     Applicability of the Architectural Barriers Act of 1968 to
             Buildings Financed with Federal Funds

A rc h ite c tu ra l B arriers A ct o f 1968 applies only w h e re federal g ra n ts o r loans are used to
   finance th e design, c o n stru ctio n , o r a lte ra tio n o f a building, and d o e s not ap p ly w h e re a
   b uilding is m erely leased w ith federal funds.

W h ile th e text and leg islative h isto ry o f the 1968 A c t are am biguous as to w h e th e r its
  ap p licab ility d ep en d s on actu al issuance o f sta n d ard s for design, c o n s tru c tio n , o r a lte r ­
  ation, b o th subsequent am en d m en ts to th e A c t an d co n sisten t ad m in istrativ e in te rp re ta ­
  tio n — su p p o rt th e co n clu sio n th at th e A c t applies if such sta n d ard s are a u th o rized
  u n d e r th e law au th o rizin g th e g ra n t o r loan, ev en if th ey h av e not been issued.


                                                                                                May 8, 1980

MEMORANDUM OPINION FOR TH E ASSISTANT ATTORNEY
        GEN ERA L, CIV IL RIGHTS DIVISION

   This responds to your memorandum requesting this Office to resolve
questions that have arisen concerning the scope of § 1 of the Architec­
tural Barriers Act of 1968 (Act), 42 U.S.C. §4151. Attached to your
memorandum were memoranda of the General Counsel of the Depart­
ment of Health, Education and Welfare (HEW) and the General Coun­
sel of the Architectural and Transportation Barriers Compliance Board
(ATBCB), presenting their respective positions. As set forth in the
cover letters attached to their memoranda, the questions on which
HEW and ATBCB have agreed to request our opinion are: (1) whether
the Act extends to buildings leased by a recipient of a federal grant or
loan where the recipient uses the federal funds to make rental pay­
ments; and (2) whether the Act covers only those buildings for which
standards for design, construction, or alteration actually have been
imposed, either by statute or by regulation. For the reasons set forth
below, we conclude that the Act covers those buildings for which
standards are authorized, even if they have not actually been imposed,
but that the Act does not extend to buildings leased by recipients of
federal grants or loans where the funds were not made available for
building construction or alteration.
   Before considering the particular statute in question, it is necessary
briefly to review the history and purpose of the Act, and subsequent


                                                      613
legislative developments.1 Enacted in 1968, the Act was designed to
insure that all buildings “constructed in the future by or on behalf of
the Federal Government or with loans or grants from the Federal
Government are designed and constructed in such a way that they will
be accessible to and usable by the physically handicapped.” S. Rep. No.
538, 90th Cong., 1st Sess. 2 (1967). In § 2, it authorized the Administra­
tor of General Services, in consultation with the Secretary of HEW, to
prescribe such standards for the design, construction, and alteration of
buildings as may be necessary to insure that physically handicapped
persons will have ready access to, and use of, such buildings.2 After the
effective date of a standard issued under the Act, every building subject
to the Act was required to be designed, constructed, or altered in
accordance with such standard.3 For purposes of the Act, the word
“building” was defined as follows:
        [T]he term “building” means any building or facility . . .
        the intended use for which either will require that such
        building or facility be accessible to the public, or may
        result in the employment or residence therein of phys­
        ically handicapped persons, which building or facility is—
        (1) to be constructed or altered by or on behalf of the
        United States;
        (2) to be leased in whole or in part by the United States
        after the date of enactment of this Act after construction
        or alteration in accordance with plans and specifications
        of the United States; or
        (3) to be financed in whole or in part by a grant or a loan
        made by the United States after the date of enactment of
       this Act if such building or facility is subject to standards
        for design, construction, or alteration issued under author­
        ity of the law authorizing such grant or loan.
Architectural Barriers Act, § 1, 82 Stat. 718 (1968) (current version at
42 U.S.C. §4151).
  In 1970, the A ct was amended to include the buildings and structures
constructed by the Washington Metropolitan Transit Authority. Act of
March 5, 1970, 84 Stat. 49 (codified at 42 U.S.C. §4151). Because the
Transit Authority is a regional agency formed by compact and not a

