[Federal Register: September 30, 2004 (Volume 69, Number 189)]
[Proposed Rules]
[Page 58767-58786]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30se04-38]
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Part V
Department of Justice
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28 CFR Parts 35 and 36
Civil Rights Division; Nondiscrimination on the Basis of Disability in
State and Local Government Services; Nondiscrimination on the Basis of
Disability by Public Accommodations and in Commercial Facilities;
Proposed Rule
[[Page 58768]]
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DEPARTMENT OF JUSTICE
28 CFR Parts 35 and 36
[CRT Docket No. 2004-DRS01; AG Order No. 2736-2004]
RIN 1190-AA46 and 1190-AA44
Civil Rights Division; Nondiscrimination on the Basis of
Disability in State and Local Government Services; Nondiscrimination on
the Basis of Disability by Public Accommodations and in Commercial
Facilities
AGENCY: Department of Justice, Civil Rights Division.
ACTION: Advance notice of proposed rulemaking.
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SUMMARY: The Department of Justice (Department) is issuing this Advance
Notice of Proposed Rulemaking (ANPRM) in order to begin the process of
adopting Parts I and III of the revised guidelines implementing the
Americans with Disabilities Act of 1990 (ADA) and the Architectural
Barriers Act of 1968 (ABA),\1\ published by the Architectural and
Transportation Barriers Compliance Board (Access Board) on July 23,
2004, at 69 FR 44083.\2\ The ADA requires the Department to adopt
enforceable accessibility standards that are ``consistent with the
minimum guidelines and requirements issued by the Architectural and
Transportation Barriers Compliance Board'' (42 U.S.C. 12186). The
Department adopts and enforces standards consistent with the Access
Board's guidelines under the Department's regulations implementing
Title II (Subtitle A) and Title III of the ADA as the ADA Standards for
Accessible Design (ADA Standards). Prior to their adoption by the
Department, the revised Access Board guidelines are effective only as
guidance to the Department; they have no legal effect on the public
until the Department issues a final rule adopting revised ADA
Standards. In this ANPRM, the current, legally enforceable ADA
Standards will be referred to as the ``current ADA Standards,'' while
the revisions that will be proposed in the NPRM, based on Parts I and
III of the revised ADA and ABA Accessibility Guidelines, will be
referred to as the ``revised ADA Standards.'' The Access Board's
revised ADA Accessibility Guidelines will be cited as ``ADAAG.''
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\1\ Part II of the Architectural Transportation Barriers
Compliance Board's revised guidelines applies to facilities subject
to the ABA. Regulations implementing the ABA are issued by the
Department of Defense, the Department of Housing and Urban
Development, the General Services Administration, and the U.S.
Postal Service.
\2\ The Access Board's revised ADA Accessibility Guidelines are
available on the Access Board's Web site at http://www.access-board.gov.
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The purpose of this ANPRM is twofold: To solicit public input on
various issues relating to the potential application of the revisions
to the ADA Standards and to obtain background information for the
regulatory assessment that the Department must prepare in the process
of adopting the revisions to the ADA Standards.
DATES: All comments must be received by January 28, 2005.
ADDRESSES: Submit electronic comments and other data to adaanprm.org or
http://www.regulations.gov. See SUPPLEMENTARY INFORMATION--Electronic
Submission of Comments and Electronic Access for file formats and other
information about electronic filing.
Address all written comments concerning this ANPRM to P.O. Box
1032, Merrifield, VA 22116-1032.
FOR FURTHER INFORMATION CONTACT: Anne Beckman or Kate Nicholson,
Attorneys, Disability Rights Section, Civil Rights Division, U.S.
Department of Justice, at (202) 307-0663 (voice or TTY). This is not a
toll-free number. Information may also be obtained from the
Department's toll-free ADA Information Line at (800) 514-0301 (voice)
or (800) 514-0383 (TTY).
You may obtain copies of this rule in large print, audiotape, or
computer disk by calling the ADA Information Line at (800) 514-0301
(voice) and (800) 514-0383 (TTY). This rule is also available in an
accessible format on the ADA Home Page at http://www.ada.gov.
SUPPLEMENTARY INFORMATION:
Electronic Submission of Comments and Electronic Access
You may submit electronic comments to adaanprm.org or
http://www.regulations.gov. You may view an electronic version of this
proposed rule at http://www.regulations.gov. This rule is also available in an
accessible format on the ADA Home Page at http://www.ada.gov. When submitting
comments electronically, you must include CRT Docket No. 2004-DRS01 in
the subject box and you must include your full name and address.
Inspection of Comments
All comments will be available to the public online at adaanprm.org
and, by appointment, during normal business hours, at the office of the
Disability Rights Section, Civil Rights Division, U.S. Department of
Justice, located at 1425 New York Avenue, Suite 4039, Washington, DC
20005. To arrange an appointment to review the comments, please contact
the ADA Information Line listed above.
Purpose
On July 26, 1990, President George H.W. Bush signed into law the
Americans with Disabilities Act (42 U.S.C. 12101 et seq.), a
comprehensive civil rights law prohibiting discrimination on the basis
of disability. In 2001, President George W. Bush underscored the
nation's commitment to ensuring the rights of over 50 million
individuals with disabilities nationwide by announcing the New Freedom
Initiative (http://www.whitehouse.gov/infocus/newfreedom). The New Freedom
Initiative builds upon the legacy of the ADA by promoting improved
access to assistive and universally designed technology, educational
opportunities, the workplace, and community living for individuals with
disabilities. The New Freedom Initiative also expressly recognizes the
importance of ADA enforcement. The Access Board's publication of
revised accessibility guidelines is the culmination of a long-term
effort to facilitate ADA compliance and enforcement by eliminating
inconsistencies among Federal accessibility requirements and between
Federal accessibility requirements and State and local building codes.
In support of this effort, the Department is announcing its intention
to adopt, in a separate Notice of Proposed Rulemaking (NPRM) to follow
this ANPRM, standards consistent with Parts I and III of the Access
Board's revised guidelines as the ADA Standards for Accessible Design.
To facilitate this process, the Department is seeking public comment on
the issues discussed in this notice.
The ADA and Department of Justice Regulations
The ADA broadly protects the rights of individuals with
disabilities in employment, access to State and local government
services, places of public accommodation, transportation, and other
important areas of American life and, in addition, requires that newly
designed and constructed or altered public accommodations and
commercial facilities be readily accessible to and usable by
individuals with disabilities. Under the ADA, the Department is
responsible for issuing regulations to implement Title II and Title III
of the Act, except to the extent that transportation providers subject
to Title II or Title III are regulated by the Department of
Transportation.
Title II applies to State and local government entities, and, in
Subtitle A, protects qualified individuals with
[[Page 58769]]
disabilities from discrimination on the basis of disability in
services, programs, and activities provided by State and local
government entities. Title II extends the prohibition of discrimination
established by section 504 of the Rehabilitation Act of 1973, as
amended (Rehabilitation Act) (29 U.S.C. 794) (hereinafter, Section
504), to all activities of State and local governments regardless of
whether these entities receive Federal financial assistance (42 U.S.C.
12131 et seq.). Title III prohibits discrimination on the basis of
disability in the activities of places of public accommodation
(businesses that are generally open to the public and that fall into
one of twelve categories listed in the ADA, such as restaurants, movie
theaters, schools, day care facilities, recreation facilities, and
doctors' offices) and requires newly constructed or altered places of
public accommodation--as well as commercial facilities (privately
owned, nonresidential facilities like factories, warehouses, or office
buildings)--to comply with the ADA Standards (42 U.S.C. 12182 et seq.).
On July 26, 1991, the Department issued its final rules
implementing Title II and Title III, which are codified at 28 CFR part
35 (Title II) and part 36 (Title III). Appendix A of the Title III
regulation, at 28 CFR part 36, contains the current ADA Standards,
which were based upon the ADAAG published by the Access Board on the
same date. Under the Department's regulation implementing Title III,
places of public accommodation and commercial facilities are required
to comply with the current ADA Standards with respect to newly
constructed or altered facilities. By contrast, under the regulation
implementing Title II, State and local government entities are
currently permitted to choose to apply either the requirements
contained in the Uniform Federal Accessibility Standards (UFAS) or
those contained in the ADA Standards with respect to their newly
constructed or altered facilities. For greater uniformity, when the
Department proposes to adopt the revised ADA Standards, the Department
will also propose to withdraw the option of using UFAS under Title II.
The Roles of the Access Board and the Department of Justice
The Access Board was established by section 502 of the
Rehabilitation Act, 29 U.S.C. 792. The Board consists of thirteen
public members appointed by the President, of whom a majority must be
individuals with disabilities, and twelve Federal agencies designated
by law, including the Department of Justice and the Department of
Transportation. The ADA requires the Access Board to ``issue minimum
guidelines that shall supplement the existing Minimum Guidelines and
Requirements for Accessible Design for purposes of subchapters II and
III of this chapter * * * to ensure that buildings, facilities, rail
passenger cars, and vehicles are accessible, in terms of architecture
and design, transportation, and communication, to individuals with
disabilities'' (42 U.S.C. 12204). The ADA requires the Department of
Justice to issue regulations that include enforceable accessibility
standards applicable to facilities subject to Title II or Title III
that are consistent with the minimum guidelines issued by the Access
Board (42 U.S.C. 12134, 12186).
The Department of Justice was extensively involved in the
development of the ADAAG. As a Federal member of the Access Board, the
Department voted to approve the revised guidelines. Although the
enforceable standards issued by the Department under Title II and Title
III must be consistent with the minimum guidelines published by the
Access Board, it is the responsibility solely of the Department of
Justice to promulgate standards and to interpret and enforce those
standards.
The ADA also requires the Department to develop regulations with
respect to existing facilities subject to Title II (Subtitle A) and
Title III. How and to what extent the Access Board's guidelines are
used with respect to the readily achievable barrier removal requirement
applicable to existing facilities under Title III of the ADA and with
respect to the provision of program accessibility under Title II of the
ADA is solely within the discretion of the Department of Justice.
The Revised Guidelines
The revised ADA and ABA Accessibility Guidelines are the product of
ten years of effort to modify and update the current guidelines,
reflecting compromise and the cooperative efforts of a host of private
and public entities. Part I provides scoping requirements for
facilities subject to the ADA; scoping is a term used in the revised
guidelines to describe requirements (set out in Parts I and II) that
prescribe what elements and spaces and, in some cases, how many, must
comply with the technical specifications set out in Part III. Part II
provides scoping requirements for facilities subject to the ABA, and
Part III provides uniform technical specifications for facilities
subject to either statute. This revised format is intended to eliminate
unintended conflicts between the two Federal accessibility standards
and to minimize conflicts between the Federal regulations and the model
codes that form the basis of many State and local building codes.
Since 1998, the Access Board has amended ADAAG four times, adding
specific guidelines in the following areas: State and local government
facilities (63 FR 2000, Jan. 13, 1998); building elements designed for
use by children (63 FR 2060, Jan. 13, 1998); play areas (65 FR 62497,
Oct. 18, 2000); and recreation facilities (67 FR 56352, Sept. 3, 2002).
These amendments to ADAAG have not previously been adopted by the
Department as ADA Standards.
The revisions to ADAAG that were published by the Access Board on
July 23, 2004, represented the culmination of a lengthy review process.
