mention captioning itself.  The final rule
rectifies this omission by mentioning both closed and open
captioning.

     Several persons and organizations requested that the
Department replace the term "telecommunications devices for deaf
persons" or "TDD's" with the term "text telephone."  The Department
has declined to do so.  The Department is aware that the
Architectural and Transportation Barriers Compliance Board (ATBCB)
has used the phrase "text telephone" in lieu of the statutory term
"TDD" in its final accessibility guidelines.  Title IV of the ADA,
however, uses the term "Telecommunications Device for the Deaf" and
the Department believes it would be inappropriate to abandon this
statutory term at this time.

     Several commenters urged the Department to include in the
definition of "auxiliary aids and services" devices that are now
available or that may become available with emerging technology. 
The Department declines to do so in the rule.  The Department,
however, emphasizes that, although the definition would include
"state of the art" devices, public entities are not required to use
the newest or most advanced technologies as long as the auxiliary
aid or service that is selected affords effective communication.

     Subparagraph (2) lists examples of aids and services for
making visually delivered materials accessible to persons with
visual impairments.  Many commenters proposed additional examples,
such as signage or mapping, audio description services, secondary
auditory programs, telebraillers, and reading machines.  While the
Department declines to add these items to the list, they are
auxiliary aids and services and may be appropriate depending on the
circumstances.

     Subparagraph (3) refers to acquisition or modification of
equipment or devices.  Several commenters suggested the addition of
current technological innovations in microelectronics and
computerized control systems (e.g., voice recognition systems,
automatic dialing telephones, and infrared elevator and light
control systems) to the list of auxiliary aids.  The Department
interprets auxiliary aids and services as those aids and services
designed to provide effective communications, i.e., making aurally
and visually delivered information available to persons with
hearing, speech, and vision impairments.  Methods of making
services, programs, or activities accessible to, or usable by,
individuals with mobility or manual dexterity impairments are
addressed by other sections of this part, including the provision
for modifications in policies, practices, or procedures
({35.130(b)(7)).

     Paragraph (b)(4) deals with other similar services and
actions.  Several commenters asked for clarification that "similar
services and actions" include retrieving items from shelves,
assistance in reaching a marginally accessible seat, pushing a
barrier aside in order to provide an accessible route, or
assistance in removing a sweater or coat.  While retrieving an item
from a shelf might be an "auxiliary aid or service" for a blind
person who could not locate the item without assistance, it might
be a method of providing program access for a person using a
wheelchair who could not reach the shelf, or a reasonable
modification to a self-service policy for an individual who lacked
the ability to grasp the item.  As explained above, auxiliary aids
and services are those aids and services required to provide
effective communications.  Other forms of assistance are more
appropriately addressed by other provisions of the final rule.

     "Complete complaint."  "Complete complaint" is defined to
include all the information necessary to enable the Federal agency
designated under subpart G as responsible for investigation of a
complaint to initiate its investigation.

     "Current illegal use of drugs."  The phrase "current illegal
use of drugs" is used in {35.131.  Its meaning is discussed in the
preamble for that section.

     "Designated agency."  The term "designated agency" is used to
refer to the Federal agency designated under subpart G of this rule
as responsible for carrying out the administrative enforcement
responsibilities established by subpart F of the rule.

     "Disability."  The definition of the term "disability" is the
same as the definition in the title III regulation codified at 28
CFR Part 36.  It is comparable to the definition of the term
"individual with handicaps" in section 7(8) of the Rehabilitation
Act and section 802(h) of the Fair Housing Act.  The Education and
Labor Committee report makes clear that the analysis of the term
"individual with handicaps" by the Department of Health, Education,
and Welfare (HEW) in its regulations implementing section 504 (42
FR 22685 (May 4, 1977)) and the analysis by the Department of
Housing and Urban Development in its regulation implementing the
Fair Housing Amendments Act of 1988 (54 FR 3232 (Jan. 23, 1989))
should also apply fully to the term "disability" (Education and
Labor report at 50).

     The use of the term "disability" instead of "handicap" and the
term "individual with a disability" instead of "individual with
handicaps" represents an effort by Congress to make use of up-to-
date, currently accepted terminology.  As with racial and ethnic
epithets, the choice of terms to apply to a person with a
disability is overlaid with stereotypes, patronizing attitudes, and
other emotional connotations.  Many individuals with disabilities,
and organizations representing such individuals, object to the use
of such terms as "handicapped person" or "the handicapped."  In
other recent legislation, Congress also recognized this shift in
terminology, e.g., by changing the name of the National Council on
the Handicapped to the National Council on Disability (Pub. L. 100-
630).

     In enacting the Americans with Disabilities Act, Congress
concluded that it was important for the current legislation to use
terminology most in line with the sensibilities of most Americans
with disabilities.  No change in definition or substance is
intended nor should one be attributed to this change in
phraseology.

     The term "disability" means, with respect to an individual -
     (A)  A physical or mental impairment that substantially limits
one or more of the major life activities of such individual;

     (B)  A record of such an impairment; or

     (C)  Being regarded as having such an impairment.

     If an individual meets any one of these three tests, he 
or she is considered to be an individual with a disability for
purposes of coverage under the Americans with Disabilities Act.

     Congress adopted this same basic definition of "disability,"
first used in the Rehabilitation Act of 1973 and in the Fair
Housing Amendments Act of 1988, for a number of reasons.  First, it
has worked well since it was adopted in 1974.  Second, it would not
be possible to guarantee comprehensiveness by providing a list of
specific disabilities, especially because 
new disorders may be recognized in the future, as they have since
the definition was first established in 1974.

Test A -- A physical or mental impairment that substantially     
          limits one or more of the major life activities of 
          such individual

     Physical or mental impairment.  Under the first test, an
individual must have a physical or mental impairment.  As explained
in paragraph (1)(i) of the definition, "impairment" means any
physiological disorder or condition, cosmetic disfigurement, or
anatomical loss affecting one or more of the following body
systems:  neurological; musculoskeletal; special sense organs
(which would include speech organs that are not respiratory such as
vocal cords, soft palate, tongue, etc.); respiratory, including
speech organs; cardiovascular; reproductive; digestive;
genitourinary; hemic and lymphatic; skin; and endocrine.  It also
means any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness,
and specific learning disabilities.  This list closely tracks the
one used in the regulations for section 504 of the Rehabilitation
Act of 1973 (see, e.g., 45 CFR 84.3(j)(2)(i)).  

     Many commenters asked that "traumatic brain injury" be added
to the list in paragraph (1)(i).  Traumatic brain injury is already
included because it is a physiological condition affecting one of
the listed body systems, i.e., "neurological."  Therefore, it was
unnecessary to add the term to the regulation, which only provides
representative examples of physiological disorders.

     It is not possible to include a list of all the specific
conditions, contagious and noncontagious diseases, or infections
that would constitute physical or mental impairments because of the
difficulty of ensuring the comprehensiveness of such a list,
particularly in light of the fact that other conditions or
disorders may be identified in the future.  However, the list of
examples in paragraph (1)(ii) of the definition includes: 
orthopedic, visual, speech and hearing impairments, cerebral palsy,
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart
disease, diabetes, mental retardation, emotional illness, specific
learning disabilities, HIV disease (symptomatic or asymptomatic),
tuberculosis, drug addiction, and alcoholism.  The phrase
"symptomatic or asymptomatic" was inserted in the final rule after
"HIV disease" in response to commenters who suggested the
clarification was necessary.

     The examples of "physical or mental impairments" in paragraph
(1)(ii) are the same as those contained in many section 504
regulations, except for the addition of the phrase "contagious and
noncontagious" to describe the types of diseases and conditions
included, and the addition of "HIV disease (symptomatic or
asymptomatic)" and "tuberculosis" to the list of examples.  These
additions are based on the committee reports, caselaw, and official
legal opinions interpreting section 504.  In School Board of Nassau
County v. Arline, 480 U.S. 273 (1987), a case involving an
individual with tuberculosis, the Supreme Court held that people
with contagious diseases are entitled to the protections afforded
by section 504.  Following the Arline decision, this Department's
Office of Legal Counsel issued a legal opinion that concluded that
symptomatic HIV disease is an impairment that substantially limits
a major life activity; therefore it has been included in the
definition of disability under this part.  The opinion also
concluded that asymptomatic HIV disease is an impairment that
substantially limits a major life activity, either because of its
actual effect on the individual with HIV disease or because the
reactions of other people to individuals with HIV disease cause
such individuals to be treated as though they are disabled.  See
Memorandum from Douglas W. Kmiec, Acting Assistant Attorney
General, Office of Legal Counsel, Department of Justice, to Arthur
B. Culvahouse, Jr., Counsel to the President (Sept. 27, 1988),
reprinted in Hearings on S. 933, the Americans with Disabilities
Act, Before the Subcomm. on the Handicapped of the Senate Comm. on
Labor and Human Resources, 101st. Cong., 1st Sess. 346 (1989).

     Paragraph (1)(iii) states that the phrase "physical or mental
impairment" does not include homosexuality or bisexuality.  These
conditions were never considered impairments under other Federal
disability laws.  Section 511(a) of the statute makes clear that
they are likewise not to be considered impairments under the
Americans with Disabilities Act.

     Physical or mental impairment does not include simple physical
characteristics, such as blue eyes or black hair.  
Nor does it include environmental, cultural, economic, or other
disadvantages, such as having a prison record, or being poor. 
Nor is age a disability.  Similarly, the definition does not
include common personality traits such as poor judgment or a quick
temper where these are not symptoms of a mental or psychological
disorder.  However, a person who has these characteristics and also
has a physical or mental impairment 
may be considered as having a disability for purposes of the 
Americans with Disabilities Act based on the impairment.

     Substantial limitation of a major life activity.  Under Test
A, the impairment must be one that "substantially limits a major
life activity."  Major life activities include such things as
caring for one's self, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working.  

     For example, a person who is paraplegic is substantially
limited in the major life activity of walking, a person who is
blind is substantially limited in the major life activity of
seeing, and a person who is mentally retarded is substantially
limited in the major life activity of learning.  A person with
traumatic brain injury is substantially limited in the major life
activities of caring for one's self, learning, and working because
of memory deficit, confusion, contextual difficulties, and
inability to reason appropriately.

     A person is considered an individual with a disability for
purposes of Test A, the first prong of the definition, when the
individual's important life activities are restricted as to the
conditions, manner, or duration under which they can be performed
in comparison to most people.  A person with a minor, trivial
impairment, such as a simple infected finger, is not impaired in a
major life activity.  A person who can walk for 10 miles
continuously is not substantially limited in walking merely
because, on the eleventh mile, he or she begins to experience 
pain, because most people would not be able to walk eleven miles
without experiencing some discomfort.  

     The Department received many comments on the proposed rule's
inclusion of the word "temporary" in the definition of
"disability."  The preamble indicated that impairments are not
necessarily excluded from the definition of "disability" simply
because they are temporary, but that the duration, or expected
duration, of an impairment is one factor that may properly be
considered in determining whether the impairment substantially
limits a major life activity.  The preamble recognized, however,
that temporary impairments, such as a broken leg, are not commonly
regarded as disabilities, and only in rare circumstances would the
degree of the limitation and its expected duration be substantial. 
Nevertheless, many commenters objected to inclusion of the word
"temporary" both because it is not in the statute and because it is
not contained in the definition of "disability" set forth in the
title I regulations of the Equal Employment Opportunity Commission
(EEOC).  The word "temporary" has been deleted from the final rule
to conform with the statutory language.

     The question of whether a temporary impairment is a disability
must be resolved on a case-by-case basis, taking into consideration
both the duration (or expected duration) of the impairment and the
extent to which it actually limits a major life activity of the
affected individual.  

     The question of whether a person has a disability should be
assessed without regard to the availability of mitigating measures,
such as reasonable modifications or auxiliary aids and services. 
For example, a person with hearing loss is substantially limited in
the major life activity of hearing, even though the loss may be
improved through the use of a hearing aid.  Likewise, persons with
impairments, such as epilepsy or diabetes, that substantially limit
a major life activity, are covered under the first prong of the
definition of disability, even if the effects of the impairment are
controlled by medication.

     Many commenters asked that environmental illness (also known
as multiple chemical sensitivity) as well as allergy to cigarette
smoke be recognized as disabilities.    The Department, however,
declines to state categorically that these types of allergies or
sensitivities are disabilities, because the determination as to
whether an impairment is a disability depends on whether, given the
particular circumstances at issue, the impairment substantially
limits one or more major life activities (or has a history of, or
is regarded as having such an effect).

     Sometimes respiratory or neurological functioning is so
severely affected that an individual will satisfy the requirements
to be considered disabled under the regulation.  Such an individual
would be entitled to all of the protections afforded by the Act and
this part.  In other cases, individuals may be sensitive to
environmental elements or to smoke but their sensitivity will not
rise to the level needed to constitute a disability.  For example,
their major life activity of breathing may be somewhat, but not
substantially, impaired.  In such circumstances, the individuals
are not disabled and are not entitled to the protections of the
statute despite their sensitivity to environmental agents.

     In sum, the determination as to whether allergies to cigarette
smoke, or allergies or sensitivities characterized by the
commenters as environmental illness are disabilities covered by the
regulation must be made using the same case-by-case analysis that
is applied to all other physical or mental impairments.  Moreover,
the addition of specific regulatory provisions relating to
environmental illness in the final rule would be inappropriate at
this time pending future consideration of the issue by the
Architectural and Transportation Barriers Compliance Board, the
Environmental Protection Agency, and the Occupational Safety and
Health Administration of the Department of Labor.