    1 F o r an analysis o f the legislative history o f the A ct and its im plem entation, see M inority Staff o f
Senate C om m , on Environm ent and Public W orks, 96th C ong., 1st Sess., A rchitectural Barriers In
Federal Buildings (Com m . Print 1979).
    2 82 Stat. 719 (1968). T h e re w ere tw o exceptions to § 2 . F o r residential structures subject to the
A ct, th e Secretary o f H ousing and U rban D evelopm ent w as authorized to prescribe standards. See
A rch itectu ral B arriers A ct, § 3 , 82 Stat. 719 (1968) (current version at 42 U.S.C. §4153). F o r facilities
o f the D ep artm en t o f D efense subject to the A ct, the Secretary o f D efense w as authorized to
prescribe standards. Id. at § 4 , 82 Stat. 719 (1968) (cu rren t version at 42 U.S.C. §4154). Both officials
w ere d irected to consult w ith the Secretary o f HEW .
   3 A rch itectu ral Barriers A ct, § 5 , 82 Stat. 719 (1968) (codified at 42 U.S.C. §4155). T he A ct did
allow exceptions to be m ade in som e circum stances. Id., § 6 , 82 Stat. 719 (1968) (current version at 42
U.S.C. §4156).


                                                      614
  federal agency, and because its buildings are not subject to regulation
  for design, construction, or alteration issued tinder authority of the law
  authorizing federal funds, the question arose whether it was covered by
  the Act. S. Rep. No. 658, 91st Cong., 2d Sess. 2 (1970). The amendment
  was passed to clarify the Act by clearly including the Washington
  subway system.4
    As a result of a report by the General Accounting Office,5 the Act
 again was amended in 1976 to “assure more effective implementation of
 the congressional policy to eliminate architectural barriers to physically
 handicapped persons in most federally occupied or sponsored build­
 ings.” H.R. Rep. No. 1584—Part I, 94th Cong., 2d Sess. 1 (1976). The
 amendment changed the law by extending its coverage to include the
 United States Postal Service; buildings privately owned, but used to
 provide public or federally subsidized housing; and all buildings to be
 leased in whole or in part by the United States. It also removed some
 of the discretionary authority of the administrative agencies. See Public
 Buildings Cooperative Use Act of 1976, § 201, 90 Stat. 2507 (codified at
 42 U.S.C. §§4151-4156).
    Since the passage of the Architectural Barriers Act, other steps have
 been taken by the federal government to eliminate architectural barriers
 in public buildings. In 1973, Congress passed the Rehabilitation Act,
 Pub. L. No. 93-112, 87 Stat. 355, an extensive revision of statutes
 dealing with vocational rehabilitation. Tw o of its provisions are rele­
 vant to the questions presented here. Section 502 of the Rehabilitation
Act established the ATBCB to insure compliance with standards pre­
scribed pursuant to the Architectural Barriers Act. 87 Stat. 391-393
(current version at 29 U.S.C. § 792). According to the Senate Labor
and Public Welfare Committee, a new federal board was needed “to
insure compliance with the present Federal statutes regarding architec­
tural barriers since compliance has been very spotty and there is no
such comparable compliance unit in existence. . . .” S. Rep. No. 318,
93d Cong., 1st Sess. 49 (1973). As amended by subsequent legislation,
§ 502 now provides that it is the function of the ATBCB to insure
compliance with the standards prescribed pursuant to the Architectural
Barriers Act, including enforcing all standards under that Act and
establishing minimum guidelines and requirements for such standards.
29 U.S.C. § 792(b)(l)-(7). In carrying out its functions, the Board may
issue orders of compliance, including the withholding or suspension of
federal funds with respect to any building found not to be in compli­
ance with standards being enforced. 29 U.S.C. § 792(d)(1).

    4 T h e am endm ent added subparagraph (4) to the definition o f “building” in 42 U.S.C. §4151. A s
used in the A ct, “ building” thus included any building o r facility “ to be constructed under authority o f
the N ational C apital T ransportation A ct o f 1960, the National C apital T ransportation A ct o f 1965, or
title III o f the W ashington M etropolitan A rea T ransit R egulation C o m p act.”
    5 R eport o f U nited States C om ptroller G eneral, “ F u rth er A ction N eeded to M ake A ll Public
Buildings Accessible to the Physically H andicapped” (July 15, 1975).


