[Federal Register Volume 69, Number 189 (Thursday, September 30, 2004)]
[Proposed Rules]
[Pages 58768-58786]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-21875]



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Part V





Department of Justice





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28 CFR Parts 35 and 36



Civil Rights Division; Nondiscrimination on the Basis of Disability in 
State and Local Government Services; Nondiscrimination on the Basis of 
Disability by Public Accommodations and in Commercial Facilities; 
Proposed Rule

  Federal Register / Vol. 69, No. 189 / Thursday, September 30, 2004 / 
Proposed Rules  

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DEPARTMENT OF JUSTICE

28 CFR Parts 35 and 36

[CRT Docket No. 2004-DRS01; AG Order No. 2736-2004]
RIN 1190-AA46 and 1190-AA44


Civil Rights Division; Nondiscrimination on the Basis of 
Disability in State and Local Government Services; Nondiscrimination on 
the Basis of Disability by Public Accommodations and in Commercial 
Facilities

AGENCY: Department of Justice, Civil Rights Division.

ACTION: Advance notice of proposed rulemaking.

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SUMMARY: The Department of Justice (Department) is issuing this Advance 
Notice of Proposed Rulemaking (ANPRM) in order to begin the process of 
adopting Parts I and III of the revised guidelines implementing the 
Americans with Disabilities Act of 1990 (ADA) and the Architectural 
Barriers Act of 1968 (ABA),\1\ published by the Architectural and 
Transportation Barriers Compliance Board (Access Board) on July 23, 
2004, at 69 FR 44083.\2\ The ADA requires the Department to adopt 
enforceable accessibility standards that are ``consistent with the 
minimum guidelines and requirements issued by the Architectural and 
Transportation Barriers Compliance Board'' (42 U.S.C. 12186). The 
Department adopts and enforces standards consistent with the Access 
Board's guidelines under the Department's regulations implementing 
Title II (Subtitle A) and Title III of the ADA as the ADA Standards for 
Accessible Design (ADA Standards). Prior to their adoption by the 
Department, the revised Access Board guidelines are effective only as 
guidance to the Department; they have no legal effect on the public 
until the Department issues a final rule adopting revised ADA 
Standards. In this ANPRM, the current, legally enforceable ADA 
Standards will be referred to as the ``current ADA Standards,'' while 
the revisions that will be proposed in the NPRM, based on Parts I and 
III of the revised ADA and ABA Accessibility Guidelines, will be 
referred to as the ``revised ADA Standards.'' The Access Board's 
revised ADA Accessibility Guidelines will be cited as ``ADAAG.''
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    \1\ Part II of the Architectural Transportation Barriers 
Compliance Board's revised guidelines applies to facilities subject 
to the ABA. Regulations implementing the ABA are issued by the 
Department of Defense, the Department of Housing and Urban 
Development, the General Services Administration, and the U.S. 
Postal Service.
    \2\ The Access Board's revised ADA Accessibility Guidelines are 
available on the Access Board's Web site at www.access-board.gov.
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    The purpose of this ANPRM is twofold: To solicit public input on 
various issues relating to the potential application of the revisions 
to the ADA Standards and to obtain background information for the 
regulatory assessment that the Department must prepare in the process 
of adopting the revisions to the ADA Standards.

DATES: All comments must be received by January 28, 2005.

ADDRESSES: Submit electronic comments and other data to adaanprm.org or 
www.regulations.gov. See SUPPLEMENTARY INFORMATION--Electronic 
Submission of Comments and Electronic Access for file formats and other 
information about electronic filing.
    Address all written comments concerning this ANPRM to P.O. Box 
1032, Merrifield, VA 22116-1032.

FOR FURTHER INFORMATION CONTACT: Anne Beckman or Kate Nicholson, 
Attorneys, Disability Rights Section, Civil Rights Division, U.S. 
Department of Justice, at (202) 307-0663 (voice or TTY). This is not a 
toll-free number. Information may also be obtained from the 
Department's toll-free ADA Information Line at (800) 514-0301 (voice) 
or (800) 514-0383 (TTY).
    You may obtain copies of this rule in large print, audiotape, or 
computer disk by calling the ADA Information Line at (800) 514-0301 
(voice) and (800) 514-0383 (TTY). This rule is also available in an 
accessible format on the ADA Home Page at www.ada.gov.

SUPPLEMENTARY INFORMATION:

Electronic Submission of Comments and Electronic Access

    You may submit electronic comments to adaanprm.org or 
www.regulations.gov. You may view an electronic version of this 
proposed rule at www.regulations.gov. This rule is also available in an 
accessible format on the ADA Home Page at www.ada.gov. When submitting 
comments electronically, you must include CRT Docket No. 2004-DRS01 in 
the subject box and you must include your full name and address.

Inspection of Comments

    All comments will be available to the public online at adaanprm.org 
and, by appointment, during normal business hours, at the office of the 
Disability Rights Section, Civil Rights Division, U.S. Department of 
Justice, located at 1425 New York Avenue, Suite 4039, Washington, DC 
20005. To arrange an appointment to review the comments, please contact 
the ADA Information Line listed above.

Purpose

    On July 26, 1990, President George H.W. Bush signed into law the 
Americans with Disabilities Act (42 U.S.C. 12101 et seq.), a 
comprehensive civil rights law prohibiting discrimination on the basis 
of disability. In 2001, President George W. Bush underscored the 
nation's commitment to ensuring the rights of over 50 million 
individuals with disabilities nationwide by announcing the New Freedom 
Initiative (www.whitehouse.gov/infocus/newfreedom). The New Freedom 
Initiative builds upon the legacy of the ADA by promoting improved 
access to assistive and universally designed technology, educational 
opportunities, the workplace, and community living for individuals with 
disabilities. The New Freedom Initiative also expressly recognizes the 
importance of ADA enforcement. The Access Board's publication of 
revised accessibility guidelines is the culmination of a long-term 
effort to facilitate ADA compliance and enforcement by eliminating 
inconsistencies among Federal accessibility requirements and between 
Federal accessibility requirements and State and local building codes. 
In support of this effort, the Department is announcing its intention 
to adopt, in a separate Notice of Proposed Rulemaking (NPRM) to follow 
this ANPRM, standards consistent with Parts I and III of the Access 
Board's revised guidelines as the ADA Standards for Accessible Design. 
To facilitate this process, the Department is seeking public comment on 
the issues discussed in this notice.

The ADA and Department of Justice Regulations

    The ADA broadly protects the rights of individuals with 
disabilities in employment, access to State and local government 
services, places of public accommodation, transportation, and other 
important areas of American life and, in addition, requires that newly 
designed and constructed or altered public accommodations and 
commercial facilities be readily accessible to and usable by 
individuals with disabilities. Under the ADA, the Department is 
responsible for issuing regulations to implement Title II and Title III 
of the Act, except to the extent that transportation providers subject 
to Title II or Title III are regulated by the Department of 
Transportation.
    Title II applies to State and local government entities, and, in 
Subtitle A, protects qualified individuals with

[[Page 58769]]

disabilities from discrimination on the basis of disability in 
services, programs, and activities provided by State and local 
government entities. Title II extends the prohibition of discrimination 
established by section 504 of the Rehabilitation Act of 1973, as 
amended (Rehabilitation Act) (29 U.S.C. 794) (hereinafter, Section 
504), to all activities of State and local governments regardless of 
whether these entities receive Federal financial assistance (42 U.S.C. 
12131 et seq.). Title III prohibits discrimination on the basis of 
disability in the activities of places of public accommodation 
(businesses that are generally open to the public and that fall into 
one of twelve categories listed in the ADA, such as restaurants, movie 
theaters, schools, day care facilities, recreation facilities, and 
doctors' offices) and requires newly constructed or altered places of 
public accommodation--as well as commercial facilities (privately 
owned, nonresidential facilities like factories, warehouses, or office 
buildings)--to comply with the ADA Standards (42 U.S.C. 12182 et seq.).
    On July 26, 1991, the Department issued its final rules 
implementing Title II and Title III, which are codified at 28 CFR part 
35 (Title II) and part 36 (Title III). Appendix A of the Title III 
regulation, at 28 CFR part 36, contains the current ADA Standards, 
which were based upon the ADAAG published by the Access Board on the 
same date. Under the Department's regulation implementing Title III, 
places of public accommodation and commercial facilities are required 
to comply with the current ADA Standards with respect to newly 
constructed or altered facilities. By contrast, under the regulation 
implementing Title II, State and local government entities are 
currently permitted to choose to apply either the requirements 
contained in the Uniform Federal Accessibility Standards (UFAS) or 
those contained in the ADA Standards with respect to their newly 
constructed or altered facilities. For greater uniformity, when the 
Department proposes to adopt the revised ADA Standards, the Department 
will also propose to withdraw the option of using UFAS under Title II.

The Roles of the Access Board and the Department of Justice

    The Access Board was established by section 502 of the 
Rehabilitation Act, 29 U.S.C. 792. The Board consists of thirteen 
public members appointed by the President, of whom a majority must be 
individuals with disabilities, and twelve Federal agencies designated 
by law, including the Department of Justice and the Department of 
Transportation. The ADA requires the Access Board to ``issue minimum 
guidelines that shall supplement the existing Minimum Guidelines and 
Requirements for Accessible Design for purposes of subchapters II and 
III of this chapter * * * to ensure that buildings, facilities, rail 
passenger cars, and vehicles are accessible, in terms of architecture 
and design, transportation, and communication, to individuals with 
disabilities'' (42 U.S.C. 12204). The ADA requires the Department of 
Justice to issue regulations that include enforceable accessibility 
standards applicable to facilities subject to Title II or Title III 
that are consistent with the minimum guidelines issued by the Access 
Board (42 U.S.C. 12134, 12186).
    The Department of Justice was extensively involved in the 
development of the ADAAG. As a Federal member of the Access Board, the 
Department voted to approve the revised guidelines. Although the 
enforceable standards issued by the Department under Title II and Title 
III must be consistent with the minimum guidelines published by the 
Access Board, it is the responsibility solely of the Department of 
Justice to promulgate standards and to interpret and enforce those 
standards.
    The ADA also requires the Department to develop regulations with 
respect to existing facilities subject to Title II (Subtitle A) and 
Title III. How and to what extent the Access Board's guidelines are 
used with respect to the readily achievable barrier removal requirement 
applicable to existing facilities under Title III of the ADA and with 
respect to the provision of program accessibility under Title II of the 
ADA is solely within the discretion of the Department of Justice.

The Revised Guidelines

    The revised ADA and ABA Accessibility Guidelines are the product of 
ten years of effort to modify and update the current guidelines, 
reflecting compromise and the cooperative efforts of a host of private 
and public entities. Part I provides scoping requirements for 
facilities subject to the ADA; scoping is a term used in the revised 
guidelines to describe requirements (set out in Parts I and II) that 
prescribe what elements and spaces and, in some cases, how many, must 
comply with the technical specifications set out in Part III. Part II 
provides scoping requirements for facilities subject to the ABA, and 
Part III provides uniform technical specifications for facilities 
subject to either statute. This revised format is intended to eliminate 
unintended conflicts between the two Federal accessibility standards 
and to minimize conflicts between the Federal regulations and the model 
codes that form the basis of many State and local building codes.
    Since 1998, the Access Board has amended ADAAG four times, adding 
specific guidelines in the following areas: State and local government 
facilities (63 FR 2000, Jan. 13, 1998); building elements designed for 
use by children (63 FR 2060, Jan. 13, 1998); play areas (65 FR 62497, 
Oct. 18, 2000); and recreation facilities (67 FR 56352, Sept. 3, 2002). 
These amendments to ADAAG have not previously been adopted by the 
Department as ADA Standards.
    The revisions to ADAAG that were published by the Access Board on 
July 23, 2004, represented the culmination of a lengthy review process. 
In 1994, the Access Board began the process of updating the original 
ADAAG by establishing an advisory committee comprised of members of the 
design and construction industry, the building code community, State 
and local government entities, and people with disabilities. In 1999, 
based largely on the report and recommendations of this advisory 
committee,\3\ the Access Board issued a proposed rule to jointly update 
and revise its ADA and ABA accessibility guidelines, 64 FR 62248-01 
(Nov. 16, 1999). In response to its rule, the Access Board received 
more than 2,500 comments from individuals with disabilities, affected 
industries, State and local governments, and others. The Access Board 
provided further opportunity for participation by holding public 
hearings throughout the nation. From the beginning, the Access Board 
also worked vigorously to harmonize the ADA and ABA Accessibility 
Guidelines with industry standards and model codes that form the basis 
for many state and local building codes. The Access Board released an 
interim draft of its guidelines to the public in April 2002, 67 FR 
15509, in order to provide an opportunity for entities with model codes 
to consider amendments that would promote further harmonization. By the 
date of its final publication on July 23, 2004, 69 FR 44083, the 
revised ADA Accessibility Guidelines had been the subject of 
extraordinary public participation and review. Through this ANPRM, the 
Department is announcing its intention to publish a proposed rule that 
will

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adopt revised ADA Standards consistent with all of the amendments to 
ADAAG since 1998.
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    \3\ After a two-year process of collaboration with the Access 
Board, the Advisory Committee issued ``Recommendations for a New 
ADAAG'' in September 1996.
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The Department's Request for Comments

    Before publishing a proposed rule, the Department is seeking public 
comment on the issues discussed below. These issues have been divided 
into four substantive sections in this ANPRM: I. General Issues; II. 
Specific Issues; III. Miscellaneous Matters; and IV. Regulatory 
Assessment Issues.
    Because the Department, as a member of the Access Board, has 
already had the opportunity to review comments provided to the Access 
Board during its development of the amendments to ADAAG, it is not 
necessary to resubmit those comments to the Department. In addition to 
seeking comments in response to the specific questions raised in this 
ANPRM, the Department is particularly interested in receiving comments 
from covered entities and from individuals with disabilities about the 
potential application of the new or revised ADAAG requirements as they 
may apply to existing facilities.

I. General Issues

    The prospect of adopting revised ADA Standards raises a number of 
general issues, ranging from setting an effective date for the 
application of the revised ADA Standards to determining what effect the 
new provisions will have on those elements of facilities that are 
already in compliance with the current ADA Standards. Responses should 
clearly identify the specific question being addressed according to the 
numbered questions in this document.
Effective Date: Time Period
    Current Approach. The Department must set an effective date for the 
application of the revised ADA Standards to facilities that will be 
newly constructed or altered following the publication of a final rule. 
When the ADA was enacted, the effective dates for various provisions 
were delayed in order to provide time for covered entities to become 
familiar with their new obligations. Title II and Title III of the ADA 
generally became effective on January 26, 1992, six months after the 
regulations were published. New construction under Title II and 
alterations under either Title II or Title III had to comply with the 
design standards on that date. For new construction under Title III, 
the requirements applied to facilities designed and constructed for 
first occupancy after January 26, 1993--eighteen months after the ADA 
Standards were published by the Department.\4\
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    \4\ Subtitle A of Title III of the ADA, at 42 U.S.C. 12183, 
prohibits the design or construction of facilities that are not 
readily accessible to and usable by individuals with disabilities 
when such facilities are intended for first occupancy more than 30 
months after enactment of the ADA, except in cases of structural 
impracticability. This requirement is implemented in the 
Department's Title III regulation at 28 CFR 36.401.
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    Possible New Approaches. The Department is seeking comment on the 
following three options.
    Option I: Eighteen months. Under this option, the effective date of 
the proposed revised ADA Standards would be eighteen months after 
publication of the final rule--the same time period used for the 
effective date of the ADA as a whole and for the effective date of the 
current ADA Standards with respect to new construction under Title III. 
Although this time period has the advantage of ample precedent, it was 
originally used in the context of a new law with which there was little 
or no familiarity or experience. It may be inappropriately long in the 
current context.
    Option II: Six months. Under the second option, the effective date 
of the proposed revised ADA Standards would be six months after 
publication of the final rule--the time period used for newly 
constructed and altered facilities subject to Subtitle A of Title II of 
the ADA and for altered facilities subject to Title III. The Department 
is considering this shorter period of time because the changes in 
scoping and technical specifications to the revised ADA Standards are 
primarily incremental. Further, those requirements that are new (for 
elements and spaces that are not addressed in the current ADA 
Standards) have been developed with extensive public participation and, 
in some cases, have been available to the public through the amended 
editions of ADAAG for several years. Finally, the new format and 
organization of the revised ADA Standards would follow the format and 
organization of the model codes and should be more familiar to covered 
entities and design professionals than were the current ADA Standards 
when adopted. The Department recognizes, however, that because covered 
entities may have large ongoing construction projects, such entities 
may need longer than this proposed six-month period to incorporate the 
final changes to the revised ADA Standards into the design of those 
projects.
    Option III: Twelve months. Under the third option, the effective 
date of the revised ADA Standards would be twelve months after 
publication of the final rule. This option shortens the time period 
envisioned by Option I, while providing more time than Option II in 
order to allow for the integration of the revised ADA Standards into 
larger construction projects.
    Question 1. Should the effective date of the proposed revised ADA 
Standards be modeled on the effective date used to implement the 
current ADA Standards--eighteen months after publication of the final 
rule--or a shorter period? If you favor a shorter period, please 
indicate which period you favor and provide as much detail as possible 
in support of your view.
Effective Date: Triggering Event
    The term ``triggering event'' identifies the event or action that 
compels compliance with the ADA Standards. The Department's regulations 
implementing Title II (28 CFR Part 35) and Title III of the ADA (28 CFR 
Part 36) establish the separate triggering events for new construction 
and alterations that are explained below. The Department's experience 
to date indicates that these triggering events work well; therefore, 
the Department is reluctant to change them. The Department recognizes, 
however, that ADAAG now includes requirements for types of facilities, 
such as recreation and play areas, that may pose design and 
construction issues compelling a different result.
    Current Approach. Title III of the ADA and the implementing 
regulations provide that covered entities must design and construct 
facilities ``for first occupancy'' after the effective date in 
accordance with the current ADA Standards (28 CFR 36.401). Thus, for 
purposes of Title III, the triggering event for newly constructed 
facilities, which is dictated by statute, is first occupancy. The Title 
III regulation defines ``first occupancy'' in relation to the 
completion of the application for a building permit (which had to have 
been completed less than twelve months before the effective date) and 
the issuance of a certificate of occupancy (which had to have been 
completed after the effective date). With respect to altered facilities 
under Title III, the triggering event is the date ``physical alteration 
begins'' (28 CFR 36.402(a)(2)). The implementing regulation for Title 
II provides that the triggering event for both new construction and 
alterations is the commencement of construction (28 CFR 35.151).
    Possible Additional Approach. To the extent applicable, the 
Department intends to continue to use the same triggering event for 
each category

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described above; that is, for new construction under Title III, first 
occupancy; \5\ for alterations under Title III, when physical 
alteration begins; and under Title II, for both new construction and 
alterations, the commencement of construction. The Department is 
concerned, however, that while these triggering events are appropriate 
for most building situations, they may not necessarily be appropriate 
for all of them--particularly if there are Title III facilities that do 
not require building permits or that do not receive certificates of 
occupancy. The Department is concerned that, as applied to these 
different types of facilities, the triggering events established under 
the Title II and Title III regulations may be difficult to apply. 
Therefore, the Department is considering ``first use'' as an 
alternative trigger for such facilities.
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    \5\ If the Department decides to use the six-month effective 
date of Option II in Question 1, above, the application of the two-
step test for first occupancy (building permit and certificate of 
first occupancy) currently used for new construction under Title III 
would be modified to fit within that period.
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    Question 2. The Department is asking the public to identify any 
facilities for which the current triggering events might prove 
unworkable. Are there facilities covered by the revised ADA Standards 
that are subject to Title III for which first occupancy/physical 
alteration do not apply in the new construction/alteration context? 
Please be specific about the type of facility that would be affected, 
and what other event, such as ``first use,'' would work better for each 
specified type of facility. Are there facilities subject to Title II 
for which commencement of construction would be difficult to apply? 
Please be specific about the type of facility, and what other event, 
such as ``first use,'' would work better for each specified type of 
facility.
Revised ADA Standards: Existing Facilities
    As noted above, the Department anticipates proposing revised ADA 
Standards for new construction and alterations that are consistent with 
ADAAG. In making this proposal, one of the most important issues that 
the Department must address is the effect that new or changed ADA 
Standards will have on the continuing obligation of public 
accommodations to remove architectural, transportation, and 
communication barriers in existing facilities to the extent that it is 
readily achievable to do so. This issue has not been addressed in ADAAG 
because it is outside of the scope of the Access Board's authority 
under the ADA. Responsibility for implementing Title III's requirement 
that public accommodations eliminate existing architectural barriers 
where it is readily achievable to do so rests solely with the 
Department of Justice.
    The Department's current regulation implementing Title III of the 
ADA, 28 CFR 36.304, establishes the requirements for readily achievable 
barrier removal by public accommodations. Under this regulation, the 
Department uses the ADA Standards as a guide to identify what 
constitutes an architectural barrier. Once adopted, the revised ADA 
Standards will present a new reference point for Title III's 
requirement to remove the architectural barriers in existing places of 
public accommodation. The Department is concerned that the incremental 
changes in ADAAG may place significant cost burdens on businesses that 
have already complied with the ADA Standards in their existing 
facilities. The Department therefore seeks to strike an appropriate 
balance to ensure that people with disabilities are able to achieve 
access to buildings and facilities without imposing unnecessary 
financial burdens on existing places of public accommodation with 
respect to their continuing obligations under the readily achievable 
barrier removal requirement.
    The Department is considering several ways in which to reduce such 
financial burdens. One approach is to establish a safe harbor under 
which the Department would deem compliance with scoping and technical 
requirements in the current ADA Standards by elements in existing 
facilities to constitute compliance with the ADA for purposes of 
meeting barrier removal obligations. Another possible approach is to 
reduce the scoping requirements for some of the new or changed 
requirements as they are applied to existing facilities. Yet another 
potential approach is to determine that certain new or revised 
technical requirements are inappropriate for barrier removal and thus 
would not be required in satisfaction of a barrier removal obligation. 
These approaches can be used alone or in combination.
    Option I: Safe harbor for compliant elements. This option would 
provide a safe harbor for any elements of existing facilities that are 
in compliance with the specific requirements (scoping and technical 
specifications) of the current ADA Standards. For this purpose, 
compliance with the scoping and technical requirements of the current 
ADA Standards would be determined on an element-by-element basis in 
each covered facility; that is, only those elements in each covered 
facility that are in compliance with applicable scoping and technical 
requirements in the current ADA Standards would be subject to the safe 
harbor. Elements that are addressed for the first time in the revised 
ADA Standards, however, would not be subject to the safe harbor.
    Several considerations support this approach. To the extent places 
of public accommodation have complied with the specific scoping and 
technical requirements of the current ADA Standards, it would be an 
inefficient use of resources to require them to retrofit simply to 
comply with the revised ADA Standards if the change provides only a 
minimal improvement in accessibility. In addition, covered entities 
would have a strong disincentive to comply voluntarily with the readily 
achievable barrier removal requirement if, every time the ADA Standards 
are revised, they are required once again to retrofit elements just to 
keep pace with the current standards.
    The Department recognizes that there are also considerations 
opposing this approach. When adopted, some of the revised ADA Standards 
will reflect up-to-date technologies that could provide critical access 
for individuals with disabilities in certain contexts that is not 
provided under the current ADA Standards. While the incremental benefit 
of the revisions may be minimal with respect to some elements, with 
respect to others the revised ADA Standards could confer a significant 
benefit on some individuals with disabilities that would be forgone if 
this option is adopted. Because there are valid arguments on both sides 
of this issue, the Department is seeking public comment on the issue of 
whether or not to provide a safe harbor for design elements that comply 
with the current ADA Standards.
    This safe harbor option would, of course, have no effect on 
noncompliant elements. To the extent that elements in existing 
facilities are not already in compliance with scoping and technical 
requirements in the current ADA Standards, existing public 
accommodations would be required to remove barriers, to the extent 
readily achievable, to make elements comply with the revised ADA 
Standards.
    Here is an example of how that option would work. The current ADA 
Standards address maximum side reach ranges, which are required to be 
no higher than 54 inches. The revised ADA Standards lower that range to 
48 inches (ADAAG 308.3). If this option was adopted, a public 
accommodation, e.g., a hotel chain, that had lowered its light switches 
to 54 inches or an entity that had lowered its pay phones to 54 inches

[[Page 58772]]

would not be required to do further barrier removal to reduce those 
elements to 48 inches. However, if this option was not adopted, even 
existing facilities that had complied with the current ADA Standards by 
ensuring that all required accessible elements were no higher than 54 
inches would be required to retrofit those elements to lower them to 48 
inches, assuming it was readily achievable to do so. Under both 
options, however, existing facilities that had not complied with the 
current ADA Standards (whose required accessible elements were, for 
example, located 60 inches high) would still be required to undertake 
barrier removal to lower them to 48 inches, if readily achievable.
    This option involves only those elements that are addressed by, and 
in compliance with, specific requirements (scoping and technical 
specifications) in the current ADA Standards. Elements that will be 
addressed for the first time in the revised ADA Standards would not be 
eligible for the safe harbor.
    Question 3. Should the Department provide any type of safe harbor 
so that elements of facilities already in compliance with the current 
ADA Standards need not comply with the revised ADA Standards? Please 
provide as much detail as possible in support of your view.
    Option II: Reduced scoping for specified requirements. The scoping 
requirements in the revised ADA Standards apply to new construction and 
alterations. Under a reduced scoping option, the Department would, for 
the purposes of barrier removal, provide an alternative set of reduced 
scoping requirements applicable to certain specific new or changed 
technical requirements in the revised ADA Standards. Examples of such 
new technical requirements might include specific elements in the 
guidelines adopted for play areas and recreation facilities.
    For example, ADAAG now requires a swimming pool over 300 feet in 
perimeter to have two accessible means of entry to the pool (ADAAG 
242.2). The Department anticipates adopting new standards based on this 
requirement. Under the current ADA Standards, while there have been 
requirements addressing parking, the entrance to the facility, common 
areas, and the route to the pool, there has been no scoping or 
technical requirement addressing entry into and exit from the pool 
itself.
    In implementing this new requirement with respect to existing 
facilities pursuant to the readily achievable barrier removal 
requirement, the Department is considering whether it might be 
appropriate to state that providing only one accessible means of entry 
to an existing pool satisfies the obligation for readily achievable 
barrier removal. Even with this reduced scoping, the readily achievable 
defense would still be available to covered entities that cannot afford 
to provide even one means of entry. Under this option, however, even if 
it would be readily achievable for that entity to provide two 
accessible means of entry, it would only be required to provide one. 
This is just one example of a requirement for which reduced scoping 
might be appropriate. Others might include the minimum number of 
accessible saunas and steam rooms required in existing facilities or 
the minimum number of accessible boat slips required in existing 
boating facilities.
    Option III: Exemption from specified requirements. The Department 
is also considering whether to identify particular elements in the 
scoping and technical requirements in the revised ADA Standards that 
will not be required for barrier removal. Among the possibilities is 
the requirement that handrails on stairs must meet accessibility 
requirements even in buildings that have elevator access (ADAAG 210). 
Under this option, the Department could determine that entities will 
not be required, for purposes of compliance with the readily achievable 
barrier removal requirement, to make handrails on stairs in an already 
existing elevator-accessible facility comply with the scoping and 
technical requirements in the revised ADA Standards.
    There is precedent for this third option in the Department's 
current regulations, which currently exempt employee work areas from 
any obligation to retrofit pursuant to the readily achievable barrier 
removal requirement. Because the purpose of Title III is to ensure that 
public accommodations are accessible to their clients and customers, it 
is the Department's longstanding view that the barrier removal 
requirement does not apply to areas used exclusively as employee work 
areas (28 CFR part 36, App. B). The Department intends to continue this 
exemption in the new regulations but notes that, notwithstanding this 
exemption, Title I of the ADA requires employers to provide reasonable 
accommodation for any employee with a disability. Thus, to the extent 
any provisions in the revised ADA Standards address elements or spaces 
in work areas, compliance with those provisions with respect to those 
elements or spaces will not be necessary to comply with an entity's 
obligations under the readily achievable barrier removal requirement.
    Question 4. Reducing or exempting specified requirements.
    a. Should the Department adopt Option II, and develop an 
alternative set of reduced scoping requirements for the barrier removal 
obligation? If so, which specific requirements or elements should be 
addressed? If possible, provide detailed information about the costs or 
difficulties that would be incurred in making the modification.
    b. Should the Department adopt Option III, and exempt certain 
scoping and technical requirements in the revised ADA Standards that 
will not be required for barrier removal? If so, which specific 
requirements or elements should be addressed? If possible, provide 
detailed information about the costs or difficulties that would be 
incurred in making the modification.

II. Specific Issues

    The prospect of adopting revised ADA Standards also raises a number 
of issues for the Department with respect to specific provisions, 
ranging from whether altered detention and correction cells should be 
required to be accessible to what kinds of housing currently classified 
as transient should be reclassified as residential.
Reduced Scoping for Large Assembly Facilities
    The ADAAG section 221 will reduce the number of wheelchair spaces 
and companion seats required in assembly areas that seat more than 500 
patrons. The current ADA Standards provide that assembly areas with 
more than 500 seats must provide six wheelchair spaces plus one 
additional wheelchair space for each additional 100 seats. ADAAG 
provides that assembly areas that have 501 to 5000 seats must provide 
six wheelchair spaces plus one additional wheelchair space for each 
additional 150 seats (or fraction thereof) between 501 and 5000. 
Assembly areas that have more than 5000 seats must provide 36 
wheelchair spaces plus one additional wheelchair space for each 200 
seats (or fraction thereof) over 5000. Both the current ADA Standards 
and ADAAG require assembly areas to provide a companion seat adjacent 
to each wheelchair space.
    The Department has been asked whether the regulations requiring the 
maintenance of accessible features in covered facilities would require 
existing assembly areas that comply with the scoping of the current ADA 
Standards to maintain that level of scoping, or if those assembly areas 
would be permitted to reduce the number of

[[Page 58773]]

wheelchair locations and companion seats to the level established in 
ADAAG. The Department's regulations contain two provisions that would 
apply to this situation. The regulations implementing Title II and 
Title III both provide that covered entities are to maintain in 
operable condition ``those features of facilities and equipment that 
are required to be readily accessible to and usable by persons with 
disabilities'' (28 CFR 35.133 and 36.211). In addition, the current ADA 
Standards prohibit alterations that decrease accessibility below the 
requirements for new construction in effect at the time of the 
alteration, 28 CFR pt. 36, App. A, 4.1.6 (1) (a). Because these 
provisions clearly establish that covered entities must maintain only 
the required level of accessibility, the Department expects that the 
operators of existing assembly areas who want to adjust the number of 
wheelchair spaces in their facility to comply with the revised ADA 
Standards will be permitted to do so.
Alteration of Cells in Correctional Facilities
    ADAAG establishes requirements for the design and construction of 
cells in detention and correctional facilities. The Access Board 
accepted comments on this issue during two separate rulemaking 
proceedings: the rulemaking that developed the guidelines for State and 
local government facilities completed in 1998, and the rulemaking that 
developed the guidelines that the Department is now proposing to adopt. 
The Department anticipates that it will propose revised ADA Standards 
that are consistent with the ADAAG requirements. However, when it 
adopted these new requirements, the Access Board specifically deferred 
one decision to the Attorney General. ADAAG sections 232.2 and 232.3 
provide that ``Alterations to cells shall not be required to comply, 
except to the extent determined by the Attorney General.'' This 
provision first appeared in the Access Board's 1999 proposed rule. At 
that time, the Access Board explained that--

    In publishing final amendments for State and local government 
facilities, the Board acknowledged that prison operators commenting 
on the proposed amendments urged that access not be required in 
altered correctional facilities because some existing facilities 
would not be able to support inmates with disabilities even if cells 
were made accessible. These comments also pointed to difficulties in 
complying due to design constraints unique to correctional 
facilities. In response, the Board had reserved a proposed scoping 
requirement for altered cells, but noted that public entities, 
including correctional entities, have an obligation to provide 
program access, as required by the Department of Justice (DOJ) title 
II regulations. Further, the Board noted that the program access 
requirement may effectively determine the degree of access necessary 
in an alteration. 64 FR 62259 (Nov. 16, 1999).

    The Department anticipates that when it proposes to adopt ADA 
Standards consistent with ADAAG requirements applicable to facilities 
subject to Title II, the Department will establish requirements for 
alterations to cells. Therefore, the Department is now seeking public 
comment about the most effective means to ensure that existing 
correctional facilities are made accessible to prisoners with 
disabilities. The Department offers the three following alternatives 
for consideration:
    Option 1: Require all altered elements to be accessible. The first 
option is to maintain the current policy applicable to other ADA 
alterations requirements. Under the current regulations, when a 
facility is altered, each altered element and space must comply with 
the applicable provisions of the ADA Standards. Applying this rule 
would require correctional facilities to provide accessible elements as 
existing cells are altered until the required number of accessible 
cells has been provided.
    Option 2: Permit substitute cells to be made accessible within the 
same facility. The second option is to modify the alterations 
requirement by permitting the correctional authorities to meet their 
obligation by providing the required accessible features in cells 
within the same facility other than those specific cells in which 
alterations are planned. This would provide flexibility in deference to 
the unique circumstances presented in correctional and detention 
facilities by permitting local officials to choose between providing 
accessibility in the altered area or providing an appropriate 
accessible cell elsewhere in the altered facility. This alternative 
responds to the concern that the ADA's alterations provision as applied 
to correctional facilities may result in piecemeal accessibility that 
does not always provide the level of accessibility needed by 
individuals with disabilities. This option permits correctional and 
detention facility operators to select the most appropriate location 
for the accessible cells, while retaining the requirement for providing 
accessibility at the time of an alteration.
    Option 3: Permit substitute cells to be made accessible within a 
prison system. This option also responds to the expressed concern that 
the alterations requirement as applied to prisons results in piecemeal 
accessibility. The Department's Title II regulation requires public 
entities to operate each service, program, or activity so that the 
service, program, or activity, when viewed in its entirety, is readily 
accessible to and usable by individuals with disabilities (28 CFR 
35.150). The idea behind this alternative is to focus on ensuring that 
prisoners who have disabilities are housed in the facilities that best 
meet their needs. Under this option, correctional officials would not 
be required to include accessible cells in each facility that is being 
altered. Instead, they would be required to provide an equivalent 
accessible cell in an existing facility that is sufficiently accessible 
to ensure that prisoners can have access to the programs offered in the 
facility where they are housed. This option would address concerns that 
have been expressed that piecemeal alterations of cells may result in 
accessible cells being located in older facilities in which the 
existing construction provides limited opportunities to provide access 
to other areas of the facility.
    If this option is adopted, the Department anticipates that the 
regulation would specify that public entities that elect to provide 
accessibility through this alternative for detention and correctional 
facilities would be required to ensure that prisoners with disabilities 
are housed in facilities appropriate to the level of confinement that 
would apply to any other individual sentenced for a similar offense. 
Such facilities would also be required to make available a range of 
programs and benefits similar to that made available to the general 
prison population.
    Question 5. Should the Department retain the current ADA 
requirement to make each altered facility accessible to the extent 
required by the ADA Standards or should it adopt an alternative 
approach to ensure accessibility in correctional institutions? If you 
favor an alternative approach, please indicate which approach you favor 
and provide as much detail as possible in support of your view.
Recreation Facilities: Golf Courses
    ADAAG now establishes comprehensive requirements for the design and 
construction of accessible golf courses. In addition to establishing 
scoping and technical requirements for individual elements in or 
serving the golf course, section 206.2.15 provides that--

    At least one accessible route shall connect accessible elements 
and spaces within the boundary of the golf course. In addition, 
accessible routes serving golf car rental areas; bag drop areas; 
course weather shelters

[[Page 58774]]

complying with 238.2.3; course toilet rooms; and practice putting 
greens, practice teeing grounds, and teeing stations at driving 
ranges complying with 238.3 shall comply with Chapter 4 except as 
modified by 1006.2. EXCEPTION: Golf car passages complying with 
1006.3 shall be permitted to be used for all or part of accessible 
routes required by 206.2.15.

    The Department anticipates that it will propose to adopt the ADAAG 
requirements for golf courses. However, the Department is aware that 
these requirements may raise operational issues that are within the 
purview of the Department's enforcement responsibilities.
    The Department has been asked whether, and under what 
circumstances, a golf course must make specially designed or adapted 
golf cars available to persons with mobility impairments who are not 
able to walk from a golf car passage to the fairways or to the green.
    The Department is considering addressing this issue in its ADA 
regulations by requiring each golf course that provides golf cars to 
make at least one, and possibly two, specialized golf cars available 
for the use of persons with disabilities, with no greater advance 
notice to be required from the disabled golfer than from other golfers. 
The Department believes that relevant considerations in determining 
whether and under what circumstances this requirement should be imposed 
include (i) whether the golf course makes golf cars available to 
golfers who are not disabled, (ii) the burden that such a requirement 
would impose on golf course facilities, and (iii) whether the course 
requires the use of golf cars during play.
    The Department understands that the principal type of special golf 
car currently available is a one-seater with hand controls and a swivel 
seat (the swivel seat enables the golfer to play from the car). Golf 
course operators have expressed concern in the past that the available 
one-person cars (i) tip over easily on steep terrain and (ii) are too 
heavy for green use. Producers of newer designs for one-person cars 
claim to have overcome these problems.
    Question 6. To what extent should golf courses be required to make 
accessible golf cars available to people with disabilities? Please 
provide as much detail as possible in support of your view. The 
Department also requests specific information concerning the extent to 
which the one-person machines on the market are, in fact, stable, 
lightweight, and moderately priced. The Department also requests 
information about whether golf cars are being manufactured that are 
readily adaptable for the addition of hand controls and swivel seats 
and whether such cars are otherwise suitable for driving on fairways 
and greens.
Coverage of Homeless Shelters, Halfway Houses, Transient Group Homes, 
and Other Social Service Establishments
    For the first time, ADAAG includes specific scoping and technical 
provisions that apply to new construction and alteration of residential 
facilities. Residential facilities are facilities that contain dwelling 
units used primarily as long-term residences. Residential facilities 
can be distinguished from transient lodging facilities, which are 
facilities that provide short-term accommodations used primarily for 
sleeping (such as hotels). Previously existing ADAAG requirements for 
transient lodging facilities have been revised. As part of this 
revision, the Access Board deleted section 9.5 of the 1991 ADAAG, which 
established scoping and technical requirements for homeless shelters, 
group homes, and similar social service establishments. This deletion 
creates a gap in coverage that the Department's regulation must 
address.
    The Department anticipates that when the ADA Standards are revised, 
the Department will provide that the facilities now covered by section 
9.5 will be subject to the ADAAG requirements for residential 
facilities rather than the requirements for transient lodging. The 
Department considers this approach to be the most appropriate because 
the listed facilities are subject to the ADA because of the nature of 
the services that they provide, not the duration of those services. 
Program participants may be housed on either a short-term or a long-
term basis in facilities such as shelters, halfway houses, and group 
homes.
    The Department anticipates that this classification will also make 
it easier for the covered entities to satisfy their obligations under 
both the ADA and Section 504. The Department believes that many of 
these listed entities are recipients of Federal financial assistance 
from the Department of Housing and Urban Development (HUD). Therefore, 
they are subject to the requirements of both HUD's Section 504 
regulation and the ADA Standards. ADAAG's specifications for the design 
of residential dwelling units have been coordinated with HUD's Section 
504 requirements to eliminate inconsistencies and potential conflicts. 
The specifications for transient lodging units have not been similarly 
coordinated.
    Therefore, if the Department continues to treat these listed 
facilities as transient lodging, the facilities may be subject to the 
provisions of two separate, and possibly conflicting, regulatory 
requirements for design and construction. If the Department modifies 
its current ADA Standards to permit these facilities to be designed in 
compliance with the requirements applicable to residential dwelling 
units, the potential conflict will be eliminated.
    The Department is seeking public comment on this proposal.
Equipment Issues
    In ADAAG, the Access Board has established guidelines applicable to 
a range of fixed equipment--equipment that is built into or permanently 
attached to a new or altered facility--that is subject to the ADA. The 
Department intends to adopt regulations based on these ADAAG 
specifications to govern the installation of newly manufactured 
equipment in new construction or alterations. Because the Access 
Board's jurisdiction extends only to the design, construction, and 
alteration of buildings and facilities, ADAAG does not address 
operational issues such as the acquisition of previously owned 
equipment, and it does not address coverage of movable or portable 
equipment or other personal property such as furniture. These issues 
are, however, within the jurisdiction of the Department. Therefore, the 
Department is seeking comments on the issues discussed below.
    Previously Owned Fixed Equipment. The Department is aware that some 
building elements to which the ADA Standards apply, such as ATMs or 
amusement rides, utilize manufactured equipment that becomes built into 
the structure of a facility (so-called fixed equipment), which differs 
from equipment that continues to be portable or movable (so-called 
free-standing equipment). This fixed equipment may be new for the 
covered entity, but it is not necessarily newly manufactured. Some 
businesses traditionally elect to conserve costs by installing 
previously owned equipment and have expressed their concern that the 
Department will consider such fixed equipment as new for purposes of 
compliance with the revised ADA Standards merely because its first use 
occurs after the effective date of the revised ADA Standards. The 
Department generally views the installation of previously used 
equipment in a new location as an alteration, rather than new 
construction. Therefore, only the elements of the

[[Page 58775]]

facility that are actually altered, such as the route to the equipment, 
the mounting height, or the entrance that provides access to the 
equipment must comply with the revised Standards. Previously owned 
equipment installed as fixed equipment will not be treated as new for 
purposes of compliance with the revised ADA Standards.
    Application of ADA Standards and ADA to Free-Standing Equipment. 
The Department is also aware that the public has expressed some 
uncertainty with respect to whether the ADA Standards apply to free-
standing equipment, such as soft-drink dispensers, video arcade 
machines, free-standing ATMs, and furniture. Because ADAAG is intended 
to implement the ADA requirements applicable to the design, new 
construction, and alteration of buildings and facilities, the revised 
ADA Standards will apply directly only to fixed equipment--as described 
above, equipment that becomes built into the structure of a facility--
and not to free-standing equipment.
    The ADA itself, however, extends beyond the boundaries of new 
construction and alterations. The Department is required to develop 
regulations that implement the general nondiscrimination requirements 
of Title II and Title III, as well as the specific prohibitions on 
discrimination in Title III. Under this authority, the Department may 
establish requirements affecting equipment that is not fixed to ensure 
that people with disabilities have an equal opportunity to participate 
in the programs, services, and activities offered by covered entities. 
In establishing these requirements, the Department may look to the ADA 
Standards for guidance in determining whether various types of 
equipment or furnishings are accessible to people with disabilities.
    The Department's current regulations implementing Title II and 
Title III of the ADA address equipment in several different contexts. 
The definition of ``facility'' in each regulation expressly includes 
``equipment'' (28 CFR 35.104 and 36.104). Fixed equipment required to 
be accessible in new construction and alterations is identified in the 
ADA Standards (28 CFR part 36, App. A). Examples of accessible 
equipment that may be required are included in the definitions of 
auxiliary aids in 28 CFR 35.104 and 36.104. In addition, Appendix B to 
the Title III regulation, 28 CFR part 36, App. B, Proposed Section 
36.309, second paragraph, further explains that--

    Purchase or modification of equipment is required in certain 
instances by the provisions in 36.201 and 36.202 [general 
prohibitions on discrimination]. For example, an arcade may need to 
provide accessible video machines in order to ensure full and equal 
enjoyment of the facilities and to provide an opportunity to 
participate in the services and facilities it provides. The barrier 
removal requirements of 36.304 will apply as well to furniture and 
equipment. * * *

    Because covered entities continue to raise questions about the 
extent of their obligation to provide accessible free-standing 
equipment, the Department is considering whether there is a need for 
the Department's ADA regulations to contain specific language about the 
acquisition and use of mobile, portable, and other free-standing 
equipment or furnishings used by covered entities to provide services. 
If the Department does address specific requirements for free-standing 
equipment, it may look to the ADA Standards for guidance in determining 
whether various types of free-standing equipment are accessible to 
people with disabilities.
    Question 7. The Department invites public comment on its approach 
to these issues. Because the Department anticipates that it may issue 
further guidance with respect to the acquisition and use of mobile, 
portable, and other free-standing equipment and furnishings used by 
covered entities to provide services, the Department is seeking comment 
on the question whether such guidance is necessary. If you think that 
such guidance is needed, please provide specific examples of situations 
that should be addressed.
Stadium-Style Seating
    Background. Beginning in the mid-1990s, the first stadium-style 
movie theaters were built in the United States. These theaters employed 
a new type of theater design whereby, rather than placing rows of seats 
on a gradually sloping floor as in traditional-style movie theaters, 
all but a few rows of seats near the front of each theater were located 
on a series of elevated tiers or risers (typically 12-18 inches in 
height). The enhanced lines of sight provided by these stadium-style 
movie theaters proved to be highly popular with the movie going public 
and, consequently, fueled a boom in stadium-style theater construction 
nationwide.
    While stadium-style theater designs have evolved somewhat over the 
years and typically vary from theater circuit to theater circuit, two 
essential features have remained constant: (i) Movie patrons seated in 
the stadium sections of stadium-style theaters enjoy enhanced lines of 
sight to the screen as compared to patrons seated in the traditional 
sections of these theaters; and (ii) movie patrons who use wheelchairs 
are excluded from the stadium sections of the great majority of 
existing stadium-style theaters nationwide.
    Section 4.33.3 of the current ADA Standards requires, among other 
things, that ``[w]heelchair areas * * * shall be provided * * * lines 
of sight comparable to those for members of the general public.'' This 
line-of-sight requirement has generated considerable debate as applied 
to stadium-style movie theaters. Persons with disabilities and 
disability rights organizations have complained to the Department that 
they are afforded inferior lines of sight when limited to the 
traditional section of stadium-style theaters. Specifically, they have 
complained that, due to design considerations particular to stadium-
style theaters (such as, for example, typically larger and wider 
screens), sitting in rows close to the screen in the traditional 
section often results in a painful and uncomfortable viewing 
experience, as well as distortion of images on the screen. Movie 
theater owners and operators, on the other hand, have countered that 
they satisfy section 4.33.3's line-of-sight requirement by providing 
patrons who use wheelchairs with ``unobstructed'' views of the movie 
screen. The movie theater industry has also expressed its view to the 
Department that section 4.33.3 provides insufficient guidance for 
theater designers concerning the placement of wheelchair seating areas 
in stadium-style movie theaters. Indeed, in 1999, the National 
Association of Theater Owners (NATO) petitioned the Department to 
promulgate revised regulations specifically addressing stadium-style 
movie theaters and suggested its preferred regulatory language. The 
Department responded that it was planning to review and update the 
current ADA Standards covering assembly areas, including stadium-style 
movie theaters, upon issuance of the revised ADAAG.
    As the entity charged with primary enforcement responsibility for 
Title III, the Department has played a central role in ensuring that 
persons with disabilities have full and equal enjoyment of stadium-
style movie theaters. Since at least 1998, the Department has 
consistently and publicly stated through such forums as meetings with 
movie industry representatives, speeches to disability and business 
organizations, and litigation in Federal courts, that, when a movie 
theater company is marketing and selling the enhanced stadium-style 
movie going experience to the general

[[Page 58776]]

public, excluding patrons who use wheelchairs from these stadium 
sections violates Title III of the ADA. The Department has also 
emphasized that individuals who use wheelchairs need not be provided 
the best seats in the house, but neither should they be relegated 
categorically to locations with the worst views of the screen. Rather, 
the Department has interpreted section 4.33.3 as requiring a 
qualitative comparison--including viewing angles--between the view of 
the screen afforded patrons who use wheelchairs and the views of the 
screen provided most other members of the movie audience. Such a 
reading of section 4.33.3, the Department believes, best comports with 
the plain language of the regulation, the well-established usage of the 
term ``lines of sight'' in the theater industry, and the anti-
discrimination goals underlying Title III of the ADA.
    Nonetheless, both the debates and litigation have continued. Since 
1999, the Department has initiated enforcement actions against several 
movie theater companies and participated as well as amicus curiae in 
other private ADA litigation involving stadium-style theaters. To date, 
all Federal courts except one have adopted or endorsed the Department's 
interpretation of section 4.33.3's line-of-sight requirement. See 
United States v. Cinemark USA, Inc., 348 F.3d 569 (6th Cir. 2003), 
cert. denied, 72 U.S.L.W. 3513 (U.S. June 28, 2004) (No. 03-1131); 
Oregon Paralyzed Veterans of Am. v. Regal Cinemas, Inc., 339 F.3d 1126 
(9th Cir. 2003), cert. denied, Regal Cinemas, Inc. v. Stewmon, 72 
U.S.L.W. 3310 (U.S. June 28, 2004) (No. 03-641); Lara v. Cinemark USA, 
Inc., 207 F.3d 783 (5th Cir. 2000); cert. denied, 531 U.S. 944; United 
States v. Hoyts Cinemas Corp., 256 F. Supp. 2d 73 (D. Mass. 2003), 
appeals docketed, Nos. 03-1646, 03-1787, and 03-1808 (1st Cir. June 5, 
2003); United States v. AMC Entm't, Inc., 232 F. Supp. 2d 1092 (C.D. 
Cal. 2002).
    Revised ADA Standards. Building on the line-of-sight heritage of 
the current ADA Standards, section 221.2.3 of ADAAG frames the basic 
comparability requirement in terms of viewing angles: ``Wheelchair 
spaces shall provide spectators with * * * viewing angles that are 
substantially equivalent to, or better than, the * * * viewing angles 
available to all other spectators.'' This ADAAG provision applies to 
all types of public accommodations, including stadium-style movie 
theaters, sports arenas, and concert halls. The Department intends to 
adopt this ADAAG provision for all assembly areas.
    The Department believes that it is prudent to supplement these 
generic assembly area requirements with more specific guidance on 
stadium-style movie theaters. In light of several factors--including 
the contentious nature of the debate surrounding the application of the 
current ADA Standards to stadium-style movie theaters, the movie 
industry's request for additional regulatory guidance relating to 
stadium-style movie theaters, as well as the Department's significant 
experience with issues relating to stadium-style theaters--the 
Department is considering proposing regulations specifically applicable 
to stadium-style movie theaters. The purpose of such a rule would be 
twofold. The Department would be seeking to ensure that patrons with 
disabilities have full and equal enjoyment of, and access to, stadium-
style movie theaters. The Department would also be seeking to provide 
theater designers with detailed guidance concerning acceptable 
placement of wheelchair seating locations in stadium-style theaters, 
while also affording design flexibility.
    Therefore, the Department is now seeking public comment about the 
Department's promulgation of rules specifically addressing stadium-
style movie theaters. The Department anticipates such a regulation 
would only address line-of-sight issues. The Department also 
anticipates that the horizontal and vertical dispersion requirements 
set forth in ADAAG sections 221.2.3.1 and 221.2.3.2 would be adopted in 
their entirety and would apply independently of any line-of-sight 
regulation specifically applicable to stadium-style theaters. Finally, 
the Department does not believe that its proposed line-of-sight 
regulation represents a substantive change from the existing line-of-
sight requirements of Standard 4.33.3 of the current ADA standards. As 
with the existing requirements, the proposed line-of-sight regulations 
would recognize the importance of viewing angles to the movie going 
experience and would be aimed at ensuring that movie patrons with 
disabilities are provided comparable views of the movie screen as 
compared to other theater patrons. The Department's proposed stadium-
style theater regulation would set forth two separate requirements. 
First, the regulation would require wheelchair seating locations to be 
placed in the stadium section of a stadium-style movie theater. Second, 
the regulation would also establish one or more standards governing the 
placement of wheelchair seating locations within the stadium section. 
The Department offers the three following standards, either alone or in 
combination, for consideration and comment:
    Option 1: Adopt Viewing Angle Requirement. One option would be 
simply to adopt the comparative viewing angle requirement set forth in 
ADAAG section 221.2.3. The advantage of this approach would be 
consistency of requirements as between stadium-style movie theaters and 
other types of public accommodation.
    Option 2: Adopt ``Distance From the Screen'' Requirement. The 
second option would be to adopt a ``distance from the screen'' approach 
for locating wheelchair seating as established by some national 
consensus standards. For example, the American National Standards 
Institute (ANSI) recently published a standard specifying that 
wheelchair seating should be located within the rear 70% of the seats 
provided in a movie theater. While distance from the screen presents an 
easily applied standard for theater designers and code personnel, the 
Department's experience with stadium-style theaters suggests that such 
a distance from the screen generally would not be sufficient to provide 
patrons who use wheelchairs with an equivalent viewing experience as 
compared to the rest of the movie audience. Thus, if the Department 
adopted a distance from the screen standard, it would likely specify 
that wheelchair seating must be located within the rear 60% of seats 
provided in a stadium-style theater.
    Option 3: Adopt Combination Viewing Angle/Percentile Requirement. 
The third option would be to adopt a combination viewing angle and 
percentile approach as used by the Department in a settlement agreement 
with a national theater circuit. This agreement specifies that 
wheelchair seating locations should be placed ``within the area of an 
auditorium in which the vertical viewing angles to the top of the 
screen are from the 50th to the 100th percentile of vertical viewing 
angles for all seats as ranked from the seats in the first row (1st 
percentile) to seats in the back row (100th percentile).'' To date, the 
Department has found this approach to provide a workable and effective 
standard for locating wheelchair seating in stadium-style theaters.
    Question 8. Should the Department promulgate a regulation 
specifically relating to stadium-style movie theaters? If so, should 
this regulation simply adopt ADAAG's viewing angle requirement for 
lines of sight or should it instead also include alternative

[[Page 58777]]

distance from the screen or viewing angle/percentile approaches? How 
should the ``stadium'' section of a stadium-style theater be defined?

III. Miscellaneous Matters

    There are a number of miscellaneous matters the Department may 
address in the NPRM.
Withdrawal of Outstanding NPRMs
    The Department plans to notify the public of the withdrawal of 
three outstanding NPRMs: the joint NPRM of the Department and the 
Access Board dealing with children's facilities, published on July 22, 
1996, at 61 FR 37964; the Department's proposal to extend the time 
period for providing curb cuts at existing pedestrian walkways, 
published on November 27, 1995, at 60 FR 58462; and the Department's 
proposal to adopt the Access Board's accessibility guidelines and 
specifications for State and local government facilities, published as 
an interim final rule by the Access Board on June 20, 1994, at 59 FR 
31676, and by the Department as a proposed rule on June 20, 1994, at 59 
FR 31808. To the extent that these amendments were republished in the 
July 23, 2004, publication of ADAAG, they will all be included in the 
Department's new NPRM.
Changes in Procedural Requirements for Certification of State Laws and 
Local Building Codes
    Section 308 (b)(1)(A)(ii) of the ADA authorizes the Attorney 
General to certify the accessibility requirements of State and local 
governments that meet or exceed the minimum requirements for 
accessibility and usability of buildings and facilities covered by the 
new construction and alterations requirements of Title III of the Act 
(42 U.S.C. 12188 (b)(1)(A)(ii)). This procedure is voluntary and may be 
initiated at the discretion of a State or local government. In 
jurisdictions with certified accessibility codes, compliance with the 
certified code in the construction or alteration of covered buildings 
and facilities constitutes rebuttable evidence of compliance with the 
ADA in any enforcement proceeding that might be brought. The 
Department's regulations implementing the certification process are 
published in 28 CFR 36.601-36.608.
    While most of these sections restate the statutory provision or 
establish the obligations of the Department in responding to a request 
for certification, one section, 28 CFR 36.603, establishes the 
obligations of a submitting authority that is seeking certification of 
its code. The Department is considering ways in which these provisions 
can be streamlined to facilitate the process of seeking certification.
    The Department anticipates that it will propose to delete section 
36.603 from the current regulation. In its place, the Department will 
issue sub-regulatory guidance that will provide streamlined submission 
requirements.
    Changes in Public Hearing Procedure. Section 36.605 (a)(2) of the 
Title III regulation requires that an informal hearing be held in 
Washington, DC, on the Department's decision to issue a preliminary 
determination of equivalency for a jurisdiction's accessibility code. 
The Department is considering substituting a requirement that an 
informal hearing be held within the relevant jurisdiction. The 
Department believes that a hearing conducted within the affected 
jurisdiction will generally provide a better opportunity for interested 
parties to comment.
    Effect of the Revised ADA Standards on Certified Accessibility 
Codes. With the adoption of the revised ADA Standards, certifying State 
and local government codes as equivalent will be a more straightforward 
process because of the Access Board's extensive efforts to harmonize 
the revised guidelines with the model codes, which form the basis of 
many State codes. The Department is currently considering what impact 
the revised ADA Standards should have on the status of accessibility 
requirements for jurisdictions that were determined in the past to have 
met or exceeded the ADA Standards.
    The Department invites public comment on each of these issues.
Title II Complaints
    Complaint Investigation. One of the issues the Department will 
address in its upcoming NPRM relates to the Department's current 
procedures with respect to the investigation of complaints alleging 
discrimination on the basis of disability by public entities under 
Title II of the ADA. In its revised regulation implementing Title II, 
the Department will clarify its enforcement procedures in order to 
streamline the Department's internal procedures for investigating 
complaints, reduce the administrative burdens associated with 
implementing the statute, and ensure that the Department retains the 
flexibility to allocate its limited enforcement resources effectively 
and productively.
    Subtitle A of Title II of the ADA defines the remedies, procedures, 
and rights provided for qualified individuals with disabilities who are 
discriminated against on the basis of disability in the services, 
programs, or activities of State and local governments. While the ADA 
requires the Department to implement the requirements of Title II, it 
does not specify any particular means of doing so. It does not require 
the Department to investigate every complaint of discrimination, or 
even to rely upon complaints at all as a means of enforcement. The 
Department's current Title II regulation is based on the enforcement 
procedures established in regulations implementing Section 504. Thus, 
the Department's current regulation provides that the Department 
``shall investigate each complete complaint'' alleging a violation of 
Title II and shall ``attempt informal resolution'' of such complaint 
(28 CFR 35.172(a)).
    In the years since the current regulation went into effect, the 
Department has received many more complaints alleging violations of 
Title II than its resources permit it to investigate. The Department's 
experience dictates that it must have greater discretion to prioritize 
these complaints appropriately in order to ensure that resources are 
directed to resolving the most critical matters. Without the ability to 
exercise discretion in complaint processing, there will be substantial 
delays in the investigation of many meritorious complaints. These 
delays would make investigations more difficult, as witnesses 
disappear, memories fade, and circumstances change. In some time-
sensitive cases, such delays might even result in an effective denial 
of justice as agency resources would be taken up by less sensitive 
cases. These problems would also result in increased uncertainty for 
complainants and covered entities, as they would be required to await 
disposition of their disputes without any knowledge of what might be 
required of them.
    The approach of the current Title II regulation may be contrasted 
with that reflected in the current Title III regulation, which 
recognizes that the Department has the discretion not to investigate 
all complaints alleging discrimination on the basis of disability by 
places of public accommodation (28 CFR 36.502). To avoid the 
enforcement problems identified above, and to bring its Title II 
regulation into sync with its current enforcement procedures under both 
Title II and Title III, the Department will propose to clarify in its 
revised regulation that it may exercise its discretion in selecting 
Title II complaints for investigation and in determining the most 
effective means of

[[Page 58778]]

resolving those complaints. This clarification of the Department's 
enforcement procedures reflects the Department's determination to 
manage its Title II complaints as effectively as possible. It is not 
intended to create, eliminate, or otherwise alter any substantive 
rights or responsibilities under the ADA. It will not alter the 
Department's essential obligation to implement Title II of the ADA 
effectively, but will simply recognize the Department's discretion to 
determine how best to implement it.
    As revised, the Department's Title II regulation will make clear 
that the Department may, within its discretion, dispose of complaints 
with inadequate legal or factual bases quickly, and, thus, dedicate 
more of its enforcement resources to complaints with stronger 
allegations. This process will allow the Department to continue to 
establish priorities and allocate resources to most effectively achieve 
the goals of the ADA. It will also allow the Department to respond more 
quickly to matters that need immediate resolution and to more fully 
address matters of systemic discrimination. The Department's resolution 
of those cases involving, for example, life-and-death situations, 
essential government services, and complex legal questions, will set 
high-profile precedents that will, in turn, facilitate local resolution 
of the types of complaints the Department is unable to pursue.
    Exhaustion of Administrative Remedies. Another issue the Department 
will address in the NPRM involves the effect of the Prison Litigation 
Reform Act (PLRA), 42 U.S.C. 1997e, upon complaints by prisoners 
alleging unlawful discrimination on the basis of disability under Title 
II of the ADA. The PLRA amended the Civil Rights of Institutionalized 
Persons Act (CRIPA) to provide that ``[n]o action shall be brought with 
respect to prison conditions under section 1983 of this title, or any 
other Federal law, by a prisoner confined in any jail, prison, or other 
correctional facility until such administrative remedies as are 
available are exhausted'' (42 U.S.C. 1997e(a)). The plain language of 
the statute provides that individuals seeking to challenge prison 
conditions by invoking the provisions of ``any * * * Federal law'' are 
required first to exhaust ``such administrative remedies as are 
available.'' Title II of the ADA protects prisoners from unlawful 
discrimination on the basis of disability, and among the administrative 
remedies available to such individuals to redress discrimination is the 
filing of a Title II complaint with the Department. Therefore, in order 
to properly implement this legislation, the Department's revised 
regulation implementing Title II of the ADA will provide that in order 
to exhaust administrative remedies as required under the PLRA, 
prisoners alleging unlawful discrimination on the basis of disability 
under Title II will be required to file an administrative complaint 
with the Department prior to filing suit in court. As with all 
complaints of discrimination under Title II, the Department may, in its 
discretion, investigate and attempt to resolve the allegations of 
unlawful discrimination made in these complaints. However, given the 
large number of prisoner complaints and the Department's limited 
resources, it is unlikely that the Department will be able to 
investigate every such complaint. The Department wishes to ensure that 
this requirement does not prove to be a bar for prisoners with 
disabilities seeking redress of their grievances in the courts. 
Therefore, the Department will propose that, for purposes of the PLRA, 
a complainant will be deemed to have successfully exhausted the 
administrative remedy of filing a complaint with the Department if no 
action has been taken upon the complaint by the Department within a 60-
day administrative period.

IV. Regulatory Assessment Issues

    A regulatory assessment--a report analyzing the economic costs and 
benefits of a regulatory action `` is not required for this ANPRM. One 
purpose of this ANPRM, however, is to seek comment on the Department's 
proposed methodology for the regulatory assessment that the Department 
must prepare in connection with the issuance of the NPRM. A regulatory 
assessment will be required for the NPRM under Executive Order 12866, 
as amended without substantial change to its requirements by Executive 
Order 13258, and the Regulatory Flexibility Act, as amended by the 
Small Business Regulatory Enforcement Fairness Act of 1996. Executive 
Order 12866 requires Federal agencies to submit any ``significant 
regulatory action'' to the Office of Management and Budget's (OMB) 
Office of Information and Regulatory Affairs for review and approval 
prior to publication in the Federal Register. A proposed regulatory 
action that is deemed to be economically significant under section 
3(f)(1) of that order (having an annual effect on the economy of $100 
million or more) is required to include a formal benefit-cost analysis. 
A formal benefit-cost analysis must include both qualitative and 
quantitative measurements of the benefits and costs of the proposed 
rule as well as a discussion of each potentially effective and 
reasonably feasible alternative.
    As part of the Department's initial NPRM regulatory assessment, the 
Department expects to adopt the final regulatory assessment prepared by 
the Access Board for the final ADAAG and approved by OMB. (See 
regulatory assessment for ADAAG at www.access-board.gov. The assessment 
has also been placed in the dockets of both the Access Board and the 
Department and is available for public inspection.) However, the 
regulatory assessment for the Department's NPRM must be broader than 
that of the Access Board in several respects. First, the Department 
must include as part of the estimated annual cost of the revised ADA 
Standards the cost of each of the supplemental guidelines (now folded 
into the final ADAAG document) issued by the Access Board subsequent to 
the 1991 ADAAG. As discussed above, the Access Board adopted the 
supplemental guidelines in separate rulemaking initiatives before 
ultimately combining them into the final ADAAG document. The costs 
associated with these supplemental guidelines, therefore, were 
considered part of the Access Board's baseline, and not as new costs 
associated with the Board's issuance of ADAAG. Because the Department 
did not adopt any of the supplemental guidelines separately, the 
Department must consider their associated costs as part of adopting 
revised ADA Standards consistent with ADAAG.
    Further, unlike the Access Board, the Department must prepare an 
assessment of the costs and benefits arising from any compliance with 
the revised ADA Standards that may be required for barrier removal in 
existing facilities. Which elements of existing facilities will be 
required to comply with the revised ADA Standards and in what manner 
will depend upon which option the Department selects with respect to 
existing facilities under Questions 3 and 4, above.
    Because the regulatory assessment for the NPRM will include both 
the costs associated with the supplemental guidelines and those 
associated with the compliance of certain elements of existing 
facilities, the NPRM may be deemed economically significant. If so, the 
Department will have to prepare a full benefit-cost analysis in 
connection with the NPRM.
    Also, consistent with the Regulatory Flexibility Act of 1980 and 
Executive Order 13272, the Department must consider the impacts of any 
proposed rule on small entities, including small

[[Page 58779]]

businesses, small nonprofit organizations, and small governmental 
jurisdictions. The Department will make an initial determination as to 
whether the proposed rule is likely to have a significant economic 
impact on a substantial number of small entities, and if so, the 
Department will prepare an initial regulatory flexibility analysis 
analyzing the economic impacts on small entities and regulatory 
alternatives that reduce the regulatory burden on small entities while 
achieving the goals of the regulation. In response to this ANPRM, the 
Department encourages small entities to provide cost data on the 
potential economic impact of applying specific provisions of ADAAG to 
existing facilities and recommendations on less burdensome 
alternatives, with cost information.
Basic Principles of Proposed Regulatory Framework
    The Proposed Regulatory Framework, which is set forth in Appendix 
A, describes the approach that the Department is considering for the 
regulatory assessment that it must prepare in connection with the NPRM. 
In brief, the framework proposes to assess benefits and costs 
associated with a proposed adoption of revised ADA Standards consistent 
with ADAAG in accordance with the following principles:
     The proposed framework assumes that the regulatory 
analysis for the proposed regulation will be required to include a full 
benefit-cost analysis subject to the requirements of OMB Circular A-4. 
The framework is designed to conform with those requirements.
     The analysis will cover the benefits and costs of the 
revised ADA Standards for readily achievable barrier removal for 
existing buildings as well as the benefits and costs of the revised ADA 
Standards for new construction and alterations (only the latter has 
been estimated by the Access Board in its regulatory assessment for 
ADAAG).
     Only incremental benefits and costs of the revised ADA 
Standards will be assessed. Benefits and costs associated with the 
current ADA Standards will be considered baseline benefits and costs.
     Benefits will be addressed with regard to not only user 
value, but also insurance value and existence value, as explained in 
Appendix A.
     The analysis will address the alternative approaches to 
application of the revised ADA Standards set out under Questions 3 and 
4, above.
     To estimate the incremental benefits and costs of the 
readily achievable barrier removal obligation, a computer simulation 
model will be developed based upon statistical databases developed to 
show cost per element or space to be modified and number of elements or 
spaces to be modified, taking into account the factor of ``readily 
achievable.'' The data will be stratified by age and size of facility, 
financial condition, and other applicable features.
     The risk of measurement error will be addressed through 
risk analysis and threshold analysis, as explained in Appendix A.
    The following questions for public comment address issues raised in 
connection with the Proposed Regulatory Framework. The Department is 
seeking comments from covered entities, persons with disabilities, and 
all other members of the public with respect to both benefits and 
costs. Where applicable, responses should clearly identify the specific 
question being addressed according to the numbered question. For 
additional information, please see Appendix A to this document.

Data Collection Questions, By Type of Entity

    The Department is not, in the following data collection questions, 
seeking information about the cost of applying revised ADA Standards to 
new construction and alterations. As stated above under Item IV, the 
Department expects to adopt the Access Board's final regulatory 
assessment (see regulatory assessment for ADAAG at www.access-board.gov) as its assessment of the cost that will be incurred for new 
construction and alterations, which is the situation addressed in the 
Access Board's regulatory assessment. The following data collection 
questions are intended to elicit information about the costs and 
benefits that will result if the new guidelines are used as the basis 
for mandatory barrier removal. Question 9 is a general question 
soliciting data about the potential costs and benefits of using any or 
all of the changed or new requirements in the new guidelines as the 
basis for mandatory barrier removal. Question 10 is a general question 
soliciting information about the effect of the new or changed 
requirements on the obligations of small entities with respect to 
barrier removal. Questions 11-47 contain numerous questions that 
reiterate this general question with respect to a sampling of specific 
new or changed requirements. The Department is seeking comments from 
all stakeholders `` covered entities, persons with disabilities, and 
all other members of the public `` with respect to both costs and 
benefits. The Department also wishes to solicit comments on any areas 
where additional costs may be imposed or benefits may be realized 
indirectly as a result of the ultimate regulations. Where applicable, 
responses should clearly identify the specific question being addressed 
according to the numbered question.

All Types

    Question 9. Many of the new and changed requirements in ADAAG are 
expected to have negligible cost for new construction and alteration, 
such as the change in the maximum side reach from 54 inches to 48 
inches (ADAAG 308.3). See Chapter 6, item 6.20, of the regulatory 
assessment for ADAAG at www.access-board.gov. Other new and changed 
requirements are expected to have a cost impact for new construction 
and alterations. See Chapter 7 of the above cited regulatory assessment 
for ADAAG. The Department invites comments from covered entities, 
individuals with disabilities, and individuals without disabilities on 
the benefits and costs of applying these new and changed specifications 
to existing facilities pursuant to the readily achievable barrier 
removal requirement of Title III. Please be as specific as possible in 
your answers. (Changed requirements would not be applied under the 
barrier removal obligation to elements that comply with the current ADA 
Standards if the Department adopts the safe harbor provision addressed 
under Question 3. New requirements would be applied even if the 
Department adopts the safe harbor provision but their impact could be 
reduced under the options addressed under Question 4.)
    Question 10. Consistent with the Regulatory Flexibility Act and 
Executive Order 13272, the Department will determine whether a proposed 
rule adopting all or part of the Access Board's ADAAG revisions would 
be likely to have a significant economic impact on a substantial number 
of small entities, and if so, what the Department could do to reduce 
that economic impact while achieving the goals of its regulation. The 
Department welcomes comments providing information on the rule's 
potential economic impact on covered small entities, including 
retrofitting costs. Also, please provide any potential regulatory 
alternatives that could reduce those burdens.
    Question 11. The Department is considering excluding as a barrier 
removal obligation for existing facilities, if it selects Option II 
under Question 4, above, the requirement at ADAAG 210

[[Page 58780]]

that accessible handrails be added to stairs in buildings with 
elevators. The Department is soliciting comments from all stakeholders 
on this approach. Please be as specific as possible in your response.
    Question 12. ADAAG 229.1 is a new requirement that at least one 
window be accessible to persons with disabilities in a room with 
windows that can be opened by persons without disabilities. The 
Department wishes to collect data about the effect of this new 
requirement if it is applied to existing facilities under the barrier 
removal requirement of Title III. Do you have rooms with windows that 
open, of the sliding or double hung type, in your existing facility? If 
so, how many? Would the hardware that works for new windows in new 
buildings work on these windows in your existing facility without 
additional cost?
    Persons with disabilities and the general public are invited to 
comment on the incremental benefit of having at least one accessible 
window in each room that has windows that are operable by persons 
without disabilities.

Office Buildings

    Question 13. New requirements at ADAAG 230.1 and 708.1 require two-
way communications systems (except in residential facilities) to be 
equipped with visible as well as audible signals. The Department wishes 
to collect data about the effect of this new requirement if it is 
applied to existing facilities under the readily achievable barrier 
removal requirement of Title III. Do you use a two-way communications 
system in your existing office building? What would be the cost of 
equipping a unit with both audible and visible signals? How many two-
way communications systems do you have in your existing office 
building?
    Persons with disabilities and the general public are invited to 
comment on the incremental benefit of having both audible and visual 
signals on two-way communications systems in existing office buildings.
    Question 14. Under the current ADA Standards, men's toilet rooms 
with six or more water closets and urinals, but fewer than six toilet 
compartments, are not required to provide an ambulatory accessible 
toilet compartment with grab bars. Under ADAAG 213.1, urinals will be 
counted, so that if there are a total of six urinals or water closets, 
an ambulatory accessible toilet compartment with grab bars will be 
newly required. Additional costs in new construction include the costs 
of adding grab bars but because of fire code requirements, no cost is 
allocated with respect to new construction and alterations to the 
requirement that an accessible compartment must be between 35 and 37 
inches wide and 60 inches deep. The Department wishes to collect data 
about the effect of this requirement in existing facilities. Are some 
or all of the men's rooms in your existing office building required to 
have an ambulatory accessible toilet compartment? Will the changed 
requirement result in more such compartments being necessary in your 
existing office building? If so, what would be the unit cost of adding 
such a compartment? How many additional ambulatory accessible toilet 
compartments would you be required to add in your existing office 
building?
    Persons with disabilities and the general public are invited to 
comment on the incremental benefit of having additional ambulatory 
accessible toilet compartments in men's rooms in existing office 
buildings.
    Question 15. Under the current ADA Standards, a private office 
building must provide a public TTY if there are four or more public pay 
telephones in the building. Under the revised ADA Standards, a private 
office building will also be required to provide a public TTY on each 
floor that has four or more public telephones (ADAAG 217.4.2) and in 
each telephone bank that has four or more telephones (ADAAG 217.4.1). 
The Department wishes to collect data about the effect of this 
requirement if it is applied to existing facilities under the barrier 
removal requirement of Title III. Will the changed requirement result 
in more TTYs being necessary in your existing office building? How many 
more? Can a TTY be added to an existing facility at the same cost as to 
a new or altered facility?
    Persons with disabilities and the general public are invited to 
comment on the incremental benefit of having additional TTYs in 
existing office buildings.
    Question 16. What data source do you recommend to assist the 
Department in estimating the number of existing office buildings 
categorized by such features as size, age, type, physical condition, 
and financial condition?
    Question 17. What data source do you recommend to assist the 
Department in estimating the extent to which existing office buildings 
comply with the current ADA Standards?
    Question 18. What data source do you recommend to assist the 
Department in estimating the incremental cost of making noncompliant 
elements of existing office buildings comply with the revised ADA 
Standards?

Hotels and Motels

    Question 19. A new requirement at ADAAG 806.2.4.1 provides that if 
vanity counter top space is provided in nonaccessible hotel guest 
toilet or bathing rooms, comparable vanity space must be provided in 
accessible hotel guest toilet or bathing rooms. The Department wishes 
to collect data about the effect of this requirement if it is applied 
to existing facilities under the readily achievable barrier removal 
requirement of Title III. Do you currently provide any accessible 
vanity counter space in your existing accessible guest toilet or 
bathing rooms? How much available extra room, usable for an accessible 
vanity counter top, is there on average in your existing accessible 
guest toilet or bathing rooms?
    Persons with disabilities and the general public are invited to 
comment on the incremental benefit of having comparable vanity space in 
accessible hotel guest toilet or bathing rooms.
    Question 20. What data source do you recommend to assist the 
Department in estimating the number of existing hotels and motels 
categorized by such features as size, age, type, physical condition, 
and financial condition?
    Question 21. What data source do you recommend to assist the 
Department in estimating the extent to which existing hotels and motels 
comply with the current ADA Standards?
    Question 22. What data source do you recommend to assist the 
Department in estimating the incremental cost of bringing noncompliant 
elements of existing hotels and motels into compliance with the revised 
ADA Standards?

Stadiums and Arenas

    Question 23. What data source do you recommend to assist the 
Department in estimating the number of existing stadiums and arenas 
categorized by such features as size, age, type, physical condition, 
and financial condition?
    Question 24. Are there data sources that the Department could 
consult to estimate the extent to which existing stadiums and arenas 
comply with the current ADA Standards?
    Question 25. What data source do you recommend to assist the 
Department in estimating the incremental cost of bringing noncompliant 
elements of existing stadiums and arenas into compliance with the 
revised ADA Standards?

Hospitals and Long Term Care Facilities

    Question 26. A new requirement at ADAAG 607.6 provides that the 
shower spray unit in an accessible shower

[[Page 58781]]

compartment must have an on-off switch. The Department wishes to 
collect data about the effect of this requirement if it is applied to 
existing facilities under the readily achievable barrier removal 
requirement of Title III. Do all of the shower spray units that you 
currently use for accessible shower compartments in your existing 
hospital or long-term care facility have on-off switches? If not, how 
many shower spray units in accessible shower compartments do you have 
without on-off switches? Would you have to purchase a new shower spray 
unit to add the on-off feature or is there a way to adapt your current 
unit for this purpose?
    Persons with disabilities and the general public are invited to 
comment on the incremental benefit of having an on-off switch on the 
shower spray unit in an accessible shower compartment.
    Question 27. What data source do you recommend to assist the 
Department in estimating the number of existing hospitals and long-term 
care facilities categorized by such features as size, age, type, 
physical condition, and financial condition?
    Question 28. Are there data sources that the Department could 
consult to estimate the extent to which existing hospitals and long-
term care facilities comply with the current ADA Standards?
    Question 29. Are there data sources that the Department could 
consult to assess the incremental cost of bringing noncompliant 
elements of existing hospitals and long-term care facilities into 
compliance with the revised ADA Standards?

Residential Dwelling Units

    Question 30. A changed requirement at ADAAG 804.2 requires a 60-
inch (rather than the current 40-inch) clearance space in so-called 
galley kitchens, which have cabinets and appliances on opposite walls, 
if there is only one entry to the kitchen. The Department wishes to 
collect data about the effect of this requirement if it is applied to 
existing facilities under the readily achievable barrier removal 
requirement of Title III. Are any of the kitchens in the accessible 
dwelling units of your existing housing facility of the one-entry 
galley type? Is clearance of 60 inches provided? If not, is extra space 
available for this purpose?
    Persons with disabilities and the general public are invited to 
comment on the incremental benefit of having a 60-inch (rather than the 
current 40-inch) clearance space in galley kitchens.
    Question 31. What data source do you recommend to assist the 
Department in estimating the number of existing residential dwelling 
units categorized by such features as size, age, type, physical 
condition, and financial condition?
    Question 32. What data source do you recommend to assist the 
Department in estimating the extent to which existing residential 
dwelling units comply with the current ADA Standards?
    Question 33. What data source do you recommend to assist the 
Department in estimating the incremental cost of bringing noncompliant 
elements of existing residential dwelling units into compliance with 
the revised ADA Standards?

State and Local Government Buildings: Cells and Courtrooms

    Question 34. How many State and local detention and holding cells 
were newly constructed or altered in each of the past five years? How 
many would you project will be newly constructed or altered in each of 
the next five years?
    Question 35. How many State and local courtrooms were newly 
constructed or altered in each of the past five years? How many would 
you project will be newly constructed or altered in each of the next 
five years?
    Question 36. What data source do you recommend to assist the 
Department in estimating the number of existing cells and courtrooms 
categorized by such features as size, age, type, physical condition, 
and financial condition?
    Question 37. What would be a good source to assist the Department 
in estimating how many State and local government building codes 
already meet the requirements that will be in the revised ADA Standards 
for cells and courtrooms?
    Question 38. What would be a good source to assist the Department 
in estimating the cost of bringing existing cells and courtrooms into 
compliance with the revised ADA Standards?

Play Areas

    Question 39. Among the new requirements at ADAAG 240 are new 
scoping provisions for the minimum number of ground level and elevated 
play components that are required to be on an accessible route for 
newly constructed or altered play areas. The basic requirement for 
ground level play components is that one of each type must be on an 
accessible route. If a new or altered play area contains elevated play 
components that fail to meet specified accessibility requirements, then 
a specified greater number of ground level play components must be on 
an accessible route. The Department wishes to collect data about the 
effect of this requirement in existing play areas. Are any of the 
ground level play components in your existing play area on an 
accessible route? Is one of each type of ground level play component in 
your existing play area on an accessible route? Are there elevated play 
components in your existing play area? Are any of them on an accessible 
route?
    Question 40. What data source do you recommend to assist the 
Department in estimating the number of existing play areas categorized 
by such features as size, age, type, physical condition, and financial 
condition?
    Question 41. What would be a good source to assist the Department 
in estimating the cost of bringing existing play areas into compliance 
with the revised ADA Standards?

Recreation Facilities

    Question 42. A new requirement at ADAAG 234.3 provides that every 
new or altered amusement ride must provide at least one wheelchair 
space or transfer seat or transfer device. The preamble to the final 
recreation facilities guidelines provides that the transfer device may 
be separate from, rather than integral to, the ride. The Department 
wishes to collect data about the effect of this requirement if it is 
applied to existing amusement rides under the barrier removal 
requirement of Title III. With respect to your existing rides, have you 
used transfer devices or other means to make the ride accessible to 
persons with disabilities? If so, what did the transfer device cost?
    Persons with disabilities and the general public are invited to 
comment on the incremental benefit of having transfer devices available 
for use on existing rides.
    Question 43. A new requirement at ADAAG 235.2 requires accessible 
boat slips to be provided in accordance with a table, which ranges from 
one accessible boat slip for facilities with 25 or fewer boat slips to 
12 accessible boat slips for facilities with 901 to 1,000 boat slips. 
ADAAG 1003.3.1 provides that an accessible boat slip must be at least 
60 inches wide along its entire length (with an exception for two-foot 
sections at least 36 inches wide if separated by 60-inch wide sections 
at least 60 inches in length). The Department wishes to collect data 
about the effect of this requirement if it is applied to existing boat 
slips under the readily achievable barrier removal requirement of Title 
III. How many boat slips are there in your existing facility? When was 
your facility built? The Department is considering reducing the number 
of boat slips that must be accessible in existing facilities if it 
selects Option II under Question 4,

[[Page 58782]]

above. The Department is soliciting comments from all stakeholders on 
this approach. Please be as specific as possible in your response.
    Question 44. An exception to the new requirement at ADAAG 206.2.15 
permits the accessible route requirements (which must connect all 
greens, weather shelters, rental areas, and the like) for golf courses 
to be satisfied by golf car passages, defined at ADAAG 1006.3 as a 48-
inch wide passage, providing 60-inch wide openings in curbs or other 
constructed barriers every 75 yards. The Department wishes to collect 
data about the effect of this requirement if it is applied to existing 
golf courses under the readily achievable barrier removal requirement 
of Title III. What would you have to do to your existing golf course to 
make it comply with the requirements for golf car passages?
    Question 45. A new requirement at ADAAG 242.1 requires a new 
swimming pool whose perimeter is over 300 linear feet to have at least 
two accessible means of entry, at least one of which must be a lift or 
a sloped entry. The Department is considering reducing the number of 
accessible entries for a pool over 300 feet in perimeter in existing 
facilities if it selects Option II under Question 4, above. The 
Department is soliciting comments from all stakeholders on this 
approach. Please be as specific as possible in your response.
    Question 46. What data source do you recommend to assist the 
Department in estimating the number of existing recreational areas of 
each type to be covered in the revised ADA Standards, categorized by 
such features as size, age, type, physical condition, and financial 
condition?
    Question 47. What data source do you recommend to assist the 
Department in estimating the cost of making each of the following types 
of existing recreation facilities comply with the revised ADA 
Standards: amusement rides, boating facilities, fishing piers and 
platforms, golf, miniature golf, sports facilities (bowling, shooting, 
and exercise facilities, among others), and swimming pools and spas?

General Data Collection Questions Concerning Benefits

    Question 48. Do you have any general comments or concerns about the 
Department's proposed methodology for determining benefits? As 
discussed in the text of the proposed framework, the Department is 
charged with ascertaining the value of the benefits that the revised 
ADA Standards will provide for both people with disabilities and 
others. The Department is seeking comments from the public on how best 
to quantify, monetize, or describe the benefits provided by the 
proposed revised regulations, including suggestions on how to quantify, 
monetize or describe use values, insurance values, and existence 
values, each as described in Appendix A.
    Question 49. What benefits do you see in the revised ADA Standards 
for people with disabilities? For example, how might the revised 
requirements for accessible routes be of benefit to the users of a 
building? How could these benefits be quantified?
    Question 50. The proposed framework states that the Department will 
``roll up'' the elements by type of building facility, the five 
principal regulatory groupings, new construction and alterations, and 
the entire proposed revisions. Is this a sufficiently detailed 
organization of the benefits and costs? Will it give all stakeholders 
an accurate picture of how the proposed revisions will be of benefit? 
If not, what sort of organization of the benefits would be more useful 
for accurately conveying the important information?

Regulatory Assessment Process Questions

    OMB Circular A-4 (www.whitehouse.gov/omb/circulars/a004/a-4.pdf) 
provides guidance to Federal agencies on the development of regulatory 
analysis. Regulatory analysis is a tool agencies use to anticipate and 
evaluate the likely consequences of rules. It provides a formal way of 
organizing the evidence on the key effects of the various alternatives 
that should be considered in developing regulations. The motivation is 
to (i) learn if the benefits of an action are likely to justify the 
costs or (ii) discover which of various possible alternatives would be 
the most cost-effective.
    This ANPRM seeks additional information to assist the Department in 
preparing a regulatory analysis under Circular A-4, in particular the 
provisions of sections D (Analytical Approaches) and E (Identifying and 
Measuring Benefits and Costs).
    Question 51. Circular A-4 describes several analytical approaches 
including benefit-cost analysis and cost-effectiveness analysis. 
Stakeholders are encouraged to express their views and to advise the 
Department as to how best to conduct these analyses as part of any 
rulemaking that is published to adopt the revised ADA Standards.
    Question 52. The Department is seeking comment, advice, and 
information on its proposed approach in the three key application 
areas, as follows:
    a. Categorizing the revised ADA Standards for purposes of 
identifying benefits and costs;
    b. Defining baselines in accordance with OMB Circular A-4, sec. 
E.2.; and
    c. Identifying and quantifying benefits and costs.
    Question 53. Stakeholders are invited to provide the Department 
with comments and advice on the proposed classification, the proposed 
roll-ups, and other related matters.
    Question 54. With respect to elements in existing facilities that 
may be subject to the revised ADA Standards through the readily 
achievable barrier removal requirement, the use of market prices (or 
willingness to pay) as a measure of benefits may be insufficient where 
a given provision in the revised ADA Standards renders an existing 
facility more accessible rather than newly accessible. Such might be 
the case, for example, with respect to the provision requiring an 
independent means of getting in and out of the pool in an otherwise 
accessible swimming facility. The public is asked to comment on ways 
and means of handling this issue.

    Dated: September 23, 2004.
John Ashcroft,
Attorney General.

Appendix A--Proposed Framework for the Regulatory Analysis

1. Introduction

    As directed by Executive Order 12866 and OMB Circular A-4, as 
well as the Regulatory Flexibility Act and Executive Order 13272, 
the Department may be required to conduct a comprehensive Regulatory 
Impact Analysis of the revised ADA Standards. A Regulatory Impact 
Analysis may include a statement of need for the proposed 
regulation, the identification of a reasonable range of 
alternatives, the conduct of a Benefit-Cost Analysis of the proposed 
regulation and the alternatives, and an analysis of uncertainty in 
the identification and quantification of costs and benefits. The 
Benefit-Cost Analysis entails the comprehensive description of the 
incremental costs and benefits of each alternative, to the extent 
practicable, in terms of monetary value. In this context, a Benefit-
Cost Analysis would apply to each of the new or changed scoping and 
technical provisions in the revised ADA Standards that represent 
substantive changes from the current ADA Standards, as well as to 
possible alternatives to those provisions. The proposed Regulatory 
Impact Analysis would be included as part of the NPRM, and while the 
public will have an opportunity to comment on its assumptions and 
results at that time, this is the time to suggest significant 
changes to the Department's proposed methodology. In presenting in 
this ANPRM its current thinking on how it might approach the 
regulatory analysis, the Department seeks to engage the public in 
the choice of its methodology before significant

[[Page 58783]]

time and effort is expended on its implementation.

Role of Regulatory Impact Analysis in the ADA Regulatory Process

    Regulatory Impact Analysis is intended to inform stakeholders in 
the regulatory process of the effects, both positive and negative, 
of proposed new regulations. The principal stakeholders are those 
who will be directly affected by the proposed regulations, namely 
people with disabilities and the owners and developers of facilities 
that will incur the direct costs of compliance. However, the public 
at large, including people both with and without disabilities, is 
also a key stakeholder in the regulatory process. The costs and cost 
savings associated with the proposed regulatory action will ripple 
throughout the economy, potentially affecting business costs and 
consumer prices. Businesses may respond to the new and revised 
requirements in a number of ways, some of which entail costs that 
may be easily measurable, such as increased or reduced construction, 
operating, and maintenance costs, and others of which entail costs 
that may not be as easily measurable, such as delays in construction 
and renovation. Thus, in addition to their effect on direct capital, 
operating, and maintenance costs, new and revised accessibility 
requirements influence less obvious but equally genuine aspects of 
cost, such as construction schedules. Construction schedules might 
be lengthened where the regulations impose new requirements and 
shortened where the burden of a given scoping or technical provision 
has been reduced relative to the current ADA Standards. The 
Regulatory Impact Analysis will seek to recognize and account for 
such schedule-related changes in costs.
    The public at large will also benefit from the proposed 
regulations. Accessible facilities benefit persons with and without 
disabilities alike. This represents their use value. For individuals 
with disabilities, use value will include benefits arising from the 
ability to participate in previously inaccessible facility-based 
activities, or the availability of more convenient or independently 
usable facility elements or spaces. In addition, because people who 
do not need the protections of the ADA in the present may need them 
in the future, like an insurance policy, people without disabilities 
may place a value on accessible features. People may also place some 
value on the existence of accessible features unrelated to their 
anticipation of future personal need for them. This is reflected in 
people's possible willingness to pay something to ensure that equal 
access is provided for others (family, friends, and other members of 
society) who are or might become temporarily or permanently 
disabled, or to safeguard the principle of equal protection for 
people with disabilities, regardless of the risk of onset or the 
general incidence of disability. Benefit-Cost Analysis helps the 
general public ascertain whether the value of these ``nonuse'' 
related benefits is quantitatively significant relative to the 
costs.
    Some stakeholders might believe that economic analysis of any 
kind is simply irrelevant with respect to the implementation of a 
civil rights statute. The ADA is a comprehensive civil rights 
statute protecting the rights of persons with disabilities, and as 
such, could provide sufficient justification for regulatory action 
even if the Benefit-Cost Analysis were to produce negative results. 
Others might believe that, although economic yardsticks must not 
override the protections laid down in Federal statutes, the 
comprehensive articulation, if not quantification, of all benefits, 
including the nonuse values discussed above, can help promote 
understanding and further societal implementation of the protections 
established in law. Some might also believe that Benefit-Cost 
Analysis can be helpful in evaluating options for exempting certain 
elements or spaces in existing facilities from the provisions of the 
revised ADA Standards. Stakeholders are encouraged to express their 
views and to advise the Department as to how best to conduct these 
analyses as part of any rulemaking that is published to adopt the 
revised ADA Standards.

2. Scope of the Regulatory Impact Analysis

    In conducting its analysis, the Department will be required to 
take a broader approach to the assessment of the benefits and costs 
of the revised ADA Standards than the Access Board was required to 
take in assessing ADAAG. The Department's broader approach is 
required for two reasons. First, while the Access Board developed 
the guidelines contained in ADAAG incrementally over several years, 
the Department is now proposing to adopt ADAAG as a whole, as the 
revised ADA Standards. Since 1992, the Access Board has undertaken 
five separate and distinct rulemaking actions. The most recent of 
those rulemaking actions involves 68 substantive changes and 
additions to the scoping and technical requirements provided in the 
current ADA Standards (estimated to impose annual incremental costs 
on new or altered facilities of between $12.6 and $26.7 million). 
The other four rulemaking actions involved the adoption of 
supplemental guidelines for children's facilities ($0); state and 
local facilities; play areas (between $37 and $84 million); and 
recreational facilities (between $26.7 and $34.4 million). Examined 
singly, the Board estimated each of the five rulemaking actions to 
entail incremental annual costs of less than $100 million, which is 
the threshold established in OMB Circular A-4 as the trigger for the 
Benefit-Cost Analysis requirement.
    The Department, however, is proposing to adopt the revisions to 
the current ADA Standards and the four supplemental guidelines as a 
whole as the revised ADA Standards. When combined, the Access 
Board's estimated annual cost of all of the ADAAG revisions falls 
within a range between $76.3 million and $145.1 million (uncorrected 
for between-year inflation). With the mid-point of this range at 
about $111 million, there is a material probability that the 
combined cost of adopting the revised ADA Standards as a whole will 
exceed the $100 million threshold.
    The second reason that the Department will likely be required to 
undertake a full Benefit-Cost Analysis is that the Department, 
unlike the Access Board, is responsible for implementing the 
requirements of the ADA with respect to existing facilities. Thus, 
the Department must account for the additional incremental costs and 
benefits attributable to the adoption of the revised ADA Standards 
to the extent that the new or revised provisions will apply to 
existing facilities. The additional incremental cost associated with 
these requirements increases the likelihood that the total 
regulatory costs will exceed the $100 million threshold for Benefit-
Cost Analysis.
    To the extent practicable, the Department proposes to apply 
state-of-the-art methods of Benefit-Cost Analysis as provided in OMB 
Circular A-4. While Circular A-4 is definitive with respect to 
principles, it leaves Federal agencies with discretion with respect 
to the means and methods of application. The Department is seeking 
comment, advice, and information on its proposed approach in the 
three key application areas, as follows: (1) Categorizing the 
revised ADA Standards for purposes of identifying costs and 
benefits; (2) defining baselines and incremental costs; and (3) 
identifying and quantifying costs and benefits.

3. Categorization of the Revised ADA Standards for Purposes of 
Assessing Costs and Benefits

    The adoption of the current ADA Standards represented a 
fundamental change in the accessibility of facilities and, 
accordingly, in the extent to which people with disabilities are 
able to participate in the mainstream activities of daily life. Most 
provisions of the revised ADA Standards represent improvements in 
the quality of accessibility and the degree of inclusion. However, 
unlike the current ADA Standards, many of the improvements in the 
quality and degree of accessibility resulting from the revised ADA 
Standards will derive from changes in the scoping, design, and 
features of specific elements and spaces of a facility, rather than 
as a result of changes to the facility as whole.
    The various elements and spaces addressed in the revised ADA 
Standards vary among different types of facilities and will be 
classified accordingly. In addition, the impact of the new and 
revised requirements may be fundamentally different with respect to 
facilities that are newly constructed or altered after the effective 
date of the revised ADA Standards, on the one hand, and existing 
facilities, on the other. This in turn requires an additional level 
of categorization. The Department and the stakeholders in this 
regulatory action have an interest in viewing the combined costs, 
benefits, and net benefits with respect to the substantive new and 
revised provisions in the revised ADA Standards both as a whole and 
as applied to particular types of facilities.
    Under the Department's proposed categorization scheme, the 
Department will assess costs and benefits for each element addressed 
in the revised ADA Standards, as categorized by building and 
facility type, separately for newly constructed or altered 
facilities and existing facilities. Once costs and benefits are 
assessed for each element, they (costs, benefits, and net benefits) 
will be

[[Page 58784]]

aggregated (``rolled-up'') with respect to (i) the type of building 
and facility; (ii) newly constructed or altered facilities; (iii) 
existing facilities; and (iv) the revised ADA Standards as a whole. 
The different ``roll-ups'' will enable stakeholders to examine the 
regulatory analysis from their particular perspective.

4. Distinguishing the Baselines From the Incremental Costs and Benefits

    OMB Circular A-4 stipulates that a regulatory analysis is only 
supposed to account for those costs and benefits that arise as a 
result of the proposed regulatory action itself. Such costs and 
benefits are called ``incremental'' because they reflect only the 
costs and benefits imposed by the adoption of the regulation--
excluded are any costs and benefits that are imposed by already 
existing requirements. The latter costs and benefits constitute the 
``baseline'' against which the incremental costs and benefits of the 
new regulation are compared. The baseline thus represents the costs 
and benefits that would arise whether or not the proposed 
regulations are adopted. Although the current enforceable ADA 
Standards clearly impose costs and benefits upon society, for the 
purpose of the proposed Regulatory Impact Analysis, which will be 
designed to identify the incremental costs and benefits of the 
proposed rulemaking, the current ADA Standards and other Federal 
requirements will be considered the baseline, and as such, will be 
assigned zero costs and benefits. Thus, technically, if compliance 
with a current requirement costs $40, and compliance with the 
changed requirement costs $50, this will be stated as baseline of 
zero, incremental cost of $10.
    As a general principle, the Department proposes to determine the 
incremental cost for each element or space addressed by a new or 
revised standard in the revised ADA Standards by first determining 
whether or not the current ADA Standards specify scoping and 
technical requirements for that element or space. If the current ADA 
Standards do address the element or space, then the provision in the 
revised ADA Standards will be referred to as a change in existing 
requirements. If not, the provision in the revised ADA Standards 
will be referred to as a new requirement.

Incremental Costs Applied to Newly Constructed or Altered 
Facilities

    Where a given provision in the revised ADA Standards reflects a 
change in the existing requirements applicable to a particular 
element or space, the incremental cost (or savings) for that element 
or space in facilities newly constructed or altered after the 
effective date of the revised ADA Standards will be only the 
difference between the costs and benefits imposed by the requirement 
in the current ADA Standards and other Federal requirements with 
respect to that element or space and the costs and benefits imposed 
by the changed requirement. This is because, if the revised ADA 
Standards were not adopted, those elements in such facilities would 
still be required to comply with the current ADA Standards and other 
Federal requirements. If, with respect to any given element or 
space, it costs more to implement the revised Standard than it would 
have cost to implement the current Standards, the assessment of 
incremental cost will capture that additional amount. If it costs 
less, the assessment of incremental savings will capture that 
amount.
    With respect to new requirements, the entire actual cost of 
compliance will be attributed to the revised ADA Standards. New 
requirements are those applicable to elements and spaces for which 
there were previously no standards. For example, all amusement rides 
built or altered after the effective date of the revised ADA 
Standards are required to be accessible to persons who use 
wheelchairs or other mobility devices. Neither the current ADA 
Standards nor other Federal requirements contain any requirement 
with respect to amusement rides. Therefore, the costs and benefits 
of complying with this requirement can be attributed entirely to the 
revised ADA Standards.
    In its regulatory analysis, the Access Board presented results 
based on two baseline concepts, one in which the baseline is taken 
as the current ADAAG requirements, and a second in which the 
baseline is taken as the voluntary model codes, in which the 
requirements are very similar to the revised ADA Standards that will 
be proposed in the NPRM. That regulatory analysis also discussed the 
extent to which State and local governments have adopted the model 
codes. The Department may take a similar approach in its Regulatory 
Impact Analysis or it may calculate incremental costs in new and 
altered facilities, with respect to those States and localities that 
have adopted a model code, as the difference between the model code 
requirements and the revised ADA Standards if that is determined to 
be practicable.

Incremental Costs Applied to Existing Facilities

    The same principles will apply with respect to incremental costs 
applicable to elements and spaces in existing facilities (those that 
were or will be newly constructed or altered prior to the effective 
date of the revised ADA Standards). Thus, with respect to elements 
and spaces in existing facilities, the relevant incremental costs 
(savings) will be only the difference between the costs and benefits 
imposed by the requirement in the current ADA Standards and other 
Federal requirements with respect to that element or space and the 
costs and benefits imposed by the changed requirement.
    The Department is considering several options with respect to 
existing facilities with respect to their continuing obligations 
under the readily achievable barrier removal requirement. Which 
options the Department chooses will affect the calculation of costs 
and benefits with respect to elements and spaces in those existing 
facilities with respect to that requirement. For example, if the 
Department were to exempt elements and spaces that are compliant 
with the current ADA Standards from any obligation to comply with 
the revised ADA Standards pursuant to the readily achievable barrier 
removal requirement, the incremental costs and benefits of the 
revised ADA Standards with respect to those elements and spaces will 
be zero. In that case, only the incremental costs and benefits 
(actual costs and benefits of the revised ADA Standards, minus the 
costs and benefits of the current ADA Standards) of implementing the 
revised ADA Standards with respect to noncompliant (nonexempt) 
elements of such facilities, to whatever extent that may be required 
under the readily achievable barrier removal requirement, would be 
counted.
    The Department is also considering other options that may affect 
the calculation of incremental costs and benefits for existing 
facilities with respect to their obligations under the readily 
achievable barrier removal requirement. Under one option, existing 
facilities would be permitted to apply reduced scoping requirements 
for specified elements and spaces in the revised ADA Standards, such 
as the number of accessible entries to swimming pools. Whether or 
not this option is selected, the entire cost of the requirement 
would be attributable to the revised ADA Standards because, in the 
absence of the new regulation, there would be no requirement 
applicable to these elements or spaces. However, should the 
Department elect to apply reduced scoping to such elements and 
spaces, the incremental costs and benefits of the revised ADA 
Standards will likely be lower than they would be if the Department 
did not apply reduced scoping. Under another option, for purposes of 
the readily achievable barrier requirement, the Department may 
simply exempt existing facilities from compliance with certain 
scoping and technical requirements in the revised ADA Standards that 
are deemed inappropriate for barrier removal. Under this option, the 
incremental costs and benefits will also be lower than they would be 
if the Department did not provide such exemption.

5. Identifying and Quantifying Costs, Benefits, and Net Benefits

    While the revised ADA Standards will apply directly to newly 
constructed or altered facilities, the Department will determine in 
its ADA regulation whether and to what extent the revised ADA 
Standards will apply to existing facilities. The cost of any 
required compliance with the revised ADA Standards by existing 
facilities will be more difficult to determine than the cost of 
compliance for newly constructed and altered facilities. Many 
existing facilities are subject only to the readily achievable 
barrier removal requirement. Under that requirement, what is readily 
achievable for any given facility must be determined on a case-by-
case basis and, by statute, has no monetary or other absolute 
parameters. In addition, cost estimates are more readily available 
with respect to newly constructed and altered facilities. Thus, 
while the basic principles are the same for both, the Department is 
considering rather different technical approaches to the Benefit-
Cost Analysis of the revised ADA Standards with respect to newly 
constructed and altered facilities, on the one hand, and existing 
facilities, on the other.

[[Page 58785]]

Costs and Benefits of Provisions Applied to Newly Constructed and 
Altered Facilities

    For facilities that will be newly constructed or altered after 
the effective date of the revised ADA Standards, the Department will 
seek to estimate the economic value of the incremental costs and 
benefits of each new or revised provision, and from there the net 
costs or benefits of the rule as a whole, by fairly conventional 
means. Using the Access Board's estimates of direct unit costs as a 
starting point, the Department will estimate the direct life-cycle 
costs (based on an estimated 50-year life cycle of a building) 
imposed by each provision. These direct costs may include one-time 
cash expenditures occurring at the time of construction or 
alteration (also known as ``capital'' costs), annual cash 
expenditures necessary to cover the incremental costs of maintaining 
and operating accessible elements and spaces, and any loss of 
economic value caused by the reduction of productive space or 
productivity. Indirect costs include losses in social value that may 
arise as a result of the revised ADA Standards, such as reduced 
accessibility or, due to the increased cost of construction, a 
reduction in the number of total facilities and buildings that are 
constructed.
    Benefits are primarily represented by the creation of social 
value, and can be divided into three categories. ``Use value'' is 
the value that people both with and without disabilities derive from 
the use of accessible facilities. ``Insurance value'' is the value 
that people both with and without disabilities derive from the 
opportunity to obtain the benefit of accessible facilities. Finally, 
``existence value'' is the value that people both with and without 
disabilities derive from the guarantees of equal protection and non-
discrimination that are accorded through the provision of accessible 
facilities. Other kinds of benefits include the saving of direct 
costs, such as from reduced construction, alteration, or 
retrofitting expenses resulting from reduced accessibility 
requirements.
    Based on the estimates of costs and benefits, the Department 
will calculate the annualized value and the net present value of the 
rule as whole. In addition to requiring the presentation of 
annualized costs and benefits, OMB Circular A-4 stipulates that net 
present value is to be regarded as a principal measure of value 
produced by a Benefit-Cost Analysis when costs and benefits are 
separated from each other over time (i.e., when some people benefit 
from accessible facilities long after their construction). A net 
present value greater than zero would indicate that benefits exceed 
costs and that the regulation can be expected to increase the 
general level of economic welfare accordingly. While a net present 
value of less than zero could mean that costs exceed benefits, the 
existence of significant unmeasured and qualitative benefits must be 
taken into account. The Department proposes to identify and discuss 
all unmeasured and qualitative benefits. As one means of accounting 
for measurement risk, the Department also proposes to adopt the 
method of Threshold Analysis. Under this method, if quantitatively 
measured costs appear to exceed quantitatively measured benefits, 
the Department will calculate the value that society would need to 
assign to un-quantified benefits in order to balance the ledger. 
This ``threshold value'' will be reported for public review and 
comment in the NPRM, along with a qualitative description of the un-
quantified benefits at issue.

Quantification of Costs and Benefits

    Among the conventions of economic analysis, and an accepted 
principle in OMB Circular A-4, is that the amount of money people 
either pay or are willing to pay for goods and services represents a 
reasonable index of the total benefit they derive from such goods 
and services. This is called ``willingness to pay.'' The Department 
recognizes that the research community has made significant progress 
in the measurement of willingness to pay using proxies from market 
prices, surveys, and other methods. The Department also recognizes 
that some values nevertheless defy measurement. For example, while 
society clearly values the existence of constitutional protections, 
ascertaining the monetary equivalence of such values might be 
controversial and technically impracticable. Accordingly, the 
Department proposes to express benefits that are difficult to 
measure in qualitative rather than quantitative terms.
    Circular A-4 indicates that, where available and relevant, 
market prices represent the appropriate starting point for 
ascertaining willingness to pay. Thus, for example, if a movie 
theater or swimming pool becomes newly accessible as a result of the 
revised ADA Standards, the resulting user value could be determined 
by multiplying the volume of new visits by people with disabilities 
by the market price of entry (namely, the ticket price). However, an 
issue with market prices arises where a provision in the revised ADA 
Standards renders an existing facility ``more'' accessible rather 
than newly accessible. Such might be the case, for example, with 
respect to the provision requiring an independent means of getting 
in and out of the pool in an otherwise accessible swimming facility, 
or the provision requiring equal access to the good seats in an 
otherwise accessible theater. In such cases, it may be argued that 
the price of entry overstates the value of the provision, since 
entry per se would still be feasible without the change. On the 
other hand, others may argue that the swimming or theater experience 
is fundamentally altered, perhaps even newly facilitated in a 
meaningful way, by the availability of improved, independent access. 
In practice, practitioners of Benefit-Cost Analysis employ empirical 
data, opinion surveys, expert judgment, and sensitivity analysis to 
obtain reasoned estimates of use value.
    Economists also recognize that, as applied to people with low 
incomes, the willingness-to-pay index can underestimate economic 
value from the perspective of public policy. For example, the food 
purchases of single parents living below the poverty line are 
smaller than similarly constituted households with higher incomes. 
While both constitute willingness-to-pay data, for the low-income 
household, the data indicate affordability, not the economic value 
obtained from nutrition. In this regard, the Department recognizes 
that the median income among people with disabilities is 
significantly lower (about half) than that of the U.S. population 
generally. As a result, the willingness of people with disabilities 
to pay for access to architecturally improved facilities might not 
reflect the value of such facilities as viewed by the framers of the 
ADA and other policy makers. In practice, most Regulatory Impact 
Analyses use benefit values, such as a value of a statistical life 
in assessing health and safety regulations, assuming that the 
population receiving the benefits is of average income.
    Another issue that arises when willingness to pay is used as an 
index of value is that market prices simply do not exist for all 
goods and services. Such might be the case with a municipal swimming 
pool provided free of charge, or for a token, largely subsidized 
user fee. Another example might be the improvement of a particular 
element or space, such as a kitchen or toilet, in an otherwise 
accessible office building. Survey-based information is the 
principal means of obtaining willingness-to-pay data in such cases. 
A commonly used survey approach in Regulatory Impact Analysis is 
called the ``Stated Preference'' method. Stated Preference surveys 
pose carefully conceived and scientifically structured hypothetical 
choices and trade-offs to random samples of survey respondents. 
Special statistical analysis of the survey data is then employed in 
order to obtain estimates of willingness to pay. A concern with the 
Stated Preference surveys is that respondents may not have 
sufficient incentives to offer thoughtful responses that are 
consistent with their preferences, or that respondents may be 
inclined to bias their responses for one reason or another. Without 
a real budgetary constraint, for example, respondents with 
disabilities might be inclined to exaggerate their willingness to 
pay for more accessible facilities. On the other hand, respondents 
without disabilities might understate their true willingness to pay 
for accessibility measures due to a tendency to underestimate the 
risk of becoming disabled oneself. Additionally, people might have 
difficulty articulating the strength of their feelings regarding, 
for example, the integration of a child with a disability into a 
mainstream school or play area if they do not have a child with a 
disability. Perhaps people are more likely to underestimate than 
overestimate their willingness to pay for the existence of legal 
protections if they have not experienced disability first-hand or 
within their family. The Department recognizes the need to 
anticipate the risk of both under- and over-estimation of value 
based on the hypothetical willingness-to-pay questions posed in 
Stated Preference surveys. The Department recognizes as well that, 
other things being equal, ``revealed preference'' data--data based 
on actual transactions--is to be preferred over Stated Preference 
data because revealed preferences represent actual decisions in 
which market participants enjoy or suffer the consequences of their 
decisions.

[[Page 58786]]

    Finally, measurement error is inevitable in the assessment of 
both costs and benefits. The revised Standards will have different 
implications for elements and spaces in facilities of different 
types and different ages. The number of elements and spaces in 
facilities is itself uncertain. Data will often be sparse and will 
be subject to recording errors of many kinds. In addition to the 
method of Threshold Analysis described above, the Department 
proposes to adopt the method of Risk Analysis to help ensure that 
the analysis is transparent with respect to measurement risk. While 
rather technical in application, the principle is straightforward: 
with Risk Analysis, every number employed in the analysis is 
expressed as a range--what statisticians call a ``probability 
distribution''--that reflects the whole array of possible outcomes 
and the probability of each occurring. When all the ranges are 
combined into estimates of total costs and total benefits for a 
given regulatory provision, the result is not a single ``best 
guess'' of net benefit, but a probability range of possible 
outcomes.

Costs and Benefits of Provisions Applied to Existing Facilities 
Under the Barrier Removal Requirement: Proposed Simulation Model

    Title III of the ADA reflects Congress's specific intent not to 
establish--either in the statute or regulations--absolute technical 
or monetary standards for what constitutes readily achievable 
barrier removal in existing buildings. Some stakeholders, 
particularly businesses (and especially small businesses), have long 
expressed concern regarding the need to assess the costs of 
compliance with the readily achievable barrier removal requirement 
in absolute terms, notwithstanding the essentially relative nature 
of the statutory requirement.
    The Department is considering the development of a computer 
simulation model to estimate the incremental costs and benefits of 
the revised ADA Standards as applied to existing facilities that may 
be required to retrofit particular elements or spaces only to the 
extent required by the readily achievable barrier removal 
requirement. For each new or revised scoping or technical provision 
in the revised ADA Standards representing a substantive change from 
the current ADA Standards, the computer model would assess the 
statistical probability that existing facilities would be required 
to implement the provision pursuant to the readily achievable 
barrier removal requirement. In order to determine whether a 
provision would apply to a given facility, the Department 
contemplates plugging a range of different factors relevant to the 
``readily achievable'' analysis into the model, including the 
possibility of using multiple criteria that distinguish among small- 
and large-sized enterprises.
    Two statistical databases would be developed in order to 
implement the simulation model. One is a database of costs 
associated with retrofitting elements and spaces in existing 
facilities, where the facilities are stratified by type, age, 
physical condition, and financial size. This database would also 
include estimates of user and nonuser benefits. The second database 
would include the estimated number of elements and spaces in 
existing facilities that would be subject to the readily achievable 
barrier removal requirement (in each year of the life-cycle 
analysis) in each stratum. Within each stratum, the incidence of 
facilities in various classes would permit the model to be executed 
for each of the options under Departmental consideration. The 
Department would collect the information used to populate the 
databases from all available sources. As set out above, all entries 
in the databases would be expressed as a range of probabilities in 
order to account for the inevitable risk of error and varying 
degrees of sampling quality. Thus, the model would be statistical by 
nature, which means that different types and sizes of facilities 
would be represented as sample data, not data for each facility in 
the nation. Costs would be statistical in the same sense.

[FR Doc. 04-21875 Filed 9-29-04; 8:45 am]
BILLING CODE 4410-13-P