Test B -- A record of such an impairment

     This test is intended to cover those who have a record of an
impairment.  As explained in paragraph (3) of the rule's definition
of disability, this includes a person who has a history of an
impairment that substantially limited a major life activity, such
as someone who has recovered from an impairment.  It also includes
persons who have been misclassified as having an impairment.  

     This provision is included in the definition in part to
protect individuals who have recovered from a physical or 
mental impairment that previously substantially limited them 
in a major life activity.  Discrimination on the basis of such 
a past impairment is prohibited.  Frequently occurring examples of
the first group (those who have a history of an impairment) are
persons with histories of mental or emotional illness, heart
disease, or cancer; examples of the second group (those who have
been misclassified as having an impairment) are persons who have
been misclassified as having mental retardation or mental illness.

Test C -- Being regarded as having such an impairment

     This test, as contained in paragraph (4) of the definition, is
intended to cover persons who are treated by a public entity as
having a physical or mental impairment that substantially limits a
major life activity.  It applies when a person is treated as if he
or she has an impairment that substantially limits a major life
activity, regardless of whether that person has an impairment.

     The Americans with Disabilities Act uses the same "regarded
as" test set forth in the regulations implementing section 504 of
the Rehabilitation Act.  See, e.g., 28 CFR 42.540(k)(2)(iv), which
provides:

     (iv)  "Is regarded as having an impairment" means (A) Has
     a physical or mental impairment that does not
     substantially limit major life activities but that is
     treated by a recipient as constituting such a limitation;
     (B)  Has a physical or mental impairment that
     substantially limits major life activities only as a
     result of the attitudes of others toward such impairment;
     or (C)  Has none of the impairments defined in paragraph
     (k)(2)(i) of this section but is treated by a recipient
     as having such an impairment.

     The perception of the covered entity is a key element of this
test.  A person who perceives himself or herself to have an
impairment, but does not have an impairment, and is not treated as
if he or she has an impairment, is not protected under this test.

     A person would be covered under this test if a public entity
refused to serve the person because it perceived that the person 
had an impairment that limited his or her enjoyment of the goods or
services being offered.

     For example, persons with severe burns often encounter
discrimination in community activities, resulting in substantial
limitation of major life activities.  These persons would be
covered under this test based on the attitudes of others towards
the impairment, even if they did not view themselves as "impaired."

     The rationale for this third test, as used in the
Rehabilitation Act of 1973, was articulated by the Supreme Court 
in Arline, 480 U.S. 273 (1987).  The Court noted that although 
an individual may have an impairment that does not in fact
substantially limit a major life activity, the reaction of 
others may prove just as disabling.  "Such an impairment might not
diminish a person's physical or mental capabilities, but could
nevertheless substantially limit that person's ability to work as
a result of the negative reactions of others to the impairment." 
Id. at 283.  The Court concluded that, by including this test in
the Rehabilitation Act's definition, "Congress acknowledged that
society's accumulated myths and fears about disability and diseases
are as handicapping as are the physical limitations that flow from
actual impairment."  Id. at 284.

     Thus, a person who is denied services or benefits by a public
entity because of myths, fears, and stereotypes associated with
disabilities would be covered under this third test whether or not
the person's physical or mental condition would be considered a
disability under the first or second test in the definition.

     If a person is refused admittance on the basis of an actual or
perceived physical or mental condition, and the public entity can
articulate no legitimate reason for the refusal (such as failure to
meet eligibility criteria), a perceived concern about admitting
persons with disabilities could be inferred and the individual
would qualify for coverage under the "regarded as" test.  A person
who is covered because of being regarded as having an impairment is
not required to show that the public entity's perception is
inaccurate (e.g., that he will be accepted by others) in order to
receive benefits from the public entity.

     Paragraph (5) of the definition lists certain conditions that
are not included within the definition of "disability."  The
excluded conditions are:  transvestism, transsexualism, pedophilia,
exhibitionism, voyeurism, gender identity disorders not resulting
from physical impairments, other sexual behavior disorders,
compulsive gambling, kleptomania, pyromania, and psychoactive
substance use disorders resulting from current illegal use of
drugs.  Unlike homosexuality and bisexuality, which are not
considered impairments under either section 504 or the Americans
with Disabilities Act (see the definition of "disability,"
paragraph (1)(iv)), the conditions listed in paragraph (5), except
for transvestism, are not necessarily excluded as impairments under
section 504.  (Transvestism was excluded from the definition of
disability for section 504 by the Fair Housing Amendments Act of
1988, Pub. L. 100-430, section 6(b)).

     "Drug."  The definition of the term "drug" is taken from 
section 510(d)(2) of the ADA.

     "Facility."  "Facility" means all or any portion of buildings,
structures, sites, complexes, equipment, rolling stock or other
conveyances, roads, walks, passageways, parking lots, or other real
or personal property, including the site where the building,
property, structure, or equipment is located.  It includes both
indoor and outdoor areas where human-constructed improvements,
structures, equipment, or property have been added to the natural
environment.

     Commenters raised questions about the applicability of this
part to activities operated in mobile facilities, such as
bookmobiles or mobile health screening units.  Such activities
would be covered by the requirement for program accessibility in
{35.150, and would be included in the definition of "facility" as
"other real or personal property," although standards for new
construction and alterations of such facilities are not yet
included in the accessibility standards adopted by {35.151. 
Sections 35.150 and 35.151 specifically address the obligations of
public entities to ensure accessibility by providing curb ramps at
pedestrian walkways.

     "Historic preservation programs" and "Historic properties" are
defined in order to aid in the interpretation of {{35.150(a)(2) and
(b)(2), which relate to accessibility of historic preservation
programs, and {35.151(d), which relates to the alteration of
historic properties.

     "Illegal use of drugs."  The definition of "illegal use of
drugs" is taken from section 510(d)(1) of the Act and clarifies
that the term includes the illegal use of one or more drugs. 

     "Individual with a disability" means a person who has a
disability but does not include an individual who is currently
illegally using drugs, when the public entity acts on the basis of
such use.  The phrase "current illegal use of drugs" is explained
in {35.131.

     "Public entity."  The term "public entity" is defined in
accordance with section 201(1) of the ADA as any State or local
government; any department, agency, special purpose district, or
other instrumentality of a State or States or local government; or
the National Railroad Passenger Corporation, and any commuter
authority (as defined in section 103(8) of the Rail Passenger
Service Act).  

     "Qualified individual with a disability."  The definition of
"qualified individual with a disability" is taken from section
201(2) of the Act, which is derived from the definition of
"qualified handicapped person" in the Department of Health and
Human Services' regulation implementing section 504 (45 CFR
{84.3(k)).  It combines the definition at 45 CFR 84.3(k)(1) for
employment ("a handicapped person who, with reasonable
accommodation, can perform the essential functions of the job in
question") with the definition for other services at 45 CFR
84.3(k)(4) ("a handicapped person who meets the essential
eligibility requirements for the receipt of such services").

     Some commenters requested clarification of the term "essential
eligibility requirements."  Because of the variety of situations in
which an individual's qualifications will be at issue, it is not
possible to include more specific criteria in the definition.  The
"essential eligibility requirements" for participation in some
activities covered under this part may be minimal.  For example,
most public entities provide information about their operations as
a public service to anyone who requests it.  In such situations,
the only "eligibility requirement" for receipt of such information
would be the request for it.  Where such information is provided by
telephone, even the ability to use a voice telephone is not an
"essential eligibility requirement," because {35.161 requires a
public entity to provide equally effective telecommunication
systems for individuals with impaired hearing or speech.

     For other activities, identification of the "essential
eligibility requirements" may be more complex.  Where questions of
safety are involved, the principles established in {36.208 of the
Department's regulation implementing title III of the ADA, to be
codified at 28 CFR Part 36, will be applicable.  That section
implements section 302(b)(3) of the Act, which provides that a
public accommodation is not required to permit an individual to
participate in or benefit from the goods, services, facilities,
privileges, advantages and accommodations of the public
accommodation, if that individual poses a direct threat to the
health or safety of others.  

     A "direct threat" is a significant risk to the health or
safety of others that cannot be eliminated by a modification of
policies, practices, or procedures, or by the provision of
auxiliary aids or services.  In School Board of Nassau County v.
Arline, 480 U.S. 273 (1987), the Supreme Court recognized that
there is a need to balance the interests of people with
disabilities against legitimate concerns for public safety. 
Although persons with disabilities are generally entitled to the
protection of this part, a person who poses a significant risk to
others will not be "qualified," if reasonable modifications to the
public entity's policies, practices, or procedures will not
eliminate that risk.  

     The determination that a person poses a direct threat to the
health or safety of others may not be based on generalizations or
stereotypes about the effects of a particular disability.  It must
be based on an individualized assessment, based on reasonable
judgment that relies on current medical evidence or on the best
available objective evidence, to determine:  the nature, duration,
and severity of the risk; the probability that the potential injury
will actually occur; and whether reasonable modifications of
policies, practices, or procedures will mitigate the risk.  This is
the test established by the Supreme Court in Arline.  Such an
inquiry is essential if the law is to achieve its goal of
protecting disabled individuals from discrimination based on
prejudice, stereotypes, or unfounded fear, while giving appropriate
weight to legitimate concerns, such as the need to avoid exposing
others to significant health and safety risks.  Making this
assessment will not usually require the services of a physician. 
Sources for medical knowledge include guidance from public health
authorities, such as the U.S. Public Health Service, the Centers
for Disease Control, and the National Institutes of Health,
including the National Institute of Mental Health.

     "Qualified interpreter."  The Department received substantial
comment regarding the lack of a definition of "qualified
interpreter."  The proposed rule defined auxiliary aids and
services to include the statutory term, "qualified interpreters"
({35.104), but did not define it.  Section 35.160 requires the use
of auxiliary aids including qualified interpreters and commenters
stated that a lack of guidance on what the term means would create
confusion among those trying to secure interpreting services and
often result in less than effective communication.

     Many commenters were concerned that, without clear guidance on
the issue of "qualified" interpreter, the rule would be interpreted
to mean "available, rather than qualified" interpreters.  Some
claimed that few public entities would understand the difference
between a qualified interpreter and a person who simply knows a few
signs or how to fingerspell.

     In order to clarify what is meant by "qualified interpreter"
the Department has added a definition of the term to the final
rule.  A qualified interpreter means an interpreter who is able to
interpret effectively, accurately, and impartially both receptively
and expressively, using any necessary specialized vocabulary.  This
definition focuses on the actual ability of the interpreter in a
particular interpreting context to facilitate effective
communication between the public entity and the individual with
disabilities.

     Public comment also revealed that public entities have at
times asked persons who are deaf to provide family members or
friends to interpret.  In certain circumstances, notwithstanding
that the family member of friend is able to interpret or is a
certified interpreter, the family member or friend may not be
qualified to render the necessary interpretation because of factors
such as emotional or personal involvement or considerations of
confidentiality that may adversely affect the ability to interpret
"effectively, accurately, and impartially."

     The definition of "qualified interpreter" in this rule does
not invalidate or limit standards for interpreting services of any
State or local law that are equal to or more stringent than those
imposed by this definition.  For instance, the definition would not
supersede any requirement of State law for use of a certified
interpreter in court proceedings.

     "Section 504."  The Department added a definition of "section
504" because the term is used extensively in subpart F of this
part.

     "State."  The definition of "State" is identical to the
statutory definition in section 3(3) of the ADA.

{35.105   Self-evaluation.

     Section 35.105 establishes a requirement, based on the section
504 regulations for federally assisted and federally conducted
programs, that a public entity evaluate its current policies and
practices to identify and correct any that are not consistent with
the requirements of this part.  As noted in the discussion of
{35.102, activities covered by the Department of Transportation's
regulation implementing subtitle B of title II are not required to
be included in the self-evaluation required by this section.  

     Experience has demonstrated the self-evaluation process to be
a valuable means of establishing a working relationship with
individuals with disabilities, which has promoted both effective
and efficient implementation of section 504.  The Department
expects that it will likewise be useful to public entities newly
covered by the ADA.

     All public entities are required to do a self-evaluation. 
However, only those that employ 50 or more persons are required to
maintain the self-evaluation on file and make it available for
public inspection for three years.  The number 50 was derived from
the Department of Justice's section 504 regulations for federally
assisted programs, 28 CFR 42.505(c).  The Department received
comments critical of this limitation, some suggesting the
requirement apply to all public entities and others suggesting that
the number be changed from 50 to 15.  The final rule has not been
changed.  Although many regulations implementing section 504 for
federally assisted programs do use 15 employees as the cut-off for
this record-keeping requirement, the Department believes that it
would be inappropriate to extend it to those smaller public
entities covered by this regulation that do not receive Federal
financial assistance.  This approach has the benefit of minimizing
paperwork burdens on small entities.

     Paragraph (d) provides that the self-evaluation required by
this section shall apply only to programs not subject to section
504 or those policies and practices, such as those involving
communications access, that have not already been included in a
self-evaluation required under an existing regulation implementing
section 504.  Because most self-evaluations were done from five to
twelve years ago, however, the Department expects that a great many
public entities will be reexamining all of their policies and
programs.  Programs and functions may have changed, and actions
that were supposed to have been taken to comply with section 504
may not have been fully implemented or may no longer be effective. 
In addition, there have been statutory amendments to section 504
which have changed the coverage of section 504, particularly the
Civil Rights Restoration Act of 1987, Pub. L. No. 100-259, 102
Stat. 28 (1988), which broadened the definition of a covered
"program or activity."

