         Accessibility Guidelines and Federal Lease Renewals

The A rchitectural and Transportation Barriers Com pliance Board m ay require, pursuant to the A rchitec­
   tural B arriers Act o f 1968, that buildings first leased by federal agencies after 1976 be brought
   into com pliance with current accessibility standards when the agency negotiates renew al o f the
   lease.

                                                                                                     May 26, 1999

                M e m o r a n d u m O p in io n f o r t h e D e p u ty G e n e r a l C o u n s e l
                    U.S.   A rc h ite c tu ra l a n d T ra n s p o rta tio n B a rrie rs
                                           C o m p lia n c e B o a r d


   This responds to your request for our opinion whether guidelines to be issued
by the Architectural and Transportation Barriers Compliance Board (“ Board” or
“ Access Board” ) under the Architectural Barriers Act of 1968, 42 U.S.C.
§§4151—4157 (1994) (“ Act” or “ Barriers Act” ), may require that buildings first
leased by federal agencies after 1976 be brought into compliance with updated
accessibility standards when the agency negotiates renewal of the lease. See Letter
for Dawn E. Johnsen, Acting Assistant Attorney General, Office of Legal Counsel,
from Elizabeth A. Stewart, Deputy General Counsel, U.S. Architectural and
Transportation Barriers Compliance Board (June 10, 1998) (“ Board Letter” ). Fol­
lowing receipt of your opinion request, we have received and considered additional
submissions from both the Board and the United States Postal Service (“ USPS”
or “ Service” ). We conclude thaL the Board may lawfully issue guidelines
including such a requirement.

                                          I. BACKGROUND

   The Act requires four federal departments and agencies (in consultation with
the Secretary of Health and Human Services) to promulgate standards for the
design, construction, and alteration of buildings occupied or used by federal agen­
cies “ to insure whenever possible that physically handicapped persons will have
ready access to, and use of, such buildings.” 42 U.S.C. §§4152-4154a. The
Administrator of General Services has general responsibilities for prescribing
standards for buildings covered by the Act, id. §4152, while the Secretary of
Housing and Urban Development, the Secretary of Defense, and the U.S. Postal
Service have separate authority to set standards under the Act for buildings used
by their respective departments or services. See id. §§4153-4154a. The Act further
requires that “ [e]very building designed, constructed, or altered after the effective
date of a standard issued under this chapter which is applicable to such building,
shall be designed, constructed, or altered in accordance with such standard.” Id.
§4155.

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  It is not in dispute that the Act applies in general terms to buildings that are
leased in whole or in part by federal agencies. See id. §4151(2) (defining
“ building” to include any building or facility “ leased in whole or in part by
the United States” ). The narrower question presented here concerns the timing
and extent of compliance obligations — i.e., whether the Board may require a fed­
eral lessee renegotiating a lease to modify or retrofit a building to conform to
current accessibility standards.
   Pursuant to the Rehabilitation Act of 1973, the Access Board was granted
authority to establish minimum guidelines and requirements for, and to enforce,
the accessibility standards issued by the four departments and agencies designated
under the Barriers Act. See 29 U.S.C. § 792(b)(1), (3)(A) (1994 & Supp. IV 1998).
The minimum Guidelines issued by the Board in 1981 are codified at 36 C.F.R.
pt. 1190 (1998).1 The Board is revising its guidelines to conform more closely
to the accessibility requirements of the Americans with Disabilities Act of 1990,
42 U.S.C. §§ 12101-12213 (1994 & Supp. II 1996), and anticipates issuing a
notice of proposed rulemaking for adoption of the new guidelines in the near
future. Among other things, the Board proposes that the revised guidelines require
compliance with revised accessibility standards in all buildings or facilities for
which leases — including renewals of expired leases — are negotiated by a federal
agency after the effective date of the revised standards adopted pursuant to the
revised guidelines. This requirement is to be embodied in Section F202.6 of the
proposed revised guidelines, which provides:

             F202.6 Leases. Buildings or facilities for which new leases are
          negotiated by the federal government after [effective date of the
          revised accessibility standard], including new leases for buildings
          or facilities previously occupied by the federal government, shall
          comply with F202.6 [requiring that designated elements of leased
          space be accessible].