                                                   615
    Section 504 of the Rehabilitation Act provided that “[n]o otherwise
 qualified handicapped individual in the United States . . . shall, solely
 by reason of his handicap, be excluded from the participation in, be
 denied the benefits of, or be subjected to discrimination under any
 program or activity receiving Federal financial assistance.” 87 Stat. 394
 (codified at 29 U.S.C. §794). Executive Order No. 11914, issued in
 1976, directs the HEW Secretary to coordinate the implementation of
 § 504 by all federal departments and agencies empowered to extend
 financial assistance to any program or activity. Exec. Order No. 11914,
 45 C.F.R. Part 85 App. A (1979). The order also directs the Secretary
 to establish guidelines for agency standards for determining what are
 discriminatory practices, and, if voluntary compliance cannot be se­
 cured informally, authorizes the suspension or termination of financial
 assistance. Section 5 of the executive order authorizes the Secretary to
adopt rules to carry out the Secretary’s responsibilities. The rules so
adopted require in part that a program recipient’s facilities be accessible
to handicapped persons. 45 C.F.R. § 85.56-85.58. Thus, although the
executive order requires the Secretary to insure that HEW regulations
are not inconsistent with or duplicative of other federal policies relating
to the handicapped (including the Architectural Barriers Act), HEW
and ATBCB do have overlapping jurisdiction as to certain aspects of
federal programs and activities. The questions presented here, which
arise out of those agencies’ conflicting interpretations of the Architec­
tural Barriers Act, do not directly address that overlapping jurisdiction.
Resolution of those questions, however, will determine the scope of the
Act and, hence, the scope of ATBCB’s derivative jurisdiction.
   Both of the questions presented here require an interpretation of
subparagraph (3) of 42 U.S.C. §4151. That subparagraph provides that
the term “building” means any building or facility “to be financed in
whole or in part by a grant or a loan made by the United States after
August 12, 1968, if such building or facility is subject to standards for
design, construction, or alteration issued under authority of the law
authorizing such grant or loan.” The first question we address is
whether the quoted phrase includes buildings leased with federal funds
by grant or loan recipients of the federal government. To include such
buildings, the phrase “financed in whole or in part by a grant or a
loan” must be found to include payments of rent to owners of buildings
leased by grant or loan recipients. The plain language of the statute as
well as its legislative history make clear that the Act does not reach
so far.

                                    I.

 In common usage, “financing” a building generally refers to the
method of payment for purchase of the building or the labor and
materials needed to construct or alter it. The phrase “financed in whole
                                   616
or in part” appeared in both the House and Senate versions of the bill.
The Senate version provided that the term “public building” means any
non-residential building “financed in whole or in part with funds pro­
vided by a grant or loan made by the Federal Government.” S. 222,
90th Cong., 1st Sess. (1967).6 The amended House version, H.R. 6589,
contained the language which eventually became §4151. Because of
conflicting language in the two bills, a conference committee was
convened. 114 Cong. Rec. 20,683 (1968). The conference committee
recommended that the House version be passed with one amendment
not relevant here. H.R. Rep. No. 1787, 90th Cong., 2d Sess. 1 (1968).
This recommendation was agreed to in both Houses. 114 Cong. Rec.
23,722, 24,038 (1968).
   Hearings were held by both House and Senate committees. Through­
out these hearings, as well as throughout the reports of the congres­
sional committees, it is apparent that this legislation was intended to
cover construction of new buildings or planned alteration of existing
buildings. There is no indication that it alone was meant to trigger
alterations of existing buildings, whether owned by the federal govern­
ment, leased by the federal government, or owned or leased by recipi­
ents of federal funds. In the Senate hearings on S. 222, the sponsor of
the bill, Senator Bartlett, testified as follows:
         S. 222 is a simple bill. It seeks only to require that public
         buildings constructed with Federal funds, whether by or
         on behalf of the Federal Government or through a grant
         or loan to some other organization, be designed in such a
         manner that they be accessible to all the public, including
         the physically handicapped. I would emphasize here that I
         would be opposed to amendment to this bill requiring
         alteration of existing public buildings. Such a program
         would be, in my view, too expensive to undertake at this
         time. It is my belief that existing access problems which
         need remedial action should be taken up on a case-by-case
         basis.
  Accessibility o f Public Buildings to the Physically Handicapped: Hearings
on S. 222 Before the Subcomm. on Public Buildings and Grounds o f the
Sen. Comm, on Public Works, 90th Cong., 1st Sess. 3 (1967). If
“financed” included leasing, the Act would require massive and costly
alterations in the many buildings leased or to be leased by recipients of
federal funds, contrary to the sponsor’s intent. Other statements made
at Senate hearings also imply that the Act does not include leased
buildings. A representative of the Department of Housing and Urban
Development testified that the bill would cover “all contracts for the

   6   T h e Senate unanim ously passed S. 222 in 1967. 113 C ong. Rec. 24,133 (1967). T h e H ouse did not
act on either S. 222 o r its ow n bill, H .R. 6589, until 1968.


                                                 617
construction of public buildings, and all grants or loans made by the
Federal Government or any department or agency thereof fo r the
purpose o f financing the construction o f public buildings. . . . ” 7 Id., at 52
(emphasis added). Another witness urged that the words “alter” and
“remodel” be included in S. 222 so that the bill would not be limited to
new construction but “would also result in causing existing structures
to conform to architectural barrierless standards as changes are made in
such structures. ” Id., at 84. (Statement o f J.F. Nagle.) Reference to
“alteration” subsequently was added to the bill.
  Nor do statements made by witnesses at the House hearings on H.R.
6589 and S. 222 disclose any belief that the Act would require recipi­
ents of federal funds to lease only accessible buildings. Senator Bartlett
repeated that it would only apply to those buildings “to be built in the
future.” Building Design for the Physically Handicapped: Hearings on
H.R. 6589 and S. 222 Before the Subcomm. on Public Buildings and
Grounds o f the House Comm, on Public Works [House Hearings\ 90th
Cong., 2d Sess. 5 (1968). Congressman Bennett, the sponsor of H.R.
6589, stated that the legislation “would insure that public buildings
financed with public funds be designed to be accessible. . . .” Id., at 7.
The entirety of his brief testimony indicates his understanding that
“financed” refers to construction or alteration and not to making rental
payments. He emphasized the possible cost savings for “construction
and design of buildings,” and the cruelty of continuing “to approve
plans for public buildings” which are inaccessible to the handicapped.
Id. In discussing the definition of “public building” financed with fed­
eral funds, Representative G rover used the example of a small business
which gets a loan to construct a small factory, and even including this,
he suggested, may reach too far. Id., at 35.
   The conclusion that the term “financing” refers to financing the
construction of a building also finds support in the committee reports. In
the Senate report, the Committee summary o f the bill states that S. 222
will require “that grants or loans made by the Federal Government for
the purpose o f financing the construction o f public buildings be made upon
the condition that the design and construction of such buildings shall
comply with the regulations.” S. Rep. No. 538, 90th Cong., 1st Sess.
1-2 (1967) (emphasis added). The report stated that the legislation was
necessary “to insure that all public buildings constructed in the future
by or on behalf of the Federal Government or with loans or grants
from the Federal Government” are designed to be accessible. Id., at 2.
The House report on H.R. 6589 [H.R. Rep. No. 1532, 90th Cong., 2d
Sess. 2-3 (1968)] and the congressional debates reveal the same intent.
For example, Representative Cleveland, a co-sponsor of H.R. 6589,
stated: “It would not require alteration of already existing buildings,

  7   T h e w o rd “ public” in the term “ public building” in S. 222 w as deleted w hen the conference
adopted the H ouse language.


                                                618
 except to set design standards if alterations were undertaken anyway.”
•114 Cong. Rec. 17,432 (1968).
    The difficulty in applying subparagraph (3) to leases by loan or grant
 recipients is compounded by the second phrase of that paragraph which
 provides that buildings financed with federal funds are included only “if
 such building or facility is subject to standards for design, construction,
 or alteration issued under authority of the law authorizing such grant
 or loan.” If the extent of federal involvement is the grant or loan of
 program funds used solely to lease a building or facility, it is highly
 improbable that the law authorizing the grant or loan would authorize
 issuance of standards for design, construction, or alteration of the
building.
    The treatment in §4151 of buildings leased directly by the federal
government also indicates that the Act does not cover buildings leased
with loan or grant money. H.R. 6589, as amended in the second session
of the 90th Congress, provided that the term “building” would include
buildings “leased in whole or in part by the United States after the date
of enactment of this Act after construction or alteration in accordance
with plans and specifications of the United States.” This language was
adopted by the conference committee 8 and became subparagraph (2) of
§4151.® The House report explains that this language includes buildings
“to be leased and constructed or altered pursuant to plans and specifica­
tions specified by the Federal Government. . . .” H.R. Rep. No. 1532,
90th Cong., 2d Sess. 3 (1968).
    In the early versions of S. 222 and H.R. 6589, leasing was not
specifically mentioned. At the House hearings, Representative Grover
asked Senator Bartlett the following question: “In view of the language
in the bill, Senator, do you think that in (l)(a) where you talk about
public buildings being constructed by or on behalf of the Federal
Government, do you think that is broad enough to take in the wide
range of leasing arrangements that the Federal Government has with
respect to Federal Government buildings?” The Senator responded: “I
should hope that the regulations of the General Services Administrator
would make that abundantly clear. But if there is any doubt, sir, I
would favor writing it into the language of the act.” House Hearings,
supra at 6. Representative Grover’s question prompted additional dis­
cussion of the leasing question. During the testimony o f William
Schmidt, a representative of the General Services Administration, the
following colloquy occurred between Mr. Schmidt and Representative
Gray:
        Mr. Gray: I notice on page 2 of your statement, you say:
        Thus, the legislation encompasses not only buildings con-

 8 H.R. Conf. Rep. 1787, 90th Cong., 2d Sess. 1 (1968).
 9 82 Stat. 718 (1968). T his section was am ended in 1976. See n. 10 infra.

                                                  619
       structed by GSA under the provisions of the Public
       Buildings Act of 1959, but all structures which must be
       used by the public and which are financed at least in part
       by Federal funds.
       Did you hear the question that was propounded to Sena­
       tor Bartlett when we asked him if he felt that Post Office
       buildings and other projects, wholly owned by private
       enterprise, but leased to the Federal Government would
       be covered under the existing bill; or is it your feeling
       that we should tighten it up so as to make that clearer?
       Mr. Schmidt: I think the language is susceptible to the
       interpretation that it includes leased buildings, that is,
       buildings leased in whole by the Government. But I do
       not believe this is clear in the Senate Report No. 538 that
       the bill was intended to cover these facilities.
       I think it is quite to the contrary.
       Mr. Gray: Do you think it should be written into the law,
       or do you think it could be covered adequately in the
       House report?
       Mr. Schmidt: Actually I would see no objections to the
       inclusion of leased buildings, that is buildings leased by
       the Government, to be constructed or under construction,
       or altered. In fact we are beginning to include this re­
       quirement in our leasing procedures on all buildings to be
       constructed.
       Mr. Gray: Do you think adding the word “leased” would
       cover it?
       Mr. Schmidt: I think it would take some additional lan­
       guage to cover the leased facilities so that it would be
       without question.
Id., at 13. At the end of this discussion, Mr. Schmidt agreed to provide
to the committee some statutory language “to make sure that leased
buildings, Post Office and otherwise, are going to be covered the same
as Government-owned buildings.” Id., at 15. During the subsequent
House debate on H.R. 6589, which then had been amended to include
reference to federal leasing, Representative Gross asked if that lan­
guage, subparagraph 2, would cover “the lease-purchase post offices
presently being built throughout the country.” Representative Gray
responded: “I vyould say . . . that we did admonish the people down­
town to go back and eliminate those barriers which are necessary if we
already have the building under lease. And, if it is a new building to be
leased, we make it mandatory that the provisions of this bill be carried
out.” 114 Cong. Rec. 17,431 (1968).
                                     620
   It is clear from these discussions that the Congress considered the
question of leased buildings. It is also clear that they felt that the
language did not clearly cover leased buildings. Accordingly, they
added language which unmistakably included buildings to be leased by
the federal government if such buildings were to be constructed or
altered in accordance with plans and specifications of the United States.
They went no further. Congress made no amendment to include build­
ings leased with grant or loan money if that money was not used to
finance construction or alteration of the building.10
   A review of the committee hearings, the committee reports and the
floor debates reveals the overwhelming support for the goals of this
Act. In the House report, for example, the committee stated: “If people
who are physically handicapped are to rehabilitate themselves and seek
gainful employment, it is vitally necessary that they have access to and
are able to use buildings in which they work, visit, and reside in
carrying on a normal life.” H.R. Rep. No. 1532, 90th Cong., 2d
Sess. 3-4 (1968). Representative Gray, after noting that H.R. 6589 had
received “unanimous support from Members on both sides of the aisle,”
reminded his colleagues that the voluntary efforts of the federal agen­
cies had fallen short and needed to be supplemented by minimum
mandatory standards. 114 Cong. Rec. 17429-30 (1968). And the com­
mittees emphasized that the purpose of the Act was not to be circum­
vented by a narrow administrative interpretation of the word “build­
ing” by clearly stating their intent: “It is the intent of the committee
that the word ‘building’ as used in this bill be given the broadest
possible interpretation and include any structure which may be used by
the general public, whether it be a small rest station at a public park or
a multimillion-dollar Federal office building.” H.R. Rep. No. 1532, 90th
Cong., 2d Sess. 4 (1968); S. Rep. No. 538, 90th Cong., 1st Sess. 3
(1967). We believe that the conclusion reached here is consistent with
and furthers legislative intent, although it is a more restrictive
interpretation as to the number of structures to which the Act applies.
In our opinion, the language directing a broad interpretation of the
word “building” refers to the type of structure, not to the leasing or
financing arrangement. The examples given in the sentence quoted
above support this conclusion, as do excerpts from the congressional
hearings. One witness, for example, urged that the definition of “build­
ing” be broad enough to include such buildings and facilities as national
monuments, parking lots, and border immigration stations. House Hear-

   10    In 1976, subparagraph (2) o f §4151 w as am ended to delete the phrase “after construction o r
alteration in accordance w ith plans and specifications o f the O nited States." A ct o f O ct. 18, 1976,
§ 201(1), 90 Stat. 2507. See also H .R. Rep. No. 1584— Part I, 94th Cong., 2d Sess. 12 (1976). T h e A ct
now includes w ithin the meaning o f th e w ord “building," therefore, a building o r facility “ to be leased
in w hole o r in part by the U nited States after A ugust 12, 1968." 42 U.S.C. §4151. T hus, it was not
until 1976 that the C ongress chose to include under the A ct even those buildings leased directly by the
federal governm ent itself.

                                                  621
ings at 53 (statement of Heyward McDonald, Chairman, National Com­
mission on Architectural Barriers to Rehabilitation of the Handi­
capped). In our opinion, it is clear from the statute and its legislative
history that buildings leased with federal grant or loan funds are not
covered by the A ct.11

                                                    II.

   The second issue raised also requires careful analysis of subparagraph
(3) of §4151. A building financed by a federal grant or loan is subject
to the Act only if such building or facility is “subject to standards for
design, construction, or alteration issued under authority of the law
authorizing such grant or loan.” 42 U.S.C. §4151. The question pre­
sented here is whether applicability of the Act depends on actual
issuance of the standards, or if the Act is applicable even if such
standards, although authorized, have not been issued. The statutory
language is ambiguous, and reasonable persons could interpret it differ­
ently. It does state that a structure is included only if it “is” (not “may
be”) subject to standards “issued” (not “issuable”) under the authority
of the law authorizing the grant or loan. On the other hand, it could be
read to provide that a building is included if it is “subject” to standards
issued under the law. That is, if the law authorizes standards to be
imposed, the building could be considered to be “subject” to standards
issued under the law in question.
   The congressional intent underlying its language is difficult to dis­
cern. The phrase which imposes the condition that standards be issued
did not appear in the Senate version of the bill, S. 222, or in the early
House version. See H.R. 6589, 90th Cong., 1st Sess. (1967).12 During
the House hearings, concerns were expressed which may have caused
the language in question to be added. Questions arose, for example,
regarding the potentially overbroad definition of “public building.”
During the testimony of William A. Schmidt, a representative of the
General Services Administration (GSA), Representative Waldie asked
whether a local project financed primarily by local funds, but which
also received generous federal subsidies, would fall within the purview
of the legislation. House Hearings at 17. Neither Mr. Schmidt nor
Representative Gray, Chairman of the Subcommittee, could answer the
question. Representative Gray did state, however: “I doubt it seriously
in this legislation. We only have jurisdiction over public buildings and

   11 T h e m em orandum subm itted to us by the A TB C B, w hich is responsible for enforcem ent o f the
A ct, argues that the term ‘'financed" includes leasing. A lthough the interpretation o f the enforcing
agency must be given due deference (see p. 17, infra), it should not be follow ed if it is clearly
erroneous.
   12 As defined in those bills, the term “ public building” included simply any building “ financed in
w hole o r in part w ith funds provided by a grant o r loan m ade by the Federal G overnm ent, o r any
departm ent o r agency th ereo f after the date o f enactm ent o f this A ct.” T h e adjective “ public” was
later deleted.


                                                   622
  grounds.” Id. Mr. Schmidt then opined: “The bill is confined to public
 buildings as defined in the bill and would not cover federally subsidized
 public facilities.” Id. Later, Representative Grover again raised the
 issue of the scope of the definition, suggesting that some restrictive
 language might be appropriate. Id. at 35. Representative Gray joined
 Representative Grover in his inquiry whether certain public buildings,
 included in the broad definition in the bill, properly would lie in
 another legislative jurisdiction. Id. For example, some federally assisted
 programs, such as Department of Agriculture construction programs,
 hospital construction, and airport construction, would lie with legisla­
 tive committees other than the Committee on Public Works. Represent­
 ative Denney suggested that the ambiguity could be obviated by delet­
 ing entirely the section of the definition which included buildings fi­
 nanced with grant or loan funds. Id., at 36-37. This suggestion was
 criticized by subsequent witnesses who felt it substantially would
 weaken the bill. Id. at 53, 69, 91 (Statements of Heyward McDonald,
 William McCahill, and Representative James H. Scheuer).
    These questions were not resolved during the hearings. Subsequently,
 the committee added the language in question, conditioning coverage of
 the Act on whether the building is subject to standards issued under the
 law authorizing the grant or loan. H.R. Rep. No. 1532, 90th Cong., 2d
 Sess. 1 (1968). It is possible that the language was intended to minimize
 potential legislative jurisdictional conflict by limiting imposition of ac­
cessibility standards to those situations in which the Congress specifi­
cally authorizes construction or design standards to be imposed.
    The committee reports and the floor discussion of the bill provide
little additional guidance on interpreting this section. The House report
does suggest that standards actually must be imposed, by paraphrasing
the language as follows: “[T]he committee amended the legislation to
include any . . . building or facility . . . financed with funds provided
by a Federal grant or loan, if the recipients are required by the basic
legislation governing the grant or loan to adhere to regulations estab­
lishing standards for design, construction, and alterations. . . .” H.R.
Rep. No. 1532, 90th Cong., 2d Sess. 3 (1968) (emphasis added). It can
be inferred from remarks on the floor, however, that Congress assumed
that the Act would apply to all construction for which standards could
be imposed. Several speakers broadly stated that the bill was to reach
all buildings without indicating that any discretion was left in the
agencies. 114 Cong. Rec. 17,429-32 (1968) (remarks of Representatives
Gray, Fulton, Matsunaga, and Bennett). If an agency has discretion as
to whether to issue standards, then reading the Act to cover only those
buildings for which standards have been issued leaves some discretion
in the agencies. When Representative Gude asked Representative Gray,
Chairman of the Subcommittee, if transit facilities were covered by the

                                   623
Act, Mr. Gray unequivocally stated: “If constructed with Federal
public funds such facilities would be covered.” Id., at 17,431.
   When interpreting a statute, one may look for guidance to subsequent
legislation which may reveal the intent of an earlier statute. Red Lion
Broadcasting Co. v. FCC, 395 U.S. 367, 380-81 (1969). In 1970, as noted
earlier, Congress amended §4151 to include the Washington Metropoli­
tan Transit Authority. Pub. L. No. 91-205, 84 Stat. 49 (1970). The law
authorizing Washington Metro construction did not specifically provide
that design standards were to be imposed, although the regional agency
did have broad power to design, engineer, and construct the system.
See National Capital Transportation Act of 1965, Pub. L. No. 89-173,
§ 3, 79 Stat. 664. The system was not, however, actually subject to
standards for design issued under the Act. See Design and Construction
o f Federal Facilities to be Accessible to the Physically Handicapped: Hear­
ings on H.R. 14464 Before the Subcomm. on Public Buildings and
Grounds o f the House Comm, on Public Works, 91st Cong., 1st Sess. 21
(1969).13 According to the Senate report, this amendment was neces­
sary because the transit authority was a regional agency formed by
compact and not a Federal agency, and because “its buildings or struc­
tures are not subject to regulation for design, construction, or alteration
issued under authority of the law authorizing Federal funds.” S. Rep.
No. 658, 91st Cong., 2d Sess. 2 (1970). This suggests that mere authori­
zation may not be sufficient. The committee broadly stated, however,
that it was the intent of the committee reporting the 1968 Act “that all
buildings and structures which are to be used by the general public and
are financed in whole or in part with Federal funds be designed and
constructed so as to be accessible to the physically handicapped.” Id.
The House report stated that the 1968 Act “made it incumbent upon
the Federal Government to insure that all public buildings constructed
with Federal funds or constructed on behalf of the Federal Govern­
ment be constructed in such a way that they are accessible to all
people.” H.R. Rep. No. 750, 91st Cong., 1st Sess. 1 (1969). The report
also stated coverage of the Act was in doubt “ [b]y virtue of the unique
Federal-State relationship created through the [transit] compact” and
implied that the amendment resolves doubt as to the applicability of the
Act to mass transit facilities. Id., at 2.
   In 1973, the Department of Transportation requested an opinion from
the General Services Administration on the applicability of §4151 to
grants and loans to state and local communities by the Urban Mass
Transportation Administration for the construction and alteration of
mass transit facilities under § 3 of the Urban Mass Transportation Act

   13    A t the outset o f th e hearings. R epresentative G ray , C hairm an o f the Subcom m ittee, stated that
the legislation becam e necessary “w hen w e found the original legislation did not include rolling
stock.'* Hearings, at 4. T h e testim ony at the hearings centered on the A c t’s application to mass
transportation systems in general, not on th e question o f federal im position o f general design standards.


                                                    624
of 1964, 49 U.S.C. 1602. Section 3 authorizes the Secretary of Trans­
portation to make loans or grants to assist in construction of mass
transportation facilities “on such terms and conditions as he may pre­
scribe.” The GSA concluded that §4151 is applicable to grants and
loans for construction and alteration of buildings and facilities of that
kind, if the authorizing legislation is interpreted to permit loans and
grants to be subject to design and construction standards.14 The Gen­
eral Counsel of GSA relied heavily on the 1970 amendment concerning
the Washington Metro System, and on the instruction in the legislative
history of the Act that the word “building” be broadly interpreted.
   This has also been the interpretation of the ATBCB, which in 1973
was given responsibility for enforcing the Act. The Board’s proposed
regulations provided that the term “building” includes any building
financed by a grant or loan if such building “may be” subject to
standards for design, construction, or alteration. 41 Fed. Reg. 23,598
(1976). In the final regulations, “may be” was changed to “is,” but the
Board made clear in its comments that this change was not a change in
its interpretation of the statute. It wrote:
             The term “building,” § 1150.2(d), has also been revised
          by deleting the phrase “may be” in (iii) and substituting
          the word “is” in lieu thereof. One Federal commentator
          felt that the proposed language might be construed as a
          substantive change. That was not intended and the change
          has been made to more closely follow the definition of
          “building” in Pub. L. No. 90-480. This does not effect
          any change in interpreting the statute. See Opinion of
          General Counsel, General Services Administration, “First
          Report of the Architectural and Transportation Barriers
          Compliance Board” at pages 49-50.
41 Fed. Reg. 55,442 (1976). This has been the consistent interpretation
of the Board since it was established.
   When a statute has been officially interpreted by those agencies
charged with its administration and enforcement, such interpretations
must be given due deference. Griggs v. Duke Power Co., 401 U.S. 424,
433-34 (1971); Udall v. Tollman, 380 U.S. 1, 15 (1965); Norwegian
Nitrogen Products Co. v. United States, 288 U.S. 294, 315 (1933). G ener­
ally, reasonable interpretations of such agencies are not to be rejected
simply because alternative interpretations may be advanced. Miller v.
Youakim, 440 U.S. 125, 144 (1979); Train v. Natural Resources Defense
Council, Inc., 421 U.S. 60, 87 (1975). In our opinion, the interpretations

   14    T h e letter stated: “ Since the applicability o f (the A ct) is not dependent upon the exercise o f
discretionary authority by the agency, w e also conclude that the A ct is applicable, notw ithstanding
the fact that U M T A , as a m atter o f policy, may determ ine not to make such loans and grants subject
to design and construction standards not related to the handicapped." (O pinion letter o f the G eneral
Counsel, G SA (F ebruary 14, 1973)).


                                                  625
advanced by GSA and ATBCB are not unreasonable and, for this
reason, we conclude that the term “building” covers those buildings or
facilities financed by federal grants or loans if the law authorizing the
grant or loan also authorizes the issuance of standards for design,
construction, or alteration,15 even if, in its discretion, the agency
chooses not to issue such standards.16

                                                                 L eon      U lm a n
                                                  Deputy Assistant Attorney General
                                                      Office o f Legal Counsel




   15 W e interpret the phrase “ standards for design, construction, o r alteration" as referring to
architectural standards in general, not to accessibility standards in particular.
   16 In reaching the opposite conclusion, H E W argues that the B oard's construction raises due
process problem s because o f lack o f notice to the program recipients. W e d o not think the statute is
unconstitutionally vague, p articu larly w hen the agencies responsible for adm inistering and enforcing
the A ct officially have taken a consistent position for seven years. A statute is not unconstitutionally
vague because it may be am biguous o r open to tw o constructions. Williams v. Brewer, 442 F.2d 657,
660 (8th Cir. 1971). It is the responsibility o f th e B oard and th e granting agencies to see that recipients
are inform ed o f and com ply w ith th e A ct.

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