     Several commenters suggested that the Department clarify
public entities' liability during the one-year period for
compliance with the self-evaluation requirement.  The self-
evaluation requirement does not stay the effective date of the
statute nor of this part.  Public entities are, therefore, not
shielded from discrimination claims during that time.

     Other commenters suggested that the rule require that every
self-evaluation include an examination of training efforts to
assure that individuals with disabilities are not subjected to
discrimination because of insensitivity, particularly in the law
enforcement area.  Although the Department has not added such a
specific requirement to the rule, it would be appropriate for
public entities to evaluate training efforts because, in many
cases, lack of training leads to discriminatory practices, even
when the policies in place are nondiscriminatory.

{35.106   Notice.

     Section 35.106 requires a public entity to disseminate
sufficient information to applicants, participants, beneficiaries,
and other interested persons to inform them of the rights and
protections afforded by the ADA and this regulation.  Methods of
providing this information include, for example, the publication of
information in handbooks, manuals, and pamphlets that are
distributed to the public to describe a public entity's programs
and activities; the display of informative posters in service
centers and other public places; or the broadcast of information by
television or radio.  In providing the notice, a public entity must
comply with the requirements for effective communication in
{35.160.  The preamble to that section gives guidance on how to
effectively communicate with individuals with disabilities.

{35.107   Designation of responsible employee and adoption of
          grievance procedures.

     Consistent with {35.105, Self-evaluation, the final rule
requires that public entities with 50 or more employees designate
a responsible employee and adopt grievance procedures.  Most of the
commenters who suggested that the requirement that self-evaluation
be maintained on file for three years not be limited to those
employing 50 or more persons made a similar suggestion concerning
{35.107.  Commenters recommended either that all public entities be
subject to section 35.107, or that "50 or more persons" be changed
to "15 or more persons."  As explained in the discussion of
{35.105, the Department has not adopted this suggestion.

     The requirement for designation of an employee responsible for
coordination of efforts to carry out responsibilities under this
part is derived from the HEW regulation implementing section 504 in
federally assisted programs.  The requirement for designation of a
particular employee and dissemination of information about how to
locate that employee helps to ensure that individuals dealing with
large agencies are able to easily find a responsible person who is
familiar with the requirements of the Act and this part and can
communicate those requirements to other individuals in the agency
who may be unaware of their responsibilities.  This paragraph in no
way limits a public entity's obligation to ensure that all of its
employees comply with the requirements of this part, but it ensures
that any failure by individual employees can be promptly corrected
by the designated employee.

     Section 35.107(b) requires public entities with 50 or more
employees to establish grievance procedures for resolving
complaints of violations of this part.  Similar requirements are
found in the section 504 regulations for federally assisted
programs (see, e.g., 45 CFR 84.7(b)).  The rule, like the
regulations for federally assisted programs, provides for
investigation and resolution of complaints by a Federal enforcement
agency.  It is the view of the Department that public entities
subject to this part should be required to establish a mechanism
for resolution of complaints at the local level without requiring
the complainant to resort to the Federal complaint procedures
established under subpart F.  Complainants would not, however, be
required to exhaust the public entity's grievance procedures before
filing a complaint under subpart F.  Delay in filing the complaint
at the Federal level caused by pursuit of the remedies available
under the grievance procedure would generally be considered good
cause for extending the time allowed for filing under {35.170(b).

Subpart B -- General Requirements

{35.130   General prohibitions against discrimination.

     The general prohibitions against discrimination in the rule
are generally based on the prohibitions in existing regulations
implementing section 504 and, therefore, are already familiar to
State and local entities covered by section 504.   In addition,
{35.130 includes a number of provisions derived from title III of
the Act that are implicit to a certain degree in the requirements
of regulations implementing section 504.

     Several commenters suggested that this part should include the
section of the proposed title III regulation that implemented
section 309 of the Act, which requires that courses and
examinations related to applications, licensing, certification, or
credentialing be provided in an accessible place and manner or that
alternative accessible arrangements be made.  The Department has
not adopted this suggestion.  The requirements of this part,
including the general prohibitions of discrimination in this
section, the program access requirements of subpart D, and the
communications requirements of subpart E, apply to courses and
examinations provided by public entities.  The Department considers
these requirements to be sufficient to ensure that courses and
examinations administered by public entities meet the requirements
of section 309.  For example, a public entity offering an
examination must ensure that modifications of policies, practices,
or procedures or the provision of auxiliary aids and services
furnish the individual with a disability an equal opportunity to
demonstrate his or her knowledge or ability.  Also, any examination
specially designed for individuals with disabilities must be
offered as often and in as timely a manner as are other
examinations.  Further, under this part, courses and examinations
must be offered in the most integrated setting appropriate.  The
analysis of {35.130(d) is relevant to this determination.

     A number of commenters asked that the regulation be amended to
require training of law enforcement personnel to recognize the
difference between criminal activity and the effects of seizures or
other disabilities such as mental retardation, cerebral palsy,
traumatic brain injury, mental illness, or deafness.  Several
disabled commenters gave personal statements about the abuse they
had received at the hands of law enforcement personnel.  Two
organizations that commented cited the Judiciary report at 50 as
authority to require law enforcement training.

     The Department has not added such a training requirement to
the regulation.  Discriminatory arrests and brutal treatment are
already unlawful police activities.  The general regulatory
obligation to modify policies, practices, or procedures requires
law enforcement to make changes in policies that result in
discriminatory arrests or abuse of individuals with disabilities. 
Under this section law enforcement personnel would be required to
make appropriate efforts to determine whether perceived strange or
disruptive behavior or unconsciousness is the result of a
disability.  The Department notes that a number of States have
attempted to address the problem of arresting disabled persons for
noncriminal conduct resulting from their disability through
adoption of the Uniform Duties to Disabled Persons Act, and
encourages other jurisdictions to consider that approach.

     Paragraph (a) restates the nondiscrimination mandate of
section 202 of the ADA.  The remaining paragraphs in {35.130
establish the general principles for analyzing whether any
particular action of the public entity violates this mandate.

     Paragraph (b) prohibits overt denials of equal treatment of
individuals with disabilities.  A public entity may not refuse to
provide an individual with a disability with an equal opportunity
to participate in or benefit from its program simply because the
person has a disability.  

     Paragraph (b)(1)(i) provides that it is discriminatory to deny
a person with a disability the right to participate in or benefit
from the aid, benefit, or service provided by a public entity. 
Paragraph (b)(1)(ii) provides that the aids, benefits, and services
provided to persons with disabilities must be equal to those
provided to others, and paragraph (b)(1)(iii) requires that the
aids, benefits, or services provided to individuals with
disabilities must be as effective in affording equal opportunity to
obtain the same result, to gain the same benefit, or to reach the
same level of achievement as those provided to others.  These
paragraphs are taken from the regulations implementing section 504
and simply restate principles long established under section 504.

     Paragraph (b)(1)(iv) permits the public entity to develop
separate or different aids, benefits, or services when necessary to
provide individuals with disabilities with an equal opportunity to
participate in or benefit from the public entity's programs or
activities, but only when necessary to ensure that the aids,
benefits, or services are as effective as those provided to others. 
Paragraph (b)(1)(iv) must be read in conjunction with paragraphs
(b)(2), (d), and (e).  Even when separate or different aids,
benefits, or services would be more effective, paragraph (b)(2)
provides that a qualified individual with a disability still has
the right to choose to participate in the program that is not
designed to accommodate individuals with disabilities.  Paragraph
(d) requires that a public entity administer services, programs,
and activities in the most integrated setting appropriate to the
needs of qualified individuals with disabilities.

     Paragraph (b)(2) specifies that, notwithstanding the existence
of separate or different programs or activities provided in
accordance with this section, an individual with a disability shall
not be denied the opportunity to participate in such programs or
activities that are not separate or different.  Paragraph (e),
which is derived from section 501(d) of the Americans with
Disabilities Act, states that nothing in this part shall be
construed to require an individual with a disability to accept an
accommodation, aid, service, opportunity, or benefit that he or she
chooses not to accept.  

     Taken together, these provisions are intended to prohibit
exclusion and segregation of individuals with disabilities and the
denial of equal opportunities enjoyed by others, based on, among
other things, presumptions, patronizing attitudes, fears, and
stereotypes about individuals with disabilities.  Consistent with
these standards, public entities are required to ensure that their
actions are based on facts applicable to individuals and not on
presumptions as to what a class of individuals with disabilities
can or cannot do. 

     Integration is fundamental to the purposes of the Americans
with Disabilities Act.  Provision of segregated accommodations and
services relegates persons with disabilities to second-class
status.  For example, it would be a violation of this provision to
require persons with disabilities to eat in the back room of a
government cafeteria or to refuse to allow a person with a
disability the full use of recreation or exercise facilities
because of stereotypes about the person's ability to participate. 

     Many commenters objected to proposed paragraphs (b)(1)(iv) and
(d) as allowing continued segregation of individuals with
disabilities.  The Department recognizes that promoting integration
of individuals with disabilities into the mainstream of society is
an important objective of the ADA and agrees that, in most
instances, separate programs for individuals with disabilities will
not be permitted.  Nevertheless, section 504 does permit separate
programs in limited circumstances, and Congress clearly intended
the regulations issued under title II to adopt the standards of
section 504.  Furthermore, Congress included authority for separate
programs in the specific requirements of title III of the Act. 
Section 302(b)(1)(A)(iii) of the Act provides for separate benefits
in language similar to that in {35.130(b)(1)(iv), and section
302(b)(1)(B) includes the same requirement for "the most integrated
setting appropriate" as in {35.130(d).

     Even when separate programs are permitted, individuals with
disabilities cannot be denied the opportunity to participate in
programs that are not separate or different.  This is an important
and overarching principle of the Americans with Disabilities Act. 
Separate, special, or different programs that are designed to
provide a benefit to persons with disabilities cannot be used to
restrict the participation of persons with disabilities in general,
integrated activities.

     For example, a person who is blind may wish to decline
participating in a special museum tour that allows persons to touch
sculptures in an exhibit and instead tour the exhibit at his or her
own pace with the museum's recorded tour.  It is not the intent of
this section to require the person who is blind to avail himself or
herself of the special tour.  Modified participation for persons
with disabilities must be a choice, not a requirement.

     In addition, it would not be a violation of this section for
a public entity to offer recreational programs specially designed
for children with mobility impairments.  However, it would be a
violation of this section if the entity then excluded these
children from other recreational services for which they are
qualified to participate when these services are made available to
nondisabled children, or if the entity required children with
disabilities to attend only designated programs.  

     Many commenters asked that the Department clarify a public
entity's obligations within the integrated program when it offers
a separate program but an individual with a disability chooses not
to participate in the separate program.  It is impossible to make
a blanket statement as to what level of auxiliary aids or
modifications would be required in the integrated program.  Rather,
each situation must be assessed individually.  The starting point
is to question whether the separate program is in fact necessary or
appropriate for the individual.  Assuming the separate program
would be appropriate for a particular individual, the extent to
which that individual must be provided with modifications in the
integrated program will depend not only on what the individual
needs but also on the limitations and defenses of this part.  For
example, it may constitute an undue burden for a public
accommodation, which provides a full-time interpreter in its
special guided tour for individuals with hearing impairments, to
hire an additional interpreter for those individuals who choose to
attend the integrated program.  The Department cannot identify
categorically the level of assistance or aid required in the
integrated program.  

     Paragraph (b)(1)(v) provides that a public entity may not aid
or perpetuate discrimination against a qualified individual with a
disability by providing significant assistance to an agency,
organization, or person that discriminates on the basis of
disability in providing any aid, benefit, or service to
beneficiaries of the public entity's program.  This paragraph is
taken from the regulations implementing section 504 for federally
assisted programs.

     Paragraph (b)(1)(vi) prohibits the public entity from denying
a qualified individual with a disability the opportunity to
participate as a member of a planning or advisory board.

     Paragraph (b)(1)(vii) prohibits the public entity from
limiting a qualified individual with a disability in the enjoyment
of any right, privilege, advantage, or opportunity enjoyed by
others receiving any aid, benefit, or service.

     Paragraph (b)(3) prohibits the public entity from utilizing
criteria or methods of administration that deny individuals with
disabilities access to the public entity's services, programs, and
activities or that perpetuate the discrimination of another public
entity, if both public entities are subject to common
administrative control or are agencies of the same State.  The
phrase "criteria or methods of administration" refers to official
written policies of the public entity and to the actual practices
of the public entity.  This paragraph prohibits both blatantly
exclusionary policies or practices and nonessential policies and
practices that are neutral on their face, but deny individuals with
disabilities an effective opportunity to participate.  This
standard is consistent with the interpretation of section 504 by
the U.S. Supreme Court in Alexander v. Choate, 469 U.S. 287 (1985). 
The Court in Choate explained that members of Congress made
numerous statements during passage of section 504 regarding
eliminating architectural barriers, providing access to
transportation, and eliminating discriminatory effects of job
qualification procedures.  The Court then noted:  "These statements
would ring hollow if the resulting legislation could not rectify
the harms resulting from action that discriminated by effect as
well as by design."  Id. at 297 (footnote omitted).

     Paragraph (b)(4) specifically applies the prohibition
enunciated in {35.130(b)(3) to the process of selecting sites for
construction of new facilities or selecting existing facilities to
be used by the public entity.  Paragraph (b)(4) does not apply to
construction of additional buildings at an existing site. 

     Paragraph (b)(5) prohibits the public entity, in the selection
of procurement contractors, from using criteria that subject
qualified individuals with disabilities to discrimination on the
basis of disability.

