[Federal Register Volume 73, Number 126 (Monday, June 30, 2008)]
[Proposed Rules]
[Pages 37009-37055]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-14395]
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DEPARTMENT OF JUSTICE
28 CFR Part 36
[CRT Docket No. 106; AG Order No. 2968-2008]
RIN 1190-AA44
Nondiscrimination on the Basis of Disability by Public
Accommodations and in Commercial Facilities; Correction
AGENCY: Department of Justice, Civil Rights Division.
ACTION: Proposed rule; correction.
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SUMMARY: This document contains corrections to the proposed rule,
published Tuesday, June 17, 2008, at 73 FR 34508, implementing the
Americans with Disabilities Act. The proposed rule would revise
Department of Justice regulations on nondiscrimination on the basis of
disability by public accommodations and in commercial facilities. The
correction consists of the addition of two appendices that were
inadvertently omitted.
DATES: All comments must be received by August 18, 2008.
FOR FURTHER INFORMATION CONTACT: Janet L. Blizard, Deputy Chief,
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).
The text of this correction is also available in an accessible
format on the ADA Home Page at http://www.ada.gov. You may obtain
copies of the correction in large print or on computer disk by calling
the ADA Information Line at the number listed above.
SUPPLEMENTARY INFORMATION:
Need for Correction
The proposed rule published on June 17, 2008, inadvertently omitted
two documents: Appendix A, which addresses major issues in the proposed
ADA Standards for Accessible Design and Appendix B, which explains the
methodology underlying the Department's regulatory impact analysis.
Both appendices also respond to comments received in response to the
Department of Justice's Advance Notice of Proposed Rulemaking (ANPRM)
published on September 30, 2004, 69 FR 58768. This correction document
will add the appendices to the appropriate places in the proposed rule.
Corrections
28 CFR Part 36 [Corrected]
1. On page 34557, immediately after the amendment to Sec. 36.608
redesignating that section as Sec. 36.607, and before the signature of
the Attorney General, add Appendix A and Appendix B, to read as
follows:
APPENDIX A TO PART 36: ANALYSIS OF THE PROPOSED STANDARDS
The following document is a summary of the major substantive
changes proposed for the scoping and technical requirements of the 1991
Standards at 28 CFR pt. 36 adopted in 1991, as amended in 1994. The
full text of the 2004 ADAAG is available for review on the Access
Board's Web site, http://www.access-board.gov, along with a chart that
shows the relationship between the 1991 Standards and the 2004 ADAAG.
This summary addresses only the major substantive changes that are
being proposed. Editorial changes are not discussed. Scoping and
technical requirements are discussed together, where appropriate, for
ease of understanding the requirements. In addition, this document
addresses substantive public comments on specific changes to the
proposed standards received by the Department in response to its
September 2004 ANPRM. Comments received by the Access Board on the
adoption process or on the overall scope of the proposed standards have
been addressed in the preamble to this notice. Comments that did not
raise major issues are not addressed here.
[[Page 37010]]
The ANPRM issued by the Department concerning these proposed
standards stated that comments received by the Access Board in response
to its development of the guidelines upon which these proposed
standards are issued would be considered in the development of this
NPRM. Therefore, the Department will not restate here all of the
comments and responses to them issued by the Access Board. The
Department is supplementing the Access Board's comments and responses
with substantive comments and responses in this notice. Comments and
responses addressed by the Access Board that also were separately
submitted to the Department will not be restated in their entirety
here.
Analysis of Sections
Application and Administration
103 Equivalent Facilitation
This section acknowledges that nothing in these requirements
prevents the use of designs, products, or technologies as alternatives
to those prescribed, provided they result in substantially equivalent
or greater accessibility and usability.
A commenter encouraged the Department to include a procedure for
determining equivalent facilitation. The Department believes that the
responsibility for determining and demonstrating equivalent
facilitation properly rests with the covered entity. The purpose of
allowing for equivalent facilitation is to encourage flexibility and
innovation while still ensuring access. The Department believes that
establishing potentially cumbersome bureaucratic provisions for
reviewing requests for equivalent facilitation is inappropriate.
104 Conventions
Proposed section 104.1.1, Construction and Manufacturing
Tolerances, provides that all dimensions are subject to conventional
industry tolerances except where the requirement is stated as a range
with specific minimum and maximum end points. Section 104.1 notes that
all dimensions not stated as a ``maximum'' or ``minimum'' are absolute
and that all dimensions are ``subject to conventional industry
tolerances.''
Commenters requested that specific new construction allowances and
tolerances be made for a variety of materials and designs required by
the proposed standards. The Department believes that it is
inappropriate for this agency to attempt to establish construction and
manufacturing tolerances for every material, element, or design that
may be used in new construction. Construction and manufacturing
tolerances are best addressed by industry standards, where available,
and are built into the specifications in the attached rules.
Section 104.2 provides that where the required number of elements
or facilities to be provided is determined by calculations of ratios or
percentages and remainders or fractions result, the next greater whole
number of such elements or facilities shall be provided. Where the
determination of the required size or dimension of an element or
facility involves ratios or percentages, rounding down for values less
than one-half is permissible.
A commenter stated that it is customary in the building code
industry to round up rather than down for values less than one-half. As
noted here, where the proposed standards provide for scoping,
fractional calculations will be rounded to the next whole number. The
Department is retaining the portion of section 104.2, Calculation of
Percentages, that permits rounding down for values less than one-half
where the determination of the required size or dimension of an element
or facility involves ratios or percentages. Such practice is standard
with the industry, and is in keeping with model building codes.
105 Referenced Standards
Section 105 lists the industry requirements that will be referenced
in the proposed standards. This section also clarifies that where there
is a difference between a provision of the proposed standards and the
referenced requirements, the provision of the proposed standards
applies.
Commenters noted that the National Fire Protection Association's
(NFPA) referenced standard for fire alarms at section 105.2.5 is based
on the NFPA 72 1999 or 2002 edition. The commenters recommended editing
the final standards to require compliance with the edition of NFPA that
is most recent because it is likely that the NFPA will amend its
standards prior to the issuance of final ADA Standards.
The rules that govern the publication of regulations that
incorporate private standards by reference require federal agencies to
adopt specific editions of the referenced code that are in existence at
the time of issuance of the rules. The Department anticipates that the
Access Board will periodically update the ADAAG references. Until then,
the Department will retain the reference contained in the 2004 ADAAG.
106 Definitions
Various definitions will be added to the proposed standards and
some current definitions will be dropped.
One commenter asked that the term public right-of-way be defined;
others asked that various terms and words defined by the 1991
Standards, and that were eliminated from the proposed standards, and
other words and terms newly used in the proposed standards be defined.
The Department believes that it is not necessary to add definitions
to this text because the proposed regulation at section 106.3 provides
that the meanings of terms not specifically defined in the proposed
standards, in the Department's regulation, or in referenced standards
are to be defined by collegiate dictionaries in the sense that the
context implies. The Department believes that this provision adequately
addresses these commenter's issues.
Scoping and Technical Requirements
202 Existing Buildings and Facilities
Alterations to Primary Function Areas. A new provision at section
202.4 merely restates a current requirement under Title III, and
therefore represents no change for Title III facilities or for those
Title II facilities that currently have elected to comply with the 1991
Standards. However, under the revised provisions, state and local
government facilities that currently elect to comply with UFAS instead
of the 1991 Standards will no longer have that option, and thus will
now be subject to the path of travel requirements. The path of travel
requirement provides that when a primary function area of an existing
facility is altered, the path of travel to that area (including rest
rooms, telephones, and drinking fountains serving the area) must also
be made accessible, but only to the extent that the cost of doing so
does not exceed twenty percent (20%) of the cost of the alterations to
the primary function area. The UFAS requirements for a substantial
alteration, though different, may have covered some of the items that
will now be covered by the path of travel requirement.
Visible Alarms in Alterations to Existing Facilities. The 1991
Standards at sections 4.1.3(14), and 4.1.6(1) and (b), and proposed
sections 202.3 and 215.1, Exception require that when existing elements
and spaces of a facility are altered, the alterations must comply with
new construction requirements. The proposed regulations add a new
exception to the scoping requirement for visible alarms in
[[Page 37011]]
existing facilities that will provide that visible alarms must be
installed only when an existing fire alarm system is upgraded or
replaced, or a new fire alarm system is installed.
Commenters urged the Department not to include the exception
because it will make the safety of individuals with disabilities
dependent upon the varying age of existing fire alarm systems. Other
commenters suggested that including this section, even with the
exception, will result in significant cost to building owners and
operators.
The Department believes that the language adopted by the Access
Board strikes a reasonable balance between the interests of individuals
with disabilities and those of the business community. If undertaken at
the time a system is installed whether in a new facility or in a
planned system upgrade, the cost of adding visible alarms is
reasonable. Over time, existing facilities will become fully accessible
to individuals who are deaf or hard of hearing, and will add minimal
costs to owners and operators.
203 General Exceptions
Limited Access Spaces and Machinery Spaces. The 1991 Standards at
section 4.1.1 contains an exception that exempts ``nonoccupiable''
spaces that have limited means of access, such as ladders or very
narrow passageways, and that are visited only by service personnel for
maintenance, repair, or occasional monitoring of equipment from all
accessibility requirements. The proposed standards at sections 203.4
and 203.5 expand this exception by removing the condition that the
exempt spaces be ``nonoccupiable,'' and by separating the other
conditions into two independent exceptions: one for spaces with limited
means of access, and the other for machinery spaces. More spaces are
exempted by the proposed changes to the exception.
Employee Work Areas. Section 215.3 of the proposed standards
provides that employee work areas in newly constructed facilities are
required to have wiring systems that are capable of supporting visible
alarms. The 1991 Standards, section 4.1.1(3), require visible alarms to
be provided where fire alarm systems are provided, but do not require
areas used only by employees as work areas to be equipped with
accessibility features. As applied to office buildings, the 1991
Standards require visible alarms to be provided in public and common
use areas such as hallways, conference rooms, break rooms, and
restrooms, where fire alarm systems are provided.
Commenters asserted that the requirements of section 215.3 of the
proposed standards would be burdensome to meet. These commenters also
raised concerns that all employee work areas within existing buildings
and facilities must be equipped with accessibility features.
The commenters' concerns about section 215.3 represent a
misunderstanding of the requirements applicable to employee work areas.
Newly constructed buildings and facilities merely are required to
provide wiring for visible alarm systems that can be added as needed to
accommodate employees who are deaf or hard of hearing. This is a
minimum requirement without significant impact.
The other issue in the comments represents a misunderstanding of
the Department's existing regulatory requirements. Employee common use
areas in covered facilities (e.g., locker rooms, break rooms,
cafeterias, toilet rooms, and corridors to exits, and other common use
spaces) are required to be accessible under the 1991 Standards; areas
in which employees are actually performing their jobs are required to
enable a person using a wheelchair or mobility device to approach,
enter, and exit the area. The proposed rule will require increased
access through the circulation path requirement discussed below, but
neither the 1991 Standards nor the proposed standards would require
employee work stations to be accessible. Access to specific employee
work stations would be governed by Title I of the ADA.
Common Use Circulation Paths in Employee Work Areas. The 1991
Standards at section 4.1.1(3), and the proposed standards at sections
203.9; 206.2.8, Exceptions 1, 2, and 3; 402.1; 402.2; 403.5; 405.5; and
405.8 will require employee work areas to be designed and constructed
so that individuals with disabilities can approach, enter, and exit the
areas. The ADA, 42 U.S.C. 12112 (b)(5)(A) and (B), requires employers
to make reasonable accommodations in the workplace for individuals with
disabilities, which may include modifications to work areas when
needed. Providing increased access to the facility at the time of
construction or alteration will simplify the process of providing
reasonable accommodations when they are needed. The requirement will
not apply to existing facilities pursuant to the readily achievable
barrier removal requirement. The Department has consistently held that
barrier removal requirements do not apply to exclusively employee areas
because the purpose of Title III is to ensure that access is provided
to clients and customers. See 28 CFR pt. 36, App. B.
The proposed standards will require common use circulation paths
within employee work areas to comply with the technical requirements
for accessible routes, subject to several exceptions that exempt common
use circulation paths in employee work areas where it may be difficult
to comply with the technical requirements for accessible routes due to
the size or function of the area:
Employee work areas, or portions of employee work areas,
that are less than 300 square feet and are elevated 7 inches or more
above the ground or finish floor, where elevation is essential to the
function of the space, are exempt.
Common use circulation paths within employee work areas
that are less than 1,000 square feet and are defined by permanently
installed partitions, counters, casework, or furnishings are exempt.
Kitchens in quick service restaurants, cocktail bars, and the employee
side of service counters are frequently covered by this exception.
Common use circulation paths within employee work areas
that are an integral component of equipment are exempt. Common use
circulation paths within large pieces of equipment in factories,
electric power plants, and amusement rides are covered by this
exception.
Common use circulation paths within exterior employee work
areas that are fully exposed to the weather are exempt. Farms, ranches,
and outdoor maintenance facilities are covered by this exception.
The proposed changes also contain exceptions to the technical
requirements for accessible routes:
Machinery and equipment are permitted to reduce the clear
width of common use circulation paths where it is essential to the
function of the work performed. Machinery and equipment that must be
placed a certain way to work properly, or for ergonomics or to prevent
workplace injuries are covered by this exception.
Handrails are not required on ramps, provided they can be
added in the future.
Commenters stated that the proposed standards for common use
circulation paths in employee work areas are inappropriate,
particularly in kitchens, storerooms, and behind cocktail bars where
wheelchairs would not be easily accommodated. These commenters further
urged the Department not to adopt a requirement that circulation paths
in employee work areas be at least 36 inches wide, including those at
emergency exits.
[[Page 37012]]
The Department believes that the commenters misunderstand the scope
of this provision. Nothing in the rule requires all circulation paths
in non-exempt areas to be accessible. The Department recognizes that
building codes and fire and life safety codes, which are adopted by all
the States, require primary circulation paths in facilities, including
employee work areas, to be at least 36 inches wide for purposes of
emergency egress. Accessible routes also are at least 36 inches wide,
therefore, the Department anticipates that covered entities will be
able to satisfy the requirement to provide accessible circulation paths
by ensuring that their required primary circulation paths are
accessible.
Individual employee work stations, such as a grocery checkout
counter or an automobile service bay designed for use by one person, do
not contain common use circulation paths and are not required to
comply. Other work areas, such as stockrooms that typically have narrow
pathways between shelves would be required to design only one
accessible circulation path into the stockroom. It would not be
necessary to make each circulation path in the room accessible.
In addition, the proposed standards include exceptions for common
use circulation paths in employee work areas where it may be difficult
to comply with the technical requirements for accessible routes due to
the size or function of the areas. The Department believes that these
exceptions will provide the flexibility necessary to ensure that this
requirement does not interfere with legitimate business operations.
205 and 309 Operable Parts
Sections 4.1.3, and more specifically 4.1.3(13), 4.27.3, and 4.27.4
of the 1991 Standards require operable parts on accessible elements,
along accessible routes, and in accessible rooms and spaces to comply
with the technical requirements for operable parts, including height
and operation. The 1991 Standards at section 4.27.3 contain an
exception that exempts ``special equipment [that] dictates otherwise,''
and electrical and communications systems receptacles not intended for
use by building occupants from the technical requirement for the height
of operable parts. The proposed changes divide this exception into
three exceptions covering operable parts intended only for use by
service or maintenance personnel; electrical or communication
receptacles serving a dedicated use; and floor electrical receptacles.
Operable parts covered by these new exceptions are exempt from all the
technical requirements for operable parts. The proposed changes add
exceptions that exempt certain outlets at kitchen counters; HVAC
diffusers; and redundant controls provided for a single element, other
than light switches, from the technical requirements for operable
parts. The proposed changes also exempt gas pump nozzles from the
technical requirement for activating force at section 309.4.
Reach Ranges. The 1991 Standards set the height for the maximum
side reach at 54 inches. The proposed standards at section 308.3 lower
that maximum height to 48 inches. The proposed standards also add
exceptions for certain elements to the scoping requirement for operable
parts.
The 1991 Standards at sections 4.1.3; 4.27.3; and 4.2.6, and the
proposed standards at sections 205.1; 228.1; 228.2; 309.3; 308.3;
308.3.1, Exception 2; and 308.3.2 require operable parts of accessible
elements, along accessible routes, and in accessible rooms and spaces
to be placed within a forward or side reach. The proposed standards
also require at least one of each type of depositories, vending
machines, change machines, and gas pumps, and at least 5 percent of
mailboxes provided in an interior location to meet the technical
requirements for a forward or side reach.
The 1991 Standards specify a maximum 54 inch high side reach and a
minimum 9 inch low side reach for a reach depth of 10 inches maximum.
The proposed standards specify a maximum 48 inch high side reach and a
minimum 15 inch low side reach for an unobstructed reach, and a maximum
48 inch high side reach for a reach depth of 10 inches maximum over an
obstruction 34 inches maximum in height. Changing the side reach will
affect a variety of building elements such as light switches,
electrical outlets, thermostats, fire-alarm pull stations, card
readers, and keypads.
Commenters were divided in their views on the change to the reach
range requirements. Disability advocacy groups and others, including
individuals of short stature, supported the modifications to the
proposed reach range requirements. Other commenters asserted that the
proposed reach range requirements will be burdensome for small
businesses to comply with and asked the Department to consider
retaining 1991 requirements. These comments argued that the proposed
reach range requirements restrict design options, especially in
residential housing.
The Department believes that data provided by advocacy groups and
others provides compelling evidence that lowered reach range
requirements will serve significantly greater numbers of individuals
with disabilities, including individuals of short stature, people with
limited upper body strength, and others with limited use of their arms
and fingers. This proposal was developed by the Access Board over a
prolonged period in which there was extensive public participation.
This process did not produce any significant data to indicate that
applying this requirement in new construction or during alterations
would impose a significant burden.
206 and 402 Accessible Routes
Slope. The proposed standards provide that the running slope of
walking surfaces have cross slopes that shall not be steeper than 1:48.
The 1991 Standards' cross slope requirement is 1:50.
A commenter recommended increasing the cross slope requirement to
allow a maximum of \1/2\ inch per foot (1:24) to prevent imperfections
in concrete surfaces from ponding water.
The requirement that a cross slope shall not be steeper than 1:48
adequately provides for water drainage in most situations. Changes to
the specifications suggested would double the allowable cross slope and
create a significant impediment for many wheelchair users, and others
with mobility impairments. Therefore, the Department declines to accept
this recommendation.
Accessible Routes from Site Arrival Points and Within Sites. The
1991 Standards at sections 4.1.2(1) and (2) and the proposed changes at
sections 206.2.1 Exception 2; and 206.2.2 Exception require, where
provided, that at least one accessible route be provided from site
arrival points to an accessible building entrance, and at least one
accessible route connect accessible facilities on the same site. The
proposed standards also add two exceptions that exempt site arrival
points and accessible facilities within a site from the accessible
route requirements where the only means of access between them is a
vehicular way that does not provide pedestrian access.
Comments urged the Department to eliminate the exception that
exempts site arrival points and accessible facilities from the
accessible route requirements where the only means of access between
them is a vehicular way not providing pedestrian access. The Department
declines to accept this recommendation because the
[[Page 37013]]
Department believes that its use will be limited. If it can be
reasonably anticipated that the route between the site arrival point
and the accessible facilities will be used by pedestrians, regardless
of whether a pedestrian route is provided, then this exception will not
apply. It will apply only in the relatively rare situations where the
route between the site arrival point and the accessible facility
dictates vehicular access--for example, an office complex on an
isolated site that has a private access road, or a self-service storage
facility where all users are expected to drive to their storage units.
Another commenter suggested that the language of section 406.1,
General, is confusing because it states that curb ramps on accessible
routes shall comply with the guidelines, and that the 1991 Standards
provide that curb ramps shall be provided wherever an accessible route
crosses a curb.
The Department declines to change this language because the change
is purely editorial, resulting from the overall changes in the format.
It does not change the substantive requirement. Under the revised
format, all elements within a required accessible route must be
accessible; therefore, if the accessible route crosses a curb, a curb
ramp must be provided.
Limited-use/Limited-application Elevators and Private Residence
Elevators. The 1991 Standards at sections 4.1.3(5), Exception 1, and
the proposed standards at sections 206.2.3, Exception 1 and 2; and
206.6, Exception 1 and 2 include exceptions to the scoping requirement
for accessible routes that exempt certain facilities from connecting
each story with an elevator. If a facility is exempt from the scoping
requirement, but nonetheless installs an elevator, the 1991 Standards
require the elevator to comply with the technical requirements for
elevators. The proposed standards add a new exception that allows a
facility that is exempt from the scoping requirement to install a
limited-use/limited-application (LULA) elevator. LULA elevators are
permitted as an alternative to platform lifts. The proposed standards
also add a new exception that permits private residence elevators in
multi-story dwelling and transient lodging units. The proposed
standards contain technical requirements for LULA elevators and private
residence elevators.
A commenter questioned the value of permitting LULA elevators
because, as was claimed, these elevators often are unreliable. LULAs
are smaller than other elevators and have limited travel distance. They
are in all other respects subject to the same safety and reliability
standards as other elevators. The Department believes that because
LULAs will be permitted only in situations where accessible vertical
access is not now required, their use will not diminish required access
and may, in fact, encourage covered entities to provide vertical access
in situations where it is not now being provided.
Accessible Routes to Tiered Dining Areas in Sports Facilities. The
1991 Standards at sections 4.1.3(1) and 5.4 and the proposed changes at
section 206.2.5 and Exception 3 require an accessible route to be
provided to all dining areas in new construction, including raised or
sunken dining areas. The proposed standards will add a new exception
for tiered dining areas in sports facilities. Dining areas in sports
facilities are typically integrated into the seating bowl and are
tiered to provide adequate lines of sight for individuals with
disabilities. The new exception requires an accessible route to be
provided to at least 25 percent of the tiered dining areas in sports
facilities. Each tier must have the same services and the accessible
route must serve the accessible seating.
Accessible Routes to Press Boxes. The 1991 Standards at sections
4.1.1(1) and 4.1.3(1) cover all areas of newly constructed facilities
required to be accessible, and an accessible route to connect
accessible entrances with all accessible spaces and elements within the
facility. Section 201.1 of the proposed standards requires that all
areas be accessible. The proposed changes at sections 206.2.7(1) and
(2) add two exceptions that exempt small press boxes that are located
on bleachers with entrances on only one level, and small press boxes
that are free-standing structures elevated more than 12 feet, from the
accessible route requirement when the aggregate area of all press boxes
in a sports facility does not exceed 500 square feet. The Department
anticipates that this change will significantly reduce the economic
impacts on smaller sports facilities, such as those associated with
high schools or community colleges.
Entrances. The 1991 Standards at sections 4.1.3(8), (a)(i), and
(a)(ii); and 4.1.6(1)(h) require at least fifty percent (50%) of public
entrances to be accessible. Additionally, the 1991 Standards require
the number of accessible public entrances to be equivalent to the
number of exits required by applicable building and fire codes. With
very few exceptions, building and fire codes require at least two exits
to be provided from spaces within a building and from the building
itself. Therefore, under the 1991 Standards where two public entrances
are planned in a newly constructed facility, both entrances must be
accessible.
Instead of requiring accessible entrances based on the number of
public entrances provided or the number of exits required (whichever is
greater), section 206.4.1 of the proposed standards will require at
least sixty percent (60%) of public entrances to be made accessible.
The revision is intended to achieve the same result as the 1991
Standards. Thus, under the proposed standards where two public
entrances are planned in a newly constructed facility, both entrances
must be accessible.
Where multiple public entrances are planned to serve different site
arrival points, the 1991 Standards at section 4.1.2(1) and section
206.2.1 of the proposed standards require at least one accessible route
to be provided from each type of site arrival point provided, including
accessible parking spaces, accessible passenger loading zones, public
streets and sidewalks, and public transportation stops, to an
accessible public entrance that serves the site arrival point.
The U.S. Small Business Administration Office of Advocacy and other
comments recommended retaining the 1991 requirement for fifty percent
(50%) of public entrances of covered entities to be accessible. These
commenters also raised concerns about the impact upon existing
facilities.
The Department believes that these commenters misunderstand the
1991 Standards. As explained above, the current requirements generally
require more than fifty percent (50%) of entrances in small facilities
to be accessible. Model codes require that most buildings have more
than one means of egress, thus, most buildings have more than one
entrance, and now these buildings must have more than one accessible
entrance. Requiring at least sixty percent (60%) of public entrances to
be accessible is not expected to result in a substantial increase in
the number of accessible entrances compared to the current
requirements. The 1991 Standards and the proposed standards also
contain exceptions that limit the number of accessible entrances
required in alterations to existing facilities. When entrances in an
existing facility are altered and the facility has an accessible
entrance, the entrance being altered is not required to be accessible,
unless a primary function area also is altered and then an accessible
path of travel must be provided to the primary function area to
[[Page 37014]]
the extent the cost is not disproportionate. The Department anticipates
retaining the requirement for accessible entrances. However, in order
to ensure the Department is fully informed about the potential results
of retaining the requirement, the Department is asking for detailed
comments about this issue.
Alterations to Existing Elevators. When a single space or element
is altered, the 1991 Standards at sections 4.1.6(1)(a) and (b) require
the space or element to be made accessible. When an element in one
elevator is altered, the proposed standards at section 206.6.1 will
require the same element to be altered in all elevators that are
programmed to respond to the same call button as the altered elevator.
The proposed standards at sections 407.2.1 Exception--407.4.7.1.2
Exception also contain exceptions to the technical requirements for
elevators when existing elevators are altered that further minimize the
impact of the revision:
Existing elevators are permitted to have recessed call
buttons.
Existing call buttons and keypads are permitted to be
located at 54 inches above the finish floor, measured to the centerline
of the highest operable part.
Existing call buttons are not required to be \3/4\ inch
minimum in the smallest dimension.
Existing call buttons are not required to have visible
signals to indicate when each call is registered and when each call is
answered.
A visible and audible hall signal is not required to be
provided at the hoistway entrance of existing elevators to indicate the
direction of car travel.
Existing visible hall signals are not required to be
centered at 72 inches minimum above the finish floor and 2\1/2\ inches
minimum measured along the centerline of the element.
Existing hall signals are not required to meet the
requirements for frequency and range of audible signals.
Existing manually operated hoistway swing doors are
permitted if the door opening provides a clear width of 32 inches
minimum, and the force for pushing or pulling open the door is 5 pounds
maximum.
Existing manually operated doors are not required to
provide a reopening device that automatically stops and reopens the car
door and hoistway door if the doors are obstructed by an object or a
person.
A power operated car door with a door opening that
provides a clear width of 32 inches minimum is permitted in an existing
elevator.
Existing elevator car configurations that provide a clear
floor area of 16 square feet, and provide 54 inches minimum inside
clear depth and 36 inches minimum clear width are permitted.
Where a new car operating panel with accessible elevator
car controls and tactile markings is provided in an existing elevator,
existing car operating panels are not required to be made accessible.
Existing car control buttons with floor designations are
permitted to be located 54 inches maximum above the finish floor where
a parallel approach is provided.
Existing car control buttons with floor designations are
permitted to be recessed.
Where space on an existing car operating panel precludes
the placement of tactile markings immediately to the left of the
control button, the markings are permitted to be placed as near to the
control button as possible.
Commenters expressed concerns about the requirement that when an
element in one elevator is altered, the proposed standards at section
206.6.1 will require the same element to be altered in all elevators
that are programmed to respond to the same call button as the altered
elevator. Commenters noted that such a requirement is burdensome and
will result in costly efforts without significant benefit to
individuals with disabilities.
The Department believes that this requirement is necessary to
ensure that when an individual with a disability presses a call button,
an accessible elevator will arrive. The Department believes that the
effort required to meet this provision is minimal in the majority of
situations, and the benefit to individuals with disabilities not having
to wait unnecessarily for an accessible elevator to make its way to
them arbitrarily outweighs any minor burden of programming
corresponding elevators.
Elevator Leveling. Section 407.4.4, Leveling, provides that each
car must automatically level to \1/2\ inch at floor landings.
Accessible Routes in Dwelling Units with Mobility Features. The
UFAS, at sections 4.34.1 and 4.34.2, require the living area, kitchen
and dining area, bedroom, bathroom, and laundry area where provided in
dwelling units with mobility features to be on an accessible route.
Where dwelling units have two or more bedrooms, at least two bedrooms
are required to be on an accessible route.
The proposed changes at sections 233.3.1.1, 809.1; 809.2; 809.2.1
and 809.4 will require all spaces and elements within dwelling units
with mobility features to be on an accessible route. These proposed
changes exempt unfinished attics and unfinished basements from the
accessible route requirement. These proposed changes also include an
exception to the dispersion requirement that permits single-story
dwelling units or ``flats'' to be constructed, where multi-story
dwelling units are provided. A ``flat'' eliminates the need to provide
a residential elevator or platform lift to connect stories.
Location of Accessible Routes. The 1991 Standards, section
4.3.2(1), require accessible routes connecting site arrival points and
accessible building entrances to coincide with general circulation
paths, to the maximum extent feasible. The proposed regulation requires
all accessible routes to coincide with or be located in the same
general area as general circulation paths. Additionally, a new
provision specifies that where a circulation path is interior, the
required accessible route must also be located in the interior of the
facility, where general circulation paths are located in the interior
of the facility. The revision affects a limited number of buildings.
The proposed changes at section 206.3 will explicitly require all
accessible routes to coincide with or be located in the same general
area as general circulation paths. Designing newly constructed interior
accessible routes to coincide with or to be located in the same area as
general circulation paths will not typically present a difficult design
challenge and is expected to impose limited design constraints. The
revision will have no impact on exterior accessible routes. The 1991
Standards and proposed standards also require accessible routes to be
located in the interior of the facility, where general circulation
paths are located in the interior of the facility. The revision affects
a limited number of buildings.
Location of Accessible Routes to Stages. The 1991 Standards at
section 4.33.5 require an accessible route to connect the accessible
seating and the performing area. Proposed section 206.2.6 will require
the accessible route to directly connect the seating area and the
accessible seating, stage, and all areas of the stage, where a
circulation path directly connects the seating area and the stage. The
1991 Standards require and the proposed changes also will require an
accessible route to connect the stage and ancillary areas used by
performers such as dressing rooms. The proposed standards do not
[[Page 37015]]
require an additional accessible route to be provided to the stage.
Rather, the changes specify where the accessible route to the stage,
which is required by the 1991 Standards, must be located.
207 Accessible Means of Egress
General. The 1991 Standards at sections 4.1.3(9); 4.1.6(1)(g); and
4.3.10 establish scoping and technical requirements for accessible
means of egress. The proposed changes at section 207.1, Exception 1
reference the International Building Code for scoping and technical
requirements for accessible means of egress. Relevant proposed sections
include 216.4.
The 1991 Standards require the same number of accessible means of
egress to be provided as the number of exits required by applicable
building and fire codes. The International Building Code (IBC) requires
at least one accessible means of egress and at least two accessible
means of egress where more than one means of egress is required by
other sections of the code. The proposed changes are expected to have
minimal impact since the model fire and life safety codes, which are
adopted by all the States, contain equivalent requirements with respect
to the number of accessible means of egress.
The 1991 Standards require areas of rescue assistance or horizontal
exits in facilities with levels above or below the level of exit
discharge level. Areas of rescue assistance are spaces that have direct
access to an exit, stair, or enclosure where individuals who are unable
to use stairs can go to call for assistance and wait for evacuation.
The proposed standards will now incorporate the requirements
established by the IBC. The IBC requires an evacuation elevator
designed with standby power and other safety features that can be used
for emergency evacuation of individuals with disabilities in facilities
with four or more stories above or below the exit discharge level, and
allows exit stairways and evacuation elevators to be used as an
accessible means of egress in conjunction with areas of refuge or
horizontal exits. The proposed change is expected to have minimal
impact since the model fire and life safety codes, adopted by most
States, already contain parallel requirements with respect to
evacuation elevators.
The 1991 Standards exempt facilities equipped with a supervised
automatic sprinkler system from providing areas of rescue assistance,
and also exempt alterations to existing facilities from providing an
accessible means of egress. The IBC exempts buildings equipped with a
supervised automatic sprinkler system from certain technical
requirements for areas of refuge, and also exempts alterations to
existing facilities from providing an accessible means of egress.
The proposed standards will require signs that provide direction to
or information about functional spaces to meet certain technical
requirements. The proposed standard at section 216.4 addresses exit
signs. This section requires exit signs at doors to be raised with
Braille characters, and also requires directional exit signs and signs
at areas of refuge to have appropriate visual characteristics. This
section is consistent with the requirements of the IBC. Signs used for
means of egress are covered by this scoping requirement. The proposed
requirements specifically identify signs used for means of egress and
require the signs to meet certain technical requirements.
Standby Power for Platform Lifts. The proposed regulations at
section 207.2 will require standby power to be provided for platform
lifts that are permitted to serve as part of an accessible means of
egress by the IBC. The IBC permits platform lifts to serve as part of
an accessible means of egress in a limited number of places where
platform lifts are allowed in new construction. The 1991 Standards and
the proposed regulations similarly limit the places where platform
lifts are allowed in new construction. ADAAG 4.1.3(5) Exception 4(a)
through (d); sections 206.7.1 through 206.7.10 of the proposed
regulations.
Commenters urged the Department to reconsider provisions that would
require standby power to be provided for platform lifts. Concerns were
raised that ensuring standby power is too burdensome. The Department
views this issue as a fundamental life safety issue. Lift users face
the prospect of being trapped on the lift in the event of a power
failure if standby power is not provided. The lack of standby power
could be life-threatening in situations where the power failure is
associated with a fire or other emergency. The use of a platform lift
is generally only one of the options available to covered entities.
Covered entities that are concerned about the costs associated with
maintaining standby power for a lift may wish to explore design options
that would permit the use of a ramp.
208 and 502 Parking Spaces
General. Where parking spaces are provided, the proposed standards
at sections 4.1.2(5)(a) and (7) and 7(a), and the proposed changes at
section 208.1 and Exception require a specified number of the parking
spaces to be accessible. The proposed changes add a new exception that
exempts parking spaces used exclusively for buses, trucks, delivery
vehicles, law enforcement vehicles, or for purposes of vehicular
impound from the scoping requirement for parking spaces. If a lot
containing parking spaces for these vehicles is used by the public, the
lot is required to have an accessible passenger loading zone.
The proposed standards require accessible parking spaces to be
identified by signs that display the International Symbol of
Accessibility. At section 216.5 and Exceptions 1 and 2 new changes will
add two new exceptions that exempt accessible parking spaces from the
signage requirement. The first exception exempts sites that have four
or fewer parking spaces from the signage requirement. The second
exception exempts residential facilities where parking spaces are
assigned to specific dwelling units from the signage requirement.
Commenters stated that the first exception, by allowing a parking
lot with four or fewer spaces not to post a sign at its one accessible
space, is problematic because it could allow all drivers to park in
accessible parking spaces. The Department believes that this exception
provides necessary relief for small business entities that may
otherwise face the prospect of having between twenty-five percent (25%)
and one hundred percent (100%) of their limited parking area
unavailable to their customers because it is reserved for the exclusive
use of persons with accessible tags or parking placards. The proposed
standards still require these businesses to ensure that at least one of
their available spaces is designed to be accessible.
A commenter stated that accessible parking spaces must be clearly
marked. The Department notes that section 502.6, Identification,
provides that parking spaces must be identified by signs that include
the International Symbol of Accessibility. Additional signs are
required to identify van accessible spaces. Also, section 502.3.3,
Marking, requires that access aisles are to be marked so as to
discourage parking in them.
Access Aisle. The advisory note accompanying section 502.3 provides
that it is preferable that the accessible route connecting parking
spaces to accessible entrances not pass behind parked vehicles.
Commenters questioned why this advisory note would permit the
placement of individuals with disabilities in the path of moving
[[Page 37016]]
vehicles. The Department believes that the proposed standards
appropriately recognize that not all parking facilities provide
separate pedestrian routes. Section 502.3 provides the flexibility
necessary to permit designers and others to determine the most
appropriate location of the access route in connection to the
accessible entrances. If all pedestrians using the parking facility are
expected to share the vehicular lanes, then the ADA permits covered
entities to use the vehicular lanes as part of the accessible route.
The advisory note, however, calls attention to the fact that this
practice, while permitted, is not ideal. Accessible parking spaces must
be located on the shortest accessible route of travel to the facility's
entrance. Accessible parking spaces and the required accessible route
should be located where individuals with disabilities do not have to
cross vehicular lanes or pass behind parked vehicles to have access to
the entrance. If it is necessary to cross a vehicular lane because, for
example, local fire engine access requirements prohibit parking
immediately adjacent to a building, then a marked crossing should be
used as part of the accessible route to the entrance.
Van Accessible Parking Spaces. The 1991 standards at sections
4.1.2(5)(b), 4.6.3; 4.6.4; and 4.6.5 require one in every eight
accessible parking spaces to be van accessible. Proposed changes will
require one in every six accessible parking spaces to be van
accessible.
A commenter asked whether automobiles other than vans may use van
accessible parking spaces. The ADA regulations do not prohibit
automobiles other than vans from using van accessible parking spaces.
The Department does not distinguish between automobiles that are actual
``vans'' versus other vehicles such as trucks, station wagons, SUVs, or
other automobiles because many vehicles other than vans may be used by
individuals with disabilities to transport mobility devices.
Commenters' opinions were divided on this proposal. Facility
operators and others asked for a reduction in the number of required
accessible parking spaces, especially the number of van accessible
parking spaces because they claimed these spaces often are not used.
Individuals with disabilities, however, requested an increase in the
scoping requirements for these parking spaces.
The Department is aware that a strong difference of opinion exists
between those who use such spaces and those who must provide or
maintain them. Therefore, the Department is not proposing to increase
the total number of accessible spaces. The only change that is being
proposed is to increase the proportion of spaces that must be
accessible to vans and other vehicles equipped to transport mobility
devices.
Direct Access Entrances from Parking Structures. Where levels in a
parking garage have direct connections for pedestrians to another
facility, the 1991 Standards, 4.1.3(8)(b)(i), require at least one of
the direct connections to be accessible. The proposed changes at
section 206.4.2 require all of the direct connections to be accessible.
209 and 503 Passenger Loading Zones and Bus Stops
Passenger Loading Zones at Medical Care and Long-term Care
Facilities. Sections 6.1 and 6.2 of the 1991 Standards and proposed
section 209.3 require medical care and long-term care facilities, where
the period of stay exceeds 24 hours, to provide at least one passenger
loading zone at an accessible entrance. The 1991 Standards also require
a canopy or roof overhang at the passenger loading zone. The proposed
standards will not require a canopy or roof overhang.
Commenters urged the Department to reinstate the existing
requirement for a canopy or roof overhang at passenger loading zones at
medical care and long-term care facilities. While the Department
recognizes that a canopy or roof overhang may afford useful protection
from inclement weather conditions to everyone using a facility, it is
not clear that the absence of such protection would impede access by
individuals with disabilities. Therefore, the Department declines to
reinstate that requirement.
Passenger Loading Zones. Where passenger loading zones are
provided, the 1991 Standards, at sections 4.1.2(5) and 4.6.6, require
at least one passenger loading zone to be accessible. The proposed
changes at sections 209.2.1, 503.2, 503.3, 503.3.1, 503.3.2, 503.3.3,
and 503.4 Exception, will require facilities such as airport passenger
terminals that have long, continuous passenger loading zones to provide
one accessible passenger loading zone in every continuous 100 linear
feet of loading zone space. The 1991 Standards and the proposed
standards include technical requirements for the vehicle pull-up space
(96 inches wide minimum and 20 feet long minimum). Accessible passenger
loading zones must have an access aisle that is 60 inches wide minimum
and extends the full length of the vehicle pull-up space. The 1991
Standards provide that the access aisle may be on the same level as the
vehicle pull-up space, or on the sidewalk with a curb ramp. The
proposed changes will require the access aisle to be on the same level
as the vehicle pull-up space and to be marked so as to discourage
parking in the access aisle.
Commenters expressed concern that certain covered entities,
particularly airports, cannot accommodate the proposed requirements to
provide passenger loading zones, and urged a revision that would
require one passenger loading zone located in reasonable proximity to
each building entrance served by the curb.
Commenters raised a variety of issues about the requirements at
section 503 stating that the requirements for an access aisle, width,
length, and marking of passenger loading zones are not clear and do not
fully meet the needs of individuals with disabilities, and stated that
these requirements may run afoul of state or local requirements, or may
not be needed because many passenger loading zones are typically
staffed by doormen or valet parkers. The wide range of opinions
expressed in these comments indicates that this provision is
controversial. However, none of these comments provides sufficient data
to enable the Department to determine that the requirement is not
appropriate.
Valet Parking and Mechanical Access Parking Garages. The 1991
Standards, sections 4.1.2(5)(a) and (e), and the proposed changes,
sections 208.2, 209.4, and 209.5 require parking facilities that
provide valet parking services to have an accessible passenger loading
zone. The proposed standards will extend this requirement to mechanical
access parking garages. The 1991 Standards contain an exception that
exempts valet parking facilities from providing accessible parking
spaces. The proposed standards also will eliminate this exception. The
reason for not retaining the provision is that valet parking is a
service, not a facility type.
Commenters questioned why the exception for valet parking
facilities from providing accessible parking spaces is being
eliminated. The provision is being eliminated because valet parkers may
not have the skills necessary to drive a vehicle that is equipped to be
accessible, including use of hand controls, or when a seat is not
present to accommodate a driver using a wheelchair. In that case,
permitting the individual with a disability to self-park may be a
required reasonable modification of policy for a covered entity.
210 and 504 Stairways
The 1991 Standards provide that stairs are required to be
accessible only when they provide access to floor levels
[[Page 37017]]
not otherwise connected by an accessible route (e.g., an elevator,
lift, or ramp). The proposed standards at sections 210.1 and 504.2 will
require all newly constructed stairs that are part of a means of egress
to comply with the requirements for accessible stairs, which cover
treads, risers, and handrails. In existing facilities, where floor
levels are connected by an accessible route, only the handrail
requirement will apply.
Commenters were divided in their response to this provision. The
Department believes that it strikes an appropriate balance by focusing
the expanded requirements on new construction.
211 and 602 Drinking Fountains
Sections 4.1.3(10)(a) and 4.1.3(b), 4.15.2, 4.15.5(1) and 4.15.5(2)
of the 1991 Standards, and the changes proposed at sections 211.1,
211.2 Exception; 211.3 Exception, 602.2 Exception, 602.4, and 602.7
require drinking fountains to be provided for wheelchair users and for
people who stand. The 1991 Standards require wall and post-mounted
cantilevered drinking fountains mounted at a height for wheelchair
users to provide clear floor space for a forward approach with knee and
toe clearance, and free standing or built-in drinking fountains to
provide clear floor space for a parallel approach. The proposed changes
require drinking fountains mounted at a height for wheelchair users to
provide clear floor space for a forward approach with knee and toe
clearance, and include an exception for a parallel approach for
drinking fountains installed at a height to accommodate very small
children. The changes also include a technical requirement for drinking
fountains for standing persons.
One commenter recommended that the mounting height of drinking
fountains should take into consideration the increased use of three-
wheeled electric scooters and the increasing size of wheelchairs. The
Department is aware that the use of three- and four-wheeled electric
scooters may be increasing and that wheelchairs may be larger than in
the past; however, no reliable data is yet available indicating
specific dimensions that may be needed to provide access to individuals
using these devices. Therefore, at the present time, the Department
intends to retain the proposed requirements.
212 and 606 Kitchens, Kitchenettes, Lavatories, and Sinks
The 1991 Standards at sections 4.1.1; 4.24.1; 4.24.3; 4.24.5; and
9.2.2(7) contain technical requirements for sinks, but only have
specific scoping requirements for sinks in transient lodging. Proposed
sections 212.3 will require at least 5 percent of sinks in each
accessible space to comply with the technical requirements for sinks.
The technical requirements address clear floor space, height, faucets,
and exposed pipes and surfaces. The 1991 Standards and the proposed
changes require the clear floor space at sinks to be positioned for a
forward approach, and knee and toe clearance to be provided under the
sink. The 1991 Standards allow the clear floor space at kitchen sinks
and wet bars in hotel guest rooms with mobility features to be
positioned for either a forward approach with knee and toe clearance,
or for a parallel approach. The proposed changes include a broader
exception that permits the clear floor space to be positioned for a
parallel approach at kitchen sinks in any space where a cook top or
conventional range is not provided, and at a wet bar.
A commenter stated that it is unclear what the difference is
between a sink and a lavatory, and that this is complicated by
requirements that apply to sinks (5 percent accessible) and lavatories
(at least 1 accessible). The term ``lavatory'' generally refers to the
specific type of plumbing fixture required for hand washing in toilet
and bathing facilities. The more generic term ``sink'' applies to all
other types of sinks located in covered facilities.
A commenter recommended that the mounting height of sinks and
lavatories should take into consideration the increased use of three-
wheeled electric scooters and some larger wheelchairs. The Department
is aware that the use of three-wheeled electric scooters and larger
wheelchairs may be increasing; however, although no reliable data is
yet available, the Access Board is working to obtain data that may be
used to develop design guidelines that provide access to individuals
using these mobility devices.
213, 603, 604, and 608 Toilet and Bathing Facilities, Rooms, and
Compartments
General. Where toilet facilities and bathing facilities are
provided, they must comply with section 213.
A commenter recommended that all accessible toilet facilities,
toilet rooms, and compartments should be required to have signage
indicating that such spaces are restricted solely for the use of
individuals with disabilities. The Department believes that it is
neither necessary nor appropriate to restrict the use of accessible
toilet facilities. Like many other facilities designed to be
accessible, accessible toilet facilities can provide a necessary level
of usability for a wide range of individuals with and without
disabilities.
Ambulatory Accessible Toilet Compartments. The proposed changes at
sections 213.3.1 and 604.8.2 will require multi-user men's toilet rooms
where the total of toilet compartments and urinals is six or more to
contain at least one ambulatory accessible compartment. The 1991
Standards count only toilet compartments for this purpose. The proposed
standards will establish parity with multi-user women's toilet rooms.
Urinals. Men's toilet rooms with only one urinal will no longer be
required to provide an accessible urinal. Such toilet rooms will still
be required to provide an accessible toilet compartment.
Commenters urged that the exception be eliminated. This change will
provide flexibility to many small businesses. This provision does not
alter the requirement that all common use restrooms must be accessible.
Therefore, the Department declines to eliminate the exception.
Multiple Single-user Toilet Rooms. Where multiple single-user
toilet rooms are clustered in a single location, fifty percent (50%),
rather than the currently required one hundred percent (100%), will be
required to be accessible by proposed section 213.2. Accessible single-
user toilet rooms will have to be identified by the international
symbol of accessibility.
Hospital Patient Toilet Rooms. An exception has been added in
section 223.1 that provides that toilet rooms that are part of critical
or intensive care patient sleeping rooms will no longer be required to
provide mobility features.
Water Closet Location and Rear Grab Bar. Sections 604.2 and
604.5.2, Exception 1 of the proposed changes will allow greater
flexibility for the placement of the centerline of water closets, and
will permit a shorter grab bar where there is not enough space due to
special circumstances (e.g., because a lavatory is located next to the
water closet in dwelling units and the wall behind the lavatory is
recessed so that the lavatory does not overlap the clear floor space at
the water closet). The 1991 Standards contain no exception for grab bar
length, and require the centerline to be exactly 18 inches from the
side wall, while the proposed requirement will allow the centerline to
be between 16 and 18 inches from the wall.
Commenters recommended that the centerline location of water
closets should be 18 inches plus or minus 1 inch because people are
becoming larger and the toilet paper dispensers are
[[Page 37018]]
becoming larger and protrude into the 18 inch space. Other commenters
suggested that the proposed requirement will increase the overall size
of toilet rooms unnecessarily and recommended smaller dimensions.
The Department is aware that this issue has sparked debate of a
highly speculative nature. The Department is not aware of clear
evidence that the dimensional change adopted by the Access Board and
the model code organizations is incorrect or unworkable. Therefore, the
Department will retain the requirement.
Water Closet Clearance. Proposed section 604.3 represents a change
where a lavatory is installed adjacent to the water closet. The 1991
Standards allow lavatories to be placed 18 inches minimum from the
water closet centerline, which precludes side transfers. To allow
greater transfer options, the proposed standards prohibit lavatories
from overlapping the clear floor space at water closets, except in
dwelling units.
Commenters urged the Department not to adopt section 604.3 claiming
that it will require single-user toilet rooms to be two feet wider than
the requirements now provide, and this additional requirement will be
difficult to meet.
The requirements at section 604.3.2 specify how required clearance
around the water closet can overlap with specific elements and spaces.
An exception, that applies only to residential dwelling units, permits
a lavatory to be located no closer than 18 inches from the centerline
of the water closet. The requirements at section 604.3.2 increase
accessibility for individuals with disabilities.
Toilet Room Doors. Section 603.2.3 of the proposed rule permits the
doors of single user toilet or bathing rooms with in-swinging doors to
swing into the required turning space, but not into the clear floor
space required at any fixture. Section 603.2.3 Exception 2 permits the
door to swing into the clear floor space of an accessible fixture if a
clear floor space that measures 30 inches by 48 inches is available
outside the door swing in single-user toilet rooms.
Concerns were raised that permitting doors of single-user toilet or
bathing rooms with in-swinging doors to swing into the clearance around
any fixture will result in inaccessibility to individuals using larger
wheelchairs and scooters. The Department believes the provision is
sufficient to meet the needs of individuals using larger scooters and
wheelchairs.
The Department prepared a series of figures illustrating
comparisons of the minimum size single-user toilet rooms. These figures
show typical examples that meet the minimum requirements of the
proposed rule.
BILLING CODE 4410-13-P
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BILLING CODE 4410-13-C
Shower Spray Controls. In accessible bathtubs and shower
compartments, sections 607.6 and 608.6 of the proposed standards will
require shower spray controls to have an on/off control and to deliver
water that is 120 [deg]F (49 [deg]C) maximum. Currently, neither
feature is required by the 1991 Standards, but may be required by
plumbing codes. Meeting the latter specification will require either
controlling the maximum temperature at each shower spray unit or at the
hot water supply.
Shower Compartments. The 1991 Standards at sections 4.21.2; 9.1.2;
4.21.5; and 4.21.7, and the proposed standards at sections 608.1;
608.2.1; 608.2.3; 608.4; 608.5.3; and 608.7, Exception contain
technical requirements for transfer-type and roll-in shower
compartments. The proposed standards provide more flexibility than the
1991 Standards as follows:
Transfer-type showers are 36 inches by 36 inches. The
proposed standards specify that these dimensions are measured at the
center point of opposing sides to accommodate molded compartments with
rounded bottom edges.
The 1991 Standards and the proposed standards permit a \1/
2\ inch maximum curb in transfer-type showers. The proposed standards
add a new exception that permits a 2 inch maximum curb in transfer-type
showers in alterations to existing facilities, where recessing the
compartment to achieve a \1/2\ inch curb will disturb the structural
reinforcement of the floor slab.
Roll-in showers are 30 inches minimum by 60 inches
minimum. Alternate roll-in showers are 36 inches by 60 inches minimum,
and have a 36 inch minimum opening on the long side of the compartment.
The 1991 Standards require alternate roll-in showers in a portion of
accessible hotel guest rooms, but provision of this shower type in
other facilities is generally permitted as an equivalent facilitation.
The 1991 Standards require a seat to be provided on the side with the
opening; and require the controls to be located on the side adjacent to
the seat. The proposed standards will permit alternate roll-in showers
to be used in any facility; only require a seat in hotel guest rooms
only; and allow location of controls on the back wall opposite the seat
as an alternative.
A disability advocacy group and others raised concerns that adding
a new exception that permits a 2 inch maximum curb in transfer-type
showers in alterations to existing facilities, where recessing the
compartment to achieve a \1/2\ inch curb will disturb the structural
reinforcement of the floor slab, will impair the ability of individuals
with disabilities to use transfer-type showers.
[[Page 37023]]
The exception permitting an increased maximum curb in transfer-type
showers is allowed only when structural barriers prevent full
compliance, therefore the Department believes its use will be
restricted to limited situations. The exception is intended to provide
some flexibility to provide accessibility where the existing structure
precludes full access.
Toilet and Bathing Rooms. Section 603, Toilet and Bathing Rooms,
provides the technical requirements for toilet and bathing rooms.
Commenters recommended that section 603, Toilet and Bathing Rooms,
should include requirements for unisex toilet and bathing rooms. These
commenters suggested that unisex toilet and bathing rooms are most
useful as companion care facilities.
Model plumbing and building codes require single-user (unisex or
family) toilet facilities in certain occupancies, primarily assembly
facilities, covered malls, and transportation facilities. These toilet
rooms provide flexibility for persons needing privacy so that they can
obtain assistance from family members or persons of the opposite sex.
When these facilities are provided, both the 1991 Standards and
proposed standards require that they be accessible. The Access Board
did not scope unisex toilet facilities because plumbing codes generally
determine the number and type of plumbing fixtures to be provided in a
particular occupancy and often determine whether an occupancy must
provide separate sex facilities in addition to single-user facilities.
However, the Access Board did provide scoping at section 213.2.1 to
coordinate with model plumbing and building code requirements which
will permit a small toilet room with two water closets or one water
closet and one urinal to be considered a single-user toilet room
provided the room has a privacy latch. In this way, a person needing
assistance from a person of the opposite sex can lock the door to use
the facility while temporarily inconveniencing only one other user.
These provisions strike a reasonable balance and pose a lesser impact
on covered businesses and other occupancies required to provide fewer
plumbing fixtures.
A commenter recommended that in shower compartments rectangular
seats as provided in section 610.3.1 should not be permitted as a
substitute for L-shaped seats as provided in 610.3.2.
The proposed standards do not indicate a preference for either
rectangular or L-shaped seats in shower compartments.
214 and 611 Washing Machines and Clothes Dryers
The proposed standard, sections 214.2-3, 611.3, and 309.3 will
specify the number of machines of each type required to be accessible
(1-2 depending upon the total number provided). An exception will
permit the maximum height for the tops of these machines to be 2 inches
higher than the general requirement for high reach maximums over an
obstruction.
A commenter objected to the scoping provision for accessible
washing machines and clothes dryers stating that the probability that
more than one accessible machine will be needed at the same time would
appear to be low in the context of transient lodging.
The scoping in this provision is based on the relative size of the
facility rather than the identity of the covered entity. The Department
assumes that the size of the facility (and, therefore the number of
accessible machines provided) will be determined by the covered
entities' assessment of the demand for laundry facilities. The
Department declines to assume that people with disabilities will have
less use for accessible facilities in transient lodging than in other
public accommodations.
216 and 703 Signs
The following types of signs, though they are not specifically
subject to the 1991 Standards for raised character and Braille signs,
will now be explicitly exempted by sections 216.1, Exceptions 1-3,
216.2, Exception, 216.3, 703.4.1, and 703.4.2, Exception. These types
of signs include: seat and row designations in assembly areas; occupant
names, building addresses; company names and logos; signs in parking
facilities (except those identifying accessible parking spaces and
means of egress); and exterior signs identifying permanent rooms and
spaces that are not located at the door to the space they serve. This
requirement also will clarify that the exception for temporary signs
applies to signs used for seven days or less.
The proposed standards retain the option to provide one sign where
both visual and tactile characters are provided or two signs, one with
visual, and one with tactile characters.
217 and 704 Telephones
Drive-up Public Telephones. Where public telephones are provided,
the 1991 Standards, at section 4.1.3(17)(a), and proposed section
217.2, Exception, require a certain number of telephones to be
wheelchair accessible. The proposed requirement adds a new exception
that exempts drive-up public telephones.
Public Telephone Volume Controls. Current sections 4.1.3(17),
4.30.7(2), and 4.31.5 require all wheelchair accessible public
telephones and twenty-five percent (25%) of all other public telephones
to have volume controls, and to be identified by signs. Proposed
changes at sections 217.3 and 704.3 will require all public telephones
to have volume controls, and will delete the requirement for
identifying signs. The 1991 Standards require volume control telephones
to provide a minimum gain of 12 dB and a maximum gain of 18 dB. A
proposed change will require a gain up to 20 dB minimum and an
automatic reset.
The proposed change is expected to have minimum impact since the
proposed scoping and technical requirements are consistent with
guidelines and standards issued by the Access Board under section 255
of the Telecommunications Act of 1998 (36 CFR 1193.43(e), and Section
508 of the Rehabilitation Act of 1973, as amended, (36 CFR 1194.23(f))
which require all new telephones to have volume controls.
TTY. Section 4.1.3(17) of the 1991 Standards require a public TTY
if there are four or more public pay telephones at a site and at least
one is in an interior location. Proposed changes, 217.4.2, will require
that a building or facility provide a public TTY on each floor that has
four or more public telephones, and in each telephone bank that has
four or more telephones as proposed by sections 217.4.1, 217.4.3,
217.4.3.1, 217.4.3.2, 217.4.4, 217.4.5, 217.4.6, 217.4.7, and 217.4.8.
Another commenter stated that requiring installation of telephones
within the proposed reach range requirements would adversely impact the
public and telephone owners and operators. According to the commenter,
people without disabilities will not use telephones that are installed
within the reach range requirements because they may be inconvenienced
by bending to operate these telephones, and, therefore, owners and
operators will lose revenues because of the reduction in use.
This comment misunderstands the scoping requirements for wheelchair
accessible telephones. Proposed section 217.2 provides that where one
or more single units are provided, only one unit per floor, level, or
exterior site is required to be wheelchair accessible. However, where
banks of telephones are provided, only one telephone in each bank is
required to be wheelchair accessible. The Department believes these
scoping requirements for wheelchair accessible telephones are
reasonable and will not result in
[[Page 37024]]
burdensome obligations or lost revenue for owners and operators.
218 and 810 Transportation Facilities
Detectable Warnings. Detectable warnings are a distinctively
textured surface of truncated domes that is identifiable by cane and
underfoot. The 1991 Standards at sections 4.1.3(15); 4.7.7; 4.29.2;
4.29.5; 4.29.6; and 10.3.1(8) require detectable warnings at curb
ramps, hazardous vehicular areas, reflecting pools, and transit
platform edges. The proposed revisions at sections 218.2; 218.3; 810.5;
810.5.2; 705.1; 705.1.1; 705.1.2; 705.1.3; and 705.2 only require
detectable warnings at transit platform edges. The proposal will change
the technical specifications for the diameter and spacing of the
truncated domes. The proposal also deletes the requirement for the
material used to provide contrast to be an integral part of the
truncated domes and for the truncated domes to contrast in resiliency
or sound-on-cane contact from adjoining walking surfaces at interior
locations.
The proposed revisions to the 1991 Standards apply to detectable
warnings on developed sites. They do not apply to the public-right-of-
way. Scoping for detectable warnings at all locations other than
transit platform edges has been eliminated from this rule. However,
because detectable warnings have been shown to significantly benefit
individuals with disabilities at transit platform edges, the proposed
standards will provide scoping and technical requirements for
detectable warnings at transit platform edges.
219 and 706 Assistive Listening Systems
Signs. Section 216.10 requires each covered assembly area to
provide signs at each auditorium to inform patrons that assistive
listening systems are available. However, an exception to this
requirement permits assembly areas that have ticket offices or ticket
windows to display the required signs at the ticket window.
A commenter recommended eliminating the exception at 216.10
because, for example, people who buy tickets through the mail, by
subscription, or on-line may not need to stop at a ticket office or
window upon arrival at the assembly area. The Department believes that
an individual's decision to purchase tickets before arriving at a
performance does not limit the discretion of the assembly operator to
use the ticket window to provide other services to its patrons. The
Department is retaining the exception at 216.10 to permit the venue
operator some flexibility in determining how to meet the needs of its
patrons.
Audible Communication. The 1991 Standards at section 4.1.3(19)(b)
require assembly areas where audible communication is integral to the
use of the space to provide an assistive listening system if they have
an audio amplification system or an occupant load of 50 or more people
and have fixed seating. The proposed standards at section 219 will
require assistive listening systems in spaces where communication is
integral to the space and audio amplification is provided, and in
courtrooms.
The 1991 Standards require receivers to be provided for at least 4
percent of the total number of seats minimum. The proposed standards at
section 219.3, will revise the percentage of receivers required
according to a table that correlates the required number of receivers
to the seating capacity of the facility. Small facilities will continue
to provide receivers for 4 percent of the seats. The required
percentage declines as the size of the facility increases. The changes
proposed also will require at least twenty-five (25%), but no fewer
than two, of the receivers to be hearing-aid compatible. Assembly areas
served by an induction loop assistive listening system will not have to
provide hearing-aid compatible receivers.
Commenters were divided in their opinion of this change. The
Department believes that the reduction in the required number of
assistive listening systems for larger assembly areas will meet the
needs of individuals with disabilities. The new requirement to provide
hearing-aid compatible receivers should make assistive listening
systems more usable for people who have been underserved until now.
Concerns were raised that the requirement to provide assistive
listening systems may have an adverse impact on restaurants. This
comment misunderstands the scope of coverage. The proposed standards
define the term ``assembly area'' to include facilities used for
entertainment, educational, or civic gatherings. Restaurants would fall
within this category only if they are presenting programs to educate or
entertain diners, and if the restaurant provides an audio amplification
system.
Same Management or Building. The proposed standards add a new
exception that allows multiple assembly areas that are in the same
building and under the same management, such as theaters in a multiplex
cinema and lecture halls in a college building, to calculate the number
of receivers required based on the total number of seats in all the
assembly areas, instead of each assembly area separately, where the
receivers are compatible with the assistive listening systems used in
each of the assembly areas.
Mono Jacks, Sound Pressure, etc. Section 4.33.7 of the 1991
Standards does not contain specific technical requirements for
assistive listening systems. The proposed changes at sections 706.1,
706.2, 706.3, 706.4, 706.5, and 706.6 will require assistive listening
systems to have standard mono jacks; and will require hearing-aid
compatible receivers to have neck loops to interface with telecoils in
hearing aids. The proposed changes also specify sound level pressure,
signal-to-noise ratio, and peak clipping level. Currently available
assistive listening systems meet the proposed technical requirements.
220 and 707 Automatic Teller Machines and Fare Machines
Proposed changes at section 707 will add specific technical
requirements for speech output, privacy, tactilely discernable input
controls, display screens, and Braille instructions to current general
accessibility requirements. Exceptions will be made that relate to the
type of network or information provided (for example, audible tones
will not be required for visible output where privacy is desirable).
The 1991 Standards require these machines to be accessible to and
independently usable by people with visual impairments, but do not
contain any technical specifications.
The Department received comments on this provision from the banking
industry that focused primarily on the effects on operating policies
and existing equipment. Those issues have been addressed in the
preamble to the NPRM.
221 Assembly Areas
Aisle Stairs and Ramps. The 1991 Standards sections 4.1.3 and
4.1.3(4) require that interior, and exterior, stairs connecting levels
that are not connected by an elevator, ramp, or other accessible means
of vertical access shall comply with the technical requirements for
stairs found in section 4.9. The proposed section 210.1 requires that
stairs that are part of a means of egress shall comply with the
technical requirements for stairs in proposed section 504. The 1991
Standards currently do not contain any exceptions for aisle stairs in
assembly areas. The proposed section 210.1, Exception 3, adds a new
exception that exempts aisle stairs in assembly areas from the
technical requirements for stairs found in proposed section 504,
including the
[[Page 37025]]
handrail technical requirements found in proposed section 505.
The 1991 Standards at section 4.8.5 now exempt aisle ramps that are
part of an accessible route, from providing handrails on the side
adjacent to seating. The proposed regulations at section 405.1 exempt
aisle ramps, adjacent to seating in assembly areas and not serving
elements required to be on an accessible route, from complying with all
the technical requirements for ramps proposed in section 405. Where
aisle ramps in assembly areas serve elements required to be on an
accessible route, the proposed regulation will require that the aisle
ramps comply with the technical requirements for ramps in proposed
section 405. The proposed standards will not require a handrail on an
aisle ramp at adjacent seating because proposed sections 505.2 and
505.3 provide exceptions for aisle ramp handrails. Section 505.2
proposes that in assembly areas, a handrail may be provided at either
side or within the aisle width when handrails are not provided on both
sides of aisle ramps. Section 505.3 proposes that, in assembly areas,
handrails need not be continuous in aisles serving seating.
Wheelchair Spaces/Companion Seats. The proposed standards at
section 221 reduce the number of wheelchair spaces and companion seats
required in assembly areas that seat more than 500 patrons. The 1991
Standards at 4.1.3 (19)(a) provide that assembly areas with more than
500 seats must provide six wheelchair spaces plus one additional
wheelchair space for each additional 100 seats. Sections 221.2;
221.2.1.1; 221.2.1.2; and 221.2.1.3 of the proposed standards provide
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 1991 Standards and the
proposed standards require assembly areas to provide a companion seat
adjacent to each wheelchair space.
The proposed changes clarify that the scoping requirements are to
be applied separately to general seating areas, and to each luxury box,
club box, and suites in stadiums and arenas. In performing arts
facilities with tiered boxes, the scoping requirement is applied to the
total number of seats in the tiered boxes, and the wheelchair spaces
are required to be dispersed among at least twenty percent (20%) of the
tiered boxes.
Commenters questioned why scoping requirements for assembly areas
are being reduced. During the development of the 2004 ADAAG, industry
providers, particularly those for larger stadium-style assembly areas,
supplied data to the Access Board demonstrating the current scoping
requirements for large assembly areas often exceed the demand. Based on
the data provided to the Access Board, the Department now believes the
reduced scoping requirements will adequately meet the needs of
individuals with disabilities, while balancing concerns of the
industry.
Commenters raised concerns that the proposed changes clarifying
requirements for scoping of seating areas to each luxury box, club box,
and suites in stadiums and arenas could result in no wheelchair and
companion spaces available for individuals with disabilities. These
comments appear to misunderstand the proposed requirements. The rule
will require that each luxury box, club box, and suite must be
accessible. In addition, the remaining seating areas must contain the
number of wheelchair and companion seating locations specified in the
rule. In performing arts facilities with tiered boxes, the scoping
requirement is applied to the total number of seats in the tiered
boxes, and the wheelchair spaces are required to be dispersed among at
least twenty percent (20%) of the tiered boxes. For example, if a
performing arts facility has 20 tiered boxes with 5 fixed seats in each
box, at least 4 wheelchair spaces must be provided in the boxes, and
they must be dispersed among at least 4 of the 20 boxes.
One commenter asked that scoping requirements for larger assembly
areas be reduced even more than what was proposed. Although the
commenter referenced data demonstrating that wheelchair spaces in
larger facilities with seating capacity of 70,000 or more may not be
used by individuals with disabilities, the data was not based on actual
results, but was calculated at least in part based on probability
assumptions.
A commenter recommended that section 221.4, Designated Aisle Seats,
be changed to require that aisle seats be on an accessible route, and
be integrated and dispersed throughout an assembly area. Aisle seats,
by their nature, are located with the general seating, and integration
occurs automatically. The issue of dispersing aisle seats or locating
them on accessible routes is much more challenging. The Access Board
specifically requested public comment on the question of whether aisle
seats should be required to be located on accessible routes. After
reviewing the comments, the Access Board concluded that this could not
be done without making significant and costly changes in the design of
most assembly areas. However, section 221.4 requires that access aisle
seats be the aisle seats closest to accessible routes. The Department
concurs in that conclusion. Regarding the dispersion of aisle seats,
the Department notes that the location of the seats is dictated to a
great extent by the fact that they must be located on an aisle and on
or close to an accessible route. In small facilities, very few seats
meet those criteria. Therefore, the Department declines to propose
further changes.
Wheelchair Space Overlap in Assembly Areas. The 1991 Standards at
sections 4.3.3 and the proposed changes at sections 402.1; 402.2;
403.5.1; 802.1.4; and 802.1.5 require walkways that are part of an
accessible route to have a 36 inch minimum clear width. The changes
proposed specifically prohibit accessible routes from overlapping
wheelchair spaces. This change is consistent with the technical
requirements for accessible routes, since the clear width of accessible
routes cannot be obstructed by any object. The proposed standards also
specifically prohibit wheelchair spaces from overlapping circulation
paths. An advisory note clarifies that this prohibition applies only to
the circulation path width required by applicable building codes and
fire and life safety codes since the codes prohibit obstructions in the
required width of assembly aisles.
The revision does not present any difficult design challenges and
is expected to have minimal impact. Where a main circulation path is
located in front of a row of seats that contains a wheelchair space and
the circulation path is wider than required by applicable building
codes and fire and life safety codes, the wheelchair space may overlap
the ``extra'' circulation path width. Where a main circulation path is
located behind a row of seats that contains a wheelchair space and the
wheelchair space is entered from the rear, the aisle in front of the
row may need to be wider in order not to block the required circulation
path to the other seats in the row, or a mid-row opening may need to be
provided to access the required circulation path to the other seats.
Line-of-Sight. Proposed section 221.2.3 frames the basic
comparability requirement in terms of viewing angles providing that
``wheelchair spaces shall provide spectators with * * * viewing
[[Page 37026]]
angles that are substantially equivalent to, or better than, the * * *
viewing angles available to all other spectators.'' This applies to all
types of assembly areas, including stadium-style movie theaters, sports
arenas, and concert halls.
Commenters stated that the qualitative viewing angle language
contained in section 221.2.3 is not appropriate for an enforceable
regulatory standard unless the terms of such language are defined.
Other commenters requested definitions for viewing angles, an
explanation for precisely how viewing angles are measured, and an
explanation for precisely how to evaluate whether one viewing angle is
better than another viewing angle. The proposed regulatory language is
sufficient to provide a performance standard for designers, architects,
and others necessary to provide viewing angles required by the proposed
standard. The Department believes that as a general rule, the vast
variety of sizes and configurations found in assembly areas requires it
to establish a performance standard for designers to adapt to the
specific circumstances of the venue that is being designed. The
requirement is to design so that lines of sight for wheelchair spaces
offer a choice of viewing angles well within the range of viewing
angles offered to others. The Department has proposed, in section
36.406 of this NPRM, to provide more explicit requirements for stadium-
style theaters.
Another commenter inquired as to what determines whether a choice
of seating locations or viewing angles is better than that available to
all other spectators. The answer to this question varies according to
each assembly area that is being designed. That is why the regulation
must provide performance standards applicable to all facilities.
Nevertheless, the Department believes that for each specific facility
that is designed, the owner, operator, and design professionals will be
able to distinguish easily between seating locations and associated
lines of sight from these seat locations that are desirable and those
that are not.
Stadium-style Movie Theaters. The Department will implement
provisions specific to line-of-sight issues in stadium-style movie
theaters. The horizontal and vertical dispersion requirements set forth
in proposed section 221.2.3.1 and 221.2.3.2 may be adopted in their
entirety and will apply independently of any line-of-sight requirements
of the 1991 Standards at 4.33.3. The proposed line-of-sight regulations
recognize the importance of viewing angles to the movie going
experience and are aimed at ensuring that movie patrons with
disabilities are provided views of the movie screen comparable to other
theater patrons. Some commenters supported regulatory language that
would require stadium-style theaters to meet standards of accessibility
equal to those of nonstadium-style theaters, with larger theaters being
required to provide accessible seating locations and viewing angles
equal to those offered to individuals without disabilities.
A commenter noted that stadium-style movie theaters, sports arenas,
music venues, theaters, and concert halls each pose unique conditions
that require separate and specific standards to accommodate patrons
with disabilities, and recommended that the Department provide more
specific requirements for sports arenas, music venues, theaters, and
concert halls. The Department believes that these proposed standards
have been drafted in a way that will provide sufficient flexibility to
adapt them to the wide variety of assembly venues covered.
Vertical Access. Section 4.33.3 of the 1991 Standards requires
wheelchair spaces to be located in more than one area where the seating
capacity exceeds 300 and to provide a choice of admission prices. Under
the 1991 Standards, sports facilities typically locate some wheelchair
spaces on each accessible level of the facilities.
The proposed standards at sections 221.2.3.2 and 206.6 do not
require wheelchair spaces to be dispersed based on admission prices
because pricing is not always established at the design phase and may
vary by event. The proposed standards will require wheelchair spaces to
be vertically dispersed at varying distances from the screen,
performance area, or playing field. The revised provisions also will
require wheelchair spaces to be located in each balcony or mezzanine
served by an accessible route. Sports facilities can meet the
requirements by locating some wheelchair spaces on each accessible
level of the facilities, which is consistent with the current
requirements.
Companion Seats. The 1991 Standards at section 4.33.3 require at
least one fixed companion seat to be provided next to each wheelchair
space. Proposed changes at sections 221.3 and 802.3 will permit
companion seats to be readily removable, but will not require the seats
to be designed so they can also serve as wheelchair spaces when
removed.
One commenter recommended that there should be a requirement at
section 802.3 that when companion seats are fixed, each seat shall be
identified by a sign or marker as a companion seat. The Department
believes that it is not necessary to identify the companion seat with
an accessibility symbol because its placement adjacent to the
wheelchair location makes it easily identifiable.
Commenters urged the Department to ensure that companion seats are
positioned in a manner that places the user at the same shoulder height
as their companions using mobility devices. The Department recognizes
that some facilities have created difficulty by locating either the
wheelchair space or the companion seat on a different floor elevation
(often a difference of one riser). The proposed standards at section
802.3.1 address this problem by requiring the wheelchair space and the
companion seat to be on the same floor elevation. This should prevent
any vertical discrepancies that are not the direct result of
differences in the sizes and configurations of wheelchairs.
Designated Aisle Seats. Existing requirements at section
4.1.3(19)(a) require one percent (1%) of fixed seats in assembly areas
to be designated aisle seats. Designated aisle seats must have either
no armrests or folding or retractable armrests on the aisle side of the
seat.
Proposed sections 221.4; 802.4; 802.4.1; and 802.4.2 base the
number of required designated aisle seats on the number of aisle seats,
instead of all the seats in a sports facility as the 1991 Standards
require. At least five percent (5%) of the aisle seats are required to
be designated aisle seats and to be located closest to accessible
routes. This option will almost always result in fewer aisle seats
being designated aisle seats compared to the 1991 Standards. Sports
facilities typically locate designated aisle seats on, or as near to,
accessible routes as permitted by the configuration of the facilities.
Dispersion of Wheelchair Spaces and Lines of Sight in Assembly
Areas. The 1991 Standards at section 4.33.3 require wheelchair spaces
to be an integral part of any fixed seating plan in assembly areas and
to be dispersed, when the seating capacity exceeds 300. The 1991
Standards also require wheelchair spaces to provide individuals with
disabilities lines of sight comparable to the sightlines available to
other spectators in assembly areas. The Department interprets
comparable sightlines as requiring wheelchair spaces in sports stadiums
and arenas to provide lines of sight over standing spectators to the
playing field, where spectators are expected to stand during events.
The Department also interprets
[[Page 37027]]
comparable lines of sight as requiring wheelchair spaces in stadium-
style movie theaters to provide viewing angles comparable to those
provided to other spectators.
The proposed revisions at sections 221.2.2; 221.2.3; 221.2.3.1,
Exceptions 1; 221.2.3.2, Exceptions 1 and 2; 802.2; 802.2.1; 802.2.1.1;
802.2.1.2; 802.2.2; 802.2.2.1; and 802.2.2.2 add specific technical
requirements for providing sightlines over seated and standing
spectators; and require wheelchair spaces to provide individuals with
disabilities choices of seating locations and viewing angles that are
substantially equivalent to, or better than, the choices of seating
locations and viewing angles available to other spectators. The
proposed changes also clarify the dispersion requirements. Wheelchair
spaces must be dispersed horizontally and vertically. The revisions
include exceptions for assembly areas that have 300 or fewer seats,
where the wheelchair spaces are located in the 2nd or 3rd quartile of
the total row length and provide viewing angles that are equivalent to,
or better than, the average viewing angle provided in the facility. The
revisions are expected to have minimal impact since they are consistent
with the Department's interpretations of the 1991 Standards.
The 1991 Standards contain an exception that permits wheelchair
spaces to be clustered in steeply sloped bleachers and balconies. The
proposed changes will require wheelchair spaces to be located at the
entry points to bleachers, and in each balcony or mezzanine that is on
an accessible route.
Lawn Seating in Assembly Areas. The 1991 Standards, section
4.1.1(1), require all areas of newly constructed facilities to be
accessible, but do not contain a specific scoping requirement for lawn
seating in assembly areas. The proposed standards at section 221.5
specifically will require lawn seating areas and exterior overflow
seating areas without fixed seats to connect to an accessible route.
The accessible route does not have to extend through the lawn seating
area.
A commenter recommended that in section 221.5, Lawn Seating, there
should be a requirement for at least one level area for wheelchair
seating on an accessible route. The Department believes that unless a
lawn seating area has fixed or designated seating locations that would
trigger scoping requirements for wheelchair locations, an assembly
provider can satisfy its nondiscrimination obligations by ensuring that
there is an accessible route to the area to enable people with
disabilities who can take advantage of lawn seating to do so.
222 and 803 Dressing, Fitting, and Locker Rooms
Dressing rooms, fitting rooms, and locker rooms in sports or
recreation facilities will be required to meet the accessibility
requirements of proposed sections 222 and 803. Where rooms are provided
in clusters, five percent (5%) but at least one room in each cluster
will have to be accessible.
Proposed sections 225.2.1 and 811 will require lockers to meet
accessibility requirements. Where lockers are provided in clusters, 5
percent but at least one locker in each cluster will have to comply.
Under the 1991 Standards, only one locker of each type provided had be
accessible.
Commenters stated that many retail establishments and clothing
stores, in particular, are concerned with a changed provision on the
placement of benches and other accessibility-related elements and
features in customer dressing and fitting rooms that may require
redesigns of entire changing areas or loss of sales or inventory space
that will be redirected to the enlarged dressing and fitting rooms.
Comments also expressed opposition to the accessibility requirements
for locker rooms for similar reasons.
The Department reminds the commenters that the requirements in the
standards are designed to apply to new construction and alterations.
The Department believes that in these situations creative designers can
mitigate the impact of the changes.
224 and 806 Transient Lodging Guest Rooms
General. The minimum number of guest rooms required to be
accessible in transient lodging facilities is covered by section 224.
Access is addressed for people with disabilities, including people with
mobility impairments at section 224.2, and people who are deaf or hard
of hearing at section 224.4.
The U.S. Chamber of Commerce and others representing the hotel
industry provided comments opposing the current requirements for guest
rooms accessible to individuals with mobility impairments stating that
statistics provided by the industry demonstrate that all types of
accessible guest rooms are unused. They further claimed that the
proposed requirements are too burdensome to meet in new construction,
and that the proposed requirements will result in a loss of hotel
living space. By contrast, commenters representing people with
disabilities urged the Department to increase the number of guest rooms
required to be accessible.
The number of rooms accessible to people with mobility impairments
and the number accessible to people with communication impairments in
the proposed standards are consistent with the 1991 Standards and with
IBC. The Department continues to receive complaints about the lack of
accessible guest rooms throughout the country. Accessible guest rooms
are used not only by individuals using mobility devices such as
wheelchairs and scooters, but by individuals with a variety of physical
impairments such as those using walkers, canes, and crutches.
Data provided by the Disability Statistics Center at the University
of California, San Francisco that demonstrated the number of adults who
use wheelchairs has been increasing at the rate of six percent per year
from 1969 to 1999; and by 2010, it is projected that two percent of the
adult population will use wheelchairs. In addition to people who use
wheelchairs, three percent of adults used crutches, canes, walkers, and
other mobility devices in 1999; and the number is projected to increase
to four percent by 2010. Thus, by 2010, up to six percent of the
population may need accessible guest rooms.
Some commenters have asked the Department to clarify and simplify
the dispersion requirements set forth in section 224.5, in particular
the scope of the term ``amenities.'' Section 224.5 requires that guest
rooms with mobility features and guest rooms with communication
features ``[s]hall be dispersed among the various classes of guest
rooms, and shall provide choices of types of guest rooms, number of
beds, and other amenities comparable to the choices provided to other
guests. When the minimum number of guest rooms required * * * is not
sufficient to allow for complete dispersion, guest rooms shall be
dispersed in the following priority: guest room type, number of beds
and amenities.'' This general dispersion requirement is intended to
effectuate Congress' directive that a percentage of each class of hotel
rooms is to be fully accessible to persons with disabilities. See H.R.
Rep. No. 101-485 (II) at 391. Accordingly, the promise of the ADA in
this instance is that persons with disabilities will have an equal
opportunity to benefit from the various options available to hotel
guests without disabilities, from single occupancy guest rooms with
limited features (and accompanying limited price-tags) to luxury suites
with lavish features and
[[Page 37028]]
choices. The inclusion of section 224.5 is not new to the requirements,
as substantially similar language was contained in section 9.1.4 of the
1991 Standards.
Commenters have specifically asked the Department to clarify what
is meant by various terms used in section 224.5 and its advisory:
``class,'' ``type,'' ``options,'' and ``amenities.'' The Department
envisions that all of these terms are not to be considered terms of
art, but will be used as in their normal course. For example, ``class''
is defined by Webster's Dictionary as ``a division by quality.''
``Type'' is defined as ``a group of * * * things that share common
traits or characteristics distinguishing them as an identifiable group
or class.'' Accordingly, these terms are not intended to convey
different concepts, but are used as synonyms. Section 224.5 and its
advisory require dispersion in such a varied range of hotels and
lodging facilities that the Department believes that the chosen terms
are appropriate to convey what is intended. Dispersion required by this
section is not ``one size fits all'' and it is imperative upon each
covered entity to consider its individual circumstance as it applies
this requirement.
Commenters have raised concern that the factors included in the
advisory to section 224.5 have been expanded. The advisory provides:
``[f]actors to be considered in providing an equivalent range of
options may include, but are not limited to, room size, bed size, cost,
view, bathroom fixtures such as hot tubs and spas, smoking and
nonsmoking, and the number of rooms provided.'' As previously
discussed, the advisory materials provided by the Access Board are
meant to be illustrative and do not set out specific requirements. In
this particular instance, the advisory materials for section 224.5 set
out some of the common types of amenities found at transient lodging
facilities, and include common sense concepts as view, bathroom
fixtures and smoking status. The intention of these factors is to
indicate to the hotel industry the sorts of considerations that the
Department, in its enforcement efforts since the enactment of the ADA,
has considered as amenities that should be made available to persons
with disabilities, just as they are made available to hotel guests
without disabilities.
Commenters for the hotel industry have offered several
recommendations for addressing dispersion. One option includes the
flexibility to use an equivalent facilitation option similar to that
provided in 9.1.4(2) of the 1991 Standards. While the Department
believes this is a legitimate option for existing hotels subject to
readily achievable barrier removal, the Department does not view this
as an acceptable option for those facilities subject to the new
construction or alterations requirements, unless it can be demonstrated
that it would not be feasible to provide accessibility through
compliance with the guidelines. Because Congress made it clear that
each class of hotel room be available to individuals with disabilities,
the Department declines to adopt such a limitation. In considering the
comments of the hotel industry and the Department's enforcement efforts
in this area, the Department will consider (and seeks comment on)
whether the dispersion requirements should be applied proportionally,
or whether it meets the requirements of section 224.5 if access to at
least one guest room of each type is sufficient.
Some commenters have requested a specific exemption for small
hotels of 300 or fewer guest rooms from dispersion regarding smoking
rooms. The advisory to section 224.5 contains specific references to
smoking and nonsmoking guest rooms as examples of the types of
amenities to be considered for dispersion. The ADA requires that
individuals with disabilities are entitled to the same range of options
as persons without disabilities, and, therefore, the Department
declines to add an exemption. It is noted, however, that the existence
of this language in the advisory does not require a hotel that does not
offer smoking guest rooms at its facility to do so only for individuals
with disabilities.
Guest Rooms with Communication Features. The 1991 Standards at
sections 9.1.2 and 9.2 require hotels to provide a minimum number of
guest rooms with mobility features based on the total number of guest
rooms in the facility. These requirements provide that an additional
minimum number of guest rooms shall provide roll-in showers. A number
of other guest rooms as well as all guest rooms that are required to
provide mobility features and roll-in showers also must be equipped
with communication features for individuals who are deaf or hard of
hearing.
Commenters suggested that the proposed requirements for scoping and
dispersion of guest rooms for people with mobility impairments and
guest rooms with communication features are too complex for the
industry to effectively implement. The Department believes the
requirements are clear and that these requirements are necessary to
provide equal opportunity for travelers with disabilities.
The proposed revisions at section 224.4 effect no change from the
1991 Standards with respect to the number of guest rooms required to
provide communication features. The scoping requirement is consolidated
into a single table, instead of appearing in three sections as in the
1991 Standards. The revised provisions also limit the overlap between
guest rooms required to provide mobility features and guest rooms
required to provide communication features. At least one, but not more
than ten percent (10%), of the guest rooms required to provide mobility
features also can provide communication features.
Visible Alarms in Guest Rooms with Communication Features. The 1991
Standards at sections 9.3.1 and 4.28.4 require transient lodging guest
rooms with communication features to provide either permanently
installed visible alarms that are connected to the building fire alarm
system, or portable visible alarms that are connected to a standard
110-volt electrical outlet and are both activated by the building fire
alarm system and provide a visible alarm when the single station smoke
detector is activated. The proposed changes at sections 806.3; 806.3.1;
and 702.1 will require transient lodging guest rooms with communication
features to provide permanently installed visible alarms complying with
the NFPA 72, National Fire Alarm Code (1999 or 2002 edition). The NFPA
72 contains technical requirements for visible alarms in sleeping
areas, and requires combination smoke alarms and visible notification
appliances that are connected to the building's electrical system.
The revised provisions will add a new exception for alterations to
existing facilities that exempts existing fire alarm systems from
providing visible alarms, unless the fire alarm system itself is
upgraded or replaced, or a new fire system is installed. Transient
lodging facilities that alter guest rooms are not required to provide
permanently installed visible alarms complying with the NFPA 72 if the
existing fire alarm system has not been upgraded or replaced, or a new
fire alarm system has not been installed.
The U.S. Small Business Administration Office of Advocacy and
others stated that small providers of transient lodging guest rooms
raised concerns about the proposed changes to prohibit the use of
portable visible alarms used in transient lodging guest rooms. These
commenters recommended retaining current
[[Page 37029]]
requirements that allow the use of portable visible alarms.
People who are deaf or hard of hearing have reported that portable
visible alarms used in transient lodging guest rooms are deficient
because the alarms are not activated by the building fire alarm system,
and the alarms do not work when the building power source goes out in
emergencies. The proposed revision is consistent with the model
building codes and fire and life safety codes, which are adopted by all
the States and require newly constructed transient lodging facilities
to provide smoke alarms in guest rooms.
Vanity Counter Space. Proposed section 806.2.4.1 provides that if
vanity countertop space is provided in nonaccessible transient lodging
guest toilet or bathing rooms, comparable vanity space must be provided
in accessible hotel guest toilet or bathing rooms.
A commenter questioned whether in existing facilities vanity
countertop space may be provided through the addition of a shelf. In
some circumstances, the addition of a shelf in an existing facility may
be a reasonable way to provide access. However, this is a determination
that must be made on a case-by-case basis.
Shower and Sauna Doors in Transient Lodging Facilities. Section 9.4
of the 1991 Standards and section 206.5.3 of the proposed regulations
require doors in transient lodging guest rooms that do not provide
mobility features to have at least 32 inches clear width. Congress
directed this requirement to be included so individuals with
disabilities can visit guests in other rooms. See, H. Rept. 101-485,
pt. 2, at 118 (1990); S. Rept. 101-116, at 70 (1989). Proposed section
224.1.2 will add a new exception to clarify that shower and sauna doors
are exempt from the requirement.
Platform Lifts in Hotel Guest Rooms and Dwelling Units. The 1991
Standards at section 4.1.3(5), exception 4, and proposed sections 206.7
and 206.7.6 limit the places where platform lifts are permitted to be
used as part of an accessible route. The proposed regulations add a new
scoping requirement that permits platform lifts to be used to connect
levels within transient lodging guest rooms and dwelling units with
mobility features.
The Department prepared figures showing that the proposed
requirements can be met without significant loss of hotel living space
in hotel guest rooms or other areas. New construction requirements can
be met without difficultly.
The following Department-prepared figures illustrate accessible
hotel rooms that meet minimum requirements of 2004. These illustrations
demonstrate that 12 and 13 foot wide accessible hotel rooms based on
ADAAG 2004 do not decrease the size of rooms from the 1991 Standards.
BILLING CODE 4410-13-P
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BILLING CODE 4410-13-C
225 and 811 Storage
Proposed section 225 provides that where storage is provided in
accessible spaces, at least one of each type shall comply with the
Standards. Self-service shelving is required to be on an accessible
route, but is not required to comply with the reach range requirements.
These requirements are consistent with the 1991 Standards. Proposed
section 225.3 will add a new scoping requirement for self-storage
facilities. Facilities with 200 or fewer
[[Page 37036]]
storage spaces will be required to make at least five percent (5%) of
the storage spaces accessible. Facilities with more than 200 storage
spaces will be required to provide 10 accessible storage spaces, plus
make at least two percent (2%) of the storage spaces over 200
accessible.
Commenters recommended that the Department adopt language requiring
public accommodations to provide access to all self-service shelves and
display areas available to customers. Other comments opposed this
requirement as too burdensome on retail and other entities and that
significant revenue will be lost if this requirement is implemented.
Any fixed or built-in self-service shelves or storage are required
to be on accessible routes, but not all shelves are required to be
within reach. Because the shelves are permitted to exceed the reach
ranges, not all merchandise on the shelves will be accessible.
226 and 902 Dining Surfaces and Work Surfaces
The proposed standards at section 226.1 provide that where dining
surfaces are provided for the consumption of food or drink, at least
five percent (5%) of the seating spaces and standing spaces at the
dining surfaces will comply with section 902. Section 902.2 requires
the provision of accessible knee and toe clearance.
The U.S. Chamber of Commerce and others requested that cocktail
style tables be exempt from the technical requirements for knee and toe
clearance. ``Cocktail-style tables'' are not a defined term. The
proposed standards apply to fixed or built-in tables provided for the
consumption of food. If cocktail-style tables (that is, tables
typically built for use by individuals who are standing) are fixed
equipment, they will be subject to the rule. Furniture that is not
fixed or built-in would be subject to the nondiscrimination
requirements of the rule.
Commenters stated that basing accessible seating on seating spaces
and standing spaces is problematic and urged a return to the 1991
Standard of requiring accessible seating based on fixed dining tables.
Consistent with long-standing interpretation, the requirements in the
ADA regulations will be applied to fixed building elements. The scoping
change merely takes into account that tables may vary in size so that
basing the calculation on the number of the tables rather than on the
number of people that may be accommodated by the tables could
unnecessarily restrict opportunities for people with disabilities.
227 and 904 Sales and Service, Check-out Aisles and Sales and Service
Counters
The 1991 Standards at sections 7.2(1), (2), (i), (ii), and (iii),
and the proposed changes at sections 904.4, Exception; 904.4.1,
Exception; and 904.4.2 contain technical requirements for sales and
service counters. The 1991 Standards generally require counters to have
an accessible portion at least 36 inches long and no higher than 36
inches. The revised requirements will specify different lengths for the
accessible portion of counters based on the type of approach. Where a
forward approach is provided, the accessible portion of the counter
must be at least 30 inches long and no higher than 36 inches, and knee
and toe space must be provided under the counter. Where a parallel
approach is provided, the accessible portion of the counter must be at
least 36 inches long and no higher than 36 inches. The revised
requirements add a new exception for alterations to counters in
existing facilities that permits the accessible portion of the counter
to be at least 24 inches long, where providing a longer accessible
counter will result in a reduction in the number of existing counters
or existing mailboxes.
The revised requirements clarify that the accessible portion of the
counter must extend the same depth as the sales or service counter top.
Where the counter is a single-height counter, this requirement applies
across the entire depth of the counter top. Where the counter is a
split-height counter, this requirement applies only to the customer
side of the counter top. The employee-side of the counter top may be
higher or lower than the customer-side of the counter top.
Proposed section 227.5 clarifies the requirements for food service
lines. Queues and waiting lines serving counters or check-out aisles,
including queues and waiting lines for food service must be accessible
to individuals with disabilities.
Commenters recommended that the Department consider a regulatory
alternative exempting small retailers from the new knee and toe
clearance requirement and retaining existing wheelchair accessibility
standards for sales and service counters. These commenters believed
that the proposed knee and toe clearance requirements will cause a
reduction in the sales and inventory space at check-out aisles and
other sales and service counters.
The proposed standards, as do the current requirements, permit
covered entities to determine whether they will provide forward or
parallel approach. So any business that does not wish to provide the
knee or toe clearance may avoid that option. However, the Department
believes that permitting a forward approach without requiring knee and
toe clearance is not adequate to provide accessibility because the
person using a wheelchair will be prevented from coming close enough to
the counter to see the merchandise or to transact business with a
degree of convenience that is comparable to that provided for other
customers. A parallel approach to sales and service counters also can
provide accessibility required by the proposed standards. Individuals
using wheelchairs can approach sales and service counters from a side,
and, assuming the necessary elements, features, or merchandise
necessary to complete a business transaction are within the reach range
requirements for a side approach, the needs of individuals with
disabilities can be met effectively.
229 Windows
A new requirement at section 229.1 provides that if operable
windows are provided for building users, then at least one window in an
accessible space must be equipped with controls that comply with
section 309.
Commenters supported including this provision in the regulations,
but some commenters asked whether the five-pounds (5 lbs.) of force
requirement of section 309 applies to the window latch itself or only
the force required to open the window. Section 309 applies to all
controls and operating mechanisms, so the latch must comply.
230 and 708 Two-way Communication Systems
New provisions at sections 230.1 and 708 require two-way
communications systems to be equipped with visible as well as audible
signals.
231 and 808 Judicial Facilities and Courtrooms
Accessible Courtroom Stations. Proposed requirements at sections
231.2, 808, 304, 305, and 902 provide increased accessibility at
courtroom stations. Clear floor space for a forward approach will be
required for all courtroom stations (judges' benches, clerks' stations,
bailiffs' stations, deputy clerks' stations, court reporters' stations
and litigants' and counsel stations). Other applicable specifications
include accessible work surface heights and toe and knee clearance.
Accessible Jury Boxes and Witness Stands. Vertical access by ramp,
elevator, or platform lift will have to be fully in place at the time
of construction
[[Page 37037]]
or alteration as required by section 206.2.4.
Raised Courtroom Stations Not for Members of the Public. Proposed
section 206.2.4, Exception 1 provides that raised courtroom stations
that are used by judges, clerks, bailiff, and court reporters will not
have to provide full vertical access when first constructed or altered
if they are constructed to be easily adaptable to provide vertical
accessibility.
A comment asserted that there is nothing inherent in clerks'
stations, jury boxes, and witness stands that require them to be
raised. While it would, of course, be easiest to provide access by
eliminating height differences among courtroom elements, the Department
recognizes that accessibility is only one factor that must be
considered in the design process of a functioning courtroom. The need
to ensure the ability of the judge to maintain order, the need to
ensure sightlines between the judge, the witness, the jury, and other
participants, and the need to maintain the security of the participants
all affect the design of the space. The Department believes that the
proposed standards have been drafted in a way that will achieve
accessibility without unduly constraining the ability of a designer to
address the other considerations that are unique to courtrooms.
Commenters argued that permitting courtroom stations to be
adaptable rather than fully accessible at the time of new construction
likely will lead to discrimination in hiring of clerks, court
reporters, and other court staff. The Department believes that the
provisions will facilitate, not hinder, the hiring of court personnel
who have disabilities. All courtroom work stations will be on
accessible routes and will be required to have all fixed elements
designed in compliance with the proposed standards. Elevated work
stations for court employees may be designed to add vertical access as
needed. Because the original design must provide the proper space and
electrical wiring to install vertical access, the change should be
easily accomplished.
232 Detention Facilities and Correctional Facilities
New provisions at section 232 establish requirements for the design
and construction of cells in detention and correctional facilities.
Alterations to cells shall not be required to comply, except to the
extent determined by the Attorney General. The Department has proposed
new requirements in 28 CFR 35.152.
233 Residential Facilities
General. Revised provisions in section 233 will now include
specific scoping and technical provisions that apply to new
construction and alteration of residential facilities. As part of this
revision, section 9.5, which established scoping and technical
requirements for homeless shelters, group homes, and similar social
service establishments, has been deleted. The Department has proposed
language in the NPRM at section 28 CFR section 36.406 that will provide
that most social service establishments now subject to section 9.5 will
be subject to requirements for residential facilities rather than the
requirements for transient lodging. This approach will harmonize
federal accessibility obligations under both the ADA and section 504 of
the Rehabilitation Act of 1973, as amended. Dwelling units provided by
places of education will be subject to the design requirements for
transient lodging.
Galley Kitchens. New requirements at section 804.2 require a 60-
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.
New provisions at sections 804.2; 804.2.1; and 804.2.2 also specify
clearances between opposing base cabinets, counters, appliances, or
walls based on the layout of the kitchen:
``U-shaped'' kitchens, which are enclosed on three
contiguous sides, are required to have 60 inches minimum clearance
between opposing base cabinets, counters, appliances, or walls.
``Pass through'' kitchens, which have two entries, are
required to have 40 inches minimum clearance between opposing base
cabinets, counters, appliances, or walls.
Kitchens that do not have a cooktop or conventional range
are exempt from the clearance requirements.
The revision will impact small dead-end or single-entry ``galley''
kitchens with base cabinets, counters, and appliances on two opposing
walls. The 1991 Standards require this ``galley'' kitchen to have 40
inches minimum clearance between the opposing base cabinets, counters,
appliances, or walls. In multi-family residential facilities, kitchens,
bathrooms, and closets are located along interior walls, and space
constraints may limit adding a second entry to the kitchen.
If a ``galley'' kitchen does not have two entries, the revised
provisions require the kitchen to have 60 inches minimum clearance
between the opposing base cabinets, counters, appliances, or walls. For
a typical small ``galley'' kitchen that is 8 feet long, increasing the
width of the kitchen to provide 60 inches clearance will add
approximately 13 square feet to the kitchen.
One commenter supported the provisions of section 804, Kitchens and
Kitchenettes, but sought clarification whether this section applies to
residential units only, or to lodging and office buildings as well.
Section 212 makes section 804 applicable to all kitchens and
kitchenettes in covered buildings.
Residential Facilities. The UFAS at section 4.1.4(11) contains
scoping requirements for the new construction of housing. The proposed
standards will revise and update these requirements. Sections 233.1;
233.2; 233.3; 233.3.1; 233.3.1.1; 233.3.1.2; and 233.3.2 differentiate
between entities subject to the HUD regulations implementing section
504 of the Rehabilitation Act, and entities not subject to the HUD
regulations. The HUD regulations apply to recipients of federal
financial assistance through HUD, and require at least five percent
(5%) of dwelling units in multi-family projects of five or more
dwelling units to provide mobility features and at least two percent
(2%) of the dwelling units to provide communication features. The HUD
regulations define a project unique to its programs as ``one or more
residential structures * * * which are covered by a single contract for
federal financial assistance or application for assistance, or are
treated as a whole for processing purposes, whether or not located on a
common site.'' To avoid any potential conflicts with the HUD
regulation, the proposed regulation requires entities subject to the
HUD regulations to comply with the scoping requirements in the HUD
regulations, instead of the scoping requirements in the Department's
proposed regulation.
For entities not subject to the HUD regulations, the proposed
regulations require at least five percent (5%) of the dwelling units in
residential facilities provide mobility features, and at least two
percent (2%) of the dwelling units provide communication features. The
proposed regulations define facilities in terms of buildings located on
a site. The proposed regulations permit facilities that contain 15 or
fewer dwelling units to apply the scoping requirements to all the
dwelling units that are constructed under a single contract, or are
developed as whole, whether or not located on a common site.
The proposed regulation defers to HUD and agencies responsible for
issuing regulations under Section 504 of the Rehabilitation Act to
determine the
[[Page 37038]]
extent to which accessible features are to be provided in publicly
funded dwelling units offered for sale.
Alterations to Residential Facilities. The UFAS at sections 4.1.6
require federal, state, and local government housing to comply with the
general requirements for alterations to facilities. Applying the
general requirements for alterations to housing can result in partially
accessible dwelling units where single elements or spaces in dwelling
units are altered.
The proposed regulations at sections 202.3 Exceptions 3; 202.4;
233.3; 233.3.4; 233.3.4.1; and 233.3.4.2 Exception contain specific
scoping requirements for alterations to dwelling units. Dwelling units
that are not required to be accessible are exempt from the general
requirements for alterations to elements and spaces and for alterations
to primary function areas.
The scoping requirements for alterations to dwelling units
generally are based on the requirements in the current UFAS.
Where a building is vacated for purposes of alterations
and has more than 15 dwelling units, at least five percent (5%) of the
altered dwelling units are required to provide mobility features and at
least two percent (2%) of the dwelling units are required to provide
communication features.
Where a bathroom or a kitchen is substantially altered in
an individual dwelling unit and at least one other room is also
altered, the dwelling unit is required to comply with the scoping
requirements for new construction until the total number of dwelling
units in the facility required to provide mobility features and
communication features is met.
As with new construction, the proposed regulations permit
facilities that contain 15 or fewer dwelling units to apply the scoping
requirements to all the dwelling units that are altered under a single
contract, or are developed as a whole, whether or not located on a
common site. The proposed regulations also permit a comparable dwelling
unit to provide mobility features where it is not technically feasible
for the altered dwelling unit to comply with the technical
requirements.
234 and 1002 Amusement Rides
Section 234 provides accessibility guidelines for newly designed
and constructed amusement rides. Mobile and temporary rides are exempt
from these requirements. Altered rides will be required to provide
accessible load or unload areas, but no changes will be required to the
ride itself unless the structural or operational characteristics of the
ride are altered to the extent that the amusement ride's performance
differs from that specified by the manufacturer.
Accessible Route. Proposed sections 206.2.9 and 1002.2 will require
an accessible route to serve each ride, including the load/unload area.
One commenter asked that section 234, Amusement Rides, make clear
that the requirements for accessible routes include the routes leading
up to and including the loading and unloading areas of amusement rides.
Sections 206.2.9, Amusement Rides, and 1002.2, Accessible Routes, make
clear that the requirements for accessible routes include the routes
leading up to and including the loading and unloading areas of
amusement rides.
Wheelchair Space or Transfer Seat or Transfer Device. New sections
234.3 and 1002.4-6 provide that each new amusement ride, except for
mobile/temporary rides and a few additional excepted rides, will be
required to provide at least one type of access by means of one
wheelchair space or one transfer seat or one transfer device (the
design of the transfer device is not specified).
Commenters representing industry concerns urged the Department to
revise the requirements for wheelchair space and transfer seats and
devices because the majority of amusement rides are too complex to be
reasonably modified or reengineered to accommodate the majority of
individuals with disabilities. They argued that the experience of
amusement rides will be significantly reduced if the proposed
requirements are implemented.
These proposed standards were developed with the assistance of an
advisory committee that included representation from the design staffs
of major amusement venues and people with disabilities. The Department
believes that the resulting guidelines reflect sensitivity to the
complex problems posed in adapting existing rides by focusing on new
rides that can be designed from the outset to be accessible. To permit
maximum design flexibility, the guidelines permit the designers to
determine whether it is more appropriate to permit people who use
wheelchairs to remain in their chairs on the ride, or to provide for
transfer access.
Maneuvering Space in Load and Unload Area. Specified maneuvering
space as required by new sections 234.2 and 1002.3 in the load/unload
area of each amusement ride will be required.
Sign. Section 216.12 requires signs at entries to queues and
waiting lines identifying type and location of access for the amusement
ride.
A member of the amusement parks and attractions industry raised
concerns that smaller amusement parks tend to purchase used rides more
frequently than new rides, and that the conversion of a used ride to
provide the proposed accessibility may be difficult to ensure because
of the possible complications in modifying equipment to provide
accessibility.
The Department agrees with this commenter. The Department notes,
however, that the proposed standards will require modifications to used
amusement rides only if a ride is undergoing an alteration intended to
change its structural or operational characteristics. The Department
expects that the focus of the requirements for rides that are not new
will be to ensure that these rides are served by an accessible route
and have accessible load/unload areas for the benefit of those people
with disabilities who are able to use the ride. Mobile or temporary
amusement rides that are set up for short periods of time generally
will not be covered by the proposed regulations. However, the ADA
authorizes the Department to require covered entities to provide
general nondiscrimination opportunities to individuals with
disabilities. Therefore, the Department will require mobile or
temporary amusement rides that are set up for short periods of time to
be on an accessible route.
235 and 1003 Recreational Boating Facilities
These sections require accessible boat slips to be provided.
Accessible Route. Newly added sections 206.2.10 and 1003.2 require
an accessible route to all accessible boating facilities, including
boat slips and boarding piers at boat launch ramps.
Commenters raised concerns that because of water level fluctuations
it may be difficult to provide accessible routes to all accessible
boating facilities, including boat slips and boarding piers at boat
launch ramps. The guidelines take this into account. A number of
exceptions are provided from the general proposed standards requiring
accessible routes in order to take into account the difficulty of
meeting accessibility requirements due to fluctuations in water level.
Accessible Boarding Piers. If provided at boat launch ramps, new
sections 235.3 and 1003.3.2 provide that five percent (5%) of boarding
piers, but at least one, will have to be accessible.
Accessible Boat Slips. New sections 235.2 and 1003.3.1 provide that
a
[[Page 37039]]
specified number of boat slips in each recreational boating facility
will be required to meet specified accessibility standards. The greater
the number of slips provided, then the larger number of slips must be
accessible, e.g., if 100 boat slips are provide, 3 must be accessible,
or if 500 boat slips are provided, 7 must be accessible. Accessible
slips will have to be dispersed throughout the boat slip area.
236 and 1004 Exercise Machines and Equipment
Accessible Route to Exercise Machines and Equipment. An accessible
route will be required to serve accessible exercise machines and
equipment by new provision 206.2.13.
Concerns were raised that the requirement to provide accessible
routes to serve accessible exercise machines and equipment will be
difficult for some facilities to provide, especially some transient
lodging facilities that typically locate exercise machines and
equipment in a single room. The Department thinks that this requirement
is a reasonable one for new construction and alterations. Barrier
removal issues are addressed separately in section 36.304.
Exercise Machines and Equipment. Newly added sections 236 and 1004
will require one of each type of exercise machine to meet clear floor
space specifications. Types of machines are generally defined according
to the muscular groups exercised or the kind of cardiovascular exercise
provided.
Commenters were divided in response to this issue. Some supported
requirements for accessible machines and equipment; others urged the
Department not to require accessible machines and equipment because of
the costs involved. The Department believes that this provision strikes
an appropriate balance in ensuring that people with disabilities,
particularly those who use wheelchairs will have the opportunity to use
the exercise equipment provided by a public accommodation. Providing
access to exercise machines and equipment recognizes the need and
desires of individuals with disabilities to have the same opportunity
as other patrons to enjoy the advantages of exercise and maintaining
health.
237 and 1005 Fishing Piers and Platforms
Accessible Route. Sections 206.2.14 and 1005.1 will require an
accessible route to each accessible fishing pier and platform. The
exceptions described under recreational boating will apply to gangways
and floating piers.
Accessible Fishing Piers and Platforms. Newly added sections 237
and 1005 will require at least twenty-five percent (25%) of railings
(if provided) to be of a specified maximum height so that a person
seated in a wheelchair could cast a fishing line over the railing and
dispersed among the piers and platforms. If railings, guards, or
handrails are provided, accessible edge protection, clear floor or
ground space, and turning space will be required.
238 and 1006 Golf Facilities
Accessible Route. Sections 206.2.15 and 1006.2 and 1006.3 require
an accessible route to connect all accessible elements within the
boundary of the golf course and, in addition, to connect golf car
rental areas, bag drop areas, teeing grounds, putting greens, and
weather shelters. An accessible route also will be required to connect
any practice putting greens, practice teeing grounds, and teeing
stations at driving ranges that will be required to be accessible. An
exception permits the accessible route requirements to be met, within
the boundaries of the golf course, by providing a ``golf car passage''
(the path typically used by golf cars) if specifications for width and
curb cuts are met.
Accessible Teeing Grounds, Putting Greens, and Weather Shelters.
Sections 238.2 and 1006.4 will require that golf cars will have to be
able to enter and exit each putting green and weather shelter. Where
two teeing grounds are provided, the forward teeing ground, will be
required to be accessible (golf car can enter and exit). Where three or
more teeing grounds are provided, at least two, including the forward
teeing ground, shall be accessible.
A national advocacy organization supported requirements for teeing
grounds, particularly requirements for accessible teeing grounds.
Accessible teeing grounds are essential to the full and equal enjoyment
of the golfing experience.
Accessible Practice Putting Greens, Practice Teeing Grounds, and
Teeing Stations at Driving Ranges. Newly added section 238.3 requires
that five percent (5%) but at least one of each of practice putting
greens, practice teeing grounds, and teeing stations at driving ranges
must permit golf cars to enter and exit.
239 and 1007 Miniature Golf Facilities
Accessible Route to Holes. Sections 206.2.16, 239.3, and 1007.2
will require an accessible route to connect accessible miniature golf
course holes and will be required from the last accessible hole on the
course directly to the course entrance or exit; generally, the
accessible holes will have to be consecutive ones. Specified exceptions
will be available for accessible routes located on the playing surfaces
of holes.
Accessible Holes. At least fifty percent (50%) of golf holes on
miniature golf courses will be required by new sections 239.2 and
1007.3 to be accessible (includes specified clear space at start of
play).
240 and 1008 Play Areas
Accessible Route to Play Components. Sections 206.2.17, 240.2.1-2,
and 1008.2-3 will require that accessible routes be provided within
each play area. Where required, accessible ground surfaces for play
areas will follow special rules, incorporated by reference from
nationally recognized standards for accessibility and safety in play
areas, including those issued by the American Society for Testing and
Materials (ASTM). The accessible route will have to connect to at least
one ground level play component of each different type provided (e.g.,
for different experiences such as rocking, swinging, climbing,
spinning, and sliding); to at least fifty percent (50%) of elevated
play components (some exceptions will be provided from general
accessible route rules); and to one or two entry points to soft
contained play structures. If elevated play components are provided,
the play area will have the option of either locating a specified
additional number of its different types of ground level components on
the accessible route or meeting a higher standard of accessibility for
the elevated components (namely, fifty percent (50%) of the elevated
components will have to be connected by a ramp and the connected
components will have to be of at least three different types).
A commenter noted that the proposed standards allow for the
provision of transfer steps to elevated play structures based on the
number of elevated play activities, but asserted that transfer steps
have not been documented as effective means of access.
The guidelines recognize that play structures are designed to
provide unique experiences and opportunities for children. The proposed
rule provides for play components that are accessible to children who
cannot transfer from their wheelchair, but it also provides
opportunities for children who are able to transfer. Children often
interact with their environment in ways that would be considered
inappropriate for adults. Crawling and climbing, for example, are
integral parts of the play experience for young children.
[[Page 37040]]
Permitting the use of transfer platforms in play structures provides
some flexibility for creative playground design.
Accessible Play Components. Play components (including ground
level, elevated, and soft contained play structures) will be required
to be on an accessible route, including elevated play components that
are required to be connected by ramps, and will themselves have to
comply with accessibility requirements (including specifications for
turning space and clear floor space and for play tables and transfer
entry points and supports).
A commenter expressed concerns that the general requirements of
section 240.2.1, Play Areas, and the advisory accompanying section
240.2.1, General, conflict. The comment asserts that section 240.2.1
provides that the only requirement for integration of equipment is
where there are two or more required ground level play components,
while the advisory appears to suggest that all accessible components
must be integrated.
The commenter misinterprets the requirement. The ADA mandates that
people with disabilities be able to participate in programs or
activities in the most integrated setting appropriate to their needs.
Therefore, all accessible playground equipment must be integrated into
the general playground setting. Section 240.2.1 specifies that where
there is more than one accessible ground level play component, the
components must be both dispersed and integrated.
Ground Surfaces. Section 1008.2.6, Ground Surfaces, provides that
ground surfaces on accessible routes must comply with ASTM
requirements.
A commenter recommended that the Department closely examine the
requirements for ground surfaces at play areas. The Department is aware
that there is an ongoing controversy about ground surfaces arising from
a concern that some surfaces that meet the ASTM requirements at the
time of installation will become inaccessible if they do not receive
constant maintenance. The Access Board is also aware of this issue and
is undertaking research to explore solutions to the problems. The
Department would caution covered entities selecting among the ground
surfacing materials that comply with the ASTM requirements, that they
must anticipate the maintenance costs that will be associated with some
of the products. Permitting a surface to deteriorate so that it does
not meet the proposed standards would be an independent violation of
the Department's ADA regulations.
241 and 612 Saunas and Steam Rooms
Saunas and steam rooms will be required by sections 241 and 612 to
meet accessibility requirements, including accessible turning space and
an accessible bench. Where they are provided in clusters, five percent
(5%), but at least one sauna or stream room in each cluster will have
to be accessible.
Commenters raised concerns that the safety of individuals with
disabilities outweighs the usefulness in providing accessible saunas
and steam rooms. The Department believes that there is an element of
risk in many activities available to the general public. One of the
major tenets of the ADA is that individuals with disabilities should
have the same opportunities as other people to decide what risks to
take. It is not appropriate for covered entities to prejudge the
abilities of people with disabilities.
242 Swimming Pools, Wading Pools, and Spas
Accessible Means of Entry to Pools. At least two accessible means
of entry will be required for larger pools (300 or more linear feet)
and one entry will be required for smaller pools as required by section
242.2. This section requires that at least one entry will have to be a
sloped entry or a pool lift; the other could be a sloped entry, pool
lift, a transfer wall, or a transfer system (technical specifications
for each entry type are included).
Accessible Means of Entry to Wading Pools. Sections 242.3 and
1009.3 require that at least one sloped means of entry will be required
into the deepest part of each wading pool.
Accessible Means of Entry to Spas. Sections 242.4 and 1009.2,
1009.4, and 1009.5 require spas to meet accessibility requirements,
including an accessible means of entry. Where spas are provided in
clusters, five percent (5%) but at least one spa in each cluster will
have to be accessible. A pool lift, a transfer wall, or a transfer
system will be permitted.
Commenters, including individuals with disabilities and state
entities, supported the proposed scoping and technical requirements for
swimming pools. A national association representing the interests of
recreation and park providers recommended that existing inaccessible
swimming pools need only provide one means of access when meeting
program access requirements under Title II or readily achievable
barrier removal obligations under Title III. These issues are addressed
elsewhere in this proposed rule.
243 Shooting Facilities with Firing Positions
Sections 243 and 1010 will require an accessible turning space for
each different type of firing position at a shooting facility if
designed on site. Where fitting positions are provided in clusters,
five percent (5%), but at least one position of each type in each
cluster will have to be accessible.
Additional Technical Requirements
304 Turning Space
The turning space is required to be 60 inches diameter minimum and
is permitted to include knee and toe clearance.
Commenters urged the Department to retain the turning space
requirement, but exclude knee and toe clearance from being permitted as
part of this space. They argued that wheelchairs and other mobility
devices are becoming larger and that more individuals with disabilities
are using electric three- and four-wheeled scooters.
The Department recognizes that there is a growing perception that
the 1991 Standards, which are based on wheelchair dimensions, may not
adequately meet the needs of people using some larger electric
scooters. However, there is no consensus about the appropriate
dimension on which to base revised requirements. The Department is
aware that the Access Board is financing an extensive study of this
issue in order to determine if new requirements are warranted. The
Department plans to wait for the results of this study before changing
the specifications in the Department's rules.
404 Doors, Doorways, and Gates
Automatic Door Break-out Openings. The proposed standards do not
contain any technical requirement for automatic door break out
openings. The proposed standards at sections 404.1; 404.3; 404.3.1; and
404.3.6 will require automatic doors that are part of a means of egress
and that do not have standby power to have a 32 inch minimum clear
break out opening when operated in emergency mode. The minimum clear
opening width for automatic doors is measured with all leaves in the
open position. Automatic bi-parting doors or pairs of swinging doors
that provide a 32 inch minimum clear break out opening in emergency
mode when both leaves are opened manually meet the technical
requirement. The proposed regulation includes an exception that exempts
automatic doors from the technical requirement for break-out openings
when accessible manual
[[Page 37041]]
swinging doors serve the same means of egress.
Maneuvering Clearance or Standby Power for Automatic Doors. The
1991 Standards, section 4.13.6, do not require maneuvering clearance at
automatic doors. Section 404.3.2, Exception of the proposed regulation
will require automatic doors that serve as an accessible means of
egress to either provide maneuvering clearance or to have standby power
to operate the door in emergencies. This provision has limited
application and will affect, among others, in-swinging automatic doors
that serve small spaces.
Commenters urged the Department to reconsider provisions that would
require maneuvering clearance or standby power for automatic doors.
They assert that these requirements would impose unreasonable financial
and administrative burdens on all covered entities, particularly
smaller entities. The Department declines to change these provisions
because they are fundamental life-safety issues. The requirement
applies only to doors that are part of a means of egress that must be
accessible in an emergency. If an emergency-related power failure
prevents the operation of the automatic door, a person with a
disability could be trapped unless there is either adequate maneuvering
room to open the door manually, or there is a back-up power source.
Thresholds at Doorways. The 1991 Standards at section 4.13.8
require thresholds at doorways not to exceed \1/2\ inch; and thresholds
at exterior sliding doors not to exceed \3/4\ inch. Proposed sections
404.1 and 404.2.5 will require thresholds at all doorways that are part
of an accessible route not to exceed \1/2\ inch. The 1991 Standards and
the proposed regulations require raised thresholds that exceed \1/4\
inch to be beveled on each side with a slope not steeper than 1:2. The
proposed standards include an exception that exempts existing and
altered thresholds that do not exceed \3/4\ inch and are beveled on
each side from the requirement.
407 Elevators.
Section 407.4.8.2, Audible Indicators, and section 407.4.8.2.1,
Signal Type, provide that an elevator signal shall be an automatic
verbal annunicator that announces the floor at which the car is about
to stop.
A commenter noted that requiring an audible signal for elevators is
important; however, the requirement that the signal be a verbal
annunicator, presumably in English, is troubling to building owners and
operators whose buildings may be located in multi-lingual communities
or international tourist destinations. The commenter suggested that the
1991 Standard's requirement for chimes or tones, once for up and twice
for down, should be retained and the requirement for a verbal
annunciation deleted from the proposed standards.
The proposed standards, at section 407.2.2.3 permit building
operators to choose an audible signal or a verbal annunciator to
indicate the direction in which the elevator is traveling. Section
407.4.8 provides an additional requirement for a verbal annunciator to
identify the floor at which the elevator is stopping. This requirement
is for an announcement within the elevator car to notify passengers of
floor arrival. The Department will retain the requirement as drafted
because the verbal annunciator provides more detailed locator
information than would be provided by just the use of an audible
signal. The Department notes, however, that nothing in the guidelines
would preclude a building operator from providing this information in a
language--or languages--other than English when the building operator
deems it appropriate.
505 Handrails
The proposed standards add a new technical requirement for
handrails along walking surfaces. The 1991 Standards at sections
4.8.5(2), (3); 4.9.4(2), (3); 4.26.2; and 4.26.4, and proposed sections
505.5; 505.6 Exception 2; 505.7; 505.7.1; 505.7.2; 505.8; 505.10 and
Exception 3; and 505.10.3 contain technical requirements for handrails.
The revised regulations provide more flexibility than the 1991
Standards as follows:
The 1991 Standards require handrail gripping surfaces to
have edges with a minimum radius of \1/8\ inch. The revised regulations
will require handrail gripping surfaces to have rounded edges.
The 1991 Standards require handrail gripping surfaces to
have a diameter of 1\1/4\ inches to 1\1/2\ inches, or to provide an
equivalent gripping surface. The revised regulations will require
handrail gripping surfaces with a circular cross section to have an
outside diameter of 1\1/4\ inches to 2 inches. Handrail gripping
surfaces with a non-circular cross section must have a perimeter
dimension of 4 inches to 6\1/4\ inches, and a cross section dimension
of 2\1/4\ inches maximum.
The 1991 Standards require handrail gripping surfaces to
be continuous, and to be uninterrupted by newel posts, other
construction elements, or obstructions. The revised regulation will
require handrail gripping surfaces to be continuous along their length
and not to be obstructed along their tops or sides. The bottoms of
handrail gripping surfaces must not be obstructed more than twenty
percent (20%) of their length. Where provided, horizontal projections
must occur at least 1\1/2\ inches below the bottom of the handrail
gripping surface. An exception permits the distance between the
horizontal projections and the bottom of the gripping surface to be
reduced by \1/8\ inch for each \1/2\ inch of additional handrail
perimeter dimension that exceeds 4 inches.
The 1991 Standards require handrails at the bottom of
stairs to extend at least 12 inches plus the width of one tread beyond
the bottom riser. The revised regulations will require handrails at the
bottom of stairs to extend a horizontal distance at least equal to one
tread depth beyond the last riser nosing. The revised regulations add a
new exception for alterations to existing facilities that exempts
handrails at the top and bottom of ramps and stairs from providing full
extensions where it will be hazardous due to plan configuration.
A commenter noted that handrail extensions are currently required
at the top and bottom of stairs, but the proposed regulation does not
include this requirement, and urged the Department to retain the
current requirement. Other commenters questioned the need for the
extension at the bottom of stairs.
The Department's proposed guidelines, in sections 505.10.2 and
505.10.3 will require handrail extensions at both the top and bottom of
a flight of stairs. The requirement that handrails extend an additional
12 inches at the bottom of stairs was deleted by the Access Board in
response to public comments.
Commenters noted that the revised regulations will require handrail
gripping surfaces with a circular cross section to have an outside
diameter of 2 inches, and that this requirement would impose a physical
barrier to individuals with disabilities who need the handrail for
stability and support while accessing stairs.
The requirement permits an outside diameter of 1\1/4\ inches to 2
inches. This range allows flexibility in meeting the needs of
individuals with disabilities and designers and architects. The
Department is not aware of any data indicating that an outside diameter
of 2 inches would pose any adverse impairment to use by individuals
with disabilities.
[[Page 37042]]
Handrails Along Walkways
The 1991 Standards do not contain any technical requirement for
handrails provided along walkways that are not ramps. The proposed
standards regulations, section 403.6, will specify that where handrails
are provided along walkways that are not ramps, they shall comply with
certain technical requirements. The proposed change is expected to have
minimal impact.
APPENDIX B: Initial Regulatory Assessment
Background
As directed by Executive Order 12866, as amended without
substantial change to its requirements by Executive Order 13258, the
Department is required to conduct an initial regulatory impact analysis
(hereinafter ``RIA'' or ``regulatory assessment'') in order to assess
the economic benefits and costs of its proposed regulations
implementing titles II and III of the ADA. The purpose of regulatory
analysis is to inform stakeholders in the regulatory process of the
effects, both positive and negative, of the proposed regulations. In
this context, the primary stakeholders are individuals with
disabilities who will benefit from using accessible facilities and the
owners and developers of covered entities that will incur the costs of
compliance. In addition, as directed by the Regulatory Flexibility Act
of 1980, as amended by the Small Business Regulatory Enforcement
Fairness Act of 1996 (SBREFA), as well as Executive Order 13272, the
Department is required to consider the potential impact of its proposed
regulations on small entities.
A key component of the Department's regulatory assessment is a
comprehensive benefit-cost analysis of the proposed revisions to the
ADA Standards. OMB Circular A-4 requires Federal agencies to conduct a
full benefit-cost analysis for any regulation that is ``economically
significant''--that is, a regulation that is expected to have an annual
impact on the economy of $100 million or more. Such an analysis must
include both quantitative and qualitative measurements of the benefits
and costs of the proposed regulation, as well as a discussion of each
potentially effective and reasonably feasible regulatory alternative.
OMB Circular A-4 also stipulates that regulatory analyses should only
assess those costs and benefits that arise as a result of the proposed
regulations themselves--in other words, the incremental impact of the
proposed regulations when compared to a baseline of the legal status
quo that would continue to apply absent regulatory action.
Early on in this process, the Department concluded that the
economic impact of its adoption of the proposed standards was likely to
exceed this $100 million threshold, not only because it would be
proposing to adopt several years' worth of revised and supplemental
accessibility guidelines at once, but also because the proposed
standards would apply to all newly constructed and existing facilities.
Accordingly, the Department has conducted an initial RIA for the
proposed standards. Consistent with the requirements for regulatory
analyses, the RIA assumes a 40-year lifecycle for the longest lasting
facilities subject to the regulations (here, a typical newly
constructed building) before they must be substantially altered, torn
down, or rebuilt. The RIA also assumes that the proposed regulations
will remain in force for 15 years, after which time it is presumed they
would be superseded by future revisions to the title II and title III
regulations.
In September 2004, the Department issued an Advance Notice of
Proposed Rulemaking (``ANPRM'') which, among other things, described
its proposed methodology for the initial regulatory assessment and
solicited public comment on this methodology generally. See 69 FR 58768
(Sept. 30, 2004). Additionally, section IV of the ANPRM entitled
``Regulatory Assessment Issues'' posed specific questions for public
comment relating to the application of the proposed standards to
existing facilities, including general sources for benefit and cost
data, information on the impact of the proposed rules on small entities
and suggestions for regulatory alternatives, and recommended sources of
data for certain types of facilities or requirements. Id. at 58779-782
(Question Nos. 9-49). The Department received many comments in response
to the ANPRM and it has taken those comments into consideration during
the regulatory assessment process.
At the same time, the Department also received many comments
expressing the view that economic analysis is irrelevant with respect
to the implementation of a civil rights statute. Under this view,
because the ADA is a civil rights statute protecting the rights of
individuals with disabilities, regulations designed to implement its
protections are necessary regardless of whether quantifiable benefits
can be shown to outweigh costs. As these commenters noted, traditional
benefit-cost analysis is not designed to measure the inherent value of
civil rights protections or to make judgments about fairness or equity.
The Department is sympathetic to the views expressed by these
commenters. However, the Federal laws and regulations that require
agencies to express the benefits and costs of regulations in economic
terms do not distinguish between regulations that implement civil
rights statutes like the ADA and regulations that implement other kinds
of laws. The Department also believes that there is much to be gained
from the comprehensive identification and description of the benefits
of accessibility standards, which are, after all, designed to ensure
equal access for everyone. Such benefits include not only the
measurable benefits to individuals with disabilities but also the more
subtle and far-reaching benefits for society as a whole. The majority
of commenters representing industry groups also expressed the belief
that the proposed standards would not confer any measurable benefit on
individuals with disabilities, and, consequently, were perceived by
some business owners as ``punitive.'' In fact, not only do the revised
requirements confer measurable benefits on individuals with
disabilities, in many cases, they also lower the costs for businesses.
By conducting a comprehensive assessment of the benefits and costs of
the proposed standards, the Department hopes to promote greater
understanding of the ADA and to further compliance with its civil
rights protections.
Complete copies of the Department's RIA and accompanying
Supplementary Results report are available on the Department's ADA Web
site (http://www.ada.gov). The RIA itself is the work product of HDR/
HLB Decision Economics, Inc., the economics firm with which the
Department has contracted to conduct its initial regulatory assessment.
The Department has adopted the results of the RIA as its assessment of
the benefits and costs that the proposed standards will confer on
society. The Department invites the public to read the RIA and to
submit electronic comments by visiting the Department's Web site for
public comments. See http://www.regulations.gov. When the Department
publishes a final rule, it will also publish an accompanying final
regulatory assessment. What follows is a general overview of the basic
principles of the RIA, as well as the Department's responses to ANPRM
comments concerning the methodology for this assessment.
[[Page 37043]]
Methodology for Data Collection
Several commenters proposed that the Department measure the
relevant inputs for the RIA--such as the types of benefits individuals
might realize from using a particular element or space in a facility,
the unit costs that facilities will incur to comply with a requirement,
or the likelihood that compliance will be readily achievable--by
conducting surveys, focus groups, and similar types of studies. For
example, commenters representing industry groups suggested that the
Department conduct a nationwide survey of existing facilities
representing a range of ages, sizes, and building methods in order to
assess the unit costs to existing facilities of complying with the
proposed regulations. Similarly, in order to measure the benefits to
users, some commenters proposed that the Department conduct a national
survey of people with disabilities using a broad sampling of ages,
types of impairments and socioeconomic status. Other suggestions
included interviewing support groups or State health officials and
staff at long term care facilities, conducting a nationwide survey
using the Social Security mailing list, and adding questions to the
U.S. Census questionnaire.
The Department has determined that it would be infeasible to
conduct surveys or otherwise collect information from (or about) all
facilities and all persons with disabilities nationwide. Nor would
surveys on the ``real world'' costs of compliance have aided the
regulatory assessment; only the incremental costs of compliance are
relevant to the analysis. Similarly, the Department also has determined
that it would be infeasible to conduct a nationwide survey of
individuals with disabilities with respect to the incremental benefits
they might be likely to experience from the proposed regulations.
Instead, the RIA relies on publicly available data sources--
supplemented as necessary with estimates generated or verified by
expert cost and benefit panels--to calculate the incremental impact of
the proposed regulations. See RIA, Ch. 4. Public data sources used in
the RIA are wide-ranging and include: the 2002 Economic Census (to
estimate the number and types of existing facilities); RS Means
publications (to estimate unit costs); Dodge Construction Potential
Bulletins (to estimate new construction rates); firm size data compiled
by the Small Business Administration's Office of Advocacy (to estimate
the total number and sales receipts of small businesses); the Annual
Time Use Survey published by the Bureau of Labor Statistics (to
estimate facility use and travel time); population surveys by the U.S.
Census Bureau (to estimate the percentage of U.S. population with
disabilities and types of disabilities); and average hourly wage
statistics compiled by the Bureau of Labor Statistics (to estimate the
value of time per facility group). For those aspects of the RIA model
that lacked publicly available data, estimates were developed by HDR/
HLB or Department architects (as appropriate) and then reviewed by
expert cost and benefit panels. From the cost perspective, estimated
values include the number and type of elements per typical facility.
See RIA Sec. 4.1.2, 4.1.7. With respect to benefits, the expert panel
developed estimates concerning the time savings due to changes in
accessibility, the expected number of uses for each requirement, and
the likelihood that persons with disabilities would realize benefits
from a requirement. See RIA Sec. Sec. 4.2.4, 4.2.6.
The Access Board's Final Regulatory Assessment--2004 ADAAG
In July 2004, the Access Board published its final regulatory
assessment for the 2004 Americans with Disabilities Act and
Architectural Barrier Act Accessibility Guidelines (``2004 ADAAG'').
See Regulatory Assessment of the Final Revised Accessibility Guidelines
for the Americans with Disabilities Act and Architectural Barriers Act,
http://www.access-board.gov/ada-aba/reg-assess.htm (July 2004). A few
years earlier, the Access Board also issued final regulatory
assessments for its supplemental guidelines for play areas (2000) and
recreation facilities (2002).\1\ The Access Board's final regulatory
assessment for the 2004 ADAAG does not, however, incorporate these
supplemental guidelines into its economic analysis since the costs of
these guidelines had already been addressed in prior regulatory
assessments.
---------------------------------------------------------------------------
\1\ The Access Board's final assessments for its supplemental
guidelines for play areas and recreation facilities are available on
its Web site. See Assessment of Benefits and Costs of Final
Accessibility Guidelines for Recreation Facilities, http://www.access-board.gov/recreation/reg-assessment.htm (Sept. 2002);
Final Accessibility Guidelines for Play Areas--Economic Assessment,
http://www.access-board.gov/play/assess.htm (Oct. 2000). The Board
conducted an initial, but not a final, regulatory assessment for its
supplemental guidelines for State and local government facilities
issued in 1998.
---------------------------------------------------------------------------
In summary, the Access Board's final regulatory assessment for the
2004 ADAAG used a sampling approach to calculate the costs of the
revised guidelines as applied to newly constructed and altered
facilities. In this final regulatory assessment, the Board identified
fourteen requirements that were projected to impose higher costs
(relative to the 1991 ADAAG) for newly constructed or altered
facilities. From this group of ``increased cost'' requirements, the
Board selected ten requirements for direct economic analysis based on
its determination that these requirements were likely to have the
greatest cost impact on newly constructed and altered facilities. The
Board then calculated the costs of applying these ten requirements to
the new construction and alteration of four representative facility
groups: Office buildings; hotels; hospitals and nursing homes; and
public (government) housing. These four facility groups were selected
based on the assumption that they would most likely incur relatively
higher costs for the ten selected requirements as compared to other
facilities. Using the foregoing methodology, the Board's final
regulatory assessment estimated that the aggregate national cost of the
ten selected final revised guidelines for newly constructed or altered
office buildings, hotels, hospitals and nursing homes, and public
housing ranged from $12.6 million (using IBC 2000 & 2003 as the ``lower
bound'' baseline) to $26.7 million (using an ``upper bound'' baseline
of the 1991 ADAAG) annually.
In the ANPRM, the Department stated that it expected to ``adopt''
the Access Board's final regulatory assessment for the 2004 ADAAG as
its assessment of the cost impact that the proposed standards would
have on newly constructed and altered facilities. At the same time,
however, the Department recognized that its assessment of the costs for
newly constructed and altered facilities would have to be broader than
that of the Board. First, the Department's assessment would have to
include the costs associated with the supplemental guidelines, which,
because they had been adopted by the Board in earlier rulemaking
initiatives, had not been included in the Board's final regulatory
assessment of the 2004 ADAAG. In addition, as the Department noted in
the ANPRM, the unit costs estimated by the Board, though they might
serve as a starting point, would nonetheless have to be supplemented
with indirect costs, balanced with reduced costs, and then spread out
over the 40-year lifecycle of the regulations. Finally, because the
Department was undertaking a comprehensive benefit-cost analysis, the
Department--unlike
[[Page 37044]]
the Board--would have to include an assessment of benefits for each
requirement.
In response to the ANPRM, several commenters representing industry
groups urged the Department not to simply ``adopt'' the Board's
assessment but, instead, to conduct its own assessment of the benefits
and costs of the proposed standards for newly constructed and altered
facilities. Questioning the accuracy of the sampling approach employed
in the Board's assessment, as well as its decision not to estimate unit
costs for requirements it had concluded would impose ``reduced cost''
or ``no or minimal cost,'' these commenters urged the Department to
conduct a comprehensive benefit-cost analysis that would assess the
benefits and costs of all requirements as applied to all types of
facilities.
As a practical matter, the RIA does indeed follow the comprehensive
benefit-cost approach suggested by these commenters. The Department had
long planned to assess the incremental impact of revised and
supplemental requirements at existing facilities on a per requirement
and per facility basis with respect to barrier removal. Using a
different methodology for newly constructed and altered facilities
would have made it impossible to ``roll up'' the benefits and costs of
the proposed regulations for each requirement, each facility group, and
for the rule as a whole. The Department concluded that the most
sensible approach would be to use the same methodology throughout its
initial regulatory assessment. Thus, the Department did not ``adopt''
the Access Board's final regulatory assessment for the 2004 ADAAG, but,
rather, conducted its own assessment of the proposed title II and title
III regulations.
Moreover, while the Department suggested in the ANPRM that it might
use the Board's unit cost estimates as a starting point for newly
constructed and altered facilities, the RIA does not, in fact, rely on
the Access Board's cost figures. Instead, the RIA uses detailed cost
estimates for each requirement as provided by an independent
professional cost estimator. See RIA Sec. Sec. 4.1.3-4.1.6 & App. 3-H.
These unit cost estimates were derived using standard industry
practices and published sources for construction costs. Low, middle,
and high unit cost estimates were developed for each requirement and
separately applied to new construction, alterations and barrier
removal. As with all data used in the RIA, the Department invites the
public to comment on its unit cost estimates and to provide, where
appropriate, any supporting information that might be necessary for the
Department to properly consider the comment. Because this is an initial
RIA, it will be followed by a final regulatory assessment when the
Department publishes a final rule. The Department will carefully
consider all comments relating to the initial RIA during the
development of the final rules and final regulatory assessment.
Categorization of Requirements
The Department's RIA assesses the incremental benefits and costs of
110 proposed requirements (or series of closely-related requirements).
For ease of reference, the RIA assigns a number to each proposed
requirement. See RIA, Tbl. 1 & App. 2. The RIA's requirements largely
follow the requirement categories developed by the Access Board in its
final regulatory assessment for the 2004 ADAAG. The Department's
categorization of requirements, however, does not track perfectly with
the Board's final regulatory assessment for two primary reasons. First,
the two assessments use different primary baselines. In the Access
Board's final regulatory assessment, the 1991 ADAAG served as one of
the two primary baselines, whereas the RIA employs the Department's
1991 Standards as the primary baseline. Second, the Board's final
regulatory assessment only directly calculated the cost impact of a
limited subset of revised guidelines as applied to four representative
newly constructed or altered facility groups. For situations in which
either of these considerations altered the incremental substantive or
monetary impact of a proposed requirement, the RIA categorizes that
requirement differently than the Access Board. See RIA Sec. 2.2.
Requirements in the RIA are categorized as either ``supplemental''
or ``revised'' requirements. Supplemental requirements represent
proposed requirements that have no scoping or technical counterpart in
the 1991 Standards. There are 44 requirements in the RIA categorized as
``supplemental.'' See RIA, App. 2 (Req. 67-110) &
App. 8 (Matrix of Changes). For the most part, these supplemental
requirements come from the supplemental guidelines promulgated by the
Access Board for judicial, detention, and correctional facilities
(1998), play areas (2000), and recreational facilities (2002). The
Department's title II and title III NPRMs also independently propose a
handful of new regulatory requirements applicable to sports stadiums,
post secondary school multistory dormitory facilities, accessible
prison cells, and social service establishments. See RIA, App. 2 (Req.
106-110) & App. 8 (Matrix of Changes). In general,
supplemental requirements apply to features or elements that are
typically found only in specific types of facilities such as
courthouses, jails, recreational boating and fishing facilities, golf
courses, amusement rides, and playgrounds. However, a few supplemental
requirements (i.e., requirements relating to exercise facilities,
swimming pools and play areas) apply to features or elements found in a
broader range of facility types. Supplemental requirements in the RIA
are assigned requirement numbers 67-110. See RIA, Apps. 2 & 8.
The RIA also identifies 66 proposed requirements as ``revised''
requirements. Unlike supplemental requirements, revised requirements
apply to features or elements that are currently subject to (or
specifically exempted from) scoping or technical provisions in the 1991
Standards. For the most part, revised requirements apply to elements
that are found in a wide range of commonly used facility types, such as
restaurants, retail stores, schools, hospitals, and office buildings.
Also categorized as revised requirements in the RIA are requirements
applicable to common building elements (such as windows) and commonly
used facility types (such as residential dwelling units) that have long
been subject to specific accessibility requirements, either through the
Uniform Federal Accessibility Standards (``UFAS''), other Federal
accessibility standards (such as the Fair Housing Act or Section 504 of
the Rehabilitation Act), or the International Building Code (IBC). Each
of the ``revised'' requirements in the RIA was adopted by the Board in
2004 and is, therefore, also described in the final regulatory
assessment accompanying the 2004 ADAAG. ``Revised'' requirements in the
RIA encompass requirement numbers 1 through 66. See RIA, Apps. 2 & 8.
For analytical purposes, the RIA also further divides ``revised''
requirements into two subcategories: ``more stringent'' and ``less
stringent'' requirements. Generally speaking, more stringent
requirements are requirements that have been modified to mandate
greater accessibility as compared to the 1991 Standards. For the most
part, the RIA's ``more stringent'' revised requirements generally
correspond to requirements identified by the Board as ``no or minimal
cost'' or ``increased cost'' requirements in its final regulatory
assessment for the 2004 ADAAG. These differences in terminology arise
out of
[[Page 37045]]
the dissimilar methodologies underlying the respective regulatory
assessments--namely, while the Board's final regulatory assessment
assessed only the costs of the revised guidelines, the Department's RIA
includes both incremental benefit and the cost calculations for each
proposed requirement. ``More stringent'' requirements in the RIA
include the following requirement numbers: 2-11; 14-16; 19-24; 27-29;
32; 35-37; 40-42; 45-46; 48-49; 51-53; and, 58-62. See RIA, App. 8.
Less stringent revised requirements, on the other hand, represent
requirements that have been relaxed relative to the 1991 Standards.
Requirements categorized as ``less stringent'' in the RIA generally
equate to ``reduced cost'' requirements in the Access Board's final
regulatory assessment. In the RIA, less stringent revised requirements
are represented by the following requirement numbers: 1; 12-13; 17-18;
25-26; 30-31; 33-34; 38-39; 43-44; 47; 50; 54-57; and, 63-66. See RIA,
App. 8.
Facilities--Categorization by Group
The RIA calculates the incremental benefits and costs of the
proposed standards for all public and private facilities covered by the
ADA. With respect to places of public accommodation covered by title
III, commenters stressed the need to consider each type of facility--
whether it is a restaurant, a hotel, a theater or an amusement park--in
its own respective category. Commenters also encouraged the Department
to break out facility groups in a way that reflects the homogeneity (or
lack thereof) of the types of buildings and industries that fall within
each group. For example, commenters representing the restaurant
industry emphasized the diverse nature of the industry and urged the
Department not to use a ``one size fits all'' approach. Similarly,
commenters representing the amusement industry pointed out that their
industry is ``not monolithic'' and encompasses amusement facilities of
various types and sizes, ranging from large theme parks to small
miniature golf courses. These commenters also related their view that
amusement facilities have physical environments and construction costs
that are fundamentally dissimilar from other types of facilities and
should not be lumped in with places of public entertainment generally.
The Department appreciates the need for a facility categorization
scheme that reflects, to the greatest extent possible, the wide range
of facilities covered by titles II and III of the ADA. Accordingly,
rather than simply relying on the twelve facility categories enumerated
in the ADA, the RIA features more than 65 different facility groups.
See RIA, Tbl. 2 & App. 3-A to 3-C. All public (title II) and private
(title III) facilities are assigned separate facility groups.
Additionally, public and private facilities are also grouped according
to general similarities in size, in underlying economic characteristics
(including the responsiveness of average customers to changes in
price), or both. Some of the resulting facility groups represent
single-purpose facilities (i.e., elementary schools or hospitals),
while other groups include classes of facilities (i.e., single level
stores). A few facilities--namely, swimming pools and parking garages--
represent both individual facility groups and elements in larger
facilities (such as hotels).
While the range of facility groups in the RIA is thus broad, it is
not limitless. No regulatory assessment can account for every nuance
across all industries and facility types nationwide. The Department has
nonetheless endeavored to craft as many facility groups as necessary to
properly estimate the incremental benefits and costs of the proposed
regulations, as well as to afford stakeholders a meaningful opportunity
to assess the regulations in terms of their own particular
circumstances. For example, due to the wide variations between
transient lodging facilities and the fact that several revised
requirements are directly related to the number of rooms in such
facilities, places of lodging have been divided into three size-
specific groups: ``motels,'' ``inns,'' and ``hotels.'' Additionally,
both because most of the supplemental requirements relate to specific
types of recreation facilities and because such facilities vary greatly
by size and features, the RIA includes distinct categories for each of
the following public and private recreation-related facility groups:
Amusement parks; exercise facilities and health spas; aquatic centers;
bowling alleys; golf courses; recreational boating facilities; fishing
piers and platforms; miniature golf courses; and shooting facilities.
The RIA does not, however, differentiate restaurants and other eating
establishments into multiple facility groups as suggested by some
commenters. Since more than 75% of restaurants are owned by small
businesses, their respective sizes, features, and elements are
relatively homogenous. See RIA, Ch. 6, Tbl. 17. Thus, for purposes of
the RIA, restaurants and other eating establishments are collectively
assigned to a unitary facility group. The Department, however, welcomes
public comment on these and other facility groups used in the initial
RIA and will consider such comments carefully when preparing the final
RIA.
Facilities--Estimation of Number of Elements per Facility
The primary building blocks for the RIA's economic analyses are the
estimated number of elements in each facility. Elements represent the
architectural features, amenities, or spaces that are subject to
revised or supplemental proposed requirements. As noted previously, it
was not feasible for the Department to conduct a nationwide survey of
all buildings and facilities. Nor are published sources available that
document the number and types of elements--as defined in the RIA--in
all facilities across the country. Estimating the number of elements
per facility thus required the development of specifications for each
element, as well as a methodology for counting the number of elements
in each facility. These estimates were initially developed by
Department architects and HDR and then verified (or, as needed,
modified) by a panel of experts with broad experience in architecture,
code consulting, and cost estimation across a wide spectrum of
facilities. See RIA sections 3.1, 4.1.2 & Apps. 3-D, 3-E, 7.
The end result of this element estimation process is a constructed
element count for all types of ADA-covered facilities nationwide.
Within each facility group, the RIA assumes a ``typical'' or average
facility for each facility group that applies to all facilities in that
group. See RIA, App. 3-C. Examples of assumptions about facility size
include square footage, number of stories or elevators, and seating
capacity. For each typical facility, in turn, the RIA assumes a
specified set of elements. See RIA, App. 3-E. As a general rule, larger
facilities have more elements, and smaller facilities have fewer
elements. However, the specific number and type of elements in a
typical facility are determined by the size and nature of the facility.
For example, the typical restaurant is assumed to potentially have up
to the following number of elements subject to change: Valet parking
garages (1); passenger loading zones (1); parking spaces (1); urinals
(1); water closet clearances in single-user toilet rooms (2); side
reach (3); sales and service counters (1); limited access spaces and
machinery spaces (1); detectable warnings (1); and small play area (1).
See RIA, App. 3-E1.
In actuality, of course, not every facility will share precisely
the same set
[[Page 37046]]
of elements that are assumed for the typical facility in the facility
group. For example, even though it is estimated that the typical
restaurant facility has one passenger loading zone, many restaurants
are located on streets, in shopping malls, or other interior spaces
where passenger loading zone requirements do not apply. The RIA takes
this uncertainty factor into account by incorporating likelihood values
into the model. That is, each element is assigned a range of values
(low, medium, and high) representing the likelihood that the element is
both located in the typical facility and subject to change in order to
bring it into compliance with applicable revised or supplemental
requirements. See RIA sections 3.1, 4.1.2 & Apps. 3-F, 3-G. Continuing
with the restaurant example, the ``most likely'' value for passenger
loading zones being located at a particular facility and requiring
change is assumed to be 10%, with high and low values equal to plus or
minus 5% respectively. See RIA, App. 3-G. Thus, by quantifying and
incorporating likelihoods into the model with respect to facility
element counts (and other estimated cost and benefit values), the RIA
more realistically addresses some of the inherent uncertainties
underlying benefit-cost analyses. See RIA Sec. Sec. 3.3, 4.3.1
(discussing ``Risk Analysis'' approach) & App. 6 (RAP Primer).
Facilities--Application of Model to Newly Constructed and Existing
Facilities
The universe of facilities required to comply with the Department's
proposed standards will be divided into mutually exclusive categories--
facilities that are ``newly constructed'' after the effective date, and
facilities that are already ``existing'' as of the effective date.
Facilities constructed after the effective date of the regulations will
be required to build in conformance with the requirements governing new
construction. Elements and spaces within existing facilities will be
subject to the proposed standards through either alterations or barrier
removal requirements. In the RIA, each of these types of construction
is modeled separately with respect to each facility group (and each
requirement) so that stakeholders will be able to better assess the
impact of the proposed regulations on their own particular facilities
or circumstances.
Application of the RIA cost model to new construction is relatively
straightforward. The number of new facilities constructed each year
after the effective date of the regulations (up to the 15th year) is
generally based on published industry and sector-specific annual growth
rates. See RIA sections 3.1, 4.1.1 & App. 3-B. In simplified form, the
total incremental cost for a particular facility group in a given year
is calculated by multiplying the number of newly constructed facilities
for that group for the year by the total number of elements across all
newly constructed facilities in that group and the unit cost per
element (that includes both initial and recurring costs). As a general
rule, new construction costs are typically lower than the costs for
other types of construction. Indeed, many proposed requirements are
expected to have zero costs for new construction either because the
cost of the element is negligible, or because it is presumed that
architects can ``design around'' the new requirement in the planning
stages with no appreciable increase in design or construction costs.
For existing facilities, compliance with the proposed standards may
come in the form of either alterations or barrier removal. The
alterations requirement is only triggered when an entity voluntarily
undertakes an alteration project, and, even then, generally applies
only to the particular elements undergoing alteration. (Alterations
affecting ``primary function areas'' are also required, absent certain
circumstances, to ensure that the path of travel to the altered area is
accessible to persons with disabilities.) Moreover, not all existing
facilities would be altered within the presumed 15-year lifespan of the
proposed regulations. The RIA thus incorporates a historically derived
alterations schedule for each facility group based on published data.
See RIA Sec. 3.4 & App. 3-B. Based on this alterations schedule, the
total incremental alterations cost for a particular facility group is
then calculated using the same basic formula as described above for new
construction costs. Alterations costs reflect only the incremental
costs necessary to bring the affected element(s) into compliance and
exclude costs otherwise attributable to other planned aspects of the
alteration. Overall, alterations costs vary greatly by facility group,
with some facilities experiencing minimal alterations costs (or even
cost savings) under the proposed regulations (e.g., stadiums,
convention centers, airport terminals, depots, ski facilities, bowling
alleys, fishing piers, and public amusement parks), and other
facilities projected to incur relatively higher alterations costs
(e.g., single-level stores, indoor service establishments, offices of
health care providers, office buildings, and courthouses). See Initial
Regulatory Impact Analysis--Supplemental Results (``Supplemental
Results''), pp. 14-147. The variability in alterations costs is largely
driven by the mix of affected elements in each respective facility
group.
Barrier removal, by contrast, is a continuing obligation that
applies to all public areas of existing title III-covered facilities.
For this reason, all elements in these existing facilities--
irrespective of compliance with the current 1991 Standards--potentially
would be required to satisfy applicable supplemental or revised
proposed requirements to the extent barrier removal was readily
achievable. Factors in the barrier removal calculus include whether
elements are subject to more stringent revised requirements and,
thereby, potentially exempt from barrier removal under the Department's
safe harbor proposal; whether elements are subject to supplemental
requirements for which safe harbor protection does not apply; when the
facility was originally constructed; whether, or to what extent,
elements have been altered; and whether removal of architectural
barriers is readily achievable under the 1991 Standards or proposed
requirements respectively.
Taking all of the foregoing factors into consideration makes
barrier removal cost calculations potentially more complex (or, put
another way, more variable-driven) as compared to costs for other types
of construction. Figure 1 in the RIA fully illustrates the various
conditions under which particular elements in an existing facility may
become compliant and whether the costs associated with such compliance
are assessed under barrier removal or alterations. As a practical
matter, however, barrier removal cost calculations in the RIA can be
distilled down to two essential considerations. First, the RIA assumes
that elements in existing facilities subject to supplemental
requirements may potentially incur barrier removal costs. Since the
Department's proposed safe harbor is conditioned on compliance with the
1991 Standards, elements covered by supplemental requirements--which,
by definition, have no counterpart in the 1991 Standards--are
necessarily ineligible for safe harbor protection. Second, with respect
to revised requirements, the RIA presumes no barrier removal costs will
be incurred by virtue of the safe harbor provision. (Instead,
modifications to existing elements subject to revised requirements
proceed on the alterations schedule and are costed accordingly.)
The RIA presents the overall results for barrier removal under two
[[Page 37047]]
scenarios--a comparison of total net present value (``NPV'') under
``safe harbor'' and ``no safe harbor'' conditions, and a comparison of
varying assumptions about readily achievable barrier removal rates
(i.e., 0%, 50%, and 100%). See RIA, Figures ES-3 & ES-4. (Total barrier
removal costs are also presented for each respective facility group
under the ``Safe Harbor'' scenario in the Supplemental Results.) In
sum, many title III-covered facilities are expected to incur few--if
any--costs for barrier removal due to the Department's proposed safe
harbor provision. Indeed, when taking safe harbor into account, one-
half of the 38 facility groups comprised of title III-covered (private)
facilities are projected to incur no barrier removal costs. See
Supplemental Results, pp. 14-147. Such facility groups include: motels;
restaurants; movie theaters; single-level stores; shopping malls;
museums and libraries; day care centers; and homeless shelters. Other
facilities, on the other hand, are expected to incur barrier removal
costs under the proposed regulations due to the presence of elements
affected by supplemental requirements. For such existing facilities,
barrier removal costs typically run higher than new construction costs
because: (1) retrofitting existing buildings or facilities is often
more expensive than new construction; and (2) from an economic
perspective, the full cost of bringing existing elements into
compliance with the proposed regulations is attributable to barrier
removal whereas, for new construction, only the incremental cost
differential between compliant and noncompliant elements is
attributable to new construction. See RIA Sec. 4.1.3. Title III-
covered facility groups with expected barrier removal costs that are
higher relative to their respective new construction costs include
amusement parks; exercise facilities; aquatic centers; and golf
courses.
Facilities--Assumption of Compliance With Current Law
In accordance with the principle that regulatory analyses should
only assess the incremental benefits and costs attributable to proposed
regulations, the RIA assumes that elements in existing facilities
covered by the ADA are currently in compliance with applicable
regulatory standards. Indeed, if the RIA did not make this assumption,
the benefits and costs of entities' noncompliance with their legal
obligations would be improperly charged to the proposed regulations.
While the RIA's assumption of compliance has implications
throughout the assessment, its impact is most obvious with respect to
existing private (title III) facilities subject to barrier removal. As
discussed previously, the Department is proposing a safe harbor
provision that would exempt elements in existing facilities that comply
with the 1991 Standards from barrier removal that might otherwise be
necessary to bring them into compliance with revised standards in the
proposed regulations. In this context, the RIA presumes that existing
facilities have already satisfied their legal obligations by removing
architectural barriers to the extent readily achievable. Thus, any
remaining barriers are those for which barrier removal has not yet been
readily achievable under the 1991 Standards. Moreover, if barrier
removal to date has not been readily achievable under the current
Standards (which, by definition, are less stringent than the proposed
revised requirements), it is reasonable to assume that barrier removal
will also remain beyond reach under more stringent revised
requirements.
For existing public (title II) facilities, however, the assumption
of compliance with current law plays out differently. Existing public
facilities are not subject to barrier removal requirements. Instead,
title II-covered public entities must ensure that their programs and
services, ``when viewed in their entirety,'' are accessible to
individuals with disabilities. Compliance with program accessibility
requirements thus does not necessarily require structural modifications
to existing facilities since compliance is determined on a program-
wide--rather than element-by-element--basis.
For these reasons, the RIA follows the methodology outlined in the
ANPRM and generally does not assess the impact of the proposed
regulations on existing public facilities covered by title II. However,
there are two limited circumstances in which the regulatory assessment
does include existing public facilities in the economic calculus.
First, alterations to existing public facilities must still comply with
the proposed regulations irrespective of program accessibility
requirements. Thus, the RIA model assumes that when an existing title
II-covered facility undergoes alteration, the incremental costs and
benefits of that alteration are included in the regulatory assessment.
Second, the RIA takes into account program access when calculating the
estimated incremental impact of the proposed regulations with respect
to supplemental requirements relating to existing swimming pools,
saunas and steam rooms, and play areas. The RIA includes program
accessibility in the regulatory calculus in the context of these three
sets of requirements for several reasons. Even in the context of
program accessibility, compliance with these supplemental requirements
would undoubtedly require some structural modifications unless the
facilities that compose the program were already--pursuant to program
accessibility or otherwise--accessible in the same manner and to the
same extent as required by the proposed standards. Moreover, the
Department is proposing certain regulatory exemptions and exceptions
that exclusively apply to existing title II-covered facilities with
swimming pools, saunas and steam rooms, or play areas.
The Department's statement in the ANPRM that it did not intend to
include existing title II-covered public facilities in the assessment
generated several objections by commenters. In summary, these
commenters asserted that existing public facilities should be included
in the regulatory assessment since they would be affected by the
proposed standards in various circumstances, including voluntary
efforts to improve access, determinations that compliance with program
accessibility requirements could only be met with structural changes or
litigation.
As stated previously, however, the purpose of the RIA is to measure
the incremental benefits and costs of the Department's proposed
regulations. Because the program accessibility provisions in title II
require public entities to ensure access to programs, rather than
facilities, the necessity for structural modifications cannot be
assumed.\2\ (By comparison, the obligation to remove structural
barriers in existing private facilities is both mandatory and amenable
to assessment on an element-by-element basis.) Moreover, as with
existing private facilities, public facilities newly constructed or
altered since the effective date of the 1991 Standards should already
be fully or largely accessible, and older facilities--those built
before 1993--have been required to meet the program accessibility
requirements for at least 15 years, if not longer. It is thus
reasonable to assume that if structural modifications were necessary to
provide program access, they likely would have been implemented by now.
---------------------------------------------------------------------------
\2\ Nor will public entities be required to retrofit elements in
existing title II-covered facilities to bring them into compliance
with the applicable revised standards so long as such elements
presently comply with either the 1991 Standards or UFAS. To make
this clear, the Department is proposing a safe harbor provision for
existing public facilities.
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[[Page 37048]]
Benefits--Public Comments Relating to the Measurement of Benefits
The Department received many public comments with suggestions about
how the RIA should measure the benefits of the proposed standards to
individuals with disabilities. With the exception of those commenters
who expressed the view that any form of economic analysis is
inappropriate for regulations implementing a civil rights statute,
commenters were unanimous that the assessment should balance costs
against a comprehensive assessment of benefits, both economic and
social. Generally speaking, commenters also recognized that quantifying
benefits would be a difficult, if not impossible task, since the
paucity of hard data on the economic benefits of accessibility would
require the Department to generate such data from scratch.
Most comments relating to the assessment of benefits tended to be
global in nature. That is, rather than suggesting methods for
estimating the incremental benefits of the proposed regulations, the
majority of proposals appeared better suited to a comprehensive
assessment of the overall societal benefits of accessibility itself.
For example, commenters representing disability groups recommended that
the Department adopt a process of benefit-based analysis recommended to
the President by the National Council on Disability (NCD) in its report
entitled ``National Disability Policy: A Progress Report, December
2002-December 2003.'' Recognizing the need for ``vastly more data'' on
the effects of societal decisions on people with disabilities, these
commenters urged the Department to analyze the long-term benefits of
the proposed regulations for people with disabilities, as well as
economic activities foregone by persons with disabilities due to
inaccessibility. As one commenter noted: ``An individual with a
disability able to access the local aquatic center will be able to seek
physical activity and recreation opportunities that promote healthy
living and wellness, reduce the risk for disease and declining health,
seek additional opportunities for community participation including
employment and thereby reduce reliance on governmental subsidies for
housing, welfare or health care.''
Other commenters representing disability groups recognized that,
while certain short-term benefits could be measured, gauging the more
enduring or meaningful benefits of the changes represented by the
proposed regulations for people with disabilities and for society as a
whole would be very difficult. For example, determining the incremental
impact that one change--or even all of the changes--might have on the
earning power of people with disabilities would ``require a much more
complex exercise than construction cost estimating.'' Other
unquantifiable benefits noted by commenters included the extent to
which the incremental changes reflected in the proposed regulations
might lower the liability exposure faced by facilities by making
accessible elements and spaces safer for persons with disabilities.
Commenters representing industry groups suggested that the RIA
assess the benefits of accessibility on an element-by-element basis in
order to establish a ``breakeven'' value for each proposed
requirement--that is, how much benefit an accessible element would need
to provide to be worth the cost of making it accessible. One commenter
representing the design and construction industry described this
approach as measuring ``performance outcomes'' (i.e., the quantifiable
benefits and costs conferred by each proposed requirement), as compared
to other types of analysis that measure ``social outcomes'' (i.e., the
overall impact of the proposed requirement on society). This comment
suggested that ``cost effectiveness analyses'' focus on quantifiable
performance outcomes, while ``cost utility analyses'' focus on
qualitatively describing the range of social benefits and costs. In the
RIA, the Department is doing both--quantifying the incremental benefits
and costs of each proposed requirement to the extent they can be
quantified, and, to the extent they cannot, describing the
unquantifiable benefits and costs in qualitative terms.
Several commenters representing disability groups or industry
groups suggested that the practical effect of accessibility
requirements is to redistribute economic resources from society as a
whole to the ``under served'' population of individuals with
disabilities. Commenters representing disability groups hailed the
redistribution as an obvious social good, asserting that civil rights
regulations need not confer benefits on ``society as a whole'' to be
worthwhile. By contrast, commenters representing industry groups
questioned whether such redistribution was cost-efficient. These
commenters referred the Department to Part D of OMB Circular A-4
(``Distributional Effects''), which applies when the benefits and costs
of a regulation are unevenly distributed throughout the U.S. population
or economy. Distributional effects may be imbalanced for different
industrial sectors or regions of the country, or, as urged here, for
different subpopulations of people. As OMB Circular A-4 puts it, the
uneven distribution of regulatory impacts occurs when ``[t]hose who
bear the costs of [the] regulation and those who enjoy its benefits * *
* are not the same people.'' These commenters urged the Department to
recognize that the proposed regulations would have uneven
distributional effects because, in their view, those who will
purportedly bear all the costs of compliance (facility owners and
operators) and those who will enjoy its benefits (people with
disabilities) are not the same groups.
From the Department's perspective, however, the redistribution
analogy is inapposite. Accessibility requirements do not represent a
transfer of resources from one group of people to another, but, rather,
a dedication of shared resources to a particular end. In contrast to
the types of subpopulations mentioned in OMB Circular A-4 (i.e., race,
sex, or income level), disability is not a fixed or even relatively
static category; rather, it is inherent in the human condition. The
vast majority of individuals who are fortunate enough to reach an
advanced age will benefit personally from an accessible environment.
Business owners and people with disabilities are not discrete
subpopulations--just as people with disabilities own businesses, many
business owners have or will acquire a disability during their
lifetime. Moreover, while the direct costs of compliance with the
proposed standards may be incurred initially by businesses, as
commenters representing industry groups have repeatedly stated, such
costs eventually may be passed along to consumers. In other words, all
members of society will pay the price for accessibility, just as all
will benefit from it. Rather than representing a transfer of resources
between distinct groups of people, then, accessibility requirements
represent--for all members of society, whether they will benefit from
accessibility now or at some point in the future--a choice among
different forms of societal benefits.
Benefits--Quantification and Monetization of User Benefits in the RIA
From an economic perspective, the value that people derive from
accessibility can be divided into three categories: ``use value'' (the
value that people derive from using accessible facilities), ``option
value'' (the value that people with and without disabilities derive
from the opportunity to obtain the benefit of accessible facilities in
the
[[Page 37049]]
future) and ``existence value'' (the value that people with and without
disabilities derive from the simple existence of accessible facilities
including the fulfilment of constitutional guarantees of equal
protection and nondiscrimination). The RIA, however, only quantifies
and monetizes the incremental benefits to users (i.e., persons with
disabilities) conferred by changes in accessibility due to the proposed
regulations. This is largely due to data constraints. The overall
benefits of the proposed regulations will be experienced by nearly all
members of society to a greater or lesser extent during the projected
40-year lifecycle of facilities affected by these regulations. However,
quantification of these benefits is beyond the scope of the
Department's regulatory assessment, and, likely, any regulatory
assessment. Instead, the RIA is necessarily limited to assessing the
value of specific types of benefits that can be quantified and assigned
monetary values (i.e., user benefits) for a demographically defined
population of people (i.e., persons with disabilities). In this sense,
the regulatory assessment must be considered conservative since it
almost certainly understates the overall value of the proposed
regulations to society.
The RIA quantifies and monetizes user benefits in two ways. First,
an expert panel developed estimates of the amount of time persons with
disabilities can be expected to save time either gaining access to a
facility (e.g., a retail store), waiting to use a particular amenity in
that facility (e.g., a restroom), or using an amenity in the facility
(e.g., an ATM inside the store) as a result of the proposed
regulations. See RIA Sec. Sec. 3.2.2, 4.2.6 & Apps. 4-H, 4-K, 4-L, and
4-N. Second, for proposed requirements--primarily, supplemental
requirements--that can be expected to create new users who previously
were unable to visit a facility (e.g., fishing piers) or to use a
facility amenity independently (e.g., hotel swimming pools), the
assessment quantifies the value of the new uses generated by the change
in accessibility. See RIA Sec. 3.2.3 & App. 4-I. Each of these
components of user benefits is then monetized using an appropriate
``value of time''--namely, an expression of a user's willingness to pay
for changes at the facility. In keeping with common economic
assumptions, user benefits associated with accessibility changes are
monetized based on the value of the user's time. See RIA Sec. Sec.
3.2, 4.2.5 & App. 4-J.
The benefits model in the RIA also places a ``premium'' on the
value of certain types of time savings. The RIA describes the theory
and mechanics of this approach in greater detail. See RIA Sec. 4.2.5 &
App. 4-J. Briefly stated, the assessment assumes that individuals would
be willing to pay more for time saved gaining access to a facility due
to improved accessibility than their respective typical uses of the
same amount of time. This presumption derives from studies in the
transportation industry concluding that the inherent discomfort of
having to wait (as compared to the satisfaction of feeling like one is
at least moving in the direction one wants to go) leads people waiting
at a bus stop to prefer to have the bus arrive sooner, even if it means
that the bus ride itself will take longer (so that the net travel time
is the same). Essentially, people experience the time they spend
waiting for the bus as a more negative experience--by a factor of two
to one--as compared to the time they spend riding the bus and,
consequently, ``value'' decreasing the time spent waiting more than
they would an equivalent amount of bus time. In the RIA, this premium
is applied, as applicable, to the incremental time savings benefit
afforded by each revised or supplemental requirement.
In the end, the approach the Department has taken with respect to
the assessment of benefits in the RIA is closest to the proposals of
commenters representing industry groups. By calculating the incremental
benefits (and costs) for each supplemental and revised requirement, the
assessment generates a benefit-cost ratio for each such requirement.
Although this approach has allowed the Department to gauge the
incremental cost-effectiveness of the change represented by each
revised or supplemental requirement as applied to a particular element,
it should be understood that it is also fundamentally different from
gauging the absolute cost-effectiveness of requiring a given element to
be accessible. Most of the inherent value of an accessible element, as
with accessibility generally, derives not from the incremental changes
represented by the proposed standards, but from the fact that the
element is required to be accessible at all.
Finally, not all of the revised requirements will confer increased
benefits on persons with disabilities. The ``less stringent'' revised
requirements generally reduce both benefits and costs, though such
reductions may not be distributed equally. As a general matter,
requirements have been made less stringent to clarify the meaning of
the current requirement, or to provide an exception that takes into
account special circumstances in specific facilities. For less
stringent requirements that propose reductions in scoping, these
revisions were typically based on the Access Board's determination that
demand for the affected accessibility feature or communication device
was not high enough to warrant the current numerical requirements. For
purposes of the RIA, when less stringent revised requirements confer
lower benefits relative to the current requirements, these reduced
benefits have been assessed only with respect to new construction and
alterations. Elements in existing facilities subject to less stringent
requirements are assumed to be compliant already, either with current
(more stringent) requirements or revised (less stringent) requirements.
Facility owners would have neither a legal obligation nor a financial
incentive to undergo barrier removal for such elements in order to
``comply'' with the revised standard. The RIA thus assumes that
reductions in benefits due to less stringent revised requirements will
not be realized for elements in existing facilities unless the affected
elements are altered.
Benefits--Nature and Significance of Unquantified Benefits
In addition to the foregoing monetized user benefits, the RIA
acknowledges that the proposed regulations would, if promulgated in
final form, undoubtedly confer significant and important benefits on
society that defy easy quantification or monetization. These benefits
include the option and existence values discussed previously. Other
benefits would also likely accrue to businesses through reduced
administrative costs (from harmonization of the 2004 ADAAG with model
codes) or increased worker productivity (due to greater workplace
accessibility). The regulatory assessment discusses these types of
benefits in qualitative, rather than quantitative, terms. See RIA Sec.
5.4.
Perhaps the most significant unquantified benefit is the myriad
ways in which the proposed standards--to the extent they make the built
environment more accessible--would improve the lives of many persons
with disabilities. Even on an incremental level, the beneficial domino
effect of increased access to all types of facilities, for each
individual and, ultimately, for society as a whole, simply cannot be
measured, much less reduced to monetary terms. An example related by
one commenter referred to the way in which the proposed regulations
would enable many individuals with
[[Page 37050]]
disabilities to begin independently accessing various types of
recreational facilities for the first time. This commenter observed how
``[r]egular involvement and participation in recreation, social, and
leisure activities plays a significant role in living and maintaining a
healthy lifestyle,'' and ensures that people ``remain physically
active, develop social skills, and develop the skills necessary to
enjoy lifelong leisure activities.'' Among the many collateral benefits
of access to recreational opportunities are the ``prevention of
obesity, [a] decrease of secondary conditions, improved social and
problem solving skills, promotion of physical and emotional health and
decreased likelihood of being hospitalized for another illness,'' not
to mention ``increased independent living skills and preparation for
employment.''
Unquantified benefits from the proposed regulations, moreover, are
not limited to those accruing from the increased accessibility of
recreational facilities. The revised requirements would increase
accessibility throughout the entire range of public and private
facility groups. For example, one commenter cited a study published in
a recent issue of the Journal of Consumer Affairs presenting the
perspectives of people with disabilities regarding the effectiveness of
the ADA. Based on a national sample of one thousand
noninstitutionalized individuals with disabilities, the study found
that respondents who interacted more frequently with the marketplace,
or even simply perceived the marketplace as more accessible, were more
satisfied with life. According to this comment, study authors Carol
Kaufman-Scarborough and Stacey Menzel Baker stated that their finding
``indicates the value behind efforts designed to empower consumers with
disabilities by offering services that assist them * * * and by
creating environments that enable them to experience full participation
in society.'' Increased accessibility of the marketplace as a whole,
which can be expected to heighten facility use across a wide range of
facility groups, will also lead to greater benefits over time. A
commenter representing a State government echoed this theme, citing
potentially increased usage of public recreation areas and greater
participation in the democratic process.
Additionally, the number of Americans with disabilities is expected
to continue increasing over time. As many commenters pointed out, the
proportion of the U.S. population that has a disability not only has
been growing steadily over the last forty years, but also is projected
to continue growing during the 40-year lifecycle of the regulations.
Data provided by the Disability Statistics Center at the University of
California at San Francisco demonstrates that the number of adults who
use wheelchairs increased at a rate of 6% per year between 1969 and
1999; by 2010, it is projected that 2% of the adult population in the
U.S. will use wheelchairs. In addition to people who use wheelchairs,
in 1999, 3% of adults used crutches, canes, walkers, and other mobility
devices; by 2010, that number is projected to have increased to 4%.
Thus, by 2010, up to 6% of the U.S. population is projected to have
mobility impairments. Moreover, because this figure was based on data
from 1999, it does not take into account the influence of the current
war in Iraq. This war is creating a new generation of young men and
women with disabilities, the majority of whom are returning from war in
their early twenties and can be expected to outlive the 40-year
lifecycle of any building subject to these proposed regulations. Just
as the original Federal disability rights legislation--Section 504 of
the Rehabilitation Act of 1973--was enacted in direct response to the
thousands of disabled war veterans returning home from Vietnam, the
need to ensure an accessible built environment is now more critical
than ever.
Benefits from the proposed regulations potentially would also
extend to the public generally irrespective of disability status. For
some, value may be derived simply from the existence of enhanced
accessibility and improved social equity brought on by the proposed
regulations. Others may take ``insurance'' value from the opportunity
to make use of accessible features or facilities in the event they
should need them in the future. Accessible facilities also benefit
individuals without disabilities. Several commenters noted that
improved accessibility features might benefit, for example, elderly
persons, athletes temporarily on crutches, expectant mothers, or mail
carriers using hand carts to deliver large packages. Moreover, because
individuals tend to patronize facilities--especially places of public
accommodation like hotels and restaurants--in pairs or groups, the
benefits of accessibility also extend to the partners, companions,
friends, family members, and personal assistants of people with
disabilities. Finally, although requirements that apply to existing
facilities pursuant to the barrier removal requirement are not
primarily intended to benefit employees, employees with disabilities
will certainly benefit from the accessibility of such features, which,
given the importance of employment to the economic vitality of an
individual, their family, and society as a whole, magnifies the
benefits of accessibility throughout the economy.
Lastly, businesses--as well as State and local governments--would
also likely experience benefits from the proposed regulations in ways
that are not quantified in the RIA. Increased harmonization of the
revised ADA Standards with model codes and consensus standards will
yield substantial benefits to businesses, architects, and State and
local governments by eliminating confusion and reducing administrative
costs.\3\ Harmonization will also make it easier for code-setting
governmental entities to have their respective State or local codes
certified as meeting or exceeding Federal standards. Businesses may
also experience increased workforce efficiency and productivity as a
result of accessibility changes in the proposed regulations. For
example, one commenter representing the design and construction
industry pointed out that greater independence for users of facilities
confers a ``productive'' benefit for businesses, whose staff can be
redirected from providing assistance to customers with disabilities to
potentially more economically rewarding tasks.
---------------------------------------------------------------------------
\3\ While the benefits of harmonization between the ADA
Standards and the model codes are clear, a few commenters noted the
potential short-run downsides of harmonization. For example, some
commenters complained that it would be expensive for small
businesses to purchase copies of the IBC which is privately
published by the International Code Council. Other commenters
expressed concern that, since the 2004 ADAAG has a revised
organization and format, they will have to learn a whole new
regulatory system should the Department adopt these guidelines as
the revised ADA Standards. The Department recognizes that, while
harmonization will make ADA compliance easier for all covered
entities (including small business owners) over the lifespan of the
regulation, this benefit may not be fully realized by all entities
immediately. To assist in the transition to the 2004 ADAAG, the
Access Board has published a side-by-side comparison between the
2004 ADAAG and IBC 2003--including the provisions that have been
incorporated by reference in the 2004 ADAAG--on its Web site (http://www.access-board.gov). The ICC offers free downloads of a similarly
detailed comparison between the 2004 ADAAG and IBC 2006 on its Web
site (http://www.iccsafe.org). The Department is exploring the
possibility of publishing a similar side-by-side analysis on its Web
site that compares the ADA Standards (both current and as revised)
to one or more editions of the IBC (including any IBC provisions
incorporated by reference) following promulgation of the final
regulations. Additionally, when the proposed regulations become
final, the Department will publish small entity compliance guides
required by SBREFA and other appropriate technical assistance.
---------------------------------------------------------------------------
[[Page 37051]]
Analytical Scenarios--Safe Harbor
The most significant of the regulatory alternatives proposed by the
Department is the ``safe harbor'' for certain existing title III-
covered facilities and elements. As noted previously, the safe harbor
proposal exempts covered facilities from barrier removal obligations
that might otherwise arise under the proposed regulations so long as
the elements therein are in compliance with the 1991 Standards. The
Department has proposed this safe harbor to mitigate the impact of the
proposed regulations on existing private facilities.
The RIA results indeed reflect the significant impact of the safe
harbor proposal. In order to both assist the Department with its
consideration of the safe harbor provision and inform the public of the
benefits and costs of its adoption, the RIA compares the total NPV for
``safe harbor'' versus ``no safe harbor'' scenarios. See RIA, Figures
ES-3 & 13. These comparative scenarios use the 1991 Standards as the
primary baseline and assume barrier removal is readily achievable for
50% of the elements in existing facilities. Based on these assumptions,
the RIA shows that there is most likely a $4.3 billion difference in
total NPV between the ``safe harbor'' scenario ($7.6 billion) and the
``no safe harbor'' scenario ($3.3 billion).
Analytical Scenarios--Barrier Removal
By statute, an action to remove barriers is considered ``readily
achievable'' if, for a particular entity, it is ``easily accomplishable
and able to be carried out without much difficulty or expense.'' 42
U.S.C. 12182(b)(2)(A)(iv). In practice, what is readily achievable for
any given entity with respect to a given element must be determined on
a case-by-case basis, and has no monetary or other absolute
parameters--it is specific to the individual facility and to the
particular time, place, and context in which that facility operates.
The Department's current title III regulations provide a list of
factors that should be considered in determining whether an action is
readily achievable. Only one of those factors--the nature and cost of
the action--relates to the element itself. All of the other factors
specifically relate to the business entity, including the impact of the
action on the operation of the site; the overall financial resources of
the entity and any parent corporation; the type of operation of the
entity or parent corporation (including the composition, structure, and
functions of the relevant workforce); the geographic, administrative
and fiscal relationships between the facility, entity, and parent
company; and the effect of the action on any legitimate safety
requirements that may be necessary for safe operation.
Recognizing the infeasibility of conducting an empirical assessment
of the individualized barrier removal efforts by facility owners and
operators nationwide, the Department proposed in the ANPRM to develop a
computer simulation model that would assess the statistical probability
that existing facilities would be required to remove barriers in order
to comply with supplemental or revised requirements. Several commenters
expressed concern that the lack of reliable data would make the results
of a simulation model useless. Other commenters suggested that the same
indefinite parameters that make compliance with the barrier removal
requirement difficult would also complicate any attempt to accurately
calculate the likelihood that compliance would be required. In
addition, these commenters stated that modeling readily achievable
barrier removal as a function of the financial resources of an entity
would underestimate the costs of compliance since entities, faced with
an ambiguous definition of ``readily achievable,'' purportedly often
spend more on barrier removal efforts than required by the ADA. Rather
than using definite parameters to evaluate an indefinite requirement,
these commenters proposed that the Department simply make an honest
attempt to quantify the costs of compliance and to describe the
distributional impacts of the rule across individuals and industries.
The Department agrees that the lack of reliable data on existing
facilities' barrier removal efforts would render any statistical
analysis too indefinite to be of value. Therefore, rather than basing
calculations of total incremental benefits and costs on potentially
arbitrary assumptions about whether (or to what extent) elements at
existing facilities have undergone barrier removal, the RIA takes a
more practical approach. First, with respect to existing elements
subject to supplemental requirements, the RIA calculates an expected
total NPV based on the assumption that barrier removal would be readily
achievable for every element (100%) in a manner that is fully compliant
with the new standards. Second, the RIA then calculates total NPV under
two other compliance scenarios (0% and 50%) to show how varying barrier
removal rates impact the overall results. Taken together, these three
barrier removal scenarios reflect the range of probabilities of barrier
removal obligations that existing facilities would have under the
proposed regulations. Presenting the data this way enables the facility
owner who could potentially incur the costs of compliance, as well as
the individual with a disability who could potentially benefit from
that compliance, to gauge the impact that the proposed standards might
have on a particular facility by selecting the scenarios that most
closely match the level of compliance and resources of the covered
entity.
Primary Baseline
The 1991 Standards serve as the primary baseline for the RIA
because they are the only uniform set of accessibility standards that
apply to every place of public accommodation, every commercial
facility, and every State or local government facility in the country.
According to statistics compiled by the International Code Council
(which publishes the IBC), a version of the IBC--either IBC 2000, IBC
2003 or IBC 2006--has been adopted at the State or local level in all
50 States and the District of Columbia. Nonetheless, there is still
variation among States with respect to model code adoption. For
example, because model codes such as the IBC are voluntary, public
entities sometimes modify or carve out particular provisions or
sections or leave adoption to the discretion of local jurisdictions. By
contrast, because the ADA is a mandatory Federal law, it applies the
same standards to every facility in the country, ensuring a uniform
level of accessibility--as well as a uniform means of baseline
assessment--nationwide.
Because of this uniformity, the 1991 Standards baseline is the only
baseline against which the incremental costs and benefits of the
proposed regulations are estimated on a requirement-by-requirement and
facility-by-facility basis. The results for the primary baseline are
summarized in the main RIA text and presented in full in the
accompanying Supplemental Results. It also bears noting that the
primary baseline assumes that facilities subject to the 1991 Standards
are not also required to comply with equivalent provisions in model
codes (such as the IBC) that have been adopted as State or local
building codes--even though compliance with State or local building
codes necessarily is compulsory. In other words, the primary baseline
does not take into account the substantial overlap between requirements
in the proposed regulations and model code provisions in the IBC. While
this approach likely leads to significant overstatement of the costs
(and benefits) of the proposed regulations with respect
[[Page 37052]]
to many requirements, it also nonetheless represents the only means of
uniformly assessing the incremental impact of the proposed regulations
across all facilities nationwide.
Some commenters representing industry groups expressed the view
that the Department should not use the 1991 Standards as a baseline
because, in their view, the benefits and costs of the current
requirements were not adequately measured when the requirements were
first adopted in 1991. Instead, these commenters propose that the
Department assess the absolute benefits and costs of the proposed
standards as measured against a zero baseline--that is, the full cost
of compliance with the proposed regulations irrespective of the current
level of accessibility of facilities due to the 1991 Standards.
The Department disagrees with these comments. OMB Circular A-4 is
very clear that regulatory analyses should only account for those
incremental benefits and costs that arise as a result of the proposed
regulatory action itself. To assess the absolute (or total) benefits
and costs of compliance with the proposed regulations would improperly
attribute to the proposed standards all of the benefits and costs of
the 1991 Standards, thereby distorting the economic impact of the
proposed regulations. The 1991 Standards are the law of the land and
facilities have been subject to the current requirements for 15 years.
Assessing the benefits and costs of the proposed standards as if the
ADA had just been enacted would thus drastically overstate both the
benefits and the costs of the proposed regulations. For these reasons,
the RIA uses the 1991 Standards as the primary baseline and assesses
the incremental impact of the proposed standards accordingly.
Alternate Baselines
While the RIA uses the 1991 Standards as the primary baseline, the
assessment nonetheless still accounts for the impact of the widespread
adoption of model codes by using alternate IBC baselines for several
analyses. Due to the high degree of overlap between the IBC, the 2004
ADAAG, and the Department's proposed standards, the widespread adoption
of various versions of the IBC by State and local jurisdictions means
that most buildings and facilities nationwide are already being
constructed or altered in compliance with many of the proposed
standards. (Indeed, one of the Access Board's goals in revising ADAAG
was to harmonize these guidelines with model codes, such as the IBC,
precisely because they form the basis of most State and local building
codes.) Thus, for facilities located in one of the many jurisdictions
that have adopted--in whole or in part--a version of the IBC, the
Department's adoption of the proposed regulations will have far less
impact as compared to other facilities.
For these reasons, several commenters representing disability
groups urged the Department to use the IBC, in conjunction with other
accessibility standards that have been adopted by States or local
governments, as the primary baseline in lieu of the 1991 Standards.
Commenters representing industry groups also recognized that versions
of the IBC had been adopted in many States and localities, but
suggested that the Department only use the IBC as a baseline for those
jurisdictions in which its provisions had actually been adopted into
law by code-making authorities.
As noted in the Regulatory Framework section of the ANPRM, the
Department considered following a State-by-State approach in which the
relevant baseline for newly constructed and altered facilities would
vary from State to State, depending on which IBC version each State or
local jurisdiction had adopted. Under this approach, the 1991 Standards
would only have been used as a default baseline for jurisdictions that
had not yet adopted any version of the IBC. However, the many
variations among State and local jurisdictions concerning the extent to
which various IBC-related accessibility provisions (i.e., IBC Chapter
11, IBC Appendix E, and ANSI A117.1) have been adopted without
revision, adopted in a modified fashion, or carved out completely, make
the creation of State-by-State baselines infeasible for every
supplemental and revised requirement across all facilities nationwide.
First, given these variations among States, use of State-by-State
baselines would effectively require the creation of over one hundred
separate baselines in order to accurately reflect which jurisdictions
have adopted IBC provisions that are equivalent to each of the revised
and supplemental requirements assessed in the RIA. Moreover, State-by-
State baselines would also necessarily require information concerning
the precise geographical location, age, and type of occupancy of all
existing facilities nationwide. The Department, however, is not aware
of any publicly available ``facility census'' to provide this requisite
information. Such considerations would have made State-by-State (or, as
applicable, locality-by-locality) baselines both extremely time-
consuming to create and likely unreliable in application.
Thus, while the RIA applies alternate baselines for three different
versions of the IBC (i.e., IBC 2000, IBC 2003, and IBC 2006) to assess
the overall impact of the proposed regulations, it employs a simplified
approach to the creation of these baselines. Specifically, the RIA
assumes that the applicable version of the IBC applies equally to all
facilities nationwide, and that relevant provisions of ANSI A117.1, IBC
Chapter 11 and IBC Appendix E have been incorporated by all State and
local jurisdictions. This latter assumption is necessary because these
three sources establish most of the accessibility standards that apply
under the IBC. If none of them were assumed to apply, adoption of the
IBC by a jurisdiction would tell us little about the accessibility of
its facilities, and, if some but not all of them were assumed to apply,
predicting which provisions would apply to which facilities would be
impossible. The alternate IBC baselines in the RIA, therefore, do not
present the overall results on a State-by-State basis. However, these
baselines nonetheless still permit facilities to see how the impact of
the proposed standards varies depending on which version of the IBC the
State or local code authorities have or might adopt in the future
The RIA presents the comparative results for the three alternate
IBC baselines in summary ``rolled-up'' fashion that combines all
proposed requirements and facility groups. That is, for each alternate
IBC baseline, the regulatory assessment provides a graphic
representation (in the shape of a so-called ``S-Curve'') of the NPV at
various likelihoods of occurrence. See RIA, Figure ES-5 & 15. Unlike
the primary (1991 Standards) baseline, the results for each of the
alternate IBC baseline scenarios are not further broken down to show
the incremental benefits and costs for each requirement or facility
group. Since requirement-by-requirement and facility-by-facility
results are already calculated for the primary baseline, similarly
detailed analyses for each IBC baseline effectively would have amounted
to conducting four separate regulatory assessments.
Moreover, to further assist stakeholders in assessing the impact of
the proposed regulations, the RIA also presents several more limited
analyses that assess the incremental impact of four illustrative
proposed requirements against requirement-specific alternate IBC/ANSI
baselines. When constructing these four requirement-specific IBC
baselines, the Department endeavored to
[[Page 37053]]
determine (or approximate) the actual extent to which the relevant
equivalent IBC provisions have been adopted by every State or local
jurisdiction nationwide. The results of these analyses underscore the
point that consideration of alternate requirement-specific IBC
baselines on a requirement-by-requirement basis would likely lead to
markedly lower incremental costs and benefits for many proposed
requirements. For example, the first scenario in the RIA uses
requirement-specific IBC baselines to assess the incremental impact of
the proposed revisions with respect to two proposed requirements--
alterations to existing stairs and elevators--that have equivalent
provisions in the ``main'' IBC chapters (Chapters 10 and 34) and, thus,
have been adopted by virtually every State and local jurisdiction
nationwide. See RIA, Table 10. This first scenario shows that the
incremental costs for these two requirements collectively would be
reduced by about $ 1.1 billion over the lifespan of the regulations
when using the requirement-specific alternate IBC baselines as compared
to the primary baseline (1991 Standards). A second scenario in the RIA
employs requirement-specific alternate IBC/ANSI baselines to assess the
incremental impact of proposed revisions to two other requirements--
relating to side reach and water closed clearances--whose corresponding
IBC provisions are only incorporated by reference into the IBC (through
Chapter 11 and ANSI A117.1). See RIA, Table 11. These incorporated
provisions have not been as uniformly adopted as other IBC provisions.
Nonetheless, the incremental costs for these latter two requirements
still would be reduced by about $660 million over the lifespan of the
regulations when using requirement-specific IBC baselines as compared
to the primary baseline (1991 Standards).
Regulatory Alternatives--Existing Facilities
As required by the Regulatory Flexibility Act of 1980, as amended
by SBREFA, as well as Executive Order 13272, the Department has
considered regulatory alternatives that would achieve the same
statutory and regulatory goals but impose less cost on society. With
respect to new construction and alterations, the ADA requires the
Department to adopt standards that are ``consistent with'' the minimum
guidelines issued by the Access Board. The Department does not have the
statutory authority to modify the 2004 ADAAG. The Department does,
however, have the discretion to determine whether--or to what extent--
those guidelines should apply to existing facilities.
The most far-reaching regulatory alternative in the proposed
regulations is the safe harbor provision that potentially exempts
certain elements at existing facilities from barrier removal
obligations under the proposed regulations. The RIA results demonstrate
that this safe harbor proposal is expected to reduce substantially the
total monetary impact of revised (more stringent) requirements on
existing facilities, whether owned by small entities or larger groups
or organizations. See RIA, Table ES-3.
Another regulatory alternative being proposed by the Department
would--for the first time--place a monetary limit on the barrier
removal obligations of qualifying small businesses. Qualifying small
businesses are those small entities that satisfy small business size
standards promulgated by the Small Business Administration. Pursuant to
this proposal, a ``qualified small business'' would have met its
readily achievable barrier removal obligations for a given year if, in
the preceding tax year, that entity had spent at least one percent (1%)
of its gross revenues removing architectural barriers.
The RIA does not, however, incorporate this monetary cap on barrier
removal expenditures for qualifying small businesses into its cost or
benefit models. Assessing the incremental impact of this provision
would have required assumptions regarding the number of small
businesses satisfying the definition of ``qualified small business'' in
any given year, as well as the nature and extent of barrier removal
efforts by such businesses in the preceding year. For example, even
assuming it could be determined (or assumed) that a particular small
retail establishment satisfied the ``qualified small business''
definition in a particular year, several sets of assumptions would
nonetheless still be required to model the presumed barrier removal
efforts made by that small retailer in the preceding year. For example,
should it be assumed that the small retailer had removed architectural
barriers related to a ramp, accessible routes, and accessible parking
spaces in the preceding year? Or had this small retailer instead
focused its barrier removal efforts on removing barriers concerning
sales and service counters, doorways, and a single-user toilet room? In
either case, did the small retailer's efforts result in complete or
partial removal of the affected architectural barriers? Such questions
underscore the difficulty in creating a reliable framework for modeling
the individualized determinations that are necessarily part of the
barrier removal calculus. The Department thus determined that
incorporating the provision for qualifying small businesses into the
RIA would have been neither feasible nor useful. Nonetheless,
interested parties may still get a rough gauge of the potential impact
of this proposed safe harbor by reviewing the ``Small Business Impact
Analysis'' in Chapter Six of the RIA.
Lastly, the Department is also proposing several regulatory
alternatives directed at lessening the monetary impact of certain
supplemental requirements relating to existing play areas, swimming
pools, and saunas and steam rooms at public and private facilities.
Smaller existing and unaltered play areas, pools, and saunas (meeting
specified size limits) would be exempt from technical and scoping
standards in the supplemental requirements. Facilities exceeding the
proposed size threshold would nonetheless have reduced scoping
requirements for elevated play components (play areas) or accessible
means of entry (swimming pools). Because there are few sources of
reliable data concerning the number and relative size of existing play
areas, swimming pools, and saunas and steam rooms in the United States,
the RIA does not incorporate this proposed regulatory alternative into
the model. However, to the limited extent such information was
available, it is used in the RIA to modify, as appropriate, the
likelihood of occurrence or unit cost of the element. See RIA, Apps. 3-
E, 3-G, and 3-H.
Commenters representing small business groups expressed
appreciation for the Department's efforts--represented by the foregoing
regulatory proposals--to mitigate the potential impact of the proposed
regulations. These commenters noted that such regulatory alternatives
``have the potential to remove much regulatory uncertainty and provide
a level playing field for small businesses anxious to provide
accessibility to their customers.''
Summary of Results--Main Regulatory Assessment
From an economic perspective (as specified in OMB Circular A-4),
the primary determinant of whether proposed regulations increase social
resources and thus represent a public good is whether monetized
benefits exceed monetized costs--that is, whether the regulations have
a positive net present value. The Department's proposed regulations
indeed have a positive NPV under each of the four scenarios calculated
in the regulatory
[[Page 37054]]
assessment. The RIA's first scenario examines the incremental impact of
the proposed regulations using the ``main'' set of assumptions (i.e.,
assuming a primary baseline (1991 Standards), safe harbor applies, and
barrier removal readily achievable for 50% of elements subject to
supplemental requirements). Under this first set of assumptions, the
proposed regulations have an expected NPV of $ 31.1 billion (3%
discount rate) and $7.5 billion (7% discount rate). See RIA, Table ES-1
& Figure ES-2. The second RIA scenario calculates the incremental
impact of ``safe harbor'' versus ``no safe harbor'' scenarios with all
other assumptions remaining equal. The expected NPV for the proposed
regulations under a ``no safe harbor'' scenario would still remain
positive, albeit at a significantly reduced level. See RIA, Table ES-3.
Third, the RIA explores the incremental impact of varying the
assumptions concerning the percentage of existing elements subject to
supplemental requirements for which barrier removal would be readily
achievable. Readily achievable barrier removal rates are modeled at 0%,
50%, and 100% levels. The results of this third scenario show that,
while the expected NPV is positive for each readily achievable barrier
removal rate, varying this assumed rate has little impact on expected
NPV. See RIA, Table ES-4. Lastly, the RIA's fourth scenario
demonstrates the impact of using three alternate baseline scenarios
(i.e., IBC 2000, IBC 2003, and IBC 2006) instead of the primary
baseline. As with the other scenarios, use of these alternate IBC
baselines results in positive expected NPVs in all cases. See RIA,
Table ES-5. These results also indicate that IBC 2000 and IBC 2006 have
the respective highest and lowest expected NPVs. These results are due
to changes in the make-up of the set of requirements that are included
in each alternative baseline.
Summary of Results--Small Business Impact Analysis
In addition to its benefit-cost analysis of the impact of the
proposed standards on all entities subject to titles II or III of the
ADA, the Department is required under the Regulatory Flexibility Act
(``RFA'') to analyze the impact of its proposed regulations on ``small
entities''-- namely, small businesses, small non-profit organizations,
and small governmental jurisdictions with populations of less than
50,000. If the proposed regulations are projected to have a
``significant economic impact on a substantial number of small
entities,'' the RFA requires an agency to prepare and make available
for public comment an initial regulatory flexibility analysis
(``IRFA''). On the other hand, no IRFA need be prepared should the head
of the agency certify that the proposed rules--if promulgated--would
not have such an economic impact on a substantial number of small
entities.
The Access Board certified, in both its NPRM and final rule
promulgating the 2004 ADAAG, that its revised guidelines would not have
a significant economic impact on a substantial number of newly
constructed and altered small facilities. See 64 FR 62,248 (Nov. 16,
1999) (NPRM); 69 FR 44,084 (July 23, 2004) (final rule). Consequently,
the Access Board was not statutorily required to prepare either an
initial or final regulatory flexibility analysis for the 2004 ADAAG.
In the ANPRM, the Department encouraged small entities to provide
cost data on the potential economic impact of applying specific
provisions of the 2004 ADAAG to existing facilities and to recommend
less burdensome alternatives. Small businesses were well represented
among ANPRM commenters. Many commenters representing industry groups of
all sizes said that ``the possibility of having to modify existing
facilities presents the most severe and burdensome compliance scenario
for most businesses'' and that the biggest potential cost of the
proposed standards was represented by the ``no safe harbor'' scenario.
By contrast, several commenters representing disability groups urged
the Department not to adopt a safe harbor, asserting that the ``readily
achievable'' defense provided in the ADA adequately addresses the
concerns of small businesses.
The Department agrees with the commenters representing small
businesses that a safe harbor provision is a reasonable means of
lowering the potential costs of the regulation and, with these NPRMs,
is proposing to adopt the safe harbor scenario. Because the potential
costs of compliance with the proposed standards pursuant to the barrier
removal requirement was consistently identified by commenters as their
paramount concern, the Department's adoption of the safe harbor should
go a long way toward addressing the concerns of small businesses.
Some commenters representing small businesses also suggested that
the Department employ a different methodology for its regulatory
assessment than the Access Board. Specifically, these commenters
recommended that the Department assess the incremental benefits and
costs for all facilities, rather than just a few. These comments noted
that many of the facility groups for which the Board did not provide a
direct assessment of costs--including retail stores, restaurants, small
manufacturers, and small service providers--are more typically small
businesses. By comparison, as noted previously, the Department's RIA
assesses the impact of the proposed regulations on all public and
private facilities. Moreover, the Department's small business impact
analysis includes all facility groups (for which statistical
information was available) that could potentially be affected by the
proposed regulations, including facility groups within which small
businesses predominate.
Several commenters representing industry groups pointed to
particular revised requirements as likely to have a disproportionate
cost impact on small businesses, including the requirement relating to
public entrances (which they suggest could impose greater costs on
small businesses, which are more likely to have only two entrances,
both of which would now be required to be accessible), and the
requirement relating to operable windows (which are more typically
found in small or rural motels rather than large urban high rises).
Commenters also noted that small businesses are more likely to be
located in older buildings, which cost more to renovate than newer
buildings, and discussed the greater marginal impact that any
regulation (particularly one as complex as the proposed standards) has
on small businesses due to their smaller economies of scale. The
Department notes that the revised requirement relating to public
entrances is expected to effect no change for small facilities, and to
the extent it effects a change at all, it will be for very large
facilities for which it will be ``less stringent'' than the current
requirement. Similarly, the operable windows requirement can be met
using inexpensive add-on hardware (similar to a light switch extension
handle).
More generally, with respect to requirements that may impose a
fixed cost, several commenters representing small businesses suggested
that the Department provide small businesses with a lower cost
alternative by permitting equivalent facilitation. In the proposed
regulations for title III, the Department has specifically recognized
the continued legitimacy of equivalent facilitation as a means of
lowering the potential costs associated with barrier removal. In all
cases, measures to remove barriers are only required when they are
readily achievable, but if substantially equivalent access can be
provided at less cost through alternative
[[Page 37055]]
measures, entities are entitled to use them.
Chapter Six of the RIA sets forth the Department's comprehensive
assessment of the estimated impact of the proposed regulations on small
entities. For the most part, this analysis uses the same methodology as
the underlying ``main'' regulatory assessment except that some
additional publicly available statistics (from, for example, the Census
Bureau and the Office of Advocacy of the Small Business Administration)
are incorporated into the model in order to permit particularized
calculations for small entities.
In sum, the Department's small business impact analysis uses the
following methodological approach. First, the analysis estimates (by
facility group) the total number of facilities owned or operated by
small entities and their respective total annual sales receipts. Since
governmental entities typically do not have sales receipts,
expenditures--broken down by category (e.g., education, hospitals,
parks, museums)--serve as a proxy for ``sales receipts'' for small
governmental jurisdictions. The resulting figures for small entity-
owned facilities and sales receipts are compared to the ``typical''
facility. See RIA, Table 17. Second, the analysis compares the net
costs of the proposed regulations on small entities and the ``typical''
facility for each facility group. See id., Table 18. Lastly, the
analysis estimates total annual costs and annual costs as a percentage
of sales for both small entities and ``typical'' facilities. See id.,
Table 19.
The results of the Department's small business impact analysis
demonstrate that the proposed regulations would not have a significant
economic impact on a substantial number of small entities. See RIA, Ch.
6. For small government jurisdictions, annualized costs are not
expected to be greater than 0.5% of sales for any type of facility.
Similarly, for all but a handful of small private entities, annualized
costs are not expected to be greater than 0.5% of sales. Only with
respect to two types of facilities owned or operated by small private
entities--aquatic centers and miniature golf courses--are annualized
costs estimated to exceed 0.5% of sales. However, as noted previously,
the RIA does not incorporate the Department's proposed monetary limit
(i.e., 1% of gross revenue) on barrier removal obligations for
qualified small entities. Application of this monetary cap on barrier
removal costs for qualifying small businesses that own or operate
aquatic centers or miniature golf courses would mitigate the
incremental impact of the proposed regulations on these (or any other)
qualified small entities.
Dated: June 19, 2008.
Rosemary Hart,
Federal Register Liaison Officer.
[FR Doc. E8-14395 Filed 6-27-08; 8:45 am]
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