In 1994, the Access Board began the process of updating the original
ADAAG by establishing an advisory committee comprised of members of the
design and construction industry, the building code community, State
and local government entities, and people with disabilities. In 1999,
based largely on the report and recommendations of this advisory
committee,\3\ the Access Board issued a proposed rule to jointly update
and revise its ADA and ABA accessibility guidelines, 64 FR 62248-01
(Nov. 16, 1999). In response to its rule, the Access Board received
more than 2,500 comments from individuals with disabilities, affected
industries, State and local governments, and others. The Access Board
provided further opportunity for participation by holding public
hearings throughout the nation. From the beginning, the Access Board
also worked vigorously to harmonize the ADA and ABA Accessibility
Guidelines with industry standards and model codes that form the basis
for many state and local building codes. The Access Board released an
interim draft of its guidelines to the public in April 2002, 67 FR
15509, in order to provide an opportunity for entities with model codes
to consider amendments that would promote further harmonization. By the
date of its final publication on July 23, 2004, 69 FR 44083, the
revised ADA Accessibility Guidelines had been the subject of
extraordinary public participation and review. Through this ANPRM, the
Department is announcing its intention to publish a proposed rule that
will
[[Page 58770]]
adopt revised ADA Standards consistent with all of the amendments to
ADAAG since 1998.
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\3\ After a two-year process of collaboration with the Access
Board, the Advisory Committee issued ``Recommendations for a New
ADAAG'' in September 1996.
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The Department's Request for Comments
Before publishing a proposed rule, the Department is seeking public
comment on the issues discussed below. These issues have been divided
into four substantive sections in this ANPRM: I. General Issues; II.
Specific Issues; III. Miscellaneous Matters; and IV. Regulatory
Assessment Issues.
Because the Department, as a member of the Access Board, has
already had the opportunity to review comments provided to the Access
Board during its development of the amendments to ADAAG, it is not
necessary to resubmit those comments to the Department. In addition to
seeking comments in response to the specific questions raised in this
ANPRM, the Department is particularly interested in receiving comments
from covered entities and from individuals with disabilities about the
potential application of the new or revised ADAAG requirements as they
may apply to existing facilities.
I. General Issues
The prospect of adopting revised ADA Standards raises a number of
general issues, ranging from setting an effective date for the
application of the revised ADA Standards to determining what effect the
new provisions will have on those elements of facilities that are
already in compliance with the current ADA Standards. Responses should
clearly identify the specific question being addressed according to the
numbered questions in this document.
Effective Date: Time Period
Current Approach. The Department must set an effective date for the
application of the revised ADA Standards to facilities that will be
newly constructed or altered following the publication of a final rule.
When the ADA was enacted, the effective dates for various provisions
were delayed in order to provide time for covered entities to become
familiar with their new obligations. Title II and Title III of the ADA
generally became effective on January 26, 1992, six months after the
regulations were published. New construction under Title II and
alterations under either Title II or Title III had to comply with the
design standards on that date. For new construction under Title III,
the requirements applied to facilities designed and constructed for
first occupancy after January 26, 1993--eighteen months after the ADA
Standards were published by the Department.\4\
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\4\ Subtitle A of Title III of the ADA, at 42 U.S.C. 12183,
prohibits the design or construction of facilities that are not
readily accessible to and usable by individuals with disabilities
when such facilities are intended for first occupancy more than 30
months after enactment of the ADA, except in cases of structural
impracticability. This requirement is implemented in the
Department's Title III regulation at 28 CFR 36.401.
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Possible New Approaches. The Department is seeking comment on the
following three options.
Option I: Eighteen months. Under this option, the effective date of
the proposed revised ADA Standards would be eighteen months after
publication of the final rule--the same time period used for the
effective date of the ADA as a whole and for the effective date of the
current ADA Standards with respect to new construction under Title III.
Although this time period has the advantage of ample precedent, it was
originally used in the context of a new law with which there was little
or no familiarity or experience. It may be inappropriately long in the
current context.
Option II: Six months. Under the second option, the effective date
of the proposed revised ADA Standards would be six months after
publication of the final rule--the time period used for newly
constructed and altered facilities subject to Subtitle A of Title II of
the ADA and for altered facilities subject to Title III. The Department
is considering this shorter period of time because the changes in
scoping and technical specifications to the revised ADA Standards are
primarily incremental. Further, those requirements that are new (for
elements and spaces that are not addressed in the current ADA
Standards) have been developed with extensive public participation and,
in some cases, have been available to the public through the amended
editions of ADAAG for several years. Finally, the new format and
organization of the revised ADA Standards would follow the format and
organization of the model codes and should be more familiar to covered
entities and design professionals than were the current ADA Standards
when adopted. The Department recognizes, however, that because covered
entities may have large ongoing construction projects, such entities
may need longer than this proposed six-month period to incorporate the
final changes to the revised ADA Standards into the design of those
projects.
Option III: Twelve months. Under the third option, the effective
date of the revised ADA Standards would be twelve months after
publication of the final rule. This option shortens the time period
envisioned by Option I, while providing more time than Option II in
order to allow for the integration of the revised ADA Standards into
larger construction projects.
Question 1. Should the effective date of the proposed revised ADA
Standards be modeled on the effective date used to implement the
current ADA Standards--eighteen months after publication of the final
rule--or a shorter period? If you favor a shorter period, please
indicate which period you favor and provide as much detail as possible
in support of your view.
Effective Date: Triggering Event
The term ``triggering event'' identifies the event or action that
compels compliance with the ADA Standards. The Department's regulations
implementing Title II (28 CFR Part 35) and Title III of the ADA (28 CFR
Part 36) establish the separate triggering events for new construction
and alterations that are explained below. The Department's experience
to date indicates that these triggering events work well; therefore,
the Department is reluctant to change them. The Department recognizes,
however, that ADAAG now includes requirements for types of facilities,
such as recreation and play areas, that may pose design and
construction issues compelling a different result.
Current Approach. Title III of the ADA and the implementing
regulations provide that covered entities must design and construct
facilities ``for first occupancy'' after the effective date in
accordance with the current ADA Standards (28 CFR 36.401). Thus, for
purposes of Title III, the triggering event for newly constructed
facilities, which is dictated by statute, is first occupancy. The Title
III regulation defines ``first occupancy'' in relation to the
completion of the application for a building permit (which had to have
been completed less than twelve months before the effective date) and
the issuance of a certificate of occupancy (which had to have been
completed after the effective date). With respect to altered facilities
under Title III, the triggering event is the date ``physical alteration
begins'' (28 CFR 36.402(a)(2)). The implementing regulation for Title
II provides that the triggering event for both new construction and
alterations is the commencement of construction (28 CFR 35.151).
Possible Additional Approach. To the extent applicable, the
Department intends to continue to use the same triggering event for
each category
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described above; that is, for new construction under Title III, first
occupancy; \5\ for alterations under Title III, when physical
alteration begins; and under Title II, for both new construction and
alterations, the commencement of construction. The Department is
concerned, however, that while these triggering events are appropriate
for most building situations, they may not necessarily be appropriate
for all of them--particularly if there are Title III facilities that do
not require building permits or that do not receive certificates of
occupancy. The Department is concerned that, as applied to these
different types of facilities, the triggering events established under
the Title II and Title III regulations may be difficult to apply.
Therefore, the Department is considering ``first use'' as an
alternative trigger for such facilities.
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\5\ If the Department decides to use the six-month effective
date of Option II in Question 1, above, the application of the two-
step test for first occupancy (building permit and certificate of
first occupancy) currently used for new construction under Title III
would be modified to fit within that period.
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Question 2. The Department is asking the public to identify any
facilities for which the current triggering events might prove
unworkable. Are there facilities covered by the revised ADA Standards
that are subject to Title III for which first occupancy/physical
alteration do not apply in the new construction/alteration context?
Please be specific about the type of facility that would be affected,
and what other event, such as ``first use,'' would work better for each
specified type of facility. Are there facilities subject to Title II
for which commencement of construction would be difficult to apply?
Please be specific about the type of facility, and what other event,
such as ``first use,'' would work better for each specified type of
facility.
Revised ADA Standards: Existing Facilities
As noted above, the Department anticipates proposing revised ADA
Standards for new construction and alterations that are consistent with
ADAAG. In making this proposal, one of the most important issues that
the Department must address is the effect that new or changed ADA
Standards will have on the continuing obligation of public
accommodations to remove architectural, transportation, and
communication barriers in existing facilities to the extent that it is
readily achievable to do so. This issue has not been addressed in ADAAG
because it is outside of the scope of the Access Board's authority
under the ADA. Responsibility for implementing Title III's requirement
that public accommodations eliminate existing architectural barriers
where it is readily achievable to do so rests solely with the
Department of Justice.
The Department's current regulation implementing Title III of the
ADA, 28 CFR 36.304, establishes the requirements for readily achievable
barrier removal by public accommodations. Under this regulation, the
Department uses the ADA Standards as a guide to identify what
constitutes an architectural barrier. Once adopted, the revised ADA
Standards will present a new reference point for Title III's
requirement to remove the architectural barriers in existing places of
public accommodation. The Department is concerned that the incremental
changes in ADAAG may place significant cost burdens on businesses that
have already complied with the ADA Standards in their existing
facilities. The Department therefore seeks to strike an appropriate
balance to ensure that people with disabilities are able to achieve
access to buildings and facilities without imposing unnecessary
financial burdens on existing places of public accommodation with
respect to their continuing obligations under the readily achievable
barrier removal requirement.
The Department is considering several ways in which to reduce such
financial burdens. One approach is to establish a safe harbor under
which the Department would deem compliance with scoping and technical
requirements in the current ADA Standards by elements in existing
facilities to constitute compliance with the ADA for purposes of
meeting barrier removal obligations. Another possible approach is to
reduce the scoping requirements for some of the new or changed
requirements as they are applied to existing facilities. Yet another
potential approach is to determine that certain new or revised
technical requirements are inappropriate for barrier removal and thus
would not be required in satisfaction of a barrier removal obligation.
These approaches can be used alone or in combination.
Option I: Safe harbor for compliant elements. This option would
provide a safe harbor for any elements of existing facilities that are
in compliance with the specific requirements (scoping and technical
specifications) of the current ADA Standards. For this purpose,
compliance with the scoping and technical requirements of the current
ADA Standards would be determined on an element-by-element basis in
each covered facility; that is, only those elements in each covered
facility that are in compliance with applicable scoping and technical
requirements in the current ADA Standards would be subject to the safe
harbor. Elements that are addressed for the first time in the revised
ADA Standards, however, would not be subject to the safe harbor.
Several considerations support this approach. To the extent places
of public accommodation have complied with the specific scoping and
technical requirements of the current ADA Standards, it would be an
inefficient use of resources to require them to retrofit simply to
comply with the revised ADA Standards if the change provides only a
minimal improvement in accessibility. In addition, covered entities
would have a strong disincentive to comply voluntarily with the readily
achievable barrier removal requirement if, every time the ADA Standards
are revised, they are required once again to retrofit elements just to
keep pace with the current standards.
The Department recognizes that there are also considerations
opposing this approach. When adopted, some of the revised ADA Standards
will reflect up-to-date technologies that could provide critical access
for individuals with disabilities in certain contexts that is not
provided under the current ADA Standards. While the incremental benefit
of the revisions may be minimal with respect to some elements, with
respect to others the revised ADA Standards could confer a significant
benefit on some individuals with disabilities that would be forgone if
this option is adopted. Because there are valid arguments on both sides
of this issue, the Department is seeking public comment on the issue of
whether or not to provide a safe harbor for design elements that comply
with the current ADA Standards.
This safe harbor option would, of course, have no effect on
noncompliant elements. To the extent that elements in existing
facilities are not already in compliance with scoping and technical
requirements in the current ADA Standards, existing public
accommodations would be required to remove barriers, to the extent
readily achievable, to make elements comply with the revised ADA
Standards.
Here is an example of how that option would work. The current ADA
Standards address maximum side reach ranges, which are required to be
no higher than 54 inches. The revised ADA Standards lower that range to
48 inches (ADAAG 308.3). If this option was adopted, a public
accommodation, e.g., a hotel chain, that had lowered its light switches
to 54 inches or an entity that had lowered its pay phones to 54 inches
[[Page 58772]]
would not be required to do further barrier removal to reduce those
elements to 48 inches. However, if this option was not adopted, even
existing facilities that had complied with the current ADA Standards by
ensuring that all required accessible elements were no higher than 54
inches would be required to retrofit those elements to lower them to 48
inches, assuming it was readily achievable to do so. Under both
options, however, existing facilities that had not complied with the
current ADA Standards (whose required accessible elements were, for
example, located 60 inches high) would still be required to undertake
barrier removal to lower them to 48 inches, if readily achievable.
This option involves only those elements that are addressed by, and
in compliance with, specific requirements (scoping and technical
specifications) in the current ADA Standards. Elements that will be
addressed for the first time in the revised ADA Standards would not be
eligible for the safe harbor.
Question 3. Should the Department provide any type of safe harbor
so that elements of facilities already in compliance with the current
ADA Standards need not comply with the revised ADA Standards? Please
provide as much detail as possible in support of your view.
Option II: Reduced scoping for specified requirements. The scoping
requirements in the revised ADA Standards apply to new construction and
alterations. Under a reduced scoping option, the Department would, for
the purposes of barrier removal, provide an alternative set of reduced
scoping requirements applicable to certain specific new or changed
technical requirements in the revised ADA Standards. Examples of such
new technical requirements might include specific elements in the
guidelines adopted for play areas and recreation facilities.
For example, ADAAG now requires a swimming pool over 300 feet in
perimeter to have two accessible means of entry to the pool (ADAAG
242.2). The Department anticipates adopting new standards based on this
requirement. Under the current ADA Standards, while there have been
requirements addressing parking, the entrance to the facility, common
areas, and the route to the pool, there has been no scoping or
technical requirement addressing entry into and exit from the pool
itself.
In implementing this new requirement with respect to existing
facilities pursuant to the readily achievable barrier removal
requirement, the Department is considering whether it might be
appropriate to state that providing only one accessible means of entry
to an existing pool satisfies the obligation for readily achievable
barrier removal. Even with this reduced scoping, the readily achievable
defense would still be available to covered entities that cannot afford
to provide even one means of entry. Under this option, however, even if
it would be readily achievable for that entity to provide two
accessible means of entry, it would only be required to provide one.
This is just one example of a requirement for which reduced scoping
might be appropriate. Others might include the minimum number of
accessible saunas and steam rooms required in existing facilities or
the minimum number of accessible boat slips required in existing
boating facilities.
Option III: Exemption from specified requirements. The Department
is also considering whether to identify particular elements in the
scoping and technical requirements in the revised ADA Standards that
will not be required for barrier removal. Among the possibilities is
the requirement that handrails on stairs must meet accessibility
requirements even in buildings that have elevator access (ADAAG 210).
Under this option, the Department could determine that entities will
not be required, for purposes of compliance with the readily achievable
barrier removal requirement, to make handrails on stairs in an already
existing elevator-accessible facility comply with the scoping and
technical requirements in the revised ADA Standards.
There is precedent for this third option in the Department's
current regulations, which currently exempt employee work areas from
any obligation to retrofit pursuant to the readily achievable barrier
removal requirement. Because the purpose of Title III is to ensure that
public accommodations are accessible to their clients and customers, it
is the Department's longstanding view that the barrier removal
requirement does not apply to areas used exclusively as employee work
areas (28 CFR part 36, App. B). The Department intends to continue this
exemption in the new regulations but notes that, notwithstanding this
exemption, Title I of the ADA requires employers to provide reasonable
accommodation for any employee with a disability. Thus, to the extent
any provisions in the revised ADA Standards address elements or spaces
in work areas, compliance with those provisions with respect to those
elements or spaces will not be necessary to comply with an entity's
obligations under the readily achievable barrier removal requirement.
Question 4. Reducing or exempting specified requirements.
a. Should the Department adopt Option II, and develop an
alternative set of reduced scoping requirements for the barrier removal
obligation? If so, which specific requirements or elements should be
addressed? If possible, provide detailed information about the costs or
difficulties that would be incurred in making the modification.
b. Should the Department adopt Option III, and exempt certain
scoping and technical requirements in the revised ADA Standards that
will not be required for barrier removal? If so, which specific
requirements or elements should be addressed? If possible, provide
detailed information about the costs or difficulties that would be
incurred in making the modification.
II. Specific Issues
The prospect of adopting revised ADA Standards also raises a number
of issues for the Department with respect to specific provisions,
ranging from whether altered detention and correction cells should be
required to be accessible to what kinds of housing currently classified
as transient should be reclassified as residential.
Reduced Scoping for Large Assembly Facilities
The ADAAG section 221 will reduce the number of wheelchair spaces
and companion seats required in assembly areas that seat more than 500
patrons. The current ADA Standards provide that assembly areas with
more than 500 seats must provide six wheelchair spaces plus one
additional wheelchair space for each additional 100 seats. ADAAG
provides that assembly areas that have 501 to 5000 seats must provide
six wheelchair spaces plus one additional wheelchair space for each
additional 150 seats (or fraction thereof) between 501 and 5000.
Assembly areas that have more than 5000 seats must provide 36
wheelchair spaces plus one additional wheelchair space for each 200
seats (or fraction thereof) over 5000. Both the current ADA Standards
and ADAAG require assembly areas to provide a companion seat adjacent
to each wheelchair space.
The Department has been asked whether the regulations requiring the
maintenance of accessible features in covered facilities would require
existing assembly areas that comply with the scoping of the current ADA
Standards to maintain that level of scoping, or if those assembly areas
would be permitted to reduce the number of
[[Page 58773]]
wheelchair locations and companion seats to the level established in
ADAAG. The Department's regulations contain two provisions that would
apply to this situation. The regulations implementing Title II and
Title III both provide that covered entities are to maintain in
operable condition ``those features of facilities and equipment that
are required to be readily accessible to and usable by persons with
disabilities'' (28 CFR 35.133 and 36.211). In addition, the current ADA
Standards prohibit alterations that decrease accessibility below the
requirements for new construction in effect at the time of the
alteration, 28 CFR pt. 36, App. A, 4.1.6 (1) (a). Because these
provisions clearly establish that covered entities must maintain only
the required level of accessibility, the Department expects that the
operators of existing assembly areas who want to adjust the number of
wheelchair spaces in their facility to comply with the revised ADA
Standards will be permitted to do so.
Alteration of Cells in Correctional Facilities
ADAAG establishes requirements for the design and construction of
cells in detention and correctional facilities. The Access Board
accepted comments on this issue during two separate rulemaking
proceedings: the rulemaking that developed the guidelines for State and
local government facilities completed in 1998, and the rulemaking that
developed the guidelines that the Department is now proposing to adopt.
The Department anticipates that it will propose revised ADA Standards
that are consistent with the ADAAG requirements. However, when it
adopted these new requirements, the Access Board specifically deferred
one decision to the Attorney General. ADAAG sections 232.2 and 232.3
provide that ``Alterations to cells shall not be required to comply,
except to the extent determined by the Attorney General.'' This
provision first appeared in the Access Board's 1999 proposed rule. At
that time, the Access Board explained that--
In publishing final amendments for State and local government
facilities, the Board acknowledged that prison operators commenting
on the proposed amendments urged that access not be required in
altered correctional facilities because some existing facilities
would not be able to support inmates with disabilities even if cells
were made accessible. These comments also pointed to difficulties in
complying due to design constraints unique to correctional
facilities. In response, the Board had reserved a proposed scoping
requirement for altered cells, but noted that public entities,
including correctional entities, have an obligation to provide
program access, as required by the Department of Justice (DOJ) title
II regulations. Further, the Board noted that the program access
requirement may effectively determine the degree of access necessary
in an alteration. 64 FR 62259 (Nov. 16, 1999).
The Department anticipates that when it proposes to adopt ADA
Standards consistent with ADAAG requirements applicable to facilities
subject to Title II, the Department will establish requirements for
alterations to cells. Therefore, the Department is now seeking public
comment about the most effective means to ensure that existing
correctional facilities are made accessible to prisoners with
disabilities. The Department offers the three following alternatives
for consideration:
Option 1: Require all altered elements to be accessible. The first
option is to maintain the current policy applicable to other ADA
alterations requirements. Under the current regulations, when a
facility is altered, each altered element and space must comply with
the applicable provisions of the ADA Standards. Applying this rule
would require correctional facilities to provide accessible elements as
existing cells are altered until the required number of accessible
cells has been provided.
Option 2: Permit substitute cells to be made accessible within the
same facility. The second option is to modify the alterations
requirement by permitting the correctional authorities to meet their
obligation by providing the required accessible features in cells
within the same facility other than those specific cells in which
alterations are planned. This would provide flexibility in deference to
the unique circumstances presented in correctional and detention
facilities by permitting local officials to choose between providing
accessibility in the altered area or providing an appropriate
accessible cell elsewhere in the altered facility. This alternative
responds to the concern that the ADA's alterations provision as applied
to correctional facilities may result in piecemeal accessibility that
does not always provide the level of accessibility needed by
individuals with disabilities. This option permits correctional and
detention facility operators to select the most appropriate location
for the accessible cells, while retaining the requirement for providing
accessibility at the time of an alteration.
Option 3: Permit substitute cells to be made accessible within a
prison system. This option also responds to the expressed concern that
the alterations requirement as applied to prisons results in piecemeal
accessibility. The Department's Title II regulation requires public
entities to operate each service, program, or activity so that the
service, program, or activity, when viewed in its entirety, is readily
accessible to and usable by individuals with disabilities (28 CFR
35.150). The idea behind this alternative is to focus on ensuring that
prisoners who have disabilities are housed in the facilities that best
meet their needs. Under this option, correctional officials would not
be required to include accessible cells in each facility that is being
altered. Instead, they would be required to provide an equivalent
accessible cell in an existing facility that is sufficiently accessible
to ensure that prisoners can have access to the programs offered in the
facility where they are housed. This option would address concerns that
have been expressed that piecemeal alterations of cells may result in
accessible cells being located in older facilities in which the
existing construction provides limited opportunities to provide access
to other areas of the facility.
If this option is adopted, the Department anticipates that the
regulation would specify that public entities that elect to provide
accessibility through this alternative for detention and correctional
facilities would be required to ensure that prisoners with disabilities
are housed in facilities appropriate to the level of confinement that
would apply to any other individual sentenced for a similar offense.
Such facilities would also be required to make available a range of
programs and benefits similar to that made available to the general
prison population.
Question 5. Should the Department retain the current ADA
requirement to make each altered facility accessible to the extent
required by the ADA Standards or should it adopt an alternative
approach to ensure accessibility in correctional institutions? If you
favor an alternative approach, please indicate which approach you favor
and provide as much detail as possible in support of your view.
Recreation Facilities: Golf Courses
ADAAG now establishes comprehensive requirements for the design and
construction of accessible golf courses. In addition to establishing
scoping and technical requirements for individual elements in or
serving the golf course, section 206.2.15 provides that--
At least one accessible route shall connect accessible elements
and spaces within the boundary of the golf course. In addition,
accessible routes serving golf car rental areas; bag drop areas;
course weather shelters
[[Page 58774]]
complying with 238.2.3; course toilet rooms; and practice putting
greens, practice teeing grounds, and teeing stations at driving
ranges complying with 238.3 shall comply with Chapter 4 except as
modified by 1006.2. EXCEPTION: Golf car passages complying with
1006.3 shall be permitted to be used for all or part of accessible
routes required by 206.2.15.
The Department anticipates that it will propose to adopt the ADAAG
requirements for golf courses. However, the Department is aware that
these requirements may raise operational issues that are within the
purview of the Department's enforcement responsibilities.
The Department has been asked whether, and under what
circumstances, a golf course must make specially designed or adapted
golf cars available to persons with mobility impairments who are not
able to walk from a golf car passage to the fairways or to the green.
The Department is considering addressing this issue in its ADA
regulations by requiring each golf course that provides golf cars to
make at least one, and possibly two, specialized golf cars available
for the use of persons with disabilities, with no greater advance
notice to be required from the disabled golfer than from other golfers.
The Department believes that relevant considerations in determining
whether and under what circumstances this requirement should be imposed
include (i) whether the golf course makes golf cars available to
golfers who are not disabled, (ii) the burden that such a requirement
would impose on golf course facilities, and (iii) whether the course
requires the use of golf cars during play.
The Department understands that the principal type of special golf
car currently available is a one-seater with hand controls and a swivel
seat (the swivel seat enables the golfer to play from the car). Golf
course operators have expressed concern in the past that the available
one-person cars (i) tip over easily on steep terrain and (ii) are too
heavy for green use. Producers of newer designs for one-person cars
claim to have overcome these problems.
Question 6. To what extent should golf courses be required to make
accessible golf cars available to people with disabilities? Please
provide as much detail as possible in support of your view. The
Department also requests specific information concerning the extent to
which the one-person machines on the market are, in fact, stable,
lightweight, and moderately priced. The Department also requests
information about whether golf cars are being manufactured that are
readily adaptable for the addition of hand controls and swivel seats
and whether such cars are otherwise suitable for driving on fairways
and greens.
Coverage of Homeless Shelters, Halfway Houses, Transient Group Homes,
and Other Social Service Establishments
For the first time, ADAAG includes specific scoping and technical
provisions that apply to new construction and alteration of residential
facilities. Residential facilities are facilities that contain dwelling
units used primarily as long-term residences. Residential facilities
can be distinguished from transient lodging facilities, which are
facilities that provide short-term accommodations used primarily for
sleeping (such as hotels). Previously existing ADAAG requirements for
transient lodging facilities have been revised. As part of this
revision, the Access Board deleted section 9.5 of the 1991 ADAAG, which
established scoping and technical requirements for homeless shelters,
group homes, and similar social service establishments. This deletion
creates a gap in coverage that the Department's regulation must
address.
The Department anticipates that when the ADA Standards are revised,
the Department will provide that the facilities now covered by section
9.5 will be subject to the ADAAG requirements for residential
facilities rather than the requirements for transient lodging. The
Department considers this approach to be the most appropriate because
the listed facilities are subject to the ADA because of the nature of
the services that they provide, not the duration of those services.
Program participants may be housed on either a short-term or a long-
term basis in facilities such as shelters, halfway houses, and group
homes.
The Department anticipates that this classification will also make
it easier for the covered entities to satisfy their obligations under
both the ADA and Section 504. The Department believes that many of
these listed entities are recipients of Federal financial assistance
from the Department of Housing and Urban Development (HUD). Therefore,
they are subject to the requirements of both HUD's Section 504
regulation and the ADA Standards. ADAAG's specifications for the design
of residential dwelling units have been coordinated with HUD's Section
504 requirements to eliminate inconsistencies and potential conflicts.
The specifications for transient lodging units have not been similarly
coordinated.
Therefore, if the Department continues to treat these listed
facilities as transient lodging, the facilities may be subject to the
provisions of two separate, and possibly conflicting, regulatory
requirements for design and construction. If the Department modifies
its current ADA Standards to permit these facilities to be designed in
compliance with the requirements applicable to residential dwelling
units, the potential conflict will be eliminated.
The Department is seeking public comment on this proposal.
Equipment Issues
In ADAAG, the Access Board has established guidelines applicable to
a range of fixed equipment--equipment that is built into or permanently
attached to a new or altered facility--that is subject to the ADA. The
Department intends to adopt regulations based on these ADAAG
specifications to govern the installation of newly manufactured
equipment in new construction or alterations. Because the Access
Board's jurisdiction extends only to the design, construction, and
alteration of buildings and facilities, ADAAG does not address
operational issues such as the acquisition of previously owned
equipment, and it does not address coverage of movable or portable
equipment or other personal property such as furniture. These issues
are, however, within the jurisdiction of the Department. Therefore, the
Department is seeking comments on the issues discussed below.
Previously Owned Fixed Equipment. The Department is aware that some
building elements to which the ADA Standards apply, such as ATMs or
amusement rides, utilize manufactured equipment that becomes built into
the structure of a facility (so-called fixed equipment), which differs
from equipment that continues to be portable or movable (so-called
free-standing equipment). This fixed equipment may be new for the
covered entity, but it is not necessarily newly manufactured. Some
businesses traditionally elect to conserve costs by installing
previously owned equipment and have expressed their concern that the
Department will consider such fixed equipment as new for purposes of
compliance with the revised ADA Standards merely because its first use
occurs after the effective date of the revised ADA Standards. The
Department generally views the installation of previously used
equipment in a new location as an alteration, rather than new
construction. Therefore, only the elements of the
[[Page 58775]]
facility that are actually altered, such as the route to the equipment,
the mounting height, or the entrance that provides access to the
equipment must comply with the revised Standards. Previously owned
equipment installed as fixed equipment will not be treated as new for
purposes of compliance with the revised ADA Standards.
Application of ADA Standards and ADA to Free-Standing Equipment.
The Department is also aware that the public has expressed some
uncertainty with respect to whether the ADA Standards apply to free-
standing equipment, such as soft-drink dispensers, video arcade
machines, free-standing ATMs, and furniture. Because ADAAG is intended
to implement the ADA requirements applicable to the design, new
construction, and alteration of buildings and facilities, the revised
ADA Standards will apply directly only to fixed equipment--as described
above, equipment that becomes built into the structure of a facility--
and not to free-standing equipment.
The ADA itself, however, extends beyond the boundaries of new
construction and alterations. The Department is required to develop
regulations that implement the general nondiscrimination requirements
of Title II and Title III, as well as the specific prohibitions on
discrimination in Title III. Under this authority, the Department may
establish requirements affecting equipment that is not fixed to ensure
that people with disabilities have an equal opportunity to participate
in the programs, services, and activities offered by covered entities.
In establishing these requirements, the Department may look to the ADA
Standards for guidance in determining whether various types of
equipment or furnishings are accessible to people with disabilities.
The Department's current regulations implementing Title II and
Title III of the ADA address equipment in several different contexts.
The definition of ``facility'' in each regulation expressly includes
``equipment'' (28 CFR 35.104 and 36.104). Fixed equipment required to
be accessible in new construction and alterations is identified in the
ADA Standards (28 CFR part 36, App. A). Examples of accessible
equipment that may be required are included in the definitions of
auxiliary aids in 28 CFR 35.104 and 36.104. In addition, Appendix B to
the Title III regulation, 28 CFR part 36, App. B, Proposed Section
36.309, second paragraph, further explains that--
Purchase or modification of equipment is required in certain
instances by the provisions in 36.201 and 36.202 [general
prohibitions on discrimination]. For example, an arcade may need to
provide accessible video machines in order to ensure full and equal
enjoyment of the facilities and to provide an opportunity to
participate in the services and facilities it provides. The barrier
removal requirements of 36.304 will apply as well to furniture and
equipment. * * *
Because covered entities continue to raise questions about the
extent of their obligation to provide accessible free-standing
equipment, the Department is considering whether there is a need for
the Department's ADA regulations to contain specific language about the
acquisition and use of mobile, portable, and other free-standing
equipment or furnishings used by covered entities to provide services.
If the Department does address specific requirements for free-standing
equipment, it may look to the ADA Standards for guidance in determining
whether various types of free-standing equipment are accessible to
people with disabilities.
Question 7. The Department invites public comment on its approach
to these issues. Because the Department anticipates that it may issue
further guidance with respect to the acquisition and use of mobile,
portable, and other free-standing equipment and furnishings used by
covered entities to provide services, the Department is seeking comment
on the question whether such guidance is necessary. If you think that
such guidance is needed, please provide specific examples of situations
that should be addressed.
Stadium-Style Seating
Background. Beginning in the mid-1990s, the first stadium-style
movie theaters were built in the United States. These theaters employed
a new type of theater design whereby, rather than placing rows of seats
on a gradually sloping floor as in traditional-style movie theaters,
all but a few rows of seats near the front of each theater were located
on a series of elevated tiers or risers (typically 12-18 inches in
height). The enhanced lines of sight provided by these stadium-style
movie theaters proved to be highly popular with the movie going public
and, consequently, fueled a boom in stadium-style theater construction
nationwide.
While stadium-style theater designs have evolved somewhat over the
years and typically vary from theater circuit to theater circuit, two
essential features have remained constant: (i) Movie patrons seated in
the stadium sections of stadium-style theaters enjoy enhanced lines of
sight to the screen as compared to patrons seated in the traditional
sections of these theaters; and (ii) movie patrons who use wheelchairs
are excluded from the stadium sections of the great majority of
existing stadium-style theaters nationwide.
Section 4.33.3 of the current ADA Standards requires, among other
things, that ``[w]heelchair areas * * * shall be provided * * * lines
of sight comparable to those for members of the general public.'' This
line-of-sight requirement has generated considerable debate as applied
to stadium-style movie theaters. Persons with disabilities and
disability rights organizations have complained to the Department that
they are afforded inferior lines of sight when limited to the
traditional section of stadium-style theaters. Specifically, they have
complained that, due to design considerations particular to stadium-
style theaters (such as, for example, typically larger and wider
screens), sitting in rows close to the screen in the traditional
section often results in a painful and uncomfortable viewing
experience, as well as distortion of images on the screen. Movie
theater owners and operators, on the other hand, have countered that
they satisfy section 4.33.3's line-of-sight requirement by providing
patrons who use wheelchairs with ``unobstructed'' views of the movie
screen. The movie theater industry has also expressed its view to the
Department that section 4.33.3 provides insufficient guidance for
theater designers concerning the placement of wheelchair seating areas
in stadium-style movie theaters. Indeed, in 1999, the National
Association of Theater Owners (NATO) petitioned the Department to
promulgate revised regulations specifically addressing stadium-style
movie theaters and suggested its preferred regulatory language. The
Department responded that it was planning to review and update the
current ADA Standards covering assembly areas, including stadium-style
movie theaters, upon issuance of the revised ADAAG.
As the entity charged with primary enforcement responsibility for
Title III, the Department has played a central role in ensuring that
persons with disabilities have full and equal enjoyment of stadium-
style movie theaters. Since at least 1998, the Department has
consistently and publicly stated through such forums as meetings with
movie industry representatives, speeches to disability and business
organizations, and litigation in Federal courts, that, when a movie
theater company is marketing and selling the enhanced stadium-style
movie going experience to the general
[[Page 58776]]
public, excluding patrons who use wheelchairs from these stadium
sections violates Title III of the ADA. The Department has also
emphasized that individuals who use wheelchairs need not be provided
the best seats in the house, but neither should they be relegated
categorically to locations with the worst views of the screen. Rather,
the Department has interpreted section 4.33.3 as requiring a
qualitative comparison--including viewing angles--between the view of
the screen afforded patrons who use wheelchairs and the views of the
screen provided most other members of the movie audience. Such a
reading of section 4.33.3, the Department believes, best comports with
the plain language of the regulation, the well-established usage of the
term ``lines of sight'' in the theater industry, and the anti-
discrimination goals underlying Title III of the ADA.
Nonetheless, both the debates and litigation have continued. Since
1999, the Department has initiated enforcement actions against several
movie theater companies and participated as well as amicus curiae in
other private ADA litigation involving stadium-style theaters. To date,
all Federal courts except one have adopted or endorsed the Department's
interpretation of section 4.33.3's line-of-sight requirement. See
United States v. Cinemark USA, Inc., 348 F.3d 569 (6th Cir. 2003),
cert. denied, 72 U.S.L.W. 3513 (U.S. June 28, 2004) (No. 03-1131);
Oregon Paralyzed Veterans of Am. v. Regal Cinemas, Inc., 339 F.3d 1126
(9th Cir. 2003), cert. denied, Regal Cinemas, Inc. v. Stewmon, 72
U.S.L.W. 3310 (U.S. June 28, 2004) (No. 03-641); Lara v. Cinemark USA,
Inc., 207 F.3d 783 (5th Cir. 2000); cert. denied, 531 U.S. 944; United
States v. Hoyts Cinemas Corp., 256 F. Supp. 2d 73 (D. Mass. 2003),
appeals docketed, Nos. 03-1646, 03-1787, and 03-1808 (1st Cir. June 5,
2003); United States v. AMC Entm't, Inc., 232 F. Supp. 2d 1092 (C.D.
Cal. 2002).
Revised ADA Standards. Building on the line-of-sight heritage of
the current ADA Standards, section 221.2.3 of ADAAG frames the basic
comparability requirement in terms of viewing angles: ``Wheelchair
spaces shall provide spectators with * * * viewing angles that are
substantially equivalent to, or better than, the * * * viewing angles
available to all other spectators.'' This ADAAG provision applies to
all types of public accommodations, including stadium-style movie
theaters, sports arenas, and concert halls. The Department intends to
adopt this ADAAG provision for all assembly areas.
The Department believes that it is prudent to supplement these
generic assembly area requirements with more specific guidance on
stadium-style movie theaters. In light of several factors--including
the contentious nature of the debate surrounding the application of the
current ADA Standards to stadium-style movie theaters, the movie
industry's request for additional regulatory guidance relating to
stadium-style movie theaters, as well as the Department's significant
experience with issues relating to stadium-style theaters--the
Department is considering proposing regulations specifically applicable
to stadium-style movie theaters. The purpose of such a rule would be
twofold. The Department would be seeking to ensure that patrons with
disabilities have full and equal enjoyment of, and access to, stadium-
style movie theaters. The Department would also be seeking to provide
theater designers with detailed guidance concerning acceptable
placement of wheelchair seating locations in stadium-style theaters,
while also affording design flexibility.
Therefore, the Department is now seeking public comment about the
Department's promulgation of rules specifically addressing stadium-
style movie theaters. The Department anticipates such a regulation
would only address line-of-sight issues. The Department also
anticipates that the horizontal and vertical dispersion requirements
set forth in ADAAG sections 221.2.3.1 and 221.2.3.2 would be adopted in
their entirety and would apply independently of any line-of-sight
regulation specifically applicable to stadium-style theaters. Finally,
the Department does not believe that its proposed line-of-sight
regulation represents a substantive change from the existing line-of-
sight requirements of Standard 4.33.3 of the current ADA standards. As
with the existing requirements, the proposed line-of-sight regulations
would recognize the importance of viewing angles to the movie going
experience and would be aimed at ensuring that movie patrons with
disabilities are provided comparable views of the movie screen as
compared to other theater patrons. The Department's proposed stadium-
style theater regulation would set forth two separate requirements.
First, the regulation would require wheelchair seating locations to be
placed in the stadium section of a stadium-style movie theater. Second,
the regulation would also establish one or more standards governing the
placement of wheelchair seating locations within the stadium section.
The Department offers the three following standards, either alone or in
combination, for consideration and comment:
Option 1: Adopt Viewing Angle Requirement. One option would be
simply to adopt the comparative viewing angle requirement set forth in
ADAAG section 221.2.3. The advantage of this approach would be
consistency of requirements as between stadium-style movie theaters and
other types of public accommodation.
Option 2: Adopt ``Distance From the Screen'' Requirement. The
second option would be to adopt a ``distance from the screen'' approach
for locating wheelchair seating as established by some national
consensus standards. For example, the American National Standards
Institute (ANSI) recently published a standard specifying that
wheelchair seating should be located within the rear 70% of the seats
provided in a movie theater. While distance from the screen presents an
easily applied standard for theater designers and code personnel, the
Department's experience with stadium-style theaters suggests that such
a distance from the screen generally would not be sufficient to provide
patrons who use wheelchairs with an equivalent viewing experience as
compared to the rest of the movie audience. Thus, if the Department
adopted a distance from the screen standard, it would likely specify
that wheelchair seating must be located within the rear 60% of seats
provided in a stadium-style theater.
Option 3: Adopt Combination Viewing Angle/Percentile Requirement.
The third option would be to adopt a combination viewing angle and
percentile approach as used by the Department in a settlement agreement
with a national theater circuit. This agreement specifies that
wheelchair seating locations should be placed ``within the area of an
auditorium in which the vertical viewing angles to the top of the
screen are from the 50th to the 100th percentile of vertical viewing
angles for all seats as ranked from the seats in the first row (1st
percentile) to seats in the back row (100th percentile).'' To date, the
Department has found this approach to provide a workable and effective
standard for locating wheelchair seating in stadium-style theaters.
Question 8. Should the Department promulgate a regulation
specifically relating to stadium-style movie theaters? If so, should
this regulation simply adopt ADAAG's viewing angle requirement for
lines of sight or should it instead also include alternative
[[Page 58777]]
distance from the screen or viewing angle/percentile approaches? How
should the ``stadium'' section of a stadium-style theater be defined?
III. Miscellaneous Matters
There are a number of miscellaneous matters the Department may
address in the NPRM.
Withdrawal of Outstanding NPRMs
The Department plans to notify the public of the withdrawal of
three outstanding NPRMs: the joint NPRM of the Department and the
Access Board dealing with children's facilities, published on July 22,
1996, at 61 FR 37964; the Department's proposal to extend the time
period for providing curb cuts at existing pedestrian walkways,
published on November 27, 1995, at 60 FR 58462; and the Department's
proposal to adopt the Access Board's accessibility guidelines and
specifications for State and local government facilities, published as
an interim final rule by the Access Board on June 20, 1994, at 59 FR
31676, and by the Department as a proposed rule on June 20, 1994, at 59
FR 31808. To the extent that these amendments were republished in the
July 23, 2004, publication of ADAAG, they will all be included in the
Department's new NPRM.
Changes in Procedural Requirements for Certification of State Laws and
Local Building Codes
Section 308 (b)(1)(A)(ii) of the ADA authorizes the Attorney
General to certify the accessibility requirements of State and local
governments that meet or exceed the minimum requirements for
accessibility and usability of buildings and facilities covered by the
new construction and alterations requirements of Title III of the Act
(42 U.S.C. 12188 (b)(1)(A)(ii)). This procedure is voluntary and may be
initiated at the discretion of a State or local government. In
jurisdictions with certified accessibility codes, compliance with the
certified code in the construction or alteration of covered buildings
and facilities constitutes rebuttable evidence of compliance with the
ADA in any enforcement proceeding that might be brought. The
Department's regulations implementing the certification process are
published in 28 CFR 36.601-36.608.
While most of these sections restate the statutory provision or
establish the obligations of the Department in responding to a request
for certification, one section, 28 CFR 36.603, establishes the
obligations of a submitting authority that is seeking certification of
its code. The Department is considering ways in which these provisions
can be streamlined to facilitate the process of seeking certification.
The Department anticipates that it will propose to delete section
36.603 from the current regulation. In its place, the Department will
issue sub-regulatory guidance that will provide streamlined submission
requirements.
Changes in Public Hearing Procedure. Section 36.605 (a)(2) of the
Title III regulation requires that an informal hearing be held in
Washington, DC, on the Department's decision to issue a preliminary
determination of equivalency for a jurisdiction's accessibility code.
The Department is considering substituting a requirement that an
informal hearing be held within the relevant jurisdiction. The
Department believes that a hearing conducted within the affected
jurisdiction will generally provide a better opportunity for interested
parties to comment.
Effect of the Revised ADA Standards on Certified Accessibility
Codes. With the adoption of the revised ADA Standards, certifying State
and local government codes as equivalent will be a more straightforward
process because of the Access Board's extensive efforts to harmonize
the revised guidelines with the model codes, which form the basis of
many State codes. The Department is currently considering what impact
the revised ADA Standards should have on the status of accessibility
requirements for jurisdictions that were determined in the past to have
met or exceeded the ADA Standards.
The Department invites public comment on each of these issues.
Title II Complaints
Complaint Investigation. One of the issues the Department will
address in its upcoming NPRM relates to the Department's current
procedures with respect to the investigation of complaints alleging
discrimination on the basis of disability by public entities under
Title II of the ADA. In its revised regulation implementing Title II,
the Department will clarify its enforcement procedures in order to
streamline the Department's internal procedures for investigating
complaints, reduce the administrative burdens associated with
implementing the statute, and ensure that the Department retains the
flexibility to allocate its limited enforcement resources effectively
and productively.
Subtitle A of Title II of the ADA defines the remedies, procedures,
and rights provided for qualified individuals with disabilities who are
discriminated against on the basis of disability in the services,
programs, or activities of State and local governments. While the ADA
requires the Department to implement the requirements of Title II, it
does not specify any particular means of doing so. It does not require
the Department to investigate every complaint of discrimination, or
even to rely upon complaints at all as a means of enforcement. The
Department's current Title II regulation is based on the enforcement
procedures established in regulations implementing Section 504. Thus,
the Department's current regulation provides that the Department
``shall investigate each complete complaint'' alleging a violation of
Title II and shall ``attempt informal resolution'' of such complaint
(28 CFR 35.172(a)).
In the years since the current regulation went into effect, the
Department has received many more complaints alleging violations of
Title II than its resources permit it to investigate. The Department's
experience dictates that it must have greater discretion to prioritize
these complaints appropriately in order to ensure that resources are
directed to resolving the most critical matters. Without the ability to
exercise discretion in complaint processing, there will be substantial
delays in the investigation of many meritorious complaints. These
delays would make investigations more difficult, as witnesses
disappear, memories fade, and circumstances change. In some time-
sensitive cases, such delays might even result in an effective denial
of justice as agency resources would be taken up by less sensitive
cases. These problems would also result in increased uncertainty for
complainants and covered entities, as they would be required to await
disposition of their disputes without any knowledge of what might be
required of them.
The approach of the current Title II regulation may be contrasted
with that reflected in the current Title III regulation, which
recognizes that the Department has the discretion not to investigate
all complaints alleging discrimination on the basis of disability by
places of public accommodation (28 CFR 36.502). To avoid the
enforcement problems identified above, and to bring its Title II
regulation into sync with its current enforcement procedures under both
Title II and Title III, the Department will propose to clarify in its
revised regulation that it may exercise its discretion in selecting
Title II complaints for investigation and in determining the most
effective means of
[[Page 58778]]
resolving those complaints. This clarification of the Department's
enforcement procedures reflects the Department's determination to
manage its Title II complaints as effectively as possible. It is not
intended to create, eliminate, or otherwise alter any substantive
rights or responsibilities under the ADA. It will not alter the
Department's essential obligation to implement Title II of the ADA
effectively, but will simply recognize the Department's discretion to
determine how best to implement it.
As revised, the Department's Title II regulation will make clear
that the Department may, within its discretion, dispose of complaints
with inadequate legal or factual bases quickly, and, thus, dedicate
more of its enforcement resources to complaints with stronger
allegations. This process will allow the Department to continue to
establish priorities and allocate resources to most effectively achieve
the goals of the ADA. It will also allow the Department to respond more
quickly to matters that need immediate resolution and to more fully
address matters of systemic discrimination. The Department's resolution
of those cases involving, for example, life-and-death situations,
essential government services, and complex legal questions, will set
high-profile precedents that will, in turn, facilitate local resolution
of the types of complaints the Department is unable to pursue.
Exhaustion of Administrative Remedies. Another issue the Department
will address in the NPRM involves the effect of the Prison Litigation
Reform Act (PLRA), 42 U.S.C. 1997e, upon complaints by prisoners
alleging unlawful discrimination on the basis of disability under Title
II of the ADA. The PLRA amended the Civil Rights of Institutionalized
Persons Act (CRIPA) to provide that ``[n]o action shall be brought with
respect to prison conditions under section 1983 of this title, or any
other Federal law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are
available are exhausted'' (42 U.S.C. 1997e(a)). The plain language of
the statute provides that individuals seeking to challenge prison
conditions by invoking the provisions of ``any * * * Federal law'' are
required first to exhaust ``such administrative remedies as are
available.'' Title II of the ADA protects prisoners from unlawful
discrimination on the basis of disability, and among the administrative
remedies available to such individuals to redress discrimination is the
filing of a Title II complaint with the Department. Therefore, in order
to properly implement this legislation, the Department's revised
regulation implementing Title II of the ADA will provide that in order
to exhaust administrative remedies as required under the PLRA,
prisoners alleging unlawful discrimination on the basis of disability
under Title II will be required to file an administrative complaint
with the Department prior to filing suit in court. As with all
complaints of discrimination under Title II, the Department may, in its
discretion, investigate and attempt to resolve the allegations of
unlawful discrimination made in these complaints. However, given the
large number of prisoner complaints and the Department's limited
resources, it is unlikely that the Department will be able to
investigate every such complaint. The Department wishes to ensure that
this requirement does not prove to be a bar for prisoners with
disabilities seeking redress of their grievances in the courts.
Therefore, the Department will propose that, for purposes of the PLRA,
a complainant will be deemed to have successfully exhausted the
administrative remedy of filing a complaint with the Department if no
action has been taken upon the complaint by the Department within a 60-
day administrative period.
IV. Regulatory Assessment Issues
A regulatory assessment--a report analyzing the economic costs and
benefits of a regulatory action `` is not required for this ANPRM. One
purpose of this ANPRM, however, is to seek comment on the Department's
proposed methodology for the regulatory assessment that the Department
must prepare in connection with the issuance of the NPRM. A regulatory
assessment will be required for the NPRM under Executive Order 12866,
as amended without substantial change to its requirements by Executive
Order 13258, and the Regulatory Flexibility Act, as amended by the
Small Business Regulatory Enforcement Fairness Act of 1996. Executive
Order 12866 requires Federal agencies to submit any ``significant
regulatory action'' to the Office of Management and Budget's (OMB)
Office of Information and Regulatory Affairs for review and approval
prior to publication in the Federal Register. A proposed regulatory
action that is deemed to be economically significant under section
3(f)(1) of that order (having an annual effect on the economy of $100
million or more) is required to include a formal benefit-cost analysis.
A formal benefit-cost analysis must include both qualitative and
quantitative measurements of the benefits and costs of the proposed
rule as well as a discussion of each potentially effective and
reasonably feasible alternative.
As part of the Department's initial NPRM regulatory assessment, the
Department expects to adopt the final regulatory assessment prepared by
the Access Board for the final ADAAG and approved by OMB. (See
regulatory assessment for ADAAG at http://www.access-board.gov. The assessment
has also been placed in the dockets of both the Access Board and the
Department and is available for public inspection.) However, the
regulatory assessment for the Department's NPRM must be broader than
that of the Access Board in several respects. First, the Department
must include as part of the estimated annual cost of the revised ADA
Standards the cost of each of the supplemental guidelines (now folded
into the final ADAAG document) issued by the Access Board subsequent to
the 1991 ADAAG. As discussed above, the Access Board adopted the
supplemental guidelines in separate rulemaking initiatives before
ultimately combining them into the final ADAAG document. The costs
associated with these supplemental guidelines, therefore, were
considered part of the Access Board's baseline, and not as new costs
associated with the Board's issuance of ADAAG. Because the Department
did not adopt any of the supplemental guidelines separately, the
Department must consider their associated costs as part of adopting
revised ADA Standards consistent with ADAAG.
Further, unlike the Access Board, the Department must prepare an
assessment of the costs and benefits arising from any compliance with
the revised ADA Standards that may be required for barrier removal in
existing facilities. Which elements of existing facilities will be
required to comply with the revised ADA Standards and in what manner
will depend upon which option the Department selects with respect to
existing facilities under Questions 3 and 4, above.
Because the regulatory assessment for the NPRM will include both
the costs associated with the supplemental guidelines and those
associated with the compliance of certain elements of existing
facilities, the NPRM may be deemed economically significant. If so, the
Department will have to prepare a full benefit-cost analysis in
connection with the NPRM.
Also, consistent with the Regulatory Flexibility Act of 1980 and
Executive Order 13272, the Department must consider the impacts of any
proposed rule on small entities, including small
[[Page 58779]]
businesses, small nonprofit organizations, and small governmental
jurisdictions. The Department will make an initial determination as to
whether the proposed rule is likely to have a significant economic
impact on a substantial number of small entities, and if so, the
Department will prepare an initial regulatory flexibility analysis
analyzing the economic impacts on small entities and regulatory
alternatives that reduce the regulatory burden on small entities while
achieving the goals of the regulation. In response to this ANPRM, the
Department encourages small entities to provide cost data on the
potential economic impact of applying specific provisions of ADAAG to
existing facilities and recommendations on less burdensome
alternatives, with cost information.
Basic Principles of Proposed Regulatory Framework
The Proposed Regulatory Framework, which is set forth in Appendix
A, describes the approach that the Department is considering for the
regulatory assessment that it must prepare in connection with the NPRM.
In brief, the framework proposes to assess benefits and costs
associated with a proposed adoption of revised ADA Standards consistent
with ADAAG in accordance with the following principles:
The proposed framework assumes that the regulatory
analysis for the proposed regulation will be required to include a full
benefit-cost analysis subject to the requirements of OMB Circular A-4.
The framework is designed to conform with those requirements.
The analysis will cover the benefits and costs of the
revised ADA Standards for readily achievable barrier removal for
existing buildings as well as the benefits and costs of the revised ADA
Standards for new construction and alterations (only the latter has
been estimated by the Access Board in its regulatory assessment for
ADAAG).
Only incremental benefits and costs of the revised ADA
Standards will be assessed. Benefits and costs associated with the
current ADA Standards will be considered baseline benefits and costs.
Benefits will be addressed with regard to not only user
value, but also insurance value and existence value, as explained in
Appendix A.
The analysis will address the alternative approaches to
application of the revised ADA Standards set out under Questions 3 and
4, above.
To estimate the incremental benefits and costs of the
readily achievable barrier removal obligation, a computer simulation
model will be developed based upon statistical databases developed to
show cost per element or space to be modified and number of elements or
spaces to be modified, taking into account the factor of ``readily
achievable.'' The data will be stratified by age and size of facility,
financial condition, and other applicable features.
The risk of measurement error will be addressed through
risk analysis and threshold analysis, as explained in Appendix A.
The following questions for public comment address issues raised in
connection with the Proposed Regulatory Framework. The Department is
seeking comments from covered entities, persons with disabilities, and
all other members of the public with respect to both benefits and
costs. Where applicable, responses should clearly identify the specific
question being addressed according to the numbered question. For
additional information, please see Appendix A to this document.
Data Collection Questions, By Type of Entity
The Department is not, in the following data collection questions,
seeking information about the cost of applying revised ADA Standards to
new construction and alterations. As stated above under Item IV, the
Department expects to adopt the Access Board's final regulatory
assessment (see regulatory assessment for ADAAG at http://www.access-board.gov
) as its assessment of the cost that will be incurred for new
construction and alterations, which is the situation addressed in the
Access Board's regulatory assessment. The following data collection
questions are intended to elicit information about the costs and
benefits that will result if the new guidelines are used as the basis
for mandatory barrier removal. Question 9 is a general question
soliciting data about the potential costs and benefits of using any or
all of the changed or new requirements in the new guidelines as the
basis for mandatory barrier removal. Question 10 is a general question
soliciting information about the effect of the new or changed
requirements on the obligations of small entities with respect to
barrier removal. Questions 11-47 contain numerous questions that
reiterate this general question with respect to a sampling of specific
new or changed requirements. The Department is seeking comments from
all stakeholders `` covered entities, persons with disabilities, and
all other members of the public `` with respect to both costs and
benefits. The Department also wishes to solicit comments on any areas
where additional costs may be imposed or benefits may be realized
indirectly as a result of the ultimate regulations. Where applicable,
responses should clearly identify the specific question being addressed
according to the numbered question.
All Types
Question 9. Many of the new and changed requirements in ADAAG are
expected to have negligible cost for new construction and alteration,
such as the change in the maximum side reach from 54 inches to 48
inches (ADAAG 308.3). See Chapter 6, item 6.20, of the regulatory
assessment for ADAAG at http://www.access-board.gov. Other new and changed
requirements are expected to have a cost impact for new construction
and alterations. See Chapter 7 of the above cited regulatory assessment
for ADAAG. The Department invites comments from covered entities,
individuals with disabilities, and individuals without disabilities on
the benefits and costs of applying these new and changed specifications
to existing facilities pursuant to the readily achievable barrier
removal requirement of Title III. Please be as specific as possible in
your answers. (Changed requirements would not be applied under the
barrier removal obligation to elements that comply with the current ADA
Standards if the Department adopts the safe harbor provision addressed
under Question 3. New requirements would be applied even if the
Department adopts the safe harbor provision but their impact could be
reduced under the options addressed under Question 4.)
Question 10. Consistent with the Regulatory Flexibility Act and
Executive Order 13272, the Department will determine whether a proposed
rule adopting all or part of the Access Board's ADAAG revisions would
be likely to have a significant economic impact on a substantial number
of small entities, and if so, what the Department could do to reduce
that economic impact while achieving the goals of its regulation. The
Department welcomes comments providing information on the rule's
potential economic impact on covered small entities, including
retrofitting costs. Also, please provide any potential regulatory
alternatives that could reduce those burdens.
Question 11. The Department is considering excluding as a barrier
removal obligation for existing facilities, if it selects Option II
under Question 4, above, the requirement at ADAAG 210
[[Page 58780]]
that accessible handrails be added to stairs in buildings with
elevators. The Department is soliciting comments from all stakeholders
on this approach. Please be as specific as possible in your response.
Question 12. ADAAG 229.1 is a new requirement that at least one
window be accessible to persons with disabilities in a room with
windows that can be opened by persons without disabilities. The
Department wishes to collect data about the effect of this new
requirement if it is applied to existing facilities under the barrier
removal requirement of Title III. Do you have rooms with windows that
open, of the sliding or double hung type, in your existing facility? If
so, how many? Would the hardware that works for new windows in new
buildings work on these windows in your existing facility without
additional cost?
Persons with disabilities and the general public are invited to
comment on the incremental benefit of having at least one accessible
window in each room that has windows that are operable by persons
without disabilities.
Office Buildings
Question 13. New requirements at ADAAG 230.1 and 708.1 require two-
way communications systems (except in residential facilities) to be
equipped with visible as well as audible signals. The Department wishes
to collect data about the effect of this new requirement if it is
applied to existing facilities under the readily achievable barrier
removal requirement of Title III. Do you use a two-way communications
system in your existing office building? What would be the cost of
equipping a unit with both audible and visible signals? How many two-
way communications systems do you have in your existing office
building?
Persons with disabilities and the general public are invited to
comment on the incremental benefit of having both audible and visual
signals on two-way communications systems in existing office buildings.
Question 14. Under the current ADA Standards, men's toilet rooms
with six or more water closets and urinals, but fewer than six toilet
compartments, are not required to provide an ambulatory accessible
toilet compartment with grab bars. Under ADAAG 213.1, urinals will be
counted, so that if there are a total of six urinals or water closets,
an ambulatory accessible toilet compartment with grab bars will be
newly required. Additional costs in new construction include the costs
of adding grab bars but because of fire code requirements, no cost is
allocated with respect to new construction and alterations to the
requirement that an accessible compartment must be between 35 and 37
inches wide and 60 inches deep. The Department wishes to collect data
about the effect of this requirement in existing facilities. Are some
or all of the men's rooms in your existing office building required to
have an ambulatory accessible toilet compartment? Will the changed
requirement result in more such compartments being necessary in your
existing office building? If so, what would be the unit cost of adding
such a compartment? How many additional ambulatory accessible toilet
compartments would you be required to add in your existing office
building?
Persons with disabilities and the general public are invited to
comment on the incremental benefit of having additional ambulatory
accessible toilet compartments in men's rooms in existing office
buildings.
Question 15. Under the current ADA Standards, a private office
building must provide a public TTY if there are four or more public pay
telephones in the building. Under the revised ADA Standards, a private
office building will also be required to provide a public TTY on each
floor that has four or more public telephones (ADAAG 217.4.2) and in
each telephone bank that has four or more telephones (ADAAG 217.4.1).
The Department wishes to collect data about the effect of this
requirement if it is applied to existing facilities under the barrier
removal requirement of Title III. Will the changed requirement result
in more TTYs being necessary in your existing office building? How many
more? Can a TTY be added to an existing facility at the same cost as to
a new or altered facility?
Persons with disabilities and the general public are invited to
comment on the incremental benefit of having additional TTYs in
existing office buildings.
Question 16. What data source do you recommend to assist the
Department in estimating the number of existing office buildings
categorized by such features as size, age, type, physical condition,
and financial condition?
Question 17. What data source do you recommend to assist the
Department in estimating the extent to which existing office buildings
comply with the current ADA Standards?
Question 18. What data source do you recommend to assist the
Department in estimating the incremental cost of making noncompliant
elements of existing office buildings comply with the revised ADA
Standards?
Hotels and Motels
Question 19. A new requirement at ADAAG 806.2.4.1 provides that if
vanity counter top space is provided in nonaccessible hotel guest
toilet or bathing rooms, comparable vanity space must be provided in
accessible hotel guest toilet or bathing rooms. The Department wishes
to collect data about the effect of this requirement if it is applied
to existing facilities under the readily achievable barrier removal
requirement of Title III. Do you currently provide any accessible
vanity counter space in your existing accessible guest toilet or
bathing rooms? How much available extra room, usable for an accessible
vanity counter top, is there on average in your existing accessible
guest toilet or bathing rooms?
Persons with disabilities and the general public are invited to
comment on the incremental benefit of having comparable vanity space in
accessible hotel guest toilet or bathing rooms.
Question 20. What data source do you recommend to assist the
Department in estimating the number of existing hotels and motels
categorized by such features as size, age, type, physical condition,
and financial condition?
Question 21. What data source do you recommend to assist the
Department in estimating the extent to which existing hotels and motels
comply with the current ADA Standards?
Question 22. What data source do you recommend to assist the
Department in estimating the incremental cost of bringing noncompliant
elements of existing hotels and motels into compliance with the revised
ADA Standards?
Stadiums and Arenas
Question 23. What data source do you recommend to assist the
Department in estimating the number of existing stadiums and arenas
categorized by such features as size, age, type, physical condition,
and financial condition?
Question 24. Are there data sources that the Department could
consult to estimate the extent to which existing stadiums and arenas
comply with the current ADA Standards?
Question 25. What data source do you recommend to assist the
Department in estimating the incremental cost of bringing noncompliant
elements of existing stadiums and arenas into compliance with the
revised ADA Standards?
Hospitals and Long Term Care Facilities
Question 26. A new requirement at ADAAG 607.6 provides that the
shower spray unit in an accessible shower
[[Page 58781]]
compartment must have an on-off switch. The Department wishes to
collect data about the effect of this requirement if it is applied to
existing facilities under the readily achievable barrier removal
requirement of Title III. Do all of the shower spray units that you
currently use for accessible shower compartments in your existing
hospital or long-term care facility have on-off switches? If not, how
many shower spray units in accessible shower compartments do you have
without on-off switches? Would you have to purchase a new shower spray
unit to add the on-off feature or is there a way to adapt your current
unit for this purpose?
Persons with disabilities and the general public are invited to
comment on the incremental benefit of having an on-off switch on the
shower spray unit in an accessible shower compartment.
Question 27. What data source do you recommend to assist the
Department in estimating the number of existing hospitals and long-term
care facilities categorized by such features as size, age, type,
physical condition, and financial condition?
Question 28. Are there data sources that the Department could
consult to estimate the extent to which existing hospitals and long-
term care facilities comply with the current ADA Standards?
Question 29. Are there data sources that the Department could
consult to assess the incremental cost of bringing noncompliant
elements of existing hospitals and long-term care facilities into
compliance with the revised ADA Standards?
Residential Dwelling Units
Question 30. A changed requirement at ADAAG 804.2 requires a 60-
inch (rather than the current 40-inch) clearance space in so-called
galley kitchens, which have cabinets and appliances on opposite walls,
if there is only one entry to the kitchen. The Department wishes to
collect data about the effect of this requirement if it is applied to
existing facilities under the readily achievable barrier removal
requirement of Title III. Are any of the kitchens in the accessible
dwelling units of your existing housing facility of the one-entry
galley type? Is clearance of 60 inches provided? If not, is extra space
available for this purpose?
Persons with disabilities and the general public are invited to
comment on the incremental benefit of having a 60-inch (rather than the
current 40-inch) clearance space in galley kitchens.
Question 31. What data source do you recommend to assist the
Department in estimating the number of existing residential dwelling
units categorized by such features as size, age, type, physical
condition, and financial condition?
Question 32. What data source do you recommend to assist the
Department in estimating the extent to which existing residential
dwelling units comply with the current ADA Standards?
Question 33. What data source do you recommend to assist the
Department in estimating the incremental cost of bringing noncompliant
elements of existing residential dwelling units into compliance with
the revised ADA Standards?
State and Local Government Buildings: Cells and Courtrooms
Question 34. How many State and local detention and holding cells
were newly constructed or altered in each of the past five years? How
many would you project will be newly constructed or altered in each of
the next five years?
Question 35. How many State and local courtrooms were newly
constructed or altered in each of the past five years? How many would
you project will be newly constructed or altered in each of the next
five years?
Question 36. What data source do you recommend to assist the
Department in estimating the number of existing cells and courtrooms
categorized by such features as size, age, type, physical condition,
and financial condition?
Question 37. What would be a good source to assist the Department
in estimating how many State and local government building codes
already meet the requirements that will be in the revised ADA Standards
for cells and courtrooms?
Question 38. What would be a good source to assist the Department
in estimating the cost of bringing existing cells and courtrooms into
compliance with the revised ADA Standards?
Play Areas
Question 39. Among the new requirements at ADAAG 240 are new
scoping provisions for the minimum number of ground level and elevated
play components that are required to be on an accessible route for
newly constructed or altered play areas. The basic requirement for
ground level play components is that one of each type must be on an
accessible route. If a new or altered play area contains elevated play
components that fail to meet specified accessibility requirements, then
a specified greater number of ground level play components must be on
an accessible route. The Department wishes to collect data about the
effect of this requirement in existing play areas. Are any of the
ground level play components in your existing play area on an
accessible route? Is one of each type of ground level play component in
your existing play area on an accessible route? Are there elevated play
components in your existing play area? Are any of them on an accessible
route?
Question 40. What data source do you recommend to assist the
Department in estimating the number of existing play areas categorized
by such features as size, age, type, physical condition, and financial
condition?
Question 41. What would be a good source to assist the Department
in estimating the cost of bringing existing play areas into compliance
with the revised ADA Standards?
Recreation Facilities
Question 42. A new requirement at ADAAG 234.3 provides that every
new or altered amusement ride must provide at least one wheelchair
space or transfer seat or transfer device. The preamble to the final
recreation facilities guidelines provides that the transfer device may
be separate from, rather than integral to, the ride. The Department
wishes to collect data about the effect of this requirement if it is
applied to existing amusement rides under the barrier removal
requirement of Title III. With respect to your existing rides, have you
used transfer devices or other means to make the ride accessible to
persons with disabilities? If so, what did the transfer device cost?
Persons with disabilities and the general public are invited to
comment on the incremental benefit of having transfer devices available
for use on existing rides.
Question 43. A new requirement at ADAAG 235.2 requires accessible
boat slips to be provided in accordance with a table, which ranges from
one accessible boat slip for facilities with 25 or fewer boat slips to
12 accessible boat slips for facilities with 901 to 1,000 boat slips.
ADAAG 1003.3.1 provides that an accessible boat slip must be at least
60 inches wide along its entire length (with an exception for two-foot
sections at least 36 inches wide if separated by 60-inch wide sections
at least 60 inches in length). The Department wishes to collect data
about the effect of this requirement if it is applied to existing boat
slips under the readily achievable barrier removal requirement of Title
III. How many boat slips are there in your existing facility? When was
your facility built? The Department is considering reducing the number
of boat slips that must be accessible in existing facilities if it
selects Option II under Question 4,
[[Page 58782]]
above. The Department is soliciting comments from all stakeholders on
this approach. Please be as specific as possible in your response.
Question 44. An exception to the new requirement at ADAAG 206.2.15
permits the accessible route requirements (which must connect all
greens, weather shelters, rental areas, and the like) for golf courses
to be satisfied by golf car passages, defined at ADAAG 1006.3 as a 48-
inch wide passage, providing 60-inch wide openings in curbs or other
constructed barriers every 75 yards. The Department wishes to collect
data about the effect of this requirement if it is applied to existing
golf courses under the readily achievable barrier removal requirement
of Title III. What would you have to do to your existing golf course to
make it comply with the requirements for golf car passages?
Question 45. A new requirement at ADAAG 242.1 requires a new
swimming pool whose perimeter is over 300 linear feet to have at least
two accessible means of entry, at least one of which must be a lift or
a sloped entry. The Department is considering reducing the number of
accessible entries for a pool over 300 feet in perimeter in existing
facilities if it selects Option II under Question 4, above. The
Department is soliciting comments from all stakeholders on this
approach. Please be as specific as possible in your response.
Question 46. What data source do you recommend to assist the
Department in estimating the number of existing recreational areas of
each type to be covered in the revised ADA Standards, categorized by
such features as size, age, type, physical condition, and financial
condition?
Question 47. What data source do you recommend to assist the
Department in estimating the cost of making each of the following types
of existing recreation facilities comply with the revised ADA
Standards: amusement rides, boating facilities, fishing piers and
platforms, golf, miniature golf, sports facilities (bowling, shooting,
and exercise facilities, among others), and swimming pools and spas?
General Data Collection Questions Concerning Benefits
Question 48. Do you have any general comments or concerns about the
Department's proposed methodology for determining benefits? As
discussed in the text of the proposed framework, the Department is
charged with ascertaining the value of the benefits that the revised
ADA Standards will provide for both people with disabilities and
others. The Department is seeking comments from the public on how best
to quantify, monetize, or describe the benefits provided by the
proposed revised regulations, including suggestions on how to quantify,
monetize or describe use values, insurance values, and existence
values, each as described in Appendix A.
Question 49. What benefits do you see in the revised ADA Standards
for people with disabilities? For example, how might the revised
requirements for accessible routes be of benefit to the users of a
building? How could these benefits be quantified?
Question 50. The proposed framework states that the Department will
``roll up'' the elements by type of building facility, the five
principal regulatory groupings, new construction and alterations, and
the entire proposed revisions. Is this a sufficiently detailed
organization of the benefits and costs? Will it give all stakeholders
an accurate picture of how the proposed revisions will be of benefit?
If not, what sort of organization of the benefits would be more useful
for accurately conveying the important information?
Regulatory Assessment Process Questions
OMB Circular A-4 (http://www.whitehouse.gov/omb/circulars/a004/a-4.pdf)
provides guidance to Federal agencies on the development of regulatory
analysis. Regulatory analysis is a tool agencies use to anticipate and
evaluate the likely consequences of rules. It provides a formal way of
organizing the evidence on the key effects of the various alternatives
that should be considered in developing regulations. The motivation is
to (i) learn if the benefits of an action are likely to justify the
costs or (ii) discover which of various possible alternatives would be
the most cost-effective.
This ANPRM seeks additional information to assist the Department in
preparing a regulatory analysis under Circular A-4, in particular the
provisions of sections D (Analytical Approaches) and E (Identifying and
Measuring Benefits and Costs).
Question 51. Circular A-4 describes several analytical approaches
including benefit-cost analysis and cost-effectiveness analysis.
Stakeholders are encouraged to express their views and to advise the
Department as to how best to conduct these analyses as part of any
rulemaking that is published to adopt the revised ADA Standards.
Question 52. The Department is seeking comment, advice, and
information on its proposed approach in the three key application
areas, as follows:
a. Categorizing the revised ADA Standards for purposes of
identifying benefits and costs;
b. Defining baselines in accordance with OMB Circular A-4, sec.
E.2.; and
c. Identifying and quantifying benefits and costs.
Question 53. Stakeholders are invited to provide the Department
with comments and advice on the proposed classification, the proposed
roll-ups, and other related matters.
Question 54. With respect to elements in existing facilities that
may be subject to the revised ADA Standards through the readily
achievable barrier removal requirement, the use of market prices (or
willingness to pay) as a measure of benefits may be insufficient where
a given provision in the revised ADA Standards renders an existing
facility more accessible rather than newly accessible. Such might be
the case, for example, with respect to the provision requiring an
independent means of getting in and out of the pool in an otherwise
accessible swimming facility. The public is asked to comment on ways
and means of handling this issue.
Dated: September 23, 2004.
John Ashcroft,
Attorney General.
Appendix A--Proposed Framework for the Regulatory Analysis
1. Introduction
As directed by Executive Order 12866 and OMB Circular A-4, as
well as the Regulatory Flexibility Act and Executive Order 13272,
the Department may be required to conduct a comprehensive Regulatory
Impact Analysis of the revised ADA Standards. A Regulatory Impact
Analysis may include a statement of need for the proposed
regulation, the identification of a reasonable range of
alternatives, the conduct of a Benefit-Cost Analysis of the proposed
regulation and the alternatives, and an analysis of uncertainty in
the identification and quantification of costs and benefits. The
Benefit-Cost Analysis entails the comprehensive description of the
incremental costs and benefits of each alternative, to the extent
practicable, in terms of monetary value. In this context, a Benefit-
Cost Analysis would apply to each of the new or changed scoping and
technical provisions in the revised ADA Standards that represent
substantive changes from the current ADA Standards, as well as to
possible alternatives to those provisions. The proposed Regulatory
Impact Analysis would be included as part of the NPRM, and while the
public will have an opportunity to comment on its assumptions and
results at that time, this is the time to suggest significant
changes to the Department's proposed methodology. In presenting in
this ANPRM its current thinking on how it might approach the
regulatory analysis, the Department seeks to engage the public in
the choice of its methodology before significant
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time and effort is expended on its implementation.
Role of Regulatory Impact Analysis in the ADA Regulatory Process
Regulatory Impact Analysis is intended to inform stakeholders in
the regulatory process of the effects, both positive and negative,
of proposed new regulations. The principal stakeholders are those
who will be directly affected by the proposed regulations, namely
people with disabilities and the owners and developers of facilities
that will incur the direct costs of compliance. However, the public
at large, including people both with and without disabilities, is
also a key stakeholder in the regulatory process. The costs and cost
savings associated with the proposed regulatory action will ripple
throughout the economy, potentially affecting business costs and
consumer prices. Businesses may respond to the new and revised
requirements in a number of ways, some of which entail costs that
may be easily measurable, such as increased or reduced construction,
operating, and maintenance costs, and others of which entail costs
that may not be as easily measurable, such as delays in construction
and renovation. Thus, in addition to their effect on direct capital,
operating, and maintenance costs, new and revised accessibility
requirements influence less obvious but equally genuine aspects of
cost, such as construction schedules. Construction schedules might
be lengthened where the regulations impose new requirements and
shortened where the burden of a given scoping or technical provision
has been reduced relative to the current ADA Standards. The
Regulatory Impact Analysis will seek to recognize and account for
such schedule-related changes in costs.
The public at large will also benefit from the proposed
regulations. Accessible facilities benefit persons with and without
disabilities alike. This represents their use value. For individuals
with disabilities, use value will include benefits arising from the
ability to participate in previously inaccessible facility-based
activities, or the availability of more convenient or independently
usable facility elements or spaces. In addition, because people who
do not need the protections of the ADA in the present may need them
in the future, like an insurance policy, people without disabilities
may place a value on accessible features. People may also place some
value on the existence of accessible features unrelated to their
anticipation of future personal need for them. This is reflected in
people's possible willingness to pay something to ensure that equal
access is provided for others (family, friends, and other members of
society) who are or might become temporarily or permanently
disabled, or to safeguard the principle of equal protection for
people with disabilities, regardless of the risk of onset or the
general incidence of disability. Benefit-Cost Analysis helps the
general public ascertain whether the value of these ``nonuse''
related benefits is quantitatively significant relative to the
costs.
Some stakeholders might believe that economic analysis of any
kind is simply irrelevant with respect to the implementation of a
civil rights statute. The ADA is a comprehensive civil rights
statute protecting the rights of persons with disabilities, and as
such, could provide sufficient justification for regulatory action
even if the Benefit-Cost Analysis were to produce negative results.
Others might believe that, although economic yardsticks must not
override the protections laid down in Federal statutes, the
comprehensive articulation, if not quantification, of all benefits,
including the nonuse values discussed above, can help promote
understanding and further societal implementation of the protections
established in law. Some might also believe that Benefit-Cost
Analysis can be helpful in evaluating options for exempting certain
elements or spaces in existing facilities from the provisions of the
revised ADA Standards. Stakeholders are encouraged to express their
views and to advise the Department as to how best to conduct these
analyses as part of any rulemaking that is published to adopt the
revised ADA Standards.
2. Scope of the Regulatory Impact Analysis
In conducting its analysis, the Department will be required to
take a broader approach to the assessment of the benefits and costs
of the revised ADA Standards than the Access Board was required to
take in assessing ADAAG. The Department's broader approach is
required for two reasons. First, while the Access Board developed
the guidelines contained in ADAAG incrementally over several years,
the Department is now proposing to adopt ADAAG as a whole, as the
revised ADA Standards. Since 1992, the Access Board has undertaken
five separate and distinct rulemaking actions. The most recent of
those rulemaking actions involves 68 substantive changes and
additions to the scoping and technical requirements provided in the
current ADA Standards (estimated to impose annual incremental costs
on new or altered facilities of between $12.6 and $26.7 million).
The other four rulemaking actions involved the adoption of
supplemental guidelines for children's facilities ($0); state and
local facilities; play areas (between $37 and $84 million); and
recreational facilities (between $26.7 and $34.4 million). Examined
singly, the Board estimated each of the five rulemaking actions to
entail incremental annual costs of less than $100 million, which is
the threshold established in OMB Circular A-4 as the trigger for the
Benefit-Cost Analysis requirement.
The Department, however, is proposing to adopt the revisions to
the current ADA Standards and the four supplemental guidelines as a
whole as the revised ADA Standards. When combined, the Access
Board's estimated annual cost of all of the ADAAG revisions falls
within a range between $76.3 million and $145.1 million (uncorrected
for between-year inflation). With the mid-point of this range at
about $111 million, there is a material probability that the
combined cost of adopting the revised ADA Standards as a whole will
exceed the $100 million threshold.
The second reason that the Department will likely be required to
undertake a full Benefit-Cost Analysis is that the Department,
unlike the Access Board, is responsible for implementing the
requirements of the ADA with respect to existing facilities. Thus,
the Department must account for the additional incremental costs and
benefits attributable to the adoption of the revised ADA Standards
to the extent that the new or revised provisions will apply to
existing facilities. The additional incremental cost associated with
these requirements increases the likelihood that the total
regulatory costs will exceed the $100 million threshold for Benefit-
Cost Analysis.
To the extent practicable, the Department proposes to apply
state-of-the-art methods of Benefit-Cost Analysis as provided in OMB
Circular A-4. While Circular A-4 is definitive with respect to
principles, it leaves Federal agencies with discretion with respect
to the means and methods of application. The Department is seeking
comment, advice, and information on its proposed approach in the
three key application areas, as follows: (1) Categorizing the
revised ADA Standards for purposes of identifying costs and
benefits; (2) defining baselines and incremental costs; and (3)
identifying and quantifying costs and benefits.
3. Categorization of the Revised ADA Standards for Purposes of
Assessing Costs and Benefits
The adoption of the current ADA Standards represented a
fundamental change in the accessibility of facilities and,
accordingly, in the extent to which people with disabilities are
able to participate in the mainstream activities of daily life. Most
provisions of the revised ADA Standards represent improvements in
the quality of accessibility and the degree of inclusion. However,
unlike the current ADA Standards, many of the improvements in the
quality and degree of accessibility resulting from the revised ADA
Standards will derive from changes in the scoping, design, and
features of specific elements and spaces of a facility, rather than
as a result of changes to the facility as whole.
The various elements and spaces addressed in the revised ADA
Standards vary among different types of facilities and will be
classified accordingly. In addition, the impact of the new and
revised requirements may be fundamentally different with respect to
facilities that are newly constructed or altered after the effective
date of the revised ADA Standards, on the one hand, and existing
facilities, on the other. This in turn requires an additional level
of categorization. The Department and the stakeholders in this
regulatory action have an interest in viewing the combined costs,
benefits, and net benefits with respect to the substantive new and
revised provisions in the revised ADA Standards both as a whole and
as applied to particular types of facilities.
Under the Department's proposed categorization scheme, the
Department will assess costs and benefits for each element addressed
in the revised ADA Standards, as categorized by building and
facility type, separately for newly constructed or altered
facilities and existing facilities. Once costs and benefits are
assessed for each element, they (costs, benefits, and net benefits)
will be
[[Page 58784]]
aggregated (``rolled-up'') with respect to (i) the type of building
and facility; (ii) newly constructed or altered facilities; (iii)
existing facilities; and (iv) the revised ADA Standards as a whole.
The different ``roll-ups'' will enable stakeholders to examine the
regulatory analysis from their particular perspective.
4. Distinguishing the Baselines From the Incremental Costs and Benefits
OMB Circular A-4 stipulates that a regulatory analysis is only
supposed to account for those costs and benefits that arise as a
result of the proposed regulatory action itself. Such costs and
benefits are called ``incremental'' because they reflect only the
costs and benefits imposed by the adoption of the regulation--
excluded are any costs and benefits that are imposed by already
existing requirements. The latter costs and benefits constitute the
``baseline'' against which the incremental costs and benefits of the
new regulation are compared. The baseline thus represents the costs
and benefits that would arise whether or not the proposed
regulations are adopted. Although the current enforceable ADA
Standards clearly impose costs and benefits upon society, for the
purpose of the proposed Regulatory Impact Analysis, which will be
designed to identify the incremental costs and benefits of the
proposed rulemaking, the current ADA Standards and other Federal
requirements will be considered the baseline, and as such, will be
assigned zero costs and benefits. Thus, technically, if compliance
with a current requirement costs $40, and compliance with the
changed requirement costs $50, this will be stated as baseline of
zero, incremental cost of $10.
As a general principle, the Department proposes to determine the
incremental cost for each element or space addressed by a new or
revised standard in the revised ADA Standards by first determining
whether or not the current ADA Standards specify scoping and
technical requirements for that element or space. If the current ADA
Standards do address the element or space, then the provision in the
revised ADA Standards will be referred to as a change in existing
requirements. If not, the provision in the revised ADA Standards
will be referred to as a new requirement.
Incremental Costs Applied to Newly Constructed or Altered
Facilities
Where a given provision in the revised ADA Standards reflects a
change in the existing requirements applicable to a particular
element or space, the incremental cost (or savings) for that element
or space in facilities newly constructed or altered after the
effective date of the revised ADA Standards will be only the
difference between the costs and benefits imposed by the requirement
in the current ADA Standards and other Fed