     Paragraph (b)(6) prohibits the public entity from
discriminating against qualified individuals with disabilities on
the basis of disability in the granting of licenses or
certification.  A person is a "qualified individual with a
disability" with respect to licensing or certification if he or she
can meet the essential eligibility requirements for receiving the
license or certification (see {35.104).

     A number of commenters were troubled by the phrase "essential
eligibility requirements" as applied to State licensing
requirements, especially those for health care professions. 
Because of the variety of types of programs to which the definition
of "qualified individual with a disability" applies, it is not
possible to use more specific language in the 
definition.  The phrase "essential eligibility requirements,"
however, is taken from the definitions in the regulations
implementing section 504, so caselaw under section 504 will be
applicable to its interpretation.  In Southeastern Community
College v. Davis, 442 U.S. 397, for example, the Supreme Court held
that section 504 does not require an institution to "lower or
effect substantial modifications of standards to accommodate a
handicapped person," 442 U.S. at 413, and that the school had
established that the plaintiff was not "qualified" because she was
not able to "serve the nursing profession in all customary ways,"
id.   Whether a particular requirement is "essential" will, of
course, depend on the facts of the particular case.

     In addition, the public entity may not establish requirements
for the programs or activities of licensees or certified entities
that subject qualified individuals with disabilities to
discrimination on the basis of disability.  For example, the public
entity must comply with this requirement when establishing safety
standards for the operations of licensees.  In that case the public
entity must ensure that standards that it promulgates do not
discriminate against the employment of qualified individuals with
disabilities in an impermissible manner.

     Paragraph (b)(6) does not extend the requirements of the Act
or this part directly to the programs or activities of licensees or
certified entities themselves.  The programs or activities of
licensees or certified entities are not themselves programs or
activities of the public entity merely by virtue of the license or
certificate.

     Paragraph (b)(7) is a specific application of the requirement
under the general prohibitions of discrimination that public
entities make reasonable modifications in policies, practices, or
procedures where necessary to avoid discrimination on the basis of
disability.  Section 302(b)(2)(A)(ii) of the ADA sets out this
requirement specifically for public accommodations covered by title
III of the Act, and the House Judiciary Committee Report directs
the Attorney General to include those specific requirements in the
title II regulation to the extent that they do not conflict with
the regulations implementing section 504.  Judiciary report at 52.

     Paragraph (b)(8), a new paragraph not contained in the
proposed rule, prohibits the imposition or application of
eligibility criteria that screen out or tend to screen out an
individual with a disability or any class of individuals with
disabilities from fully and equally enjoying any service, program,
or activity, unless such criteria can be shown to be necessary for
the provision of the service, program, or activity being offered. 
This prohibition is also a specific application of the general
prohibitions of discrimination and is based on section
302(b)(2)(A)(i) of the ADA.  It prohibits overt denials of equal
treatment of individuals with disabilities, or establishment of
exclusive or segregative criteria that would bar individuals with
disabilities from participation in services, benefits, or
activities. 

     Paragraph (b)(8) also prohibits policies that unnecessarily
impose requirements or burdens on individuals with disabilities
that are not placed on others.  For example, public entities may
not require that a qualified individual with a disability be
accompanied by an attendant.  A public entity is not, however, 
required to provide attendant care, or assistance in toileting,
eating, or dressing to individuals with disabilities, except in
special circumstances, such as where the individual is an inmate of
a custodial or correctional institution.  

      In addition, paragraph (b)(8) prohibits the imposition of
criteria that "tend to" screen out an individual with a disability. 
This concept, which is derived from current regulations under
section 504 (see, e.g., 45 CFR 84.13), makes it discriminatory to
impose policies or criteria that, while not creating a direct bar
to individuals with disabilities, indirectly prevent or limit their
ability to participate.  For example, requiring presentation of a
driver's license as the sole means of identification for purposes
of paying by check would violate this section in situations where,
for example, individuals with severe vision impairments or
developmental disabilities or epilepsy are ineligible to receive a
driver's license and the use of an alternative means of
identification, such as another photo I.D. or credit card, is
feasible.  

     A public entity may, however, impose neutral rules and
criteria that screen out, or tend to screen out, individuals with
disabilities if the criteria are necessary for the safe operation
of the program in question.  Examples of safety qualifications that
would be justifiable in appropriate circumstances would include
eligibility requirements for drivers' licenses, or a requirement
that all participants in a recreational rafting expedition be able
to meet a necessary level of swimming proficiency.  Safety
requirements must be based on actual risks and not on speculation,
stereotypes, or generalizations about individuals with
disabilities.

     Paragraph (c) provides that nothing in this part prohibits a
public entity from providing benefits, services, or advantages to
individuals with disabilities, or to a particular class of
individuals with disabilities, beyond those required by this part. 
It is derived from a provision in the section 504 regulations that
permits programs conducted pursuant to Federal statute or Executive
order that are designed to benefit only individuals with
disabilities or a given class of individuals with disabilities to
be limited to those individuals with disabilities.  Section 504
ensures that federally assisted programs are made available to all
individuals, without regard to disabilities, unless the Federal
program under which the assistance is provided is specifically
limited to individuals with disabilities or a particular class of
individuals with disabilities.  Because coverage under this part is
not limited to federally assisted programs, paragraph (c) has been
revised to clarify that State and local governments may provide
special benefits, beyond those required by the nondiscrimination
requirements of this part, that are limited to individuals with
disabilities or a particular class of individuals with
disabilities, without thereby incurring additional obligations to
persons without disabilities or to other classes of individuals
with disabilities.  

     Paragraphs (d) and (e), previously referred to in the
discussion of paragraph (b)(1)(iv), provide that the public entity
must administer services, programs, and activities in the most
integrated setting appropriate to the needs of qualified
individuals with disabilities, i.e., in a setting that enables
individuals with disabilities to interact with nondisabled persons
to the fullest extent possible, and that persons with disabilities
must be provided the option of declining to accept a particular
accommodation.

     Some commenters expressed concern that {35.130(e), which
states that nothing in the rule requires an individual with a
disability to accept special accommodations and services provided
under the ADA, could be interpreted to allow guardians of infants
or older people with disabilities to refuse medical treatment for
their wards.  Section 35.130(e) has been revised to make it clear
that paragraph (e) is inapplicable to the concern of the
commenters.  A new paragraph (e)(2) has been added stating that
nothing in the regulation authorizes the representative or guardian
of an individual with a disability to decline food, water, medical
treatment, or medical services for that individual.  New paragraph
(e) clarifies that neither the ADA nor the regulation alters
current Federal law ensuring the rights of incompetent individuals
with disabilities to receive food, water, and medical treatment. 
See, e.g., Child Abuse Amendments of 1984 (42 U.S.C. 5106a(b)(10),
5106g(10)); Rehabilitation Act of 1973, as amended (29 U.S.C. 794);
the Developmentally Disabled Assistance and Bill of Rights Act (42
U.S.C. 6042).

     Sections 35.130(e)(1) and (2) are based on section 501(d) of
the ADA.  Section 501(d) was designed to clarify that nothing in
the ADA requires individuals with disabilities to accept special
accommodations and services for individuals with disabilities that
may segregate them:

     The Committee added this section [501(d)] to clarify that
     nothing in the ADA is intended to permit discriminatory
     treatment on the basis of disability, even when such
     treatment is rendered under the guise of providing an
     accommodation, service, aid or benefit to the individual
     with disability.  For example, a blind individual may choose
     not to avail himself or herself of the right to go to the
     front of a line, even if a particular public accommodation
     has chosen to offer such a modification of a policy for
     blind individuals.  Or, a blind individual may choose to
     decline to participate in a special museum tour that allows
     persons to touch sculptures in an exhibit and instead tour
     the exhibits at his or her own pace with the museum's
     recorded tour.

Judiciary report at 71-72.  The Act is not to be construed to mean
that an individual with disabilities must accept special
accommodations and services for individuals with disabilities when
that individual can participate in the regular services already
offered.  Because medical treatment, including treatment for
particular conditions, is not a special accommodation or service
for individuals with disabilities under section 501(d), neither the
Act nor this part provides affirmative authority to suspend such
treatment.  Section 501(d) is intended to clarify that the Act is
not designed to foster discrimination through mandatory acceptance
of special services when other alternatives are provided; this
concern does not reach to the provision of medical treatment for
the disabling condition itself.

     Paragraph (f) provides that a public entity may not place a
surcharge on a particular individual with a disability, or any
group of individuals with disabilities, to cover any costs of
measures required to provide that individual or group with the
nondiscriminatory treatment required by the Act or this part.  Such
measures may include the provision of auxiliary aids or of
modifications required to provide program accessibility.

     Several commenters asked for clarification that the costs of
interpreter services may not be assessed as an element of "court
costs."  The Department has already recognized that imposition of
the cost of courtroom interpreter services is impermissible under
section 504.  The preamble to the Department's section 504
regulation for its federally assisted programs states that where a
court system has an obligation to provide qualified interpreters,
"it has the corresponding responsibility to pay for the services of
the interpreters."  (45 FR 37630 (June 3, 1980)).  Accordingly,
recouping the costs of interpreter services by assessing them as
part of court costs would also be prohibited.

     Paragraph (g), which prohibits discrimination on the basis of
an individual's or entity's known relationship or association with
an individual with a disability, is based on sections 102(b)(4) and
302(b)(1)(E) of the ADA.  This paragraph was not contained in the
proposed rule.  The individuals covered under this paragraph are
any individuals who are discriminated against because of their
known association with an individual with a disability.  For
example, it would be a violation of this paragraph for a local
government to refuse to allow a theater company to use a school
auditorium on the grounds that the company had recently performed
for an audience of individuals with HIV disease.

     This protection is not limited to those who have a familial
relationship with the individual who has a disability.  Congress
considered, and rejected, amendments that would have limited the
scope of this provision to specific associations and relationships. 
Therefore, if a public entity refuses admission to a person with
cerebral palsy and his or her companions, the companions have an
independent right of action under the ADA and this section.

     During the legislative process, the term "entity" was added to
section 302(b)(l)(E) to clarify that the scope of the provision is
intended to encompass not only persons who have a known association
with a person with a disability, but also entities that provide
services to or are otherwise associated with such individuals. 
This provision was intended to ensure that entities such as health
care providers, employees of social service agencies, and others
who provide professional services to persons with disabilities are
not subjected to discrimination because of their professional
association with persons with disabilities.

{35.131   Illegal use of drugs.

     Section 35.131 effectuates section 510 of the ADA, which
clarifies the Act's application to people who use drugs illegally. 
Paragraph (a) provides that this part does not prohibit
discrimination based on an individual's current illegal use of
drugs. 

     The Act and the regulation distinguish between illegal use of
drugs and the legal use of substances, whether or not those
substances are "controlled substances," as defined in the
Controlled Substances Act (21 U.S.C. 812).  Some controlled
substances are prescription drugs that have legitimate medical
uses.  Section 35.131 does not affect use of controlled substances
pursuant to a valid prescription under supervision by a licensed
health care professional, or other use that is authorized by the
Controlled Substances Act or any other provision of Federal law. 
It does apply to illegal use of those substances, as well as to
illegal use of controlled substances that are not prescription
drugs.  The key question is whether the individual's use of the
substance is illegal, not whether the substance has recognized
legal uses.  Alcohol is not a controlled substance, so use of
alcohol is not addressed by {35.131 (although alcoholics are
individuals with disabilities, subject to the protections of the
statute).    

     A distinction is also made between the use of a substance and
the status of being addicted to that substance.  Addiction is a
disability, and addicts are individuals with disabilities protected
by the Act.  The protection, however, does not extend to actions
based on the illegal use of the substance.  In other words, an
addict cannot use the fact of his or her addiction as a defense to
an action based on illegal use of drugs.  This distinction is not
artificial.  Congress intended to deny protection to people who
engage in the illegal use of drugs, whether or not they are
addicted, but to provide protection to addicts so long as they are
not currently using drugs.

     A third distinction is the difficult one between current use
and former use.  The definition of "current illegal use of drugs"
in {35.104, which is based on the report of the Conference
Committee, H.R. Conf. Rep. No. 596, 101st Cong., 2d Sess. 64 (1990)
[hereinafter "Conference report"], is "illegal use of drugs that
occurred recently enough to justify a reasonable belief that a
person's drug use is current or that continuing use is a real and
ongoing problem."

     Paragraph (a)(2)(i) specifies that an individual who has
successfully completed a supervised drug rehabilitation program or
has otherwise been rehabilitated successfully and who is not
engaging in current illegal use of drugs is protected.   Paragraph
(a)(2)(ii) clarifies that an individual who is currently
participating in a supervised rehabilitation program and is not
engaging in current illegal use of drugs is protected.  Paragraph
(a)(2)(iii) provides that a person who is erroneously regarded as
engaging in current illegal use of drugs, but who is not engaging
in such use, is protected.  

     Paragraph (b) provides a limited exception to the exclusion of
current illegal users of drugs from the protections of the Act.  It
prohibits denial of health services, or services provided in
connection with drug rehabilitation to an individual on the basis
of current illegal use of drugs, if the individual is otherwise
entitled to such services.  A health care facility, such as a
hospital or clinic, may not refuse treatment to an individual in
need of the services it provides on the grounds that the individual
is illegally using drugs, but it is not required by this section to
provide services that it does not ordinarily provide.  For example,
a health care facility that specializes in a particular type of
treatment, such as care of burn victims, is not required to provide
drug rehabilitation services, but it cannot refuse to treat a
individual's burns on the grounds that the individual is illegally
using drugs.      