Letter for Randolph D. Moss, Acting Assistant Attorney General, Office of Legal
Counsel, from Zoe Strickland, Attorney, U.S. Postal Service, Re: Access Board
Request fo r Opinion on ABA Leasing, Attachment D at 1 (Sept. 30, 1998) (“ USPS
Letter” ). As further explained in the Board’s submission, a “ new lease” that
triggers compliance obligations would include “ the negotiation of an agreement
to lease a building or facility, regardless of whether the leased space was pre­
viously occupied by the Federal government.” Board Letter, Attachment A at 1.

   1 The current Board guideline on leasing does not expressly require accessibility compliance as a condition of
a federal agency’s entering into or renewing a lease See 36 C.F.R. § 1190.34. Rather, it requires that when a facility
that m eets, o r m ost closely meets, the current accessibility standard is available for leasing, the renung agency must
give a reasonable preference to that facility. Id. § ] 190 34(a)


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  Subsequently, in response to a request for clarification from this Office, the
Board has stated that its proposed revised guidelines will also include the fol­
lowing explanatory text or commentary:

             The negotiation of a new lease occurs when (1) the Federal
          government leases a facility that it did not occupy previously; or
          (2) an existing term ends and a new lease is negotiated for contin­
          ued occupancy. The unilateral exercise of an option which is
          included as one of the terms of a preexisting lease is not considered
          the negotiation of a new lease. Negotiations which do not result
          in a lease agreement are not covered by the guidelines.

Letter for George Smith, Office of Legal Counsel, from Elizabeth A. Stewart,
Deputy General Counsel, U.S. Architectural and Transportation Barriers Compli­
ance Board, Attachment at 2 (Dec. 21, 1998) (“ Board Supplement” ).2
  The Postal Service contends that the Board is not authorized to require federal
agencies to render a building accessible under updated Barriers Act standards upon
renewing an expiring lease if the building was originally leased after January 1,
1977, and previously rendered accessible under Barriers Act standards then in
effect. The Board has therefore requested our opinion to resolve this question.3
In addition to the Board’s two submissions on the issues presented, we have
received and considered two submissions from the Postal Service as well. See
USPS Letter; Letter for George Smith, Office of Legal Counsel, from Zoe
Strickland, Attorney, U.S. Postal Service, Re: Access Board Request fo r Opinion
on ABA Leasing (Jan. 7, 1999) (“ USPS Supplement” ). The Postal Service
summarized its contentions in the following terms:

             The Access Board lacks the authority to issue the leasing guide­
          lines described above because it is contrary to the ABA, which is
          not tied to negotiations and only covers renewals of pre-1977
          leases, and because the ABA standard-setting agencies, not the

   2 The last sentence o f the above-quoted clarification resolves any possible ambiguity created by the language in
Section F202 6, providing that accessibility compliance obbgations are triggered whenever “ new leases are nego-
uated.” In the absence o f a definition o f the term “ negotiated,” the provision might be construed to impose compli­
ance obligations on the basis of negotiations alone, even before a new lease is actually executed or undertaken
We believe the inclusion of the above-quoted clarification will adequately address this potential ambiguity, as well
as the USPS argument that the proposed guidelines are invalidly “ tied to negotiations,” USPS Letter at 2.
   3 In a memorandum transmitted to this Office by fax on August II, 1998, the Board refined and clarified the
question originally presented by providing the following illustrative hypothetical o f how its proposed interpretation
would apply if adopted1
      The U S Postal Service (USPS) leases a facility in 1990. The lease is for a term of 15 years. The facility
      complies with the accessibility standards in effect m 1990. Subsequently, the Access Board issues new
      accessibility guidelines and each o f the standard setting agencies revise their standards based on the new
      guidelines The new standards are effecuve September 1, 1998 In the year 2005, the USPS negotiates
      a lease to continue occupying the facility for another 15 years. The facility must meet the revised accessi­
      bility standards in effect in the year 2005


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       Board, are authorized to issue regulations defining statutory cov­
       erage.

USPS Letter at 2 (footnote omitted) (emphasis added). More specifically, the
Service asserts that the Act requires agencies to render leased buildings accessible
in compliance with governing standards only at the time the lease is initially
entered or, in the case of “ grandfathered” leases entered by the agency before
1977, on the occasion of the first renewal of such lease. The Service vigorously
contests the Board’s authority to issue guidelines requiring updated accessibility
whenever an agency enters into a negotiated renewal of an expiring post-1976
lease of a building that has been previously rendered accessible under the statutory
requirements.

                                     H. ANALYSIS

                                              A.

  This Office has addressed in prior opinions a number of closely related issues
concerning application of the Act to federally leased facilities. Those opinions,
together with a case from the U.S. Court of Appeals for the Ninth Circuit (dis­
cussed in Point II.B, infra), establish the legal framework for resolving this matter.
   In 1980, we considered whether the accessibility guidelines proposed by the
Access Board pursuant to 29 U.S.C. § 792(b) exceeded the Board’s statutory
authority or improperly usurped the standard-setting authority of the designated
standard-setting agencies. See Memorandum for Mason H. Rose, V, Chairperson,
Architectural and Transportation Barriers Compliance Board, from Leon Ulman,
Deputy Assistant Attorney General, Office of Legal Counsel (Dec. 31, 1980)
(“ 1980 Opinion” ). In upholding the Board’s authority to issue detailed and sub­
stantive accessibility guidelines against a challenge by the standard-setting agen­
cies, we stated:

       Congress has given little guidance to determine the nature and
       limits of the Board’s authority. In such circumstances, the Board
       has a great deal o f discretion, even if the practical effect of its
       construction is to constrain the authority of the standard-setting
       agencies.




       It is plain that Congress accorded rulemaking authority to the Board
       because of its dissatisfaction with the performance of the standard-
       setting agencies. Congress intended the Board to establish minimum
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           requirements assuring both a certain level of protection fo r the
           handicapped and some uniformity in federal accessibility standards.

Id. at 4—5 (emphasis added).
   Our 1980 opinion thus recognized that the Board has been granted broad
 authority and discretion to issue minimum accessibility guidelines that the des­
ignated agencies must follow in setting their respective accessibility standards
 under the Act. We went on to elaborate upon the scope and purpose of the Board’s
guideline-setting authority: “ As a ‘minimum,’ the Board must thus establish the
 lowest of a range of requirements that, in its view, will achieve the congressional
goal of 'ready access and use.' ” Id. at 5 (emphasis added). We added that “ if
the Board is not permitted to require that all of certain facilities be accessible,
it could be viewed as violating the terms of the Act.” Id. at 7. We further deter­
mined that the Board’s authority extends to issuing guidelines interpreting the
Act’s accessibility requirements as applied to leasing arrangements, including
interpretations determining the circumstances under which leased facilities are
covered by the Act’s requirements. See id. at 14-17.
   Thus, our 1980 opinion clearly rejected the contention now advanced again by
USPS (see USPS Letter at 2, 5, and 10) that the Board lacks basic statutory
authority to promulgate substantive guidelines covering matters such as the extent
of statutory coverage (including guidelines respecting the coverage of leased facili­
ties).4 Nothing contained in the USPS submissions herein persuades us to alter
that conclusion.
   Our 1980 opinion also recognized that the 1976 amendments to the Act, see
Public Buildings Cooperative Use Act of 1976, Pub. L. No. 94—541, §§201-203,
90 Stat. 2505, 2507-08, “ were plainly designed to bring leased buildings within
the coverage of the Act. . . . [W]e think it evident that Congress intended by
its 1976 amendments to make the Act applicable to buildings leased by the United
States . . . . Since the congressional purpose is unambiguous, we do not believe
that [42 U.S.C. §] 4155 is to be read to exclude leased buildings from the accessi­
bility requirements of the Act.” 1980 Opinion at 16.5 Moreover, in responding
to a contention that the guidelines had exceeded the Board’s authority by applying
the Act’s requirements to mere unilateral “ extensions” of agency leases, we
stated:
   4 Specifically, under USPS’s reading of the Barriers Act, “ the Board issues technical requirements and scoping,
and the standard-setting agency        . should set statutory coverage, effective dates, e tc ” USPS Letter at 10 This
restrictive interpretation of the Board’s authority to issue substantive guidelines is incompatible with the broad, discre­
tionary authority we recognized m our 1980 opinion See 1980 Opinion at 4, 6
   5Our specific reference to 42 U.S.C. §4155 was in response to arguments by some agencies that Congress’s
failure to modify that section as well in 1976 indicated that Congress did not intend the act of leasing itself—
as distinguished from design, alteration, or construction— to trigger any accessibility compliance action Section
4155 provides that covered buildings “ shall be designed, constructed, or altered in accordance with [governing acces­
sibility standards],” without making explicit reference to leasing as such In rejecting this agency argument, we
stated: “ There is no doubt that Congress believed that its amendment o f the definition of the word ‘building’ was
sufficient to bring leased buildings within the coverage of the Act ’’ 1980 Opinion at 16.


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          We see no sufficient basis for rejecting the Board’s interpretation
          of the Act. The distinction between “ renewals” and “ extensions”
          is an uncertain one that is frequently not followed by the courts
          and there is absolutely no evidence that Congress intended to
          exclude “ extensions” as technically defined by the Postal Service.

Id. at 17 (citations omitted).
   In 1982, we advised the Justice Department’s Civil Division that the Postal
Service’s position that the Act permits federal agencies to lease buildings in their
existing conditions was a “ permissible” interpretation of the Act that could prop­
erly be defended in court (see infra Point II.B). The interpretation in question
would have permitted federal agencies to lease accessibility-noncompliant
buildings in their existing condition, and did not mandate the accessibility alter­
ation of existing buildings as a condition to leasing; rather, compliance with the
Act’s accessibility standards would have to be achieved only when the leased
building would otherwise be altered. We concluded that the Postal Service
interpretation was a “ permissible” and certainly “ defensible” one, although we
also acknowledged that the inquiry presented a “ close question.” See Memo­
randum for J. Paul McGrath, Assistant Attorney General, Civil Division, from
Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel, Re:
Applicability o f Architectural Barriers Act to Buildings Leased by the United
States Postal Service at 2, 16 (Oct. 21, 1982) ( “ 1982 Opinion” ). Our opinion
stated:

          [W]e believe that an entirely defensible position may be taken that
          the Act does not obligate any federal department or service to alter
          all buildings leased after January, 1977 solely for the purpose of
          providing access for the handicapped. We conclude that the Postal
          Service regulations which require newly constructed leased
          buildings and any remodeling of buildings leased after January,
          1977 to meet accessibility standards, and which further require, as
          a matter of policy, that all newly acquired leased buildings be
          accessible whenever economically feasible represent a defensible
          interpretation of the Act.

Id. at 12, 27.6
  As discussed further below, however, the U.S. Court of Appeals for the Ninth
Circuit subsequently rejected the Postal Service interpretation that was addressed
in our 1982 opinion. See Rose v. United States Postal Serv., 774 F.2d 1355 (9th
Cir. 1984).

  6 O ur opinion went on to acknowledge that “ Congress never expressly resolved whether leases o f existing space
were to be treated like new construction or like existing government-owned buildings ” 1982 Opinion at 26.


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                    Accessibility Guidelines and Federal Lease Renewals


  In 1987, we opined on the applicability of the Act’s accessibility requirements
to leases originally entered into by federal agencies prior to January 1, 1977,
and renewed subsequent to that date. See Memorandum for Charles R. Braun,
Assistant General Counsel, United States Postal Service, from Charles J. Cooper,
Assistant Attorney General, Office of Legal Counsel (Oct. 15, 1987) (“ 1987
Opinion” ). That opinion focused on the effective date provisions of the 1976
amendments, which state:

          The amendment made by paragraph (1) of section 201 of this
       Act [altering the definition of building in section 4151(2) to include
       buildings leased by federal agencies] shall not apply to any lease
       entered into before January 1, 1977. It shall apply to every lease
       entered into on or after January 1, 1977, including any renewal of
       a lease entered into before such date which renewal is on or after
       such date.

Public Buildings Cooperative Use Act §202. The Postal Service argued that the
Act’s accessibility requirements were not called into play by its “ unilateral exer­
cise,” subsequent to January 1, 1977, of a renewal option that extended the terms
of a pre-1977 lease. We concluded that the subsequent renewal by the Postal
Service of leases entered into prior to January 1, 1977, does trigger an obligation
to conform the leased facility to the Barriers Act’s governing accessibility require­
ments. As we explained:

          While mindful of the Postal Services’ legitimate concerns about
       cost, we conclude that Congress intended to extend the Barriers
       Act to renewals of pre-1977 leases of Postal Service facilities with
       full knowledge of the expense involved and of the understandable
       reluctance of executive agencies to incur the costs of renovation.

          In sum, we believe that the interpretation of “ renewal” urged
       by the Postal Service as including only bilateral, and not unilateral,
       renewal of leases is not consistent with the language, legislative
       history, or purpose of the 1976 amendments. In our opinion, Con­
       gress intended buildings subject to pre-1977 leases to be renovated
       in compliance with the Barriers Act when the Postal Service exer­
       cises options to renew those leases on or after January 1, 1977.

1987 Opinion at 8-10 (footnotes omitted).
  Although our 1987 opinion was largely governed by the terms of the effective
date provisions contained in section 202 of the 1976 amendments, and focused
on the asserted distinctions between “ bilateral” and “ unilateral” leases, it also

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reflected the more expansive interpretation of the Act’s accessibility obligations
as to leases reflected in the Rose opinion. As we explained:

             Moreover, the legislative history of the Barriers Act reveals that
          Congress intended this remedial legislation to be liberally con­
          strued. See Rose v. U.S. Postal Service , 774 F.2d 1355, 1358 (9th
          Cir. 1984). In introducing the 1976 amendments, Representative
          Ginn stated that the purpose of the legislation was to include within
          the coverage of the Barriers Act “ all Government-leased buildings
          intended for public use or in which the physically handicapped
          might be employed.” 122 Cong. Rec. 33,511 (1976). The House
          report likewise states that “ all Government-leased buildings and
          facilities” would be included. H.R. Rep. No. 1584, pt. 1, 94th
          Cong., 2d Sess., 3 (1976). There is no suggestion that Congress
          intended to exempt almost 8,000 post offices simply because, as
          the Postal Service Claims, leases are renewed unilaterally, rather
          than bilaterally.

1987 Opinion at 7.

                                                        B.

  The only published federal court opinion we have identified interpreting the
Barriers Act’s applicability to leases is Rose v. United States Postal Service.1 In
Rose, the Ninth Circuit rejected the same Postal Service contention that had been
the subject of our 1982 opinion — i.e., that a federal agency’s entry into a lease
does not in itself trigger an obligation to conform the leased premises to Barriers
Act accessibility standards then in effect. The court framed the precise issue to
be decided as follows:

             The Architectural Barriers Act . . . requires that buildings con­
          structed or leased by the federal government be made accessible
          to handicapped persons. The issue before us is one of timing. The
          Postal Service argues that the Act requires leased buildings to
          comply when they are altered for some reason other than handi­
          capped access. Plaintiffs argue that the Government must require
          compliance as a condition of the lease. The dispute centers on

  7 In a case involving the Government’s potential liability for a sidewalk slip injury under the Federal Tort Claims
Act, one U.S district court, citing the Rose opinion, has noted in dicta that “ [t]he Architectural Barriers Act .
requires all buildings leased by the Postal Service after January 1, 1977, to be accessible to the handicapped.”
Wisner v. United States, 154 F.R D. 39, 44 n.2 (N D.N.Y. 1994) (emphasis added). Wisner did not provide any
further analysis explaining or supporting this assertion.


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                     Accessibility Guidelines and Federal Lease Renewals


        whether leasing or alteration is the event that triggers the Govern­
        ment’s duty under the Act.

774 F.2d at 1356-57 (emphasis added). The court proceeded to hold that leasing
is the event that triggers accessibility compliance obligations and that the Postal
Service therefore had a duty, without reference to alterations, to make all buildings
leased by it after January 1, 1977, accessible to the handicapped. Following an
exhaustive analysis of the critical 1976 amendments to the Barriers Act, the court
concluded: “ Ample evidence exists that Congress intended to close the loophole
through which inaccessible buildings were leased without alteration.” Id. at 1360.
In reaching this conclusion, the court invoked the following statement by Rep­
resentative Edgar during House Committee hearings as reflecting congressional
intent on the leasing issue when Congress passed the 1976 amendments to the
Act:

        The Act [currently] excludes buildings and facilities leased by the
        government which were not constructed or altered to government-
        drafted plans and specifications. This provision . . . excludes many
        buildings which were leased to the government without substantial
        alteration. The amendment . . . will solve that problem by
        including such buildings.

Public Buildings Cooperative Use: Hearings on H.R. 15134 Before the Subcomm.
on Public Buildings and Grounds of the House Comm, on Public Works and
Transportation, 94th Cong. 107-08 (1976) (prepared statement of Representative
 Edgar) (“ House Hearings” ). During the same hearings, a representative of the
then Department of Health, Education and Welfare ( “ HEW” ) similarly testified
regarding the intended effect of the 1976 Barriers Act amendments: “ If the lease
does not involve construction or alteration, then the accessibility requirement does
not now apply. . . . The proposed revision would correct this condition to apply
the accessibility requirement to all leases.” Id. at 135 (prepared statement of Gerrit
Fremouw, Deputy Assistant Secretary for Facilities Engineering and Property
Management, HEW).
   Thus, the only court opinion addressing the Barriers Act’s applicability to fed­
eral agency leases under the 1976 amendments holds that federal agencies exe­
cuting leases after January 1, 1977, “ must require compliance [with Barriers Act
accessibility standards] as a condition of the lease." 774 F.2d at 1356 (emphasis
added). On the other hand, the Rose opinion did not expressly consider the nar­
rower question posed here: whether negotiated renewals of expiring post-1976
leases should be treated as distinct leasing actions that trigger compliance obliga­
tions defined by standards that have been revised after the date of the original
lease. Insofar as the negotiated renewal of an expiring government lease may be

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equated with the “ leasing” of the facility, however, the Rose opinion would
appear to require that such renewals trigger an obligation to comply with gov­
erning standards under the Act. See id. Further, inasmuch as our opinions have
adopted the view that “ renewals constitute new leases under the Act,” see 1982
Opinion at 12, the Rose opinion supports the validity of the Board’s proposed
guideline.

                                                    C.

   The critical point of dispute between the Board and the USPS concerns the
negotiated renewal of agency leases first entered into subsequent to January 1,
1977. The Barriers Board asserts that its guidelines may treat such negotiated
renewals (excluding the unilateral exercise of an existing renewal option) as dis­
tinct leasing events that trigger an obligation to comply with superseding accessi­
bility requirements in effect at the time of renewal — even, presumably, if the
same building was previously rendered accessible in full compliance with previous
accessibility standards.8 The USPS counters, based in large part upon the effective
date language of the 1976 amendments, that such renewals do not trigger new
compliance obligations; in the USPS view, only first-time renewals of leases
entered into prior to January 1, 1977, trigger such obligations. USPS Letter at
5.9 According to the USPS arguments, requiring updated accessibility modifica­
tions when an agency enters into a subsequent lease for a building previously
rendered accessible would be redundant, excessively burdensome, and unsupported
by the provisions and purpose of the Act. See USPS Letter at 7-8; USPS Supple­
ment at 2, 4.
   Initially, we reject the contention that, by expressly providing that renewals of
pre-1977 leases are subject to compliance obligations, section 202 of the 1976
amendments implicitly establishes that renewals of post-1917 leases are exempt
from such obligations. See USPS Letter at 5; USPS Supplement at 1. Rather,
the explicit provision covering renewals of pre-1977 leases was necessary to avoid
any possible misunderstanding that buildings first leased prior to 1977 — which
were otherwise wholly exempted from coverage under the amendments — were
left permanently exempt, or “ grandfathered,” from accessibility compliance
requirements. Construing section 202 as containing an implicit restriction on the
Board’s authority to enhance accessibility requirements on the basis of future post-
 1977 leasing actions — i.e., negotiated lease renewals — would be inconsistent
with the expansive remedial objectives of the Act and its 1976 amendments.10

   8 In this regard, the Board also emphasizes that such compliance obligations may be waived under appropriate
circumstances to avoid unjust and excessive burdens upon the leasing agency See Board Supplement, Attachment
at 3.
   9 USPS acknowledges that “ a lease when first occupied must be retrofitted to meet the current regulations.”
USPS Letter at 4.
   10See, e.g.. House Hearings at 107-08, 135, 1987 Opinion at 1.


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                            Accessibility Guidelines and Federal Lease Renewals


   The amended Act simply does not address whether negotiated renewals of
expiring post-1976 leases should require updated accessibility modifications.
Rather, that narrow question is the very kind of unspecified, interstitial matter
that is properly left to the discretion of the agency charged with primary responsi­
bility for such interpretation — here, the Barriers Board. See, e.g., Precious Metals
Associates, Inc. v. CFTC, 620 F.2d 900, 911 (1st Cir. 1980) (agency rulemaking
proceedings “ are designed to fill in the interstices of a statute” ); Public Serv.
Co. v. United States Nuclear Regulatory Comm’n, 582 F.2d 77, 82 (1st Cir.) (“ In
a regulatory scheme where substantia] discretion is lodged with the administrative
agency charged with its effectuation, it is to be expected that the agency will
fill in the interstices left vacant by Congress.” ), cert, denied, 439 U.S. 1046
(1978). We have previously acknowledged that the Board “ has a great deal of
discretion” in fashioning guidelines to effectuate the Act’s mandate for maximum
accessibility, see 1980 Opinion at 4, and the interstitital guidelines proposed here
fall within the broad authority conferred on the Board."
   We recognize that the text of the Act does not specifically require buildings
leased by federal agencies after 1976 to be retrofitted to comply with intervening
changes in the accessibility standards every time those leases are renewed. See
42 U.S.C. §4155 (buildings “ designed, constructed, or altered” must comply with
governing standard under the Act). The same can be said, however, with regard
to entering into the initial lease of an existing building, which similarly does not
constitute the “ design[],” “ construct[ionl,” or “ alteration]” of a building that
are the only events explicitly mentioned in the provisions governing compliance
with the respective accessibility standards. See 42 U.S.C. §4155. But that basic
proposition — i.e., that the act of leasing triggers the agency’s duty to render a
facility accessible under the Act’s standards — is both conceded by USPS itself,
see USPS Letter at 3-4 (“ We agree that a lease when first occupied must be
retrofitted to meet the current regulations” ), and consistent with the Rose opinion,
see 774 F.2d at 1356. Thus, the guidelines’ application to post-1976 renewal leases
is merely an incremental administrative application of the broader established prin­
ciple that leasing actions may trigger accessibility compliance obligations under
the Act.

    11 We acknowledge the USPS argument that the proposed leasing guideline would in one respect subject govern­
ment-leased buildings to stricter accessibility standards than government-purchased buildings— because the latter
would be subjected to updated retrofit obligations only in the event o f alterations, whereas leased buildings would
be subjected to such obligations in the event o f a lease renewal as well as in the case of alterations See USPS
Letter at 6 -7 ; USPS Supplement at 2 Although USPS contends that this disparity ts contrary to congressional intent
in enacting the Act and its 1976 amendments, we find no evidence that Congress considered, let alone resolved,
such distinctions regarding the details and timing o f compliance obligations in the case of federally leased buildings
It is clear, however, that Congress intended the Act to be liberally construed to insure the broadest feasible accessi­
bility for persons with disabilities, including accessibility to government-leased buildings See 42 U.S C. § § 4 1 5 2 -
4154a; House Hearings at 107-08, 135; Rose, 774 F.2d at 1358—59;1987 Opinion at 5 Accordingly, we do not
believe that the Board’s proposed guideline is inconsistent with the congressional intent underlying the Act’s accessi­
bility requirements.


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   We think it is especially pertinent, moreover, that the Act requires that standard-
setting agencies “ shall prescribe such standards for the design, construction, and
alteration of its buildings to insure whenever possible that physically handicapped
persons will have ready access to, and use of, such buildings.” 42 U.S.C. § 4154a
(emphasis added). That sweeping phrase, “ to insure whenever possible,” indicates
that Congress intended to authorize broad standard-setting authority that would
maximize accessibility compliance within the statutory framework. It is therefore
permissible, if not mandatory, for the Board to be governed by that strong admoni­
tion in discharging its obligation to establish minimum guidelines and require­
ments for Barriers Act accessibility standards. See 29 U.S.C. § 792(b)(3)(A). Given
these considerations, and given that we have recognized that the negotiated
renewal of an expiring lease is indistinguishable from the execution of a new
lease for purposes of the Act, we conclude that imposing a requirement for
updated compliance with governing accessibility standards upon an agency’s nego­
tiated renewal of a post-1976 lease falls within the substantial discretion allotted
to the Board in establishing minimum guidelines for such standards under the
Barriers Act. Such guidelines reflect a reasonable interpretation of the statutory
requirements, which is entitled to substantial deference.12

                                             CONCLUSION

  Taking into account all the foregoing considerations, we conclude that the Board
would be acting within its statutory authority under 29 U.S.C. § 792(b) in adopting
Guidelines requiring federal agencies to comply with accessibility standards then
in effect when they enter or renew building leases, including negotiated renewals
of leases originally undertaken by the Federal Government subsequent to 1976.

                                                                      RANDOLPH D. MOSS
                                                               Acting Assistant Attorney General
                                                                    Office of Legal Counsel




   12 As one court characterized the role o f Chevron deference in this same context. “ Under Chevron, an agency’s
interpretation o f ambiguous statutory language is entitled to deference because of the agency’s delegated authority
to adm inister the s ta tu te ” PVA v. D.C. A rena L.P., 117 F 3 d 579, 585 (D C . Cir. 1997), cert denied, 523 U S
1003 (1998). Although the standard-setung agencies such as GSA and the USPS have their own authority to set
standards under the Act, the Board alone is charged with statutory responsibility to develop and issue the minimum
substantive guidelines and requirements that govern those agencies in their issuance of the standards, as well as
the authority to ensure compliance with those standards See 29 U.S.C § 792(b)(1), (3)(A). In that distinct capacity,
the Board’s interpretative judgm ents are entitled to appropriate deference.


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