     Some commenters pointed out that abstention from the use of
drugs is an essential condition of participation in some drug
rehabilitation programs, and may be a necessary requirement in
inpatient or residential settings.  The Department believes that
this comment is well-founded.  Congress clearly intended to
prohibit exclusion from drug treatment programs of the very
individuals who need such programs because of their use of drugs,
but, once an individual has been admitted to a program, abstention
may be a necessary and appropriate condition to continued
participation.  The final rule therefore provides that a drug
rehabilitation or treatment program may prohibit illegal use of
drugs by individuals while they are participating in the program.

     Paragraph (c) expresses Congress' intention that the Act be
neutral with respect to testing for illegal use of drugs.  This
paragraph implements the provision in section 510(b) of the Act
that allows entities "to adopt or administer reasonable policies or
procedures, including but not limited to drug testing," that ensure
that an individual who is participating in a supervised
rehabilitation program, or who has completed such a program or
otherwise been rehabilitated successfully is no longer engaging in
the illegal use of drugs.  The section is not to be "construed to
encourage, prohibit, restrict, or authorize the conducting of
testing for the illegal use of drugs."  

     Paragraph 35.131(c) clarifies that it is not a violation of
this part to adopt or administer reasonable policies or procedures
to ensure that an individual who formerly engaged in the illegal
use of drugs is not currently engaging in illegal use of drugs. 
Any such policies or procedures must, of course, be reasonable, and
must be designed to identify accurately the illegal use of drugs. 
This paragraph does not authorize inquiries, tests, or other
procedures that would disclose use of substances that are not
controlled substances or are taken under supervision by a licensed
health care professional, or other uses authorized by the
Controlled Substances Act or other provisions of Federal law,
because such uses are not included in the definition of "illegal
use of drugs."  A commenter argued that the rule should permit
testing for lawful use of prescription drugs, but most commenters
preferred that tests must be limited to unlawful use in order to
avoid revealing the lawful use of prescription medicine used to
treat disabilities.  

{35.132   Smoking.

     Section 35.132 restates the clarification in section 501(b) of
the Act that the Act does not preclude the prohibition of, or
imposition of restrictions on, smoking in transportation covered by
title II.  Some commenters argued that this section is too limited
in scope, and that the regulation should prohibit smoking in all
facilities used by public entities.  The reference to smoking in
section 501, however, merely clarifies that the Act does not
require public entities to accommodate smokers by permitting them
to smoke in transportation facilities.

{35.133   Maintenance of accessible features.

     Section 35.133 provides that a public entity shall maintain in
operable working condition those features of facilities and
equipment that are required to be readily accessible to and usable
by persons with disabilities by the Act or this part.  The Act
requires that, to the maximum extent feasible, facilities must be
accessible to, and usable by, individuals with disabilities.  This
section recognizes that it is not sufficient to provide features
such as accessible routes, elevators, or ramps, if those features
are not maintained in a manner that enables individuals with
disabilities to use them.  Inoperable elevators, locked accessible
doors, or "accessible" routes that are obstructed by furniture,
filing cabinets, or potted plants are neither "accessible to" nor
"usable by" individuals with disabilities.

     Some commenters objected that this section appeared to
establish an absolute requirement and suggested that language from
the preamble be included in the text of the regulation.  It is, of
course, impossible to guarantee that mechanical devices will never
fail to operate.  Paragraph (b) of the final regulation provides
that this section does not prohibit isolated or temporary
interruptions in service or access due to maintenance or repairs. 
This paragraph is intended to clarify that temporary obstructions
or isolated instances of mechanical failure would not be considered
violations of the Act or this part.  However, allowing obstructions
or "out of service" equipment to persist beyond a reasonable period
of time would violate this part, as would repeated mechanical
failures due to improper or inadequate maintenance.  Failure of the
public entity to ensure that accessible routes are properly
maintained and free of obstructions, or failure to arrange prompt
repair of inoperable elevators or other equipment intended to
provide access would also violate this part.

     Other commenters requested that this section be expanded to
include specific requirements for inspection and maintenance of
equipment, for training staff in the proper operation of equipment,
and for maintenance of specific items.  The Department believes
that this section properly establishes the general requirement for
maintaining access and that further details are not necessary. 

{35.134   Retaliation or coercion.

     Section 35.134 implements section 503 of the ADA, which
prohibits retaliation against any individual who exercises his or
her rights under the Act.  This section is unchanged from the
proposed rule.  Paragraph (a) of {35.134 provides that no private
or public entity shall discriminate against any individual because
that individual has exercised his or her right to oppose any act or
practice made unlawful by this part, or because that individual
made a charge, testified, assisted, or participated in any manner
in an investigation, proceeding, or hearing under the Act or this
part.

     Paragraph (b) provides that no private or public entity shall
coerce, intimidate, threaten, or interfere with any individual in
the exercise of his or her rights under this part or because that
individual aided or encouraged any other individual in the exercise
or enjoyment of any right granted or protected by the Act or this
part.

     This section protects not only individuals who allege a
violation of the Act or this part, but also any individuals who
support or assist them.  This section applies to all investigations
or proceedings initiated under the Act or this part without regard
to the ultimate resolution of the underlying allegations.  Because
this section prohibits any act of retaliation or coercion in
response to an individual's effort to exercise rights established
by the Act and this part (or to support the efforts of another
individual), the section applies not only to public entities
subject to this part, but also to persons acting in an individual
capacity or to private entities.  For example, it would be a
violation of the Act and this part for a private individual to
harass or intimidate an individual with a disability in an effort
to prevent that individual from attending a concert in a State-
owned park.  It would, likewise, be a violation of the Act and this
part for a private entity to take adverse action against an
employee who appeared as a witness on behalf of an individual who
sought to enforce the Act.

{35.135   Personal devices and services.

     The final rule includes a new {35.135, entitles "Personal
devices and services," which states that the provision of personal
devices and services is not required by title II.  This new
section, which serves as a limitation on all of the requirements of
the regulation, replaces {35.160(b)(2) of the proposed rule, which
addressed the issue of personal devices and services explicitly
only in the context of communications.  The personal devices and
services limitation was intended to have general application in the
proposed rule in all contexts where it was relevant.  The final
rule, therefore, clarifies this point by including a general
provision that will explicitly apply not only to auxiliary aids and
services but across-the-board to include other relevant areas such
as, for example, modifications in policies, practices, and
procedures ({35.130(b)(7)).  The language of {35.135 parallels an
analogous provision in the Department's title III regulations (28
CFR {36.306) but preserves the explicit reference to "readers for
personal use or study" in {35.160(b)(2) of the proposed rule.  This
section does not preclude the short-term loan of personal receivers
that are part of an assistive listening system.

Subpart C -- Employment

{35.140   Employment discrimination prohibited.

     Title II of the ADA applies to all activities of public
entities, including their employment practices.  The proposed rule
cross-referenced the definitions, requirements, and procedures of
title I of the ADA, as established by the Equal Employment
Opportunity Commission in 29 CFR Part 1630.  This proposal would
have resulted in use, under {35.140, of the title I definition of
"employer," so that a public entity with 25 or more employees would
have become subject to the requirements of {35.140 on July 26,
1992, one with 15 to 24 employees on July 26, 1994, and one with
fewer than 15 employees would have been excluded completely.

     The Department received comments objecting to this approach. 
The commenters asserted that Congress intended to establish
nondiscrimination requirements for employment by all public
entities, including those that employ fewer than 15 employees; and
that Congress intended the employment requirements of title II to
become effective at the same time that the other requirements of
this regulation become effective, January 26, 1992.  The Department
has reexamined the statutory language and legislative history of
the ADA on this issue and has concluded that Congress intended to
cover the employment practices of all public entities and that the
applicable effective date is that of title II.

     The statutory language of section 204(b) of the ADA requires
the Department to issue a regulation that is consistent with the
ADA and the Department's coordination regulation under section 504,
28 CFR part 41.  The coordination regulation specifically requires
nondiscrimination in employment, 28 CFR {{41.52-41.55, and does not
limit coverage based on size of employer.  Moreover, under all
section 504 implementing regulations issued in accordance with the
Department's coordination regulation, employment coverage under
section 504 extends to all employers with federally assisted
programs or activities, regardless of size, and the effective date
for those employment requirements has always been the same as the
effective date for nonemployment requirements established in the
same regulations.  The Department therefore concludes that {35.140
must apply to all public entities upon the effective date of this
regulation.

     In the proposed regulation the Department cross-referenced the
regulations implementing title I of the ADA, issued by the Equal
Employment Opportunity Commission at 29 CFR part 1630, as a
compliance standard for {35.140 because, as proposed, the scope of
coverage and effective date of coverage under title II would have
been coextensive with title I.  In the final regulation this
language is modified slightly.  Subparagraph (1) of new paragraph
(b) makes it clear that the standards established by the Equal
Employment Opportunity Commission in 29 CFR part 1630 will be the
applicable compliance standards if the public entity is subject to
title I.  If the public entity is not covered by title I, or until
it is covered by title I, subparagraph (b)(2) cross-references
section 504 standards for what constitutes employment
discrimination, as established by the Department of Justice in 28
CFR part 41.  Standards for title I of the ADA and section 504
of the Rehabilitation Act are for the most part identical because
title I of the ADA was based on requirements set forth in
regulations implementing section 504.

     The Department, together with the other Federal agencies
responsible for the enforcement of Federal laws prohibiting
employment discrimination on the basis of disability, recognizes
the potential for jurisdictional overlap that exists with respect
to coverage of public entities and the need to avoid problems
related to overlapping coverage.  The other Federal agencies
include the Equal Employment Opportunity Commission, which is the
agency primarily responsible for enforcement of title I of the ADA,
the Department of Labor, which is the agency responsible for
enforcement of section 503 of the Rehabilitation Act of 1973, and
26 Federal agencies with programs of Federal financial assistance,
which are responsible for enforcing section 504 in those programs. 
Section 107 of the ADA requires that coordination mechanisms be
developed in connection with the administrative enforcement of
complaints alleging discrimination under title I and complaints
alleging discrimination in employment in violation of the
Rehabilitation Act.  Although the ADA does not specifically require
inclusion of employment complaints under title II in the
coordinating mechanisms required by title I, Federal investigations
of title II employment complaints will be coordinated on a
government-wide basis also.  The Department is currently working
with the EEOC and other affected Federal agencies to develop
effective coordinating mechanisms, and final regulations on this
issue will be issued on or before January 26, 1992.    

Subpart D -- Program Accessibility

{35.149   Discrimination prohibited. 

     Section 35.149 states the general nondiscrimination principle
underlying the program accessibility requirements of    {{35.150
and 35.151.

{35.150   Existing facilities.

     Consistent with section 204(b) of the Act, this regulation
adopts the program accessibility concept found in the section 504
regulations for federally conducted programs or activities (e.g.,
28 CFR Part 39).  The concept of "program accessibility" was first
used in the section 504 regulation adopted by the Department of
Health, Education, and Welfare for its federally assisted programs
and activities in 1977.  It allowed recipients to make their
federally assisted programs and activities available to individuals
with disabilities without extensive retrofitting of their existing
buildings and facilities, by offering those programs through
alternative methods.  Program accessibility has proven to be a
useful approach and was adopted in the regulations issued for
programs and activities conducted by Federal Executive agencies. 
The Act provides that the concept of program access will continue
to apply with respect to facilities now in existence, because the
cost of retrofitting existing facilities is often prohibitive.  

     Section 35.150 requires that each service, program, or
activity conducted by a public entity, when viewed in its entirety,
be readily accessible to and usable by individuals with
disabilities.  The regulation makes clear, however, that a public
entity is not required to make each of its existing facilities
accessible ({35.150(a)(1)).  Unlike title III of the Act, which
requires public accommodations to remove architectural barriers
where such removal is "readily achievable," or to provide goods and
services through alternative methods, where those methods are
"readily achievable," title II requires a public entity to make its
programs accessible in all cases, except where to do so would
result in a fundamental alteration in the nature of the program or
in undue financial and administrative burdens.  Congress intended
the "undue burden" standard in title II to be significantly higher
than the "readily achievable" standard in title III.  Thus,
although title II may not require removal of barriers in some cases
where removal would be required under title III, the program access
requirement of title II should enable individuals with disabilities
to participate in and benefit from the services, programs, or
activities of public entities in all but the most unusual cases.  

     Paragraph (a)(2), which establishes a special limitation on
the obligation to ensure program accessibility in historic
preservation programs, is discussed below in connection with
paragraph (b).  

     Paragraph (a)(3), which is taken from the section 504
regulations for federally conducted programs, generally codifies
case law that defines the scope of the public entity's obligation
to ensure program accessibility.  This paragraph provides that, in
meeting the program accessibility requirement, a public entity is
not required to take any action that would result in a fundamental
alteration in the nature of its service, program, or activity or in
undue financial and administrative burdens.  A similar limitation
is provided in {35.164.

     This paragraph does not establish an absolute defense; it does
not relieve a public entity of all obligations to individuals with
disabilities.  Although a public entity is not required to take
actions that would result in a fundamental alteration in the nature
of a service, program, or activity or in undue financial and
administrative burdens, it nevertheless must take any other steps
necessary to ensure that individuals with disabilities receive the
benefits or services provided by the public entity.

     It is the Department's view that compliance with {35.150(a),
like compliance with the corresponding provisions of the section
504 regulations for federally conducted programs, would in most
cases not result in undue financial and administrative burdens on
a public entity.  In determining whether financial and
administrative burdens are undue, all public entity resources
available for use in the funding and operation of the service,
program, or activity should be considered.  The burden of proving
that compliance with paragraph (a) of {35.150 would fundamentally
alter the nature of a service, program, or activity or would result
in undue financial and administrative burdens rests with the public
entity.  

     The decision that compliance would result in such alteration
or burdens must be made by the head of the public entity or his or
her designee and must be accompanied by a written statement of the
reasons for reaching that conclusion.  The Department recognizes
the difficulty of identifying the official responsible for this
determination, given the variety of organizational forms that may
be taken by public entities and their components.  The intention of
this paragraph is that the determination must be made by a high
level official, no lower than a Department head, having budgetary
authority and responsibility for making spending decisions.  

     Any person who believes that he or she or any specific class
of persons has been injured by the public entity head's decision or
failure to make a decision may file a complaint under the
compliance procedures established in subpart F.

     Paragraph (b)(1) sets forth a number of means by which program
accessibility may be achieved, including redesign of equipment,
reassignment of services to accessible buildings, and provision of
aides.

     The Department wishes to clarify that, consistent with
longstanding interpretation of section 504, carrying an individual
with a disability is considered an ineffective and therefore an
unacceptable method for achieving program accessibility. 
Department of Health, Education, and Welfare, Office of Civil
Rights, Policy Interpretation No. 4, 43 Fed. Reg. 36035 (August 14,
1978).  Carrying will be permitted only in manifestly exceptional
cases, and only if all personnel who are permitted to participate
in carrying an individual with a disability are formally instructed
on the safest and least humiliating means of carrying.  "Manifestly
exceptional" cases in which carrying would be permitted might
include, for example, programs conducted in unique facilities, such
as an oceanographic vessel, for which structural changes and
devices necessary to adapt the facility for use by individuals with
mobility impairments are unavailable or prohibitively expensive. 
Carrying is not permitted as an alternative to structural
modifications such as installation of a ramp or a chairlift.  

     In choosing among methods, the public entity shall give
priority consideration to those that will be consistent with
provision of services in the most integrated setting appropriate to
the needs of individuals with disabilities.  Structural changes in
existing facilities are required only when there is no other
feasible way to make the public entity's program accessible.  (It
should be noted that "structural changes" include all physical
changes to a facility; the term does not refer only to changes to
structural features, such as removal of or alteration to a load-
bearing structural member.)  The requirements of {35.151 for
alterations apply to structural changes undertaken to comply with
this section.  The public entity may comply with the program
accessibility requirement by delivering services at alternate
accessible sites or making home visits as appropriate.

     Historic preservation programs.  In order to avoid possible
conflict between the congressional mandates to preserve historic
properties, on the one hand, and to eliminate discrimination
against individuals with disabilities on the other, paragraph
(a)(2) provides that a public entity is not required to take any
action that would threaten or destroy the historic significance of
an historic property.  The special limitation on program
accessibility set forth in paragraph (a)(2) is applicable only to
historic preservation programs, as defined in {35.104, that is,
programs that have preservation of historic properties as a primary
purpose.  Narrow application of the special limitation is justified
because of the inherent flexibility of the program accessibility
requirement.  Where historic preservation is not a primary purpose
of the program, the public entity is not required to use a
particular facility.  It can relocate all or part of its program to
an accessible facility, make home visits, or use other standard
methods of achieving program accessibility without making
structural alterations that might threaten or destroy significant
historic features of the historic property.  Thus, government
programs located in historic properties, such as an historic State
capitol, are not excused from the requirement for program access. 


     Paragraph (a)(2), therefore, will apply only to those programs
that uniquely concern the preservation and experience of the
historic property itself.  Because the primary benefit of an
historic preservation program is the experience of the historic
property, paragraph (b)(2) requires the public entity to give
priority to methods of providing program accessibility that permit
individuals with disabilities to have physical access to the
historic property.  This priority on physical access may also be
viewed as a specific application of the general requirement that
the public entity administer programs in the most integrated
setting appropriate to the needs of qualified individuals with
disabilities  ({35.130(d)).  Only when providing physical access
would threaten or destroy the historic significance of an historic
property, or would result in a fundamental alteration in the nature
of the program or in undue financial and administrative burdens,
may the public entity adopt alternative methods for providing
program accessibility that do not ensure physical access.  Examples
of some alternative methods are provided in paragraph (b)(2).

     Time periods.  Paragraphs (c) and (d) establish time periods
for complying with the program accessibility requirement.  Like the
regulations for federally assisted programs (e.g., 28 CFR
41.57(b)), paragraph (c) requires the public entity to make any
necessary structural changes in facilities as soon as practicable,
but in no event later than three years after the effective date of
this regulation.

     The proposed rule provided that, aside from structural
changes, all other necessary steps to achieve compliance with this
part must be taken within sixty days.  The sixty day period was
taken from regulations implementing section 504, which generally
were effective no more than thirty days after publication.  Because
this regulation will not be effective until January 26, 1992, the
Department has concluded that no additional transition period for
non-structural changes is necessary, so the sixty day period has
been omitted in the final rule.  Of course, this section does not
reduce or eliminate any obligations that are already applicable to
a public entity under section 504.

     Where structural modifications are required, paragraph (d)
requires that a transition plan be developed by an entity that
employs 50 or more persons, within six months of the effective date
of this regulation.  The legislative history of title II of the ADA
makes it clear that, under title II, "local and state governments
are required to provide curb cuts on public streets."  Education
and Labor report at 84.  As the rationale for the provision of curb
cuts, the House report explains, "The employment, transportation,
and public accommodation sections of . . . [the ADA] would be
meaningless if people who use wheelchairs were not afforded the
opportunity to travel on and between the streets."  Id.  Section
35.151(e), which establishes accessibility requirements for new
construction and alterations, requires that all newly constructed
or altered streets, roads, or highways must contain curb ramps or
other sloped areas at any intersection having curbs or other
barriers to entry from a street level pedestrian walkway, and all
newly constructed or altered street level pedestrian walkways must
have curb ramps or other sloped areas at intersections to streets,
roads, or highways.  A new paragraph (d)(2) has been added to the
final rule to clarify the application of the general requirement
for program accessibility  to the provision of curb cuts at
existing crosswalks.  This paragraph requires that the transition
plan include a schedule for providing curb ramps or other sloped
areas at existing pedestrian walkways, giving priority to walkways
serving entities covered by the Act, including State and local
government offices and facilities, transportation, public
accommodations, and employers, followed by walkways serving other
areas.  Pedestrian "walkways" include locations where access is
required for use of public transportation, such as bus stops that
are not located at intersections or crosswalks.

     Similarly, a public entity should provide an adequate number
of accessible parking spaces in existing parking lots or garages
over which it has jurisdiction.

     Paragraph (d)(3) provides that, if a public entity has already
completed a transition plan required by a regulation implementing
section 504, the transition plan required by this part will apply
only to those policies and practices that were not covered by the
previous transition plan.  Some commenters suggested that the
transition plan should include all aspects of the public entity's
operations, including those that may have been covered by a
previous transition plan under section 504.  The Department
believes that such a duplicative requirement would be
inappropriate.  Many public entities may find, however, that it
will be simpler to include all of their operations in the
transition plan than to attempt to identify and exclude
specifically those that were addressed in a previous plan.  Of
course, entities covered under section 504 are not shielded from
their obligations under that statute merely because they are
included under the transition plan developed under this section.

{35.151   New construction and alterations.

     Section 35.151 provides that those buildings that are
constructed or altered by, on behalf of, or for the use of a public
entity shall be designed, constructed, or altered to be readily
accessible to and usable by individuals with disabilities if the
construction was commenced after the effective date of this part. 
Facilities under design on that date will be governed by this
section if the date that bids were invited falls after the
effective date.  This interpretation is consistent with Federal
practice under section 504.

     Section 35.151(c) establishes two standards for accessible new
construction and alteration.  Under paragraph (c), design,
construction, or alteration of facilities in conformance with the
Uniform Federal Accessibility Standards (UFAS) or with the
Americans with Disabilities Act Accessibility Guidelines for
Buildings and Facilities (hereinafter ADAAG) shall be deemed to
comply with the requirements of this section with respect to those
facilities except that, if ADAAG is chosen, the elevator exemption
contained at {{36.401(d) and 36.404 does not apply.  ADAAG is the
standard for private buildings and was issued as guidelines by the
Architectural and Transportation Barriers Compliance Board (ATBCB)
under title III of the ADA.  It has been adopted by the Department
of Justice and is published as Appendix A to the Department's title
III rule in today's Federal Register.  Departures from particular
requirements of these standards by the use of other methods shall
be permitted when it is clearly evident that equivalent access to
the facility or part of the facility is thereby provided.  Use of
two standards is a departure from the proposed rule.

     The proposed rule adopted UFAS as the only interim
accessibility standard because that standard was referenced by the
regulations implementing section 504 of the Rehabilitation Act
promulgated by most Federal funding agencies.  It is, therefore,
familiar to many State and local government entities subject to
this rule.  The Department, however, received many comments
objecting to the adoption of UFAS.  Commenters pointed out that,
except for the elevator exemption, UFAS is not as stringent as
ADAAG.  Others suggested that the standard should be the same to
lessen confusion.

     Section 204(b) of the Act states that title II regulations
must be consistent not only with section 504 regulations but also
with "this Act."  Based on this provision, the Department has
determined that a public entity should be entitled to choose to
comply either with ADAAG or UFAS.

     Public entities who choose to follow ADAAG, however, are not
entitled to the elevator exemption contained in title III of the
Act and implemented in the title III regulation at {36.401(d) for
new construction and {36.404 for alterations.  Section 303(b) of
title III states that, with some exceptions, elevators are not
required in facilities that are less than three stories or have
less than 3000 square feet per story.  The section 504 standard,
UFAS, contains no such exemption.  Section 501 of the ADA makes
clear that nothing in the Act may be construed to apply a lesser
standard to public entities than the standards applied under
section 504.  Because permitting the elevator exemption would
clearly result in application of a lesser standard than that
applied under section 504, paragraph (c) states that the elevator
exemption does not apply when public entities choose to follow
ADAAG.  Thus, a two-story courthouse, whether built according to
UFAS or ADAAG, must be constructed with an elevator.  It should be
noted that Congress did not include an elevator exemption for
public transit facilities covered by subtitle B of title II, which
covers public transportation provided by public entities, providing
further evidence that Congress intended that public buildings have
elevators.

     Section 504 of the ADA requires the ATBCB to issue
supplemental Minimum Guidelines and Requirements for Accessible
Design of buildings and facilities subject to the Act, including
title II.  Section 204(c) of the ADA provides that the Attorney
General shall promulgate regulations implementing title II that are
consistent with the ATBCB's ADA guidelines.  The ATBCB has
announced its intention to issue title II guidelines in the future. 
The Department anticipates that, after the ATBCB's title II
guidelines have been published, this rule will be amended to adopt
new accessibility standards consistent with the ATBCB's rulemaking. 
Until that time, however, public entities will have a choice of
following UFAS or ADAAG, without the elevator exemption.

     Existing buildings leased by the public entity after the
effective date of this part are not required by the regulation to
meet accessibility standards simply by virtue of being leased. 
They are subject, however, to the program accessibility standard
for existing facilities in {35.150.  To the extent the buildings
are newly constructed or altered, they must also meet the new
construction and alteration requirements of {35.151.

     The Department received many comments urging that the
Department require that public entities lease only accessible
buildings.  Federal practice under section 504 has always treated
newly leased buildings as subject to the existing facility program
accessibility standard.  Section 204(b) of the Act states that, in
the area of "program accessibility, existing facilities," the title
II regulations must be consistent with section 504 regulations. 
Thus, the Department has adopted the section 504 principles for
these types of leased buildings.  Unlike the construction of new
buildings where architectural barriers can be avoided at little or
no cost, the application of new construction standards to an
existing building being leased raises the same prospect of
retrofitting buildings as the use of an existing Federal facility,
and the same program accessibility standard should apply to both
owned and leased existing buildings.  Similarly, requiring that
public entities only lease accessible space 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.

     On the other hand, the more accessible the leased space is,
the fewer structural modifications will be required in the future
for particular employees whose disabilities may necessitate barrier
removal as a reasonable accommodation.  Pursuant to the
requirements for leased buildings contained in the Minimum
Guidelines and Requirements for Accessible Design published under
the Architectural Barriers Act by the ATBCB, 36 CFR 1190.34, the
Federal Government may not lease a building unless it contains (1)
one accessible route from an accessible entrance to those areas in
which the principal activities for which the building is leased are
conducted, (2) accessible toilet facilities, and (3) accessible
parking facilities, if a parking area is included within the lease
(36 CFR 1190.34).  Although these requirements are not applicable
to buildings leased by public entities covered by this regulation,
such entities are encouraged to look for the most accessible space
available to lease and to attempt to find space complying at least
with these minimum Federal requirements.

     Section 35.151(d) gives effect to the intent of Congress,
expressed in section 504(c) of the Act, that this part recognize
the national interest in preserving significant historic
structures.  Commenters criticized the Department's use of
descriptive terms in the proposed rule that are different from
those used in the ADA to describe eligible historic properties. In
addition, some commenters criticized the Department's decision to
use the concept of "substantially impairing" the historic features
of a property, which is a concept employed in regulations
implementing section 504 of the Rehabilitation Act of 1973.  Those
commenters recommended that the Department adopt the criteria of
"adverse effect" published by the Advisory Council on Historic
Preservation under the National Historic Preservation Act, 36 CFR
800.9, as the standard for determining whether an historic property
may be altered.

     The Department agrees with these comments to the extent that
they suggest that the language of the rule should conform to the
language employed by Congress in the ADA.  A definition of
"historic property," drawn from section 504 of the ADA, has been
added to {35.104 to clarify that the term applies to those
properties listed or eligible for listing in the National Register
of Historic Places, or properties designated as historic under
State or local law.

     The Department intends that the exception created by this
section be applied only in those very rare situations in which it
is not possible to provide access to an historic property using the
special access provisions established by UFAS and ADAAG. 
Therefore, paragraph (d)(1) of {35.151 has been revised to clearly
state that alterations to historic properties shall comply, to the
maximum extent feasible, with section 4.1.7 of UFAS or section
4.1.7 of ADAAG.  Paragraph (d)(2) has been revised to provide that,
if it has been determined under the procedures established in UFAS
and ADAAG that it is not feasible to provide physical access to an
historic property in a manner that will not threaten or destroy the
historic significance of the property, alternative methods of
access shall be provided pursuant to the requirements of {35.150.

     In response to comments, the Department has added to the final
rule a new paragraph (e) setting out the requirements of {36.151 as
applied to curb ramps.  Paragraph (e) is taken from the statement
contained in the preamble to the proposed rule that all newly
constructed or altered streets, roads, and highways must contain
curb ramps at any intersection having curbs or other barriers to
entry from a street level pedestrian walkway, and that all newly
constructed or altered street level pedestrian walkways must have
curb ramps at intersections to streets, roads, or highways.

Subpart E -- Communications

{35.160   General.

     Section 35.160 requires the public entity to take such steps
as may be necessary to ensure that communications with applicants,
participants, and members of the public with disabilities are as
effective as communications with others.

     Paragraph (b)(1) requires the public entity to furnish
appropriate auxiliary aids and services when necessary to afford an
individual with a disability an equal opportunity to participate
in, and enjoy the benefits of, the public entity's service,
program, or activity.  The public entity must provide an
opportunity for individuals with disabilities to request the
auxiliary aids and services of their choice.  This expressed choice
shall be given primary consideration by the public entity 
({35.160(b)(2)).  The public entity shall honor the choice unless
it can demonstrate that another effective means of communication
exists or that use of the means chosen would not be required under
{35.164.

     Deference to the request of the individual with a disability
is desirable because of the range of disabilities, the variety of
auxiliary aids and services, and different circumstances requiring
effective communication.  For instance, some courtrooms are now
equipped for "computer-assisted transcripts," which allow virtually
instantaneous transcripts of courtroom argument and testimony to
appear on displays.  Such a system might be an effective auxiliary
aid or service for a person who is deaf or has a hearing loss who
uses speech to communicate, but may be useless for someone who uses
sign language.

     Although in some circumstances a notepad and written materials
may be sufficient to permit effective communication, in other
circumstances they may not be sufficient.  For example, a 
qualified interpreter may be necessary when the information being
communicated is complex, or is exchanged for a lengthy period of
time.  Generally, factors to be considered in determining whether
an interpreter is required include the context in which the
communication is taking place, the number of people involved, and
the importance of the communication.

     Several commenters asked that the rule clarify that the
provision of readers is sometimes necessary to ensure access to a
public entity's services, programs or activities.  Reading devices
or readers should be provided when necessary for equal
participation and opportunity to benefit from any governmental
service, program, or activity, such as reviewing public documents,
examining demonstrative evidence, and filling out voter
registration forms or forms needed to receive public benefits.  The
importance of providing qualified readers for examinations
administered by public entities is discussed under {35.130. 
Reading devices and readers are appropriate auxiliary aids and
services where necessary to permit an individual with a disability
to participate in or benefit from a service, program, or activity.

     Section 35.160(b)(2) of the proposed rule, which provided that
a public entity need not furnish individually prescribed devices,
readers for personal use or study, or other devices of a personal
nature, has been deleted in favor of a new section in the final
rule on personal devices and services (see {35.135).

     In response to comments, the term "auxiliary aids and
services" is used in place of "auxiliary aids" in the final rule. 
This phrase better reflects the range of aids and services that may
be required under this section.

     A number of comments raised questions about the extent of a
public entity's obligation to provide access to television
programming for persons with hearing impairments.  Television and
videotape programming produced by public entities are covered by
this section.  Access to audio portions of such programming may  be
provided by closed captioning.

Section 35.161  Telecommunication devices for the deaf (TDD's).

     Section 35.161 requires that, where a public entity
communicates with applicants and beneficiaries by telephone, TDD's
or equally effective telecommunication systems be used to
communicate with individuals with impaired speech or hearing.  

     Problems arise when a public entity which does not have a TDD
needs to communicate with an individual who uses a TDD or vice
versa.  Title IV of the ADA addresses this problem by requiring
establishment of telephone relay services to permit communications
between individuals who communicate by TDD and individuals who
communicate by the telephone alone.  The relay services required by
title IV would involve a relay operator using both a standard
telephone and a TDD to type the voice messages to the TDD user and
read the TDD messages to the standard telephone user.  

     Section 204(b) of the ADA requires that the regulation
implementing title II with respect to communications be consistent
with the Department's regulation implementing section 504 for its
federally conducted programs and activities at 28 CFR pt. 39. 
Section 35.161, which is taken from {39.160(a)(2) of that
regulation, requires the use of TDD's or equally effective
telecommunication systems for communication with people who use
TDD's.  Of course, where relay services, such as those required by
title IV of the ADA are available, a public entity may use those
services to meet the requirements of this section. 

     Many commenters were concerned that public entities should not
rely heavily on the establishment of relay services.  The
commenters explained that while relay services would be of vast
benefit to both public entities and individuals who use TDD's, the
services are not sufficient to provide access to all telephone
services.  First, relay systems do not provide effective access to
the increasingly popular automated systems that require the caller
to respond by pushing a button on a touch tone phone.  Second,
relay systems cannot operate fast enough to convey messages on
answering machines, or to permit a TDD user to leave a recorded
message.  Third, communication through relay systems may not be
appropriate in cases of crisis lines pertaining to rape, domestic
violence, child abuse, and drugs.  The Department believes that it
is more appropriate for the Federal Communications Commission to
address these issues in its rulemaking under title IV.

     Some commenters requested that those entities with frequent
contacts with clients who use TDD's have on-site TDD's to provide
for direct communication between the entity and the individual. 
The Department encourages those entities that have extensive
telephone contact with the public such as city halls, public
libraries, and public aid offices, to have TDD's to insure more
immediate access.  Where the provision of telephone service is a
major function of the entity, TDD's should be available.

Section 35.162 Telephone emergency services.

     Many public entities provide telephone emergency services by
which individuals can seek immediate assistance from police, fire,
ambulance, and other emergency services.  These telephone emergency
services--including "911" services--are clearly an important public
service whose reliability can be a matter of life or death.  The
legislative history of title II specifically reflects congressional
intent that public entities must ensure that telephone emergency
services, including 911 services, be accessible to persons with
impaired hearing and speech through telecommunication technology
(Conference report at 67; Education and Labor report at 84-85).

     Proposed {35.162 mandated that public entities provide
emergency telephone services to persons with disabilities that are
"functionally equivalent" to voice services provided to others. 
Many commenters urged the Department to revise the section to make
clear that direct access to telephone emergency services is
required by title II of the ADA as indicated by the legislative
history (Conference report at 67-68; Education and Labor report at
85).  In response, the final rule mandates "direct access," instead
of "access that is functionally equivalent" to that provided to all
other telephone users.  Telephone emergency access through a third
party or through a relay service would not satisfy the requirement
for direct access.

     Several commenters asked about a separate seven-digit
emergency call number for the 911 services.  The requirement for
direct access disallows the use of a separate seven-digit number
where 911 service is available.  Separate seven-digit emergency
call numbers would be unfamiliar to many individuals and also more
burdensome to use.  A standard emergency 911 number is easier to
remember and would save valuable time spent in searching in
telephone books for a local seven-digit emergency number.

     Many commenters requested the establishment of minimum
standards of service (e.g., the quantity and location of TDD's and
computer modems needed in a given emergency center).  Instead of
establishing these scoping requirements, the Department has
established a performance standard through the mandate for direct
access.

     Section 35.162 requires public entities to take appropriate
steps, including equipping their emergency systems with modern
technology, as may be necessary to promptly receive and respond to
a call from users of TDD's and computer modems.  Entities are
allowed the flexibility to determine what is the appropriate
technology for their particular needs.  In order to avoid mandating
use of particular technologies that may become outdated, the
Department has eliminated the references to the Baudot and ASCII
formats in the proposed rule.

     Some commenters requested that the section require the
installation of a voice amplification device on the handset of the
dispatcher's telephone to amplify the dispatcher's voice.  In an
emergency, a person who has a hearing loss may be using a telephone
that does not have an amplification device.  Installation of speech
amplification devices on the handsets of the dispatchers'
telephones would respond to that situation.  The Department
encourages their use.

     Several commenters emphasized the need for proper maintenance
of TDD's used in telephone emergency services.  Section 35.133,
which mandates maintenance of accessible features, requires public
entities to maintain in operable working condition TDD's and other
devices that provide direct access to the emergency system.

{35.163   Information and signage.

     Section 35.163(a) requires the public entity to provide
information to individuals with disabilities concerning accessible
services, activities, and facilities.  Paragraph (b) requires the
public entity to provide signage at all inaccessible entrances to
each of its facilities that directs users to an accessible entrance
or to a location with information about accessible facilities.

     Several commenters requested that, where TDD-equipped pay
phones or portable TDD's exist, clear signage should be posted
indicating the location of the TDD.  The Department believes that
this is required by paragraph (a).  In addition, the Department
recommends that, in large buildings that house TDD's, directional
signage indicating the location of available TDD's should be placed
adjacent to banks of telephones that do not contain a TDD.

{35.164   Duties.

     Section 35.164, like paragraph (a)(3) of {35.150, is taken
from the section 504 regulations for federally conducted programs. 
Like paragraph (a)(3), it limits the obligation of the public
entity to ensure effective communication in accordance with Davis
and the circuit court opinions interpreting it.  It also includes
specific requirements for determining the existence of undue
financial and administrative burdens.  The preamble discussion of
{35.150(a) regarding that determination is applicable to this
section and further explains the public entity's obligation to
comply with {{35.160-35.164.  Because of the essential nature of
the services provided by telephone emergency systems, the
Department assumes that {35.164 will rarely be applied to {35.162.

Subpart F -- Compliance Procedures

     Subpart F sets out the procedures for administrative
enforcement of this part.  Section 203 of the Act provides that the
remedies, procedures, and rights set forth in section 505 of the
Rehabilitation Act of 1973 (29 U.S.C. 794a) for enforcement of
section 504 of the Rehabilitation Act, which prohibits
discrimination on the basis of handicap in programs and activities
that receive Federal financial assistance, shall be the remedies,
procedures, and rights for enforcement of title II.  Section 505,
in turn, incorporates by reference the remedies, procedures, and
rights set forth in title VI of the Civil Rights Act of 1964 (42
U.S.C. 2000d to 2000d-4a).  Title VI, which prohibits
discrimination on the basis of race, color, or national origin in
federally assisted programs, is enforced by the Federal agencies
that provide the Federal financial assistance to the covered
programs and activities in question.  If voluntary compliance
cannot be achieved, Federal agencies enforce title VI either by the
termination of Federal funds to a program that is found to
discriminate, following an administrative hearing, or by a referral
to this Department for judicial enforcement.

     Title II of the ADA extended the requirements of section 504
to all services, programs, and activities of State and local
governments, not only those that receive Federal financial
assistance.  The House Committee on Education and Labor explained
the enforcement provisions as follows:

          It is the Committee's intent that administrative
     enforcement of section 202 of the legislation should
     closely parallel the Federal government's experience with
     section 504 of the Rehabilitation Act of 1973. The
     Attorney General should use section 504 enforcement
     procedures and the Department's coordination role under
     Executive Order 12250 as models for regulation in this
     area.

          The Committee envisions that the Department of Justice
     will identify appropriate Federal agencies to oversee
     compliance activities for State and local governments.  As
     with section 504, these Federal agencies, including the
     Department of Justice, will receive, investigate, and where
     possible, resolve complaints of discrimination.  If a Federal
     agency is unable to resolve a complaint by voluntary means, .
     . . the major enforcement sanction for the Federal government
     will be referral of cases by these Federal agencies to the
     Department of Justice.

          The Department of Justice may then proceed to file suits
     in Federal district court.  As with section 504, there is also
     a private right of action for persons with disabilities, which
     includes the full panoply of remedies.  Again, consistent with
     section 504, it is not the Committee's intent that persons
     with disabilities need to exhaust Federal administrative
     remedies before exercising their private right of action.  

Education & Labor report at 98.  See also S. Rep. No. 116, 101st
Cong., 1st Sess., at 57-58 (1989).

     Subpart F effectuates the congressional intent by deferring to
section 504 procedures where those procedures are applicable, that
is, where a Federal agency has jurisdiction under section 504 by
virtue of its provision of Federal financial assistance to the
program or activity in which the discrimination is alleged to have
occurred.  Deferral to the 504 procedures also makes the sanction
of fund termination available where necessary to achieve
compliance.  Because the Civil Rights Restoration Act (Pub. L. 100-
259) extended the application of section 504 to all of the
operations of the public entity receiving the Federal financial
assistance, many activities of State and local governments are
already covered by section 504.  The procedures in subpart F apply
to complaints concerning services, programs, and activities of
public entities that are covered by the ADA.   

     Subpart G designates the Federal agencies responsible for
enforcing the ADA with respect to specific components of State and
local government.  It does not, however, displace existing
jurisdiction under section 504 of the various funding agencies. 
Individuals may still file discrimination complaints against
recipients of Federal financial assistance with the agencies that
provide that assistance, and the funding agencies will continue to
process those complaints under their existing procedures for
enforcing section 504.  The substantive standards adopted in this
part for title II of the ADA are generally the same as those
required under section 504 for federally assisted programs, and
public entities covered by the ADA are also covered by the
requirements of section 504 to the extent that they receive Federal
financial assistance.  To the extent that title II provides greater
protection to the rights of individuals with disabilities, however,
the funding agencies will also apply the substantive requirements
established under title II and this part in processing complaints
covered by both this part and section 504, except that fund
termination procedures may be used only for violations of section
504.

     Subpart F establishes the procedures to be followed by the
agencies designated in subpart G for processing complaints against
State and local government entities when the designated agency does
not have jurisdiction under section 504.

{35.170   Complaints.

     Section 35.170 provides that any individual who believes that
he or she or a specific class of individuals has been subjected to
discrimination on the basis of disability by a public entity may,
by himself or herself or by an authorized representative, file a
complaint under this part within 180 days of the date of the
alleged discrimination, unless the time for filing is extended by
the agency for good cause.  Although {35.107 requires public
entities that employ 50 or more persons to establish grievance
procedures for resolution of complaints, exhaustion of those
procedures is not a prerequisite to filing a complaint under this
section.  If a complainant chooses to follow the public entity's
grievance procedures, however, any resulting delay may be
considered good cause for extending the time allowed for filing a
complaint under this part.  

     Filing the complaint with any Federal agency will satisfy the
requirement for timely filing.  As explained below, a complaint
filed with an agency that has jurisdiction under section 504 will
be processed under the agency's procedures for enforcing section
504.

     Some commenters objected to the complexity of allowing
complaints to be filed with different agencies.  The multiplicity
of enforcement jurisdiction is the result of following the
statutorily mandated enforcement scheme.  The Department has,
however, attempted to simplify procedures for complainants by
making the Federal agency that receives the complaint responsible
for referring it to an appropriate agency.  

     The Department has also added a new paragraph (c) to this
section providing that a complaint may be filed with any agency
designated under subpart G of this part, or with any agency that
provides funding to the public entity that is the subject of the
complaint, or with the Department of Justice.  Under {35.171(a)(2),
the Department of Justice will refer complaints for which it does
not have jurisdiction under section 504 to an agency that does have
jurisdiction under section 504, or to the agency designated under
subpart G as responsible for complaints filed against the public
entity that is the subject of the complaint or in the case of an
employment complaint that is also subject to title I of the Act, to
the Equal Employment Opportunity Commission.  Complaints filed with
the Department of Justice may be sent to the Coordination and
Review Section, P.O. Box 66118, Civil Rights Division, U.S.
Department of Justice, Washington, D.C. 20035-6118.  

{35.171   Acceptance of complaints.

     Section 35.171 establishes procedures for determining
jurisdiction and responsibility for processing complaints against
public entities.  The final rule provides complainants an
opportunity to file with the Federal funding agency of their
choice.  If that agency does not have jurisdiction under section
504, however, and is not the agency designated under subpart G as
responsible for that public entity, the agency must refer the
complaint to the Department of Justice, which will be responsible
for referring it either to an agency that does have jurisdiction
under section 504 or to the appropriate designated agency, or in
the case of an employment complaint that is also subject to title
I of the Act, to the Equal Employment Opportunity Commission.

     Whenever an agency receives a complaint over which it has
jurisdiction under section 504, it will process the complaint under
its section 504 procedures.  When the agency designated under
subpart G receives a complaint for which it does not have
jurisdiction under section 504, it will treat the complaint as an
ADA complaint under the procedures established in this subpart.  

     Section 35.171 also describes agency responsibilities for the
processing of employment complaints.  As described in connection
with {35.140, additional procedures regarding the coordination of
employment complaints will be established in a coordination
regulation issued by DOJ and EEOC.  Agencies with jurisdiction
under section 504 for complaints alleging employment discrimination
also covered by title I will follow the procedures established by
the coordination regulation for those complaints.  Complaints
covered by title I but not section 504 will be referred to the
EEOC, and complaints covered by this part but not title I will be
processed under the procedures in this part.

{35.172   Resolution of complaints.

     Section 35.172 requires the designated agency to either
resolve the complaint or issue to the complainant and the public
entity a Letter of Findings containing findings of fact and
conclusions of law and a description of a remedy for each violation
found.

     The Act requires the Department of Justice to establish
administrative procedures for resolution of complaints, but does
not require complainants to exhaust these administrative remedies. 
The Committee Reports make clear that Congress intended to provide
a private right of action with the full panoply of remedies for
individual victims of discrimination.  Because the Act does not
require exhaustion of administrative remedies, the complainant may
elect to proceed with a private suit at any time.

{35.173   Voluntary compliance agreements.

     Section 35.173 requires the agency to attempt to resolve all
complaints in which it finds noncompliance through voluntary
compliance agreements enforceable by the Attorney General.

{35.174   Referral.

     Section 35.174 provides for referral of the matter to the
Department of Justice if the agency is unable to obtain voluntary
compliance.

{35.175   Attorney's fees.

     Section 35.175 states that courts are authorized to award
attorneys fees, including litigation expenses and costs, as
provided in section 505 of the Act.  Litigation expenses include
items such as expert witness fees, travel expenses, etc.  The
Judiciary Committee Report specifies that such items are included
under the rubric of "attorneys fees" and not "costs" so that such
expenses will be assessed against a plaintiff only under the
standard set forth in Christiansburg Garment Co. v. Equal
Employment Opportunity Commission, 434 U.S. 412 (1978).  (Judiciary
report at 73.)

{35.176   Alternative means of dispute resolution.

     Section 35.176 restates section 513 of the Act, which
encourages use of alternative means of dispute resolution.

{35.177   Effect of unavailability of technical assistance.

     Section 35.177 explains that, as provided in section 506(e) of
the Act, a public entity is not excused from compliance with the
requirements of this part because of any failure to receive
technical assistance. 

{35.178   State immunity.

     Section 35.178 restates the provision of section 502 of the
Act that a State is not immune under the eleventh amendment to the
Constitution of the United States from an action in Federal or
State court for violations of the Act, and that the same remedies
are available for any such violations as are available in an action
against an entity other than a State.

SUBPART G  Designated Agencies

{35.190   Designated agencies.

     Subpart G designates the Federal agencies responsible for
investigating complaints under this part.  At least 26 agencies
currently administer programs of Federal financial assistance that
are subject to the nondiscrimination requirements of section 504 as
well as other civil rights statutes.  A majority of these agencies
administer modest programs of Federal financial assistance and/or
devote minimal resources exclusively to "external" civil rights
enforcement activities.  Under Executive Order 12250, the
Department of Justice has encouraged the use of delegation
agreements under which certain civil rights compliance
responsibilities for a class of recipients funded by more than one
agency are delegated by an agency or agencies to a "lead" agency. 
For example, many agencies that fund institutions of higher
education have signed agreements that designate the Department of
Education as the "lead" agency for this class of recipients.  

     The use of delegation agreements reduces overlap and
duplication of effort, and thereby strengthens overall civil rights
enforcement.  However, the use of these agreements to date
generally has been limited to education and health care recipients. 
These classes of recipients are funded by numerous agencies and the
logical connection to a lead agency is clear (e.g., the Department
of Education for colleges and universities, and the Department of
Health and Human Services for hospitals). 

     The ADA's expanded coverage of State and local government
operations further complicates the process of establishing Federal
agency jurisdiction for the purpose of investigating complaints of
discrimination on the basis of disability.  Because all operations
of public entities now are covered irrespective of the presence or
absence of Federal financial assistance, many additional State and
local government functions and organizations
now are subject to Federal jurisdiction.  In some cases, there is
no historical or single clear-cut subject matter relationship with
a Federal agency as was the case in the education example described
above.  Further, the 33,000 governmental jurisdictions subject to
the ADA differ greatly in their organization, making a detailed and
workable division of Federal agency jurisdiction by individual
State, county, or municipal entity unrealistic.

     This regulation applies the delegation concept to the
investigation of complaints of discrimination on the basis of
disability by public entities under the ADA.  It designates eight
agencies, rather than all agencies currently administering programs
of Federal financial assistance, as responsible for investigating
complaints under this part.  These "designated agencies" generally
have the largest civil rights compliance staffs, the most
experience in complaint investigations and disability issues, and
broad yet clear subject area responsibilities.  This division of
responsibilities is made functionally rather than by public entity
type or name designation.  For example, all entities (regardless of
their title) that exercise responsibilities, regulate, or
administer services or programs relating to lands and natural
resources fall within the jurisdiction of the Department of
Interior.  

     Complaints under this part will be investigated by the
designated agency most closely related to the functions exercised
by the governmental component against which the complaint is
lodged.  For example, a complaint against a State medical board,
where such a board is a recognizable entity, will be investigated
by the Department of Health and Human Services (the designated
agency for regulatory activities relating to the provision of
health care), even if the board is part of a general umbrella
department of planning and regulation (for which the Department of
Justice is the designated agency).  If two or more agencies have
apparent responsibility over a complaint, section 35.190(c)
provides that the Assistant Attorney General shall determine which
one of the agencies shall be the designated agency for purposes of
that complaint.

     Thirteen commenters, including four proposed designated
agencies, addressed the Department of Justice's identification in
the proposed regulation of nine "designated agencies" to
investigate complaints under this part.  Most comments addressed
the proposed specific delegations to the various individual
agencies.  The Department of Justice agrees with several commenters
who pointed out that responsibility for "historic and cultural
preservation" functions appropriately belongs with the Department
of Interior rather than the Department of Education.  The
Department of Justice also agrees with the Department of Education
that "museums" more appropriately should be delegated to the
Department of Interior, and that "preschool and daycare programs"
more appropriately should be assigned to the Department of Health
and Human Services, rather than to the Department of Education. 
The final rule reflects these decisions.

     The Department of Commerce opposed its listing as the
designated agency for "commerce and industry, including general
economic development, banking and finance, consumer protection,
insurance, and small business".  The Department of Commerce cited
its lack of a substantial existing section 504 enforcement program
and experience with many of the specific functions to be delegated. 
The Department of Justice accedes to the Department of Commerce's
position, and has assigned itself as the designated agency for
these functions.

     In response to a comment from the Department of Health and
Human Services, the regulation's category of "medical and nursing
schools" has been clarified to read "schools of medicine,
dentistry, nursing, and other health-related fields".  Also in
response to a comment from the Department of Health and Human
Services, "correctional institutions" have been specifically added
to the public safety and administration of justice functions
assigned to the Department of Justice.

     The regulation also assigns the Department of Justice as the
designated agency responsible for all State and local government
functions not assigned to other designated agencies.  The
Department of Justice, under an agreement with the Department of
the Treasury, continues to receive and coordinate the investigation
of complaints filed under the Revenue Sharing Act.  This
entitlement program, which was terminated in 1986, provided civil
rights compliance jurisdiction for a wide variety of complaints
regarding the use of Federal funds to support various general
activities of local governments.  In the absence of any similar
program of Federal financial assistance administered by another
Federal agency, placement of designated agency responsibilities for
miscellaneous and otherwise undesignated functions with the
Department of Justice is an appropriate continuation of current
practice.

     The Department of Education objected to the proposed rule's
inclusion of the functional area of "arts and humanities" within
its responsibilities, and the Department of Housing and Urban
Development objected to its proposed designation as responsible for
activities relating to rent control, the real estate industry, and
housing code enforcement.  The Department has deleted these areas
from the lists assigned to the Departments of Education and Housing
and Urban Development, respectively, and has added a new paragraph
(c) to section 35.190, which provides that the Department of
Justice may assign responsibility for components of State or local
governments that exercise responsibilities, regulate, or administer
services, programs, or activities relating to functions not
assigned to specific designated agencies by paragraph (b) of this
section to other appropriate agencies.  The Department believes
that this approach will provide more flexibility in determining the
appropriate agency for investigation of complaints involving those
components of State and local governments not specifically
addressed by the listings in paragraph (b).  As provided in
{{35.170 and 35.171, complaints filed with the Department of
Justice will be referred to the apropriate agency.

     Several commenters proposed a stronger role for the Department
of Justice, especially with respect to the receipt and assignment
of complaints, and the overall monitoring of the effectiveness of
the enforcement activities of Federal agencies.  As discussed
above, {{35.170 and 35.171 have been revised to provide for
referral of complaints by the Department of Justice to appropriate
enforcement agencies.  Also, language has been added to {35.190(a)
of the final regulation stating that the Assistant Attorney General
shall provide policy guidance and interpretations to designated
agencies to ensure the consistent and effective implementation of
this part.

List of Subjects in 28 CFR Part 35  

     Administrative practice and procedure, Alcoholism, Americans
with disabilities, Buildings, Civil rights, Drug abuse,
Handicapped, Historic preservation, Intergovernmental relations,
Reporting and recordkeeping requirements.
     By the authority vested in me as Attorney General by 28 
U.S.C. 509, 510, 5 U.S.C. 301, and section 204 of the Americans
with Disabilities Act, and for the reasons set forth in the
preamble, chapter I of Title 28 of the Code of Federal Regulations
is amended by adding a new Part 35 to read as follows: