[Federal Register Volume 73, Number 126 (Monday, June 30, 2008)]
[Proposed Rules]
[Pages 36964-37009]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-14388]



[[Page 36963]]

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Part II





Department of Justice





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28 CFR Parts 35 and 36



Nondiscrimination on the Basis of Disability by Public Accommodations, 
State and Local Government Services, and in Commercial Facilities; 
Proposed Rules

  Federal Register / Vol. 73, No. 126 / Monday, June 30, 2008 / 
Proposed Rules  

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DEPARTMENT OF JUSTICE

28 CFR Part 35

[CRT Docket No. 105; AG Order No. 2967-2008]
RIN 1190-AA46


Nondiscrimination on the Basis of Disability in State and Local 
Government Services; Correction

AGENCY: Department of Justice, Civil Rights Division.

ACTION: Proposed rule; correction.

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SUMMARY: This document contains corrections to the proposed rule, 
published Tuesday, June 17, 2008, at 73 FR 34466, implementing the 
Americans with Disabilities Act. The proposed rule would revise 
Department of Justice regulations on nondiscrimination on the basis of 
disability in state and local government services. The correction 
consists of the addition of two appendices that were inadvertently 
omitted.

DATES: All comments must be received by August 18, 2008.

FOR FURTHER INFORMATION CONTACT: Janet L. Blizard, Deputy Chief, 
Disability Rights Section, Civil Rights Division, U.S. Department of 
Justice, at (202) 307-0663 (voice or TTY). This is not a toll-free 
number. Information may also be obtained from the Department's toll-
free ADA Information Line at (800) 514-0301 (voice) or (800) 514-0383 
(TTY).
    The text of this correction is also available in an accessible 
format on the ADA Home Page at http://www.ada.gov. You may obtain 
copies of the correction in large print or on computer disk by calling 
the ADA Information Line at the number listed above.

SUPPLEMENTARY INFORMATION: 

Need for Correction

    The proposed rule published on June 17, 2008, inadvertently omitted 
two documents: Appendix A, which addresses major issues in the proposed 
ADA Standards for Accessible Design and Appendix B, which explains the 
methodology underlying the Department's regulatory impact analysis. 
Both appendices also respond to comments received in response to the 
Department of Justice's Advance Notice of Proposed Rulemaking (ANPRM) 
published on September 30, 2004, 69 FR 58768. This correction document 
will add the appendices to the appropriate places in the proposed rule.

Corrections

28 CFR Part 35 [Corrected]
    1. On page 34508, immediately after the proposed text for new Sec.  
35.190, paragraph (e), and before the signature of the Attorney 
General, add Appendix A and Appendix B, to read as follows:

APPENDIX A to PART 35: ANALYSIS OF THE PROPOSED STANDARDS

    The following document is a summary of the major substantive 
changes proposed for the scoping and technical requirements of the 1991 
Standards at 28 CFR pt. 36 adopted in 1991, as amended in 1994. The 
full text of the 2004 ADAAG is available for review on the Access 
Board's Web site, http://www.access-board.gov, along with a chart that 
shows the relationship between the 1991 Standards and the 2004 ADAAG.
    This summary addresses only the major substantive changes that are 
being proposed. Editorial changes are not discussed. Scoping and 
technical requirements are discussed together, where appropriate, for 
ease of understanding the requirements. In addition, this document 
addresses substantive public comments on specific changes to the 
proposed standards received by the Department in response to its 
September 2004 ANPRM. Comments received by the Access Board on the 
adoption process or on the overall scope of the proposed standards have 
been addressed in the preamble to this notice. Comments that did not 
raise major issues are not addressed here.
    The ANPRM issued by the Department concerning these proposed 
standards stated that comments received by the Access Board in response 
to its development of the guidelines upon which these proposed 
standards are issued would be considered in the development of this 
NPRM. Therefore, the Department will not restate here all of the 
comments and responses to them issued by the Access Board. The 
Department is supplementing the Access Board's comments and responses 
with substantive comments and responses in this notice. Comments and 
responses addressed by the Access Board that also were separately 
submitted to the Department will not be restated in their entirety 
here.

Analysis of Sections

Application and Administration

103 Equivalent Facilitation

    This section acknowledges that nothing in these requirements 
prevents the use of designs, products, or technologies as alternatives 
to those prescribed, provided they result in substantially equivalent 
or greater accessibility and usability.
    A commenter encouraged the Department to include a procedure for 
determining equivalent facilitation. The Department believes that the 
responsibility for determining and demonstrating equivalent 
facilitation properly rests with the covered entity. The purpose of 
allowing for equivalent facilitation is to encourage flexibility and 
innovation while still ensuring access. The Department believes that 
establishing potentially cumbersome bureaucratic provisions for 
reviewing requests for equivalent facilitation is inappropriate.

104 Conventions

    Proposed section 104.1.1, Construction and Manufacturing 
Tolerances, provides that all dimensions are subject to conventional 
industry tolerances except where the requirement is stated as a range 
with specific minimum and maximum end points. Section 104.1 notes that 
all dimensions not stated as a ``maximum'' or ``minimum'' are absolute 
and that all dimensions are ``subject to conventional industry 
tolerances.''
    Commenters requested that specific new construction allowances and 
tolerances be made for a variety of materials and designs required by 
the proposed standards. The Department believes that it is 
inappropriate for this agency to attempt to establish construction and 
manufacturing tolerances for every material, element, or design that 
may be used in new construction. Construction and manufacturing 
tolerances are best addressed by industry standards, where available, 
and are built into the specifications in the attached rules.
    Section 104.2 provides that where the required number of elements 
or facilities to be provided is determined by calculations of ratios or 
percentages and remainders or fractions result, the next greater whole 
number of such elements or facilities shall be provided. Where the 
determination of the required size or dimension of an element or 
facility involves ratios or percentages, rounding down for values less 
than one-half is permissible.
    A commenter stated that it is customary in the building code 
industry to round up rather than down for values less than one-half. As 
noted here, where the proposed standards provide for scoping, 
fractional calculations will be rounded to the next whole number. The 
Department is retaining the portion of section 104.2, Calculation of 
Percentages, that permits rounding

[[Page 36965]]

down for values less than one-half where the determination of the 
required size or dimension of an element or facility involves ratios or 
percentages. Such practice is standard with the industry, and is in 
keeping with model building codes.

105 Referenced Standards

    Section 105 lists the industry requirements that will be referenced 
in the proposed standards. This section also clarifies that where there 
is a difference between a provision of the proposed standards and the 
referenced requirements, the provision of the proposed standards 
applies.
    Commenters noted that the National Fire Protection Association's 
(NFPA) referenced standard for fire alarms at section 105.2.5 is based 
on the NFPA 72 1999 or 2002 edition. The commenters recommended editing 
the final standards to require compliance with the edition of NFPA that 
is most recent because it is likely that the NFPA will amend its 
standards prior to the issuance of final ADA Standards.
    The rules that govern the publication of regulations that 
incorporate private standards by reference require federal agencies to 
adopt specific editions of the referenced code that are in existence at 
the time of issuance of the rules. The Department anticipates that the 
Access Board will periodically update the ADAAG references. Until then, 
the Department will retain the reference contained in the 2004 ADAAG.

106 Definitions

    Various definitions will be added to the proposed standards and 
some current definitions will be dropped.
    One commenter asked that the term public right-of-way be defined; 
others asked that various terms and words defined by the 1991 
Standards, and that were eliminated from the proposed standards, and 
other words and terms newly used in the proposed standards be defined.
    The Department believes that it is not necessary to add definitions 
to this text because the proposed regulation at section 106.3 provides 
that the meanings of terms not specifically defined in the proposed 
standards, in the Department's regulation, or in referenced standards 
are to be defined by collegiate dictionaries in the sense that the 
context implies. The Department believes that this provision adequately 
addresses these commenter's issues.

Scoping and Technical Requirements

202 Existing Buildings and Facilities

    Alterations to Primary Function Areas. A new provision at section 
202.4 merely restates a current requirement under Title III, and 
therefore represents no change for Title III facilities or for those 
Title II facilities that currently have elected to comply with the 1991 
Standards. However, under the revised provisions, state and local 
government facilities that currently elect to comply with UFAS instead 
of the 1991 Standards will no longer have that option, and thus will 
now be subject to the path of travel requirements. The path of travel 
requirement provides that when a primary function area of an existing 
facility is altered, the path of travel to that area (including rest 
rooms, telephones, and drinking fountains serving the area) must also 
be made accessible, but only to the extent that the cost of doing so 
does not exceed twenty percent (20%) of the cost of the alterations to 
the primary function area. The UFAS requirements for a substantial 
alteration, though different, may have covered some of the items that 
will now be covered by the path of travel requirement.
    Visible Alarms in Alterations to Existing Facilities. The 1991 
Standards at sections 4.1.3(14), and 4.1.6(1) and (b), and proposed 
sections 202.3 and 215.1, Exception require that when existing elements 
and spaces of a facility are altered, the alterations must comply with 
new construction requirements. The proposed regulations add a new 
exception to the scoping requirement for visible alarms in existing 
facilities that will provide that visible alarms must be installed only 
when an existing fire alarm system is upgraded or replaced, or a new 
fire alarm system is installed.
    Commenters urged the Department not to include the exception 
because it will make the safety of individuals with disabilities 
dependent upon the varying age of existing fire alarm systems. Other 
commenters suggested that including this section, even with the 
exception, will result in significant cost to building owners and 
operators.
    The Department believes that the language adopted by the Access 
Board strikes a reasonable balance between the interests of individuals 
with disabilities and those of the business community. If undertaken at 
the time a system is installed whether in a new facility or in a 
planned system upgrade, the cost of adding visible alarms is 
reasonable. Over time, existing facilities will become fully accessible 
to individuals who are deaf or hard of hearing, and will add minimal 
costs to owners and operators.

203 General Exceptions

    Limited Access Spaces and Machinery Spaces. The 1991 Standards at 
section 4.1.1 contains an exception that exempts ``nonoccupiable'' 
spaces that have limited means of access, such as ladders or very 
narrow passageways, and that are visited only by service personnel for 
maintenance, repair, or occasional monitoring of equipment from all 
accessibility requirements. The proposed standards at sections 203.4 
and 203.5 expand this exception by removing the condition that the 
exempt spaces be ``nonoccupiable,'' and by separating the other 
conditions into two independent exceptions: one for spaces with limited 
means of access, and the other for machinery spaces. More spaces are 
exempted by the proposed changes to the exception.
    Employee Work Areas. Section 215.3 of the proposed standards 
provides that employee work areas in newly constructed facilities are 
required to have wiring systems that are capable of supporting visible 
alarms. The 1991 Standards, section 4.1.1(3), require visible alarms to 
be provided where fire alarm systems are provided, but do not require 
areas used only by employees as work areas to be equipped with 
accessibility features. As applied to office buildings, the 1991 
Standards require visible alarms to be provided in public and common 
use areas such as hallways, conference rooms, break rooms, and 
restrooms, where fire alarm systems are provided.
    Commenters asserted that the requirements of section 215.3 of the 
proposed standards would be burdensome to meet. These commenters also 
raised concerns that all employee work areas within existing buildings 
and facilities must be equipped with accessibility features.
    The commenters' concerns about section 215.3 represent a 
misunderstanding of the requirements applicable to employee work areas. 
Newly constructed buildings and facilities merely are required to 
provide wiring for visible alarm systems that can be added as needed to 
accommodate employees who are deaf or hard of hearing. This is a 
minimum requirement without significant impact.
    The other issue in the comments represents a misunderstanding of 
the Department's existing regulatory requirements. Employee common use 
areas in covered facilities (e.g., locker rooms, break rooms, 
cafeterias, toilet rooms, and corridors to exits, and other common use 
spaces) are required to be

[[Page 36966]]

accessible under the 1991 Standards; areas in which employees are 
actually performing their jobs are required to enable a person using a 
wheelchair or mobility device to approach, enter, and exit the area. 
The proposed rule will require increased access through the circulation 
path requirement discussed below, but neither the 1991 Standards nor 
the proposed standards would require employee work stations to be 
accessible. Access to specific employee work stations would be governed 
by Title I of the ADA.
    Common Use Circulation Paths in Employee Work Areas. The 1991 
Standards at section 4.1.1(3), and the proposed standards at sections 
203.9; 206.2.8, Exceptions 1, 2, and 3; 402.1; 402.2; 403.5; 405.5; and 
405.8 will require employee work areas to be designed and constructed 
so that individuals with disabilities can approach, enter, and exit the 
areas. The ADA, 42 U.S.C. 12112(b)(5)(A) and (B), requires employers to 
make reasonable accommodations in the workplace for individuals with 
disabilities, which may include modifications to work areas when 
needed. Providing increased access to the facility at the time of 
construction or alteration will simplify the process of providing 
reasonable accommodations when they are needed. The requirement will 
not apply to existing facilities pursuant to the readily achievable 
barrier removal requirement. The Department has consistently held that 
barrier removal requirements do not apply to exclusively employee areas 
because the purpose of Title III is to ensure that access is provided 
to clients and customers. See 28 CFR pt. 36, App. B.
    The proposed standards will require common use circulation paths 
within employee work areas to comply with the technical requirements 
for accessible routes, subject to several exceptions that exempt common 
use circulation paths in employee work areas where it may be difficult 
to comply with the technical requirements for accessible routes due to 
the size or function of the area:
     Employee work areas, or portions of employee work areas, 
that are less than 300 square feet and are elevated 7 inches or more 
above the ground or finish floor, where elevation is essential to the 
function of the space, are exempt.
     Common use circulation paths within employee work areas 
that are less than 1,000 square feet and are defined by permanently 
installed partitions, counters, casework, or furnishings are exempt. 
Kitchens in quick service restaurants, cocktail bars, and the employee 
side of service counters are frequently covered by this exception.
     Common use circulation paths within employee work areas 
that are an integral component of equipment are exempt. Common use 
circulation paths within large pieces of equipment in factories, 
electric power plants, and amusement rides are covered by this 
exception.
     Common use circulation paths within exterior employee work 
areas that are fully exposed to the weather are exempt. Farms, ranches, 
and outdoor maintenance facilities are covered by this exception.
    The proposed changes also contain exceptions to the technical 
requirements for accessible routes:
     Machinery and equipment are permitted to reduce the clear 
width of common use circulation paths where it is essential to the 
function of the work performed. Machinery and equipment that must be 
placed a certain way to work properly, or for ergonomics or to prevent 
workplace injuries are covered by this exception.
     Handrails are not required on ramps, provided they can be 
added in the future.
    Commenters stated that the proposed standards for common use 
circulation paths in employee work areas are inappropriate, 
particularly in kitchens, storerooms, and behind cocktail bars where 
wheelchairs would not be easily accommodated. These commenters further 
urged the Department not to adopt a requirement that circulation paths 
in employee work areas be at least 36 inches wide, including those at 
emergency exits.
    The Department believes that the commenters misunderstand the scope 
of this provision. Nothing in the rule requires all circulation paths 
in non-exempt areas to be accessible. The Department recognizes that 
building codes and fire and life safety codes, which are adopted by all 
the States, require primary circulation paths in facilities, including 
employee work areas, to be at least 36 inches wide for purposes of 
emergency egress. Accessible routes also are at least 36 inches wide, 
therefore, the Department anticipates that covered entities will be 
able to satisfy the requirement to provide accessible circulation paths 
by ensuring that their required primary circulation paths are 
accessible.
    Individual employee work stations, such as a grocery checkout 
counter or an automobile service bay designed for use by one person, do 
not contain common use circulation paths and are not required to 
comply. Other work areas, such as stockrooms that typically have narrow 
pathways between shelves would be required to design only one 
accessible circulation path into the stockroom. It would not be 
necessary to make each circulation path in the room accessible.
    In addition, the proposed standards include exceptions for common 
use circulation paths in employee work areas where it may be difficult 
to comply with the technical requirements for accessible routes due to 
the size or function of the areas. The Department believes that these 
exceptions will provide the flexibility necessary to ensure that this 
requirement does not interfere with legitimate business operations.

205 and 309 Operable Parts

    Sections 4.1.3, and more specifically 4.1.3(13), 4.27.3, and 4.27.4 
of the 1991 Standards require operable parts on accessible elements, 
along accessible routes, and in accessible rooms and spaces to comply 
with the technical requirements for operable parts, including height 
and operation. The 1991 Standards at section 4.27.3 contain an 
exception that exempts ``special equipment [that] dictates otherwise,'' 
and electrical and communications systems receptacles not intended for 
use by building occupants from the technical requirement for the height 
of operable parts. The proposed changes divide this exception into 
three exceptions covering operable parts intended only for use by 
service or maintenance personnel; electrical or communication 
receptacles serving a dedicated use; and floor electrical receptacles. 
Operable parts covered by these new exceptions are exempt from all the 
technical requirements for operable parts. The proposed changes add 
exceptions that exempt certain outlets at kitchen counters; HVAC 
diffusers; and redundant controls provided for a single element, other 
than light switches, from the technical requirements for operable 
parts. The proposed changes also exempt gas pump nozzles from the 
technical requirement for activating force at section 309.4.
    Reach Ranges. The 1991 Standards set the height for the maximum 
side reach at 54 inches. The proposed standards at section 308.3 lower 
that maximum height to 48 inches. The proposed standards also add 
exceptions for certain elements to the scoping requirement for operable 
parts.
    The 1991 Standards at sections 4.1.3; 4.27.3; and 4.2.6, and the 
proposed standards at sections 205.1; 228.1; 228.2; 309.3; 308.3; 
308.3.1, Exception 2; and 308.3.2 require operable parts of

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accessible elements, along accessible routes, and in accessible rooms 
and spaces to be placed within a forward or side reach. The proposed 
standards also require at least one of each type of depositories, 
vending machines, change machines, and gas pumps, and at least 5 
percent of mailboxes provided in an interior location to meet the 
technical requirements for a forward or side reach.
    The 1991 Standards specify a maximum 54 inch high side reach and a 
minimum 9 inch low side reach for a reach depth of 10 inches maximum. 
The proposed standards specify a maximum 48 inch high side reach and a 
minimum 15 inch low side reach for an unobstructed reach, and a maximum 
48 inch high side reach for a reach depth of 10 inches maximum over an 
obstruction 34 inches maximum in height. Changing the side reach will 
affect a variety of building elements such as light switches, 
electrical outlets, thermostats, fire-alarm pull stations, card 
readers, and keypads.
    Commenters were divided in their views on the change to the reach 
range requirements. Disability advocacy groups and others, including 
individuals of short stature, supported the modifications to the 
proposed reach range requirements. Other commenters asserted that the 
proposed reach range requirements will be burdensome for small 
businesses to comply with and asked the Department to consider 
retaining 1991 requirements. These comments argued that the proposed 
reach range requirements restrict design options, especially in 
residential housing.
    The Department believes that data provided by advocacy groups and 
others provides compelling evidence that lowered reach range 
requirements will serve significantly greater numbers of individuals 
with disabilities, including individuals of short stature, people with 
limited upper body strength, and others with limited use of their arms 
and fingers. This proposal was developed by the Access Board over a 
prolonged period in which there was extensive public participation. 
This process did not produce any significant data to indicate that 
applying this requirement in new construction or during alterations 
would impose a significant burden.

206 and 402 Accessible Routes

    Slope. The proposed standards provide that the running slope of 
walking surfaces have cross slopes that shall not be steeper than 1:48. 
The 1991 Standards' cross slope requirement is 1:50.
    A commenter recommended increasing the cross slope requirement to 
allow a maximum of \1/2\ inch per foot (1:24) to prevent imperfections 
in concrete surfaces from ponding water.
    The requirement that a cross slope shall not be steeper than 1:48 
adequately provides for water drainage in most situations. Changes to 
the specifications suggested would double the allowable cross slope and 
create a significant impediment for many wheelchair users, and others 
with mobility impairments. Therefore, the Department declines to accept 
this recommendation.
    Accessible Routes from Site Arrival Points and Within Sites. The 
1991 Standards at sections 4.1.2(1) and (2) and the proposed changes at 
sections 206.2.1 Exception 2; and 206.2.2 Exception require, where 
provided, that at least one accessible route be provided from site 
arrival points to an accessible building entrance, and at least one 
accessible route connect accessible facilities on the same site. The 
proposed standards also add two exceptions that exempt site arrival 
points and accessible facilities within a site from the accessible 
route requirements where the only means of access between them is a 
vehicular way that does not provide pedestrian access.
    Comments urged the Department to eliminate the exception that 
exempts site arrival points and accessible facilities from the 
accessible route requirements where the only means of access between 
them is a vehicular way not providing pedestrian access. The Department 
declines to accept this recommendation because the Department believes 
that its use will be limited. If it can be reasonably anticipated that 
the route between the site arrival point and the accessible facilities 
will be used by pedestrians, regardless of whether a pedestrian route 
is provided, then this exception will not apply. It will apply only in 
the relatively rare situations where the route between the site arrival 
point and the accessible facility dictates vehicular access--for 
example, an office complex on an isolated site that has a private 
access road, or a self-service storage facility where all users are 
expected to drive to their storage units.
    Another commenter suggested that the language of section 406.1, 
General, is confusing because it states that curb ramps on accessible 
routes shall comply with the guidelines, and that the 1991 Standards 
provide that curb ramps shall be provided wherever an accessible route 
crosses a curb.
    The Department declines to change this language because the change 
is purely editorial, resulting from the overall changes in the format. 
It does not change the substantive requirement. Under the revised 
format, all elements within a required accessible route must be 
accessible; therefore, if the accessible route crosses a curb, a curb 
ramp must be provided.
    Limited-use/Limited-application Elevators and Private Residence 
Elevators. The 1991 Standards at sections 4.1.3(5), Exception 1, and 
the proposed standards at sections 206.2.3, Exception 1 and 2; and 
206.6, Exception 1 and 2 include exceptions to the scoping requirement 
for accessible routes that exempt certain facilities from connecting 
each story with an elevator. If a facility is exempt from the scoping 
requirement, but nonetheless installs an elevator, the 1991 Standards 
require the elevator to comply with the technical requirements for 
elevators. The proposed standards add a new exception that allows a 
facility that is exempt from the scoping requirement to install a 
limited-use/limited-application (LULA) elevator. LULA elevators are 
permitted as an alternative to platform lifts. The proposed standards 
also add a new exception that permits private residence elevators in 
multi-story dwelling and transient lodging units. The proposed 
standards contain technical requirements for LULA elevators and private 
residence elevators.
    A commenter questioned the value of permitting LULA elevators 
because, as was claimed, these elevators often are unreliable. LULAs 
are smaller than other elevators and have limited travel distance. They 
are in all other respects subject to the same safety and reliability 
standards as other elevators. The Department believes that because 
LULAs will be permitted only in situations where accessible vertical 
access is not now required, their use will not diminish required access 
and may, in fact, encourage covered entities to provide vertical access 
in situations where it is not now being provided.
    Accessible Routes to Tiered Dining Areas in Sports Facilities. The 
1991 Standards at sections 4.1.3(1) and 5.4 and the proposed changes at 
section 206.2.5 and Exception 3 require an accessible route to be 
provided to all dining areas in new construction, including raised or 
sunken dining areas. The proposed standards will add a new exception 
for tiered dining areas in sports facilities. Dining areas in sports 
facilities are typically integrated into the seating bowl and are 
tiered to provide adequate lines of sight for individuals with 
disabilities. The new exception requires an accessible route to be

[[Page 36968]]

provided to at least 25 percent of the tiered dining areas in sports 
facilities. Each tier must have the same services and the accessible 
route must serve the accessible seating.
    Accessible Routes to Press Boxes. The 1991 Standards at sections 
4.1.1(1) and 4.1.3(1) cover all areas of newly constructed facilities 
required to be accessible, and an accessible route to connect 
accessible entrances with all accessible spaces and elements within the 
facility. Section 201.1 of the proposed standards requires that all 
areas be accessible. The proposed changes at sections 206.2.7(1) and 
(2) add two exceptions that exempt small press boxes that are located 
on bleachers with entrances on only one level, and small press boxes 
that are free-standing structures elevated more than 12 feet, from the 
accessible route requirement when the aggregate area of all press boxes 
in a sports facility does not exceed 500 square feet. The Department 
anticipates that this change will significantly reduce the economic 
impacts on smaller sports facilities, such as those associated with 
high schools or community colleges.
    Entrances. The 1991 Standards at sections 4.1.3(8), (a)(i), and 
(a)(ii); and 4.1.6(1)(h) require at least fifty percent (50%) of public 
entrances to be accessible. Additionally, the 1991 Standards require 
the number of accessible public entrances to be equivalent to the 
number of exits required by applicable building and fire codes. With 
very few exceptions, building and fire codes require at least two exits 
to be provided from spaces within a building and from the building 
itself. Therefore, under the 1991 Standards where two public entrances 
are planned in a newly constructed facility, both entrances must be 
accessible.
    Instead of requiring accessible entrances based on the number of 
public entrances provided or the number of exits required (whichever is 
greater), section 206.4.1 of the proposed standards will require at 
least sixty percent (60%) of public entrances to be made accessible. 
The revision is intended to achieve the same result as the 1991 
Standards. Thus, under the proposed standards where two public 
entrances are planned in a newly constructed facility, both entrances 
must be accessible.
    Where multiple public entrances are planned to serve different site 
arrival points, the 1991 Standards at section 4.1.2(1) and section 
206.2.1 of the proposed standards require at least one accessible route 
to be provided from each type of site arrival point provided, including 
accessible parking spaces, accessible passenger loading zones, public 
streets and sidewalks, and public transportation stops, to an 
accessible public entrance that serves the site arrival point.
    The U.S. Small Business Administration Office of Advocacy and other 
comments recommended retaining the 1991 requirement for fifty percent 
(50%) of public entrances of covered entities to be accessible. These 
commenters also raised concerns about the impact upon existing 
facilities.
    The Department believes that these commenters misunderstand the 
1991 Standards. As explained above, the current requirements generally 
require more than fifty percent (50%) of entrances in small facilities 
to be accessible. Model codes require that most buildings have more 
than one means of egress, thus, most buildings have more than one 
entrance, and now these buildings must have more than one accessible 
entrance. Requiring at least sixty percent (60%) of public entrances to 
be accessible is not expected to result in a substantial increase in 
the number of accessible entrances compared to the current 
requirements. The 1991 Standards and the proposed standards also 
contain exceptions that limit the number of accessible entrances 
required in alterations to existing facilities. When entrances in an 
existing facility are altered and the facility has an accessible 
entrance, the entrance being altered is not required to be accessible, 
unless a primary function area also is altered and then an accessible 
path of travel must be provided to the primary function area to the 
extent the cost is not disproportionate. The Department anticipates 
retaining the requirement for accessible entrances. However, in order 
to ensure the Department is fully informed about the potential results 
of retaining the requirement, the Department is asking for detailed 
comments about this issue.
    Alterations to Existing Elevators. When a single space or element 
is altered, the 1991 Standards at sections 4.1.6(1)(a) and (b) require 
the space or element to be made accessible. When an element in one 
elevator is altered, the proposed standards at section 206.6.1 will 
require the same element to be altered in all elevators that are 
programmed to respond to the same call button as the altered elevator.
    The proposed standards at sections 407.2.1 Exception--407.4.7.1.2 
Exception also contain exceptions to the technical requirements for 
elevators when existing elevators are altered that further minimize the 
impact of the revision:
     Existing elevators are permitted to have recessed call 
buttons.
     Existing call buttons and keypads are permitted to be 
located at 54 inches above the finish floor, measured to the centerline 
of the highest operable part.
     Existing call buttons are not required to be \3/4\ inch 
minimum in the smallest dimension.
     Existing call buttons are not required to have visible 
signals to indicate when each call is registered and when each call is 
answered.
     A visible and audible hall signal is not required to be 
provided at the hoistway entrance of existing elevators to indicate the 
direction of car travel.
     Existing visible hall signals are not required to be 
centered at 72 inches minimum above the finish floor and 2\1/2\ inches 
minimum measured along the centerline of the element.
     Existing hall signals are not required to meet the 
requirements for frequency and range of audible signals.
     Existing manually operated hoistway swing doors are 
permitted if the door opening provides a clear width of 32 inches 
minimum, and the force for pushing or pulling open the door is 5 pounds 
maximum.
     Existing manually operated doors are not required to 
provide a reopening device that automatically stops and reopens the car 
door and hoistway door if the doors are obstructed by an object or a 
person.
     A power operated car door with a door opening that 
provides a clear width of 32 inches minimum is permitted in an existing 
elevator.
     Existing elevator car configurations that provide a clear 
floor area of 16 square feet, and provide 54 inches minimum inside 
clear depth and 36 inches minimum clear width are permitted.
     Where a new car operating panel with accessible elevator 
car controls and tactile markings is provided in an existing elevator, 
existing car operating panels are not required to be made accessible.
     Existing car control buttons with floor designations are 
permitted to be located 54 inches maximum above the finish floor where 
a parallel approach is provided.
     Existing car control buttons with floor designations are 
permitted to be recessed.
     Where space on an existing car operating panel precludes 
the placement of tactile markings immediately to the left of the 
control button, the markings are permitted to be

[[Page 36969]]

placed as near to the control button as possible.
    Commenters expressed concerns about the requirement that when an 
element in one elevator is altered, the proposed standards at section 
206.6.1 will require the same element to be altered in all elevators 
that are programmed to respond to the same call button as the altered 
elevator. Commenters noted that such a requirement is burdensome and 
will result in costly efforts without significant benefit to 
individuals with disabilities.
    The Department believes that this requirement is necessary to 
ensure that when an individual with a disability presses a call button, 
an accessible elevator will arrive. The Department believes that the 
effort required to meet this provision is minimal in the majority of 
situations, and the benefit to individuals with disabilities not having 
to wait unnecessarily for an accessible elevator to make its way to 
them arbitrarily outweighs any minor burden of programming 
corresponding elevators.
    Elevator Leveling. Section 407.4.4, Leveling, provides that each 
car must automatically level to \1/2\ inch at floor landings.
    Accessible Routes in Dwelling Units with Mobility Features. The 
UFAS, at sections 4.34.1 and 4.34.2, require the living area, kitchen 
and dining area, bedroom, bathroom, and laundry area where provided in 
dwelling units with mobility features to be on an accessible route. 
Where dwelling units have two or more bedrooms, at least two bedrooms 
are required to be on an accessible route.
    The proposed changes at sections 233.3.1.1, 809.1; 809.2; 809.2.1 
and 809.4 will require all spaces and elements within dwelling units 
with mobility features to be on an accessible route. These proposed 
changes exempt unfinished attics and unfinished basements from the 
accessible route requirement. These proposed changes also include an 
exception to the dispersion requirement that permits single-story 
dwelling units or ``flats'' to be constructed, where multi-story 
dwelling units are provided. A ``flat'' eliminates the need to provide 
a residential elevator or platform lift to connect stories.
    Location of Accessible Routes. The 1991 Standards, section 
4.3.2(1), require accessible routes connecting site arrival points and 
accessible building entrances to coincide with general circulation 
paths, to the maximum extent feasible. The proposed regulation requires 
all accessible routes to coincide with or be located in the same 
general area as general circulation paths. Additionally, a new 
provision specifies that where a circulation path is interior, the 
required accessible route must also be located in the interior of the 
facility, where general circulation paths are located in the interior 
of the facility. The revision affects a limited number of buildings. 
The proposed changes at section 206.3 will explicitly require all 
accessible routes to coincide with or be located in the same general 
area as general circulation paths. Designing newly constructed interior 
accessible routes to coincide with or to be located in the same area as 
general circulation paths will not typically present a difficult design 
challenge and is expected to impose limited design constraints. The 
revision will have no impact on exterior accessible routes. The 1991 
Standards and proposed standards also require accessible routes to be 
located in the interior of the facility, where general circulation 
paths are located in the interior of the facility. The revision affects 
a limited number of buildings.
    Location of Accessible Routes to Stages. The 1991 Standards at 
section 4.33.5 require an accessible route to connect the accessible 
seating and the performing area. Proposed section 206.2.6 will require 
the accessible route to directly connect the seating area and the 
accessible seating, stage, and all areas of the stage, where a 
circulation path directly connects the seating area and the stage. The 
1991 Standards require and the proposed changes also will require an 
accessible route to connect the stage and ancillary areas used by 
performers such as dressing rooms. The proposed standards do not 
require an additional accessible route to be provided to the stage. 
Rather, the changes specify where the accessible route to the stage, 
which is required by the 1991 Standards, must be located.

207 Accessible Means of Egress

    General. The 1991 Standards at sections 4.1.3(9); 4.1.6(1)(g); and 
4.3.10 establish scoping and technical requirements for accessible 
means of egress. The proposed changes at section 207.1, Exception 1 
reference the International Building Code for scoping and technical 
requirements for accessible means of egress. Relevant proposed sections 
include 216.4.
    The 1991 Standards require the same number of accessible means of 
egress to be provided as the number of exits required by applicable 
building and fire codes. The International Building Code (IBC) requires 
at least one accessible means of egress and at least two accessible 
means of egress where more than one means of egress is required by 
other sections of the code. The proposed changes are expected to have 
minimal impact since the model fire and life safety codes, which are 
adopted by all the States, contain equivalent requirements with respect 
to the number of accessible means of egress.
    The 1991 Standards require areas of rescue assistance or horizontal 
exits in facilities with levels above or below the level of exit 
discharge level. Areas of rescue assistance are spaces that have direct 
access to an exit, stair, or enclosure where individuals who are unable 
to use stairs can go to call for assistance and wait for evacuation. 
The proposed standards will now incorporate the requirements 
established by the IBC. The IBC requires an evacuation elevator 
designed with standby power and other safety features that can be used 
for emergency evacuation of individuals with disabilities in facilities 
with four or more stories above or below the exit discharge level, and 
allows exit stairways and evacuation elevators to be used as an 
accessible means of egress in conjunction with areas of refuge or 
horizontal exits. The proposed change is expected to have minimal 
impact since the model fire and life safety codes, adopted by most 
States, already contain parallel requirements with respect to 
evacuation elevators.
    The 1991 Standards exempt facilities equipped with a supervised 
automatic sprinkler system from providing areas of rescue assistance, 
and also exempt alterations to existing facilities from providing an 
accessible means of egress. The IBC exempts buildings equipped with a 
supervised automatic sprinkler system from certain technical 
requirements for areas of refuge, and also exempts alterations to 
existing facilities from providing an accessible means of egress.
    The proposed standards will require signs that provide direction to 
or information about functional spaces to meet certain technical 
requirements. The proposed standard at section 216.4 addresses exit 
signs. This section requires exit signs at doors to be raised with 
Braille characters, and also requires directional exit signs and signs 
at areas of refuge to have appropriate visual characteristics. This 
section is consistent with the requirements of the IBC. Signs used for 
means of egress are covered by this scoping requirement. The proposed 
requirements specifically identify signs used for means of egress and 
require the signs to meet certain technical requirements.
    Standby Power for Platform Lifts. The proposed regulations at 
section 207.2

[[Page 36970]]

will require standby power to be provided for platform lifts that are 
permitted to serve as part of an accessible means of egress by the IBC. 
The IBC permits platform lifts to serve as part of an accessible means 
of egress in a limited number of places where platform lifts are 
allowed in new construction. The 1991 Standards and the proposed 
regulations similarly limit the places where platform lifts are allowed 
in new construction. ADAAG 4.1.3(5) Exception 4(a) through (d); 
sections 206.7.1 through 206.7.10 of the proposed regulations.
    Commenters urged the Department to reconsider provisions that would 
require standby power to be provided for platform lifts. Concerns were 
raised that ensuring standby power is too burdensome. The Department 
views this issue as a fundamental life safety issue. Lift users face 
the prospect of being trapped on the lift in the event of a power 
failure if stand-by power is not provided. The lack of stand-by power 
could be life-threatening in situations where the power failure is 
associated with a fire or other emergency. The use of a platform lift 
is generally only one of the options available to covered entities. 
Covered entities that are concerned about the costs associated with 
maintaining standby power for a lift may wish to explore design options 
that would permit the use of a ramp.

208 and 502 Parking Spaces

    General. Where parking spaces are provided, the proposed standards 
at sections 4.1.2(5)(a) and (7) and 7(a), and the proposed changes at 
section 208.1 and Exception require a specified number of the parking 
spaces to be accessible. The proposed changes add a new exception that 
exempts parking spaces used exclusively for buses, trucks, delivery 
vehicles, law enforcement vehicles, or for purposes of vehicular 
impound from the scoping requirement for parking spaces. If a lot 
containing parking spaces for these vehicles is used by the public, the 
lot is required to have an accessible passenger loading zone.
    The proposed standards require accessible parking spaces to be 
identified by signs that display the International Symbol of 
Accessibility. At section 216.5 and Exceptions 1 and 2 new changes will 
add two new exceptions that exempt accessible parking spaces from the 
signage requirement. The first exception exempts sites that have four 
or fewer parking spaces from the signage requirement. The second 
exception exempts residential facilities where parking spaces are 
assigned to specific dwelling units from the signage requirement.
    Commenters stated that the first exception, by allowing a parking 
lot with four or fewer spaces not to post a sign at its one accessible 
space, is problematic because it could allow all drivers to park in 
accessible parking spaces. The Department believes that this exception 
provides necessary relief for small business entities that may 
otherwise face the prospect of having between twenty-five percent (25%) 
and one hundred percent (100%) of their limited parking area 
unavailable to their customers because it is reserved for the exclusive 
use of persons with accessible tags or parking placards. The proposed 
standards still require these businesses to ensure that at least one of 
their available spaces is designed to be accessible.
    A commenter stated that accessible parking spaces must be clearly 
marked. The Department notes that section 502.6, Identification, 
provides that parking spaces must be identified by signs that include 
the International Symbol of Accessibility. Additional signs are 
required to identify van accessible spaces. Also, section 502.3.3, 
Marking, requires that access aisles are to be marked so as to 
discourage parking in them.
    Access Aisle. The advisory note accompanying section 502.3 provides 
that it is preferable that the accessible route connecting parking 
spaces to accessible entrances not pass behind parked vehicles.
    Commenters questioned why this advisory note would permit the 
placement of individuals with disabilities in the path of moving 
vehicles. The Department believes that the proposed standards 
appropriately recognize that not all parking facilities provide 
separate pedestrian routes. Section 502.3 provides the flexibility 
necessary to permit designers and others to determine the most 
appropriate location of the access route in connection to the 
accessible entrances. If all pedestrians using the parking facility are 
expected to share the vehicular lanes, then the ADA permits covered 
entities to use the vehicular lanes as part of the accessible route. 
The advisory note, however, calls attention to the fact that this 
practice, while permitted, is not ideal. Accessible parking spaces must 
be located on the shortest accessible route of travel to the facility's 
entrance. Accessible parking spaces and the required accessible route 
should be located where individuals with disabilities do not have to 
cross vehicular lanes or pass behind parked vehicles to have access to 
the entrance. If it is necessary to cross a vehicular lane because, for 
example, local fire engine access requirements prohibit parking 
immediately adjacent to a building, then a marked crossing should be 
used as part of the accessible route to the entrance.
    Van Accessible Parking Spaces. The 1991 standards at sections 
4.1.2(5)(b), 4.6.3; 4.6.4; and 4.6.5 require one in every eight 
accessible parking spaces to be van accessible. Proposed changes will 
require one in every six accessible parking spaces to be van 
accessible.
    A commenter asked whether automobiles other than vans may use van 
accessible parking spaces. The ADA regulations do not prohibit 
automobiles other than vans from using van accessible parking spaces. 
The Department does not distinguish between automobiles that are actual 
``vans'' versus other vehicles such as trucks, station wagons, SUVs, or 
other automobiles because many vehicles other than vans may be used by 
individuals with disabilities to transport mobility devices.
    Commenters' opinions were divided on this proposal. Facility 
operators and others asked for a reduction in the number of required 
accessible parking spaces, especially the number of van accessible 
parking spaces because they claimed these spaces often are not used. 
Individuals with disabilities, however, requested an increase in the 
scoping requirements for these parking spaces.
    The Department is aware that a strong difference of opinion exists 
between those who use such spaces and those who must provide or 
maintain them. Therefore, the Department is not proposing to increase 
the total number of accessible spaces. The only change that is being 
proposed is to increase the proportion of spaces that must be 
accessible to vans and other vehicles equipped to transport mobility 
devices.
    Direct Access Entrances from Parking Structures. Where levels in a 
parking garage have direct connections for pedestrians to another 
facility, the 1991 Standards, 4.1.3(8)(b)(i), require at least one of 
the direct connections to be accessible. The proposed changes at 
section 206.4.2 require all of the direct connections to be accessible.

209 and 503 Passenger Loading Zones and Bus Stops

    Passenger Loading Zones at Medical Care and Long-term Care 
Facilities. Sections 6.1 and 6.2 of the 1991 Standards and proposed 
section 209.3 require medical care and long-term care facilities, where 
the period of stay exceeds 24 hours, to provide at least one passenger 
loading zone at an accessible

[[Page 36971]]

entrance. The 1991 Standards also require a canopy or roof overhang at 
the passenger loading zone. The proposed standards will not require a 
canopy or roof overhang.
    Commenters urged the Department to reinstate the existing 
requirement for a canopy or roof overhang at passenger loading zones at 
medical care and long-term care facilities. While the Department 
recognizes that a canopy or roof overhang may afford useful protection 
from inclement weather conditions to everyone using a facility, it is 
not clear that the absence of such protection would impede access by 
individuals with disabilities. Therefore, the Department declines to 
reinstate that requirement.
    Passenger Loading Zones. Where passenger loading zones are 
provided, the 1991 Standards, at sections 4.1.2(5) and 4.6.6, require 
at least one passenger loading zone to be accessible. The proposed 
changes at sections 209.2.1, 503.2, 503.3, 503.3.1, 503.3.2, 503.3.3, 
and 503.4 Exception, will require facilities such as airport passenger 
terminals that have long, continuous passenger loading zones to provide 
one accessible passenger loading zone in every continuous 100 linear 
feet of loading zone space. The 1991 Standards and the proposed 
standards include technical requirements for the vehicle pull-up space 
(96 inches wide minimum and 20 feet long minimum). Accessible passenger 
loading zones must have an access aisle that is 60 inches wide minimum 
and extends the full length of the vehicle pull-up space. The 1991 
Standards provide that the access aisle may be on the same level as the 
vehicle pull-up space, or on the sidewalk with a curb ramp. The 
proposed changes will require the access aisle to be on the same level 
as the vehicle pull-up space and to be marked so as to discourage 
parking in the access aisle.
    Commenters expressed concern that certain covered entities, 
particularly airports, cannot accommodate the proposed requirements to 
provide passenger loading zones, and urged a revision that would 
require one passenger loading zone located in reasonable proximity to 
each building entrance served by the curb.
    Commenters raised a variety of issues about the requirements at 
section 503 stating that the requirements for an access aisle, width, 
length, and marking of passenger loading zones are not clear and do not 
fully meet the needs of individuals with disabilities, and stated that 
these requirements may run afoul of state or local requirements, or may 
not be needed because many passenger loading zones are typically 
staffed by doormen or valet parkers. The wide range of opinions 
expressed in these comments indicates that this provision is 
controversial. However, none of these comments provides sufficient data 
to enable the Department to determine that the requirement is not 
appropriate.
    Valet Parking and Mechanical Access Parking Garages. The 1991 
Standards, sections 4.1.2(5)(a) and (e), and the proposed changes, 
sections 208.2, 209.4, and 209.5 require parking facilities that 
provide valet parking services to have an accessible passenger loading 
zone. The proposed standards will extend this requirement to mechanical 
access parking garages. The 1991 Standards contain an exception that 
exempts valet parking facilities from providing accessible parking 
spaces. The proposed standards also will eliminate this exception. The 
reason for not retaining the provision is that valet parking is a 
service, not a facility type.
    Commenters questioned why the exception for valet parking 
facilities from providing accessible parking spaces is being 
eliminated. The provision is being eliminated because valet parkers may 
not have the skills necessary to drive a vehicle that is equipped to be 
accessible, including use of hand controls, or when a seat is not 
present to accommodate a driver using a wheelchair. In that case, 
permitting the individual with a disability to self-park may be a 
required reasonable modification of policy for a covered entity.

210 and 504 Stairways

    The 1991 Standards provide that stairs are required to be 
accessible only when they provide access to floor levels not otherwise 
connected by an accessible route (e.g., an elevator, lift, or ramp). 
The proposed standards at sections 210.1 and 504.2 will require all 
newly constructed stairs that are part of a means of egress to comply 
with the requirements for accessible stairs, which cover treads, 
risers, and handrails. In existing facilities, where floor levels are 
connected by an accessible route, only the handrail requirement will 
apply.
    Commenters were divided in their response to this provision. The 
Department believes that it strikes an appropriate balance by focusing 
the expanded requirements on new construction.

211 and 602 Drinking Fountains

    Sections 4.1.3(10)(a) and 4.1.3(b), 4.15.2, 4.15.5(1) and 4.15.5(2) 
of the 1991 Standards, and the changes proposed at sections 211.1, 
211.2 Exception; 211.3 Exception, 602.2 Exception, 602.4, and 602.7 
require drinking fountains to be provided for wheelchair users and for 
people who stand. The 1991 Standards require wall and post-mounted 
cantilevered drinking fountains mounted at a height for wheelchair 
users to provide clear floor space for a forward approach with knee and 
toe clearance, and free standing or built-in drinking fountains to 
provide clear floor space for a parallel approach. The proposed changes 
require drinking fountains mounted at a height for wheelchair users to 
provide clear floor space for a forward approach with knee and toe 
clearance, and include an exception for a parallel approach for 
drinking fountains installed at a height to accommodate very small 
children. The changes also include a technical requirement for drinking 
fountains for standing persons.
    One commenter recommended that the mounting height of drinking 
fountains should take into consideration the increased use of three-
wheeled electric scooters and the increasing size of wheelchairs. The 
Department is aware that the use of three- and four-wheeled electric 
scooters may be increasing and that wheelchairs may be larger than in 
the past; however, no reliable data is yet available indicating 
specific dimensions that may be needed to provide access to individuals 
using these devices. Therefore, at the present time, the Department 
intends to retain the proposed requirements.

212 and 606 Kitchens, Kitchenettes, Lavatories, and Sinks

    The 1991 Standards at sections 4.1.1; 4.24.1; 4.24.3; 4.24.5; and 
9.2.2(7) contain technical requirements for sinks, but only have 
specific scoping requirements for sinks in transient lodging. Proposed 
sections 212.3 will require at least 5 percent of sinks in each 
accessible space to comply with the technical requirements for sinks. 
The technical requirements address clear floor space, height, faucets, 
and exposed pipes and surfaces. The 1991 Standards and the proposed 
changes require the clear floor space at sinks to be positioned for a 
forward approach, and knee and toe clearance to be provided under the 
sink. The 1991 Standards allow the clear floor space at kitchen sinks 
and wet bars in hotel guest rooms with mobility features to be 
positioned for either a forward approach with knee and toe clearance, 
or for a parallel approach. The proposed changes include a broader 
exception that permits the clear floor space to be positioned for a 
parallel approach at kitchen sinks in any space where a cook top or 
conventional range is not provided, and at a wet bar.

[[Page 36972]]

    A commenter stated that it is unclear what the difference is 
between a sink and a lavatory, and that this is complicated by 
requirements that apply to sinks (5 percent accessible) and lavatories 
(at least 1 accessible). The term ``lavatory'' generally refers to the 
specific type of plumbing fixture required for hand washing in toilet 
and bathing facilities. The more generic term ``sink'' applies to all 
other types of sinks located in covered facilities.
    A commenter recommended that the mounting height of sinks and 
lavatories should take into consideration the increased use of three-
wheeled electric scooters and some larger wheelchairs. The Department 
is aware that the use of three-wheeled electric scooters and larger 
wheelchairs may be increasing; however, although no reliable data is 
yet available, the Access Board is working to obtain data that may be 
used to develop design guidelines that provide access to individuals 
using these mobility devices.

213, 603, 604, and 608 Toilet and Bathing Facilities, Rooms, and 
Compartments

    General. Where toilet facilities and bathing facilities are 
provided, they must comply with section 213.
    A commenter recommended that all accessible toilet facilities, 
toilet rooms, and compartments should be required to have signage 
indicating that such spaces are restricted solely for the use of 
individuals with disabilities. The Department believes that it is 
neither necessary nor appropriate to restrict the use of accessible 
toilet facilities. Like many other facilities designed to be 
accessible, accessible toilet facilities can provide a necessary level 
of usability for a wide range of individuals with and without 
disabilities.
    Ambulatory Accessible Toilet Compartments. The proposed changes at 
sections 213.3.1 and 604.8.2 will require multi-user men's toilet rooms 
where the total of toilet compartments and urinals is six or more to 
contain at least one ambulatory accessible compartment. The 1991 
Standards count only toilet compartments for this purpose. The proposed 
standards will establish parity with multi-user women's toilet rooms.
    Urinals. Men's toilet rooms with only one urinal will no longer be 
required to provide an accessible urinal. Such toilet rooms will still 
be required to provide an accessible toilet compartment.
    Commenters urged that the exception be eliminated. This change will 
provide flexibility to many small businesses. This provision does not 
alter the requirement that all common use restrooms must be accessible. 
Therefore, the Department declines to eliminate the exception.
    Multiple Single-user Toilet Rooms. Where multiple single-user 
toilet rooms are clustered in a single location, fifty percent (50%), 
rather than the currently required one hundred percent (100%), will be 
required to be accessible by proposed section 213.2. Accessible single-
user toilet rooms will have to be identified by the international 
symbol of accessibility.
    Hospital Patient Toilet Rooms. An exception has been added in 
section 223.1 that provides that toilet rooms that are part of critical 
or intensive care patient sleeping rooms will no longer be required to 
provide mobility features.
    Water Closet Location and Rear Grab Bar. Sections 604.2 and 
604.5.2, Exception 1 of the proposed changes will allow greater 
flexibility for the placement of the centerline of water closets, and 
will permit a shorter grab bar where there is not enough space due to 
special circumstances (e.g., because a lavatory is located next to the 
water closet in dwelling units and the wall behind the lavatory is 
recessed so that the lavatory does not overlap the clear floor space at 
the water closet). The 1991 Standards contain no exception for grab bar 
length, and require the centerline to be exactly 18 inches from the 
side wall, while the proposed requirement will allow the centerline to 
be between 16 and 18 inches from the wall.
    Commenters recommended that the centerline location of water 
closets should be 18 inches plus or minus 1 inch because people are 
becoming larger and the toilet paper dispensers are becoming larger and 
protrude into the 18 inch space. Other commenters suggested that the 
proposed requirement will increase the overall size of toilet rooms 
unnecessarily and recommended smaller dimensions.
    The Department is aware that this issue has sparked debate of a 
highly speculative nature. The Department is not aware of clear 
evidence that the dimensional change adopted by the Access Board and 
the model code organizations is incorrect or unworkable. Therefore, the 
Department will retain the requirement.
    Water Closet Clearance. Proposed section 604.3 represents a change 
where a lavatory is installed adjacent to the water closet. The 1991 
Standards allow lavatories to be placed 18 inches minimum from the 
water closet centerline, which precludes side transfers. To allow 
greater transfer options, the proposed standards prohibit lavatories 
from overlapping the clear floor space at water closets, except in 
dwelling units.
    Commenters urged the Department not to adopt section 604.3 claiming 
that it will require single-user toilet rooms to be two feet wider than 
the requirements now provide, and this additional requirement will be 
difficult to meet.
    The requirements at section 604.3.2 specify how required clearance 
around the water closet can overlap with specific elements and spaces. 
An exception, that applies only to residential dwelling units, permits 
a lavatory to be located no closer than 18 inches from the centerline 
of the water closet. The requirements at section 604.3.2 increase 
accessibility for individuals with disabilities.
    Toilet Room Doors. Section 603.2.3 of the proposed rule permits the 
doors of single user toilet or bathing rooms with in-swinging doors to 
swing into the required turning space, but not into the clear floor 
space required at any fixture. Section 603.2.3 Exception 2 permits the 
door to swing into the clear floor space of an accessible fixture if a 
clear floor space that measures 30 inches by 48 inches is available 
outside the door swing in single-user toilet rooms.
    Concerns were raised that permitting doors of single user toilet or 
bathing rooms with in-swinging doors to swing into the clearance around 
any fixture will result in inaccessibility to individuals using larger 
wheelchairs and scooters. The Department believes the provision is 
sufficient to meet the needs of individuals using larger scooters and 
wheelchairs.
    The Department prepared a series of figures illustrating 
comparisons of the minimum size single-user toilet rooms. These figures 
show typical examples that meet the minimum requirements of the 
proposed rule.

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BILLING CODE 4410-13-C

    Shower Spray Controls. In accessible bathtubs and shower 
compartments, sections 607.6 and 608.6 of the proposed standards will 
require shower spray controls to have an on/off control and to deliver 
water that is 120 [deg]F (49 [deg]C) maximum. Currently, neither 
feature is required by the 1991 Standards, but may be required by 
plumbing codes. Meeting the latter specification will require either 
controlling the maximum temperature at each shower spray unit or at the 
hot water supply.
    Shower Compartments. The 1991 Standards at sections 4.21.2; 9.1.2; 
4.21.5; and 4.21.7, and the proposed standards at sections 608.1; 
608.2.1; 608.2.3; 608.4; 608.5.3; and 608.7, Exception contain 
technical requirements for transfer-type and roll-in shower 
compartments. The proposed standards provide more flexibility than the 
1991 Standards as follows:
    [squf] Transfer-type showers are 36 inches by 36 inches. The 
proposed standards specify that these dimensions are measured at the 
center point of opposing sides to accommodate molded compartments with 
rounded bottom edges.
    [squf] The 1991 Standards and the proposed standards permit a \1/
2\-inch maximum curb in transfer-type showers. The proposed standards 
add a new exception that permits a 2-inch maximum curb in transfer-type 
showers in alterations to existing facilities, where recessing the 
compartment to achieve a \1/2\-inch curb will disturb the structural 
reinforcement of the floor slab.
    [squf] Roll-in showers are 30 inches minimum by 60 inches minimum. 
Alternate roll-in showers are 36 inches by 60 inches minimum, and have 
a 36 inch minimum opening on the long side of the compartment. The 1991 
Standards require alternate roll-in showers in a portion of accessible 
hotel guest rooms, but provision of this shower type in other 
facilities is generally permitted as an equivalent facilitation. The 
1991 Standards require a seat to be provided on the side with the 
opening; and require the controls to be located on the side adjacent to 
the seat. The proposed standards will permit alternate roll-in showers 
to be used in any facility; only require a seat in hotel guest rooms 
only; and allow location of controls on the back wall opposite the seat 
as an alternative.
    A disability advocacy group and others raised concerns that adding 
a new exception that permits a - inch maximum curb in transfer-type 
showers in alterations to existing facilities, where recessing the 
compartment to achieve a \1/2\-inch curb will disturb the structural 
reinforcement of the floor slab, will impair the ability of individuals 
with disabilities to use transfer-type showers.

[[Page 36977]]

    The exception permitting an increased maximum curb in transfer-type 
showers is allowed only when structural barriers prevent full 
compliance, therefore the Department believes its use will be 
restricted to limited situations. The exception is intended to provide 
some flexibility to provide accessibility where the existing structure 
precludes full access.
    Toilet and Bathing Rooms. Section 603, Toilet and Bathing Rooms, 
provides the technical requirements for toilet and bathing rooms.
    Commenters recommended that section 603, Toilet and Bathing Rooms, 
should include requirements for unisex toilet and bathing rooms. These 
commenters suggested that unisex toilet and bathing rooms are most 
useful as companion care facilities.
    Model plumbing and building codes require single-user (unisex or 
family) toilet facilities in certain occupancies, primarily assembly 
facilities, covered malls, and transportation facilities. These toilet 
rooms provide flexibility for persons needing privacy so that they can 
obtain assistance from family members or persons of the opposite sex. 
When these facilities are provided, both the 1991 Standards and 
proposed standards require that they be accessible. The Access Board 
did not scope unisex toilet facilities because plumbing codes generally 
determine the number and type of plumbing fixtures to be provided in a 
particular occupancy and often determine whether an occupancy must 
provide separate sex facilities in addition to single-user facilities. 
However, the Access Board did provide scoping at section 213.2.1 to 
coordinate with model plumbing and building code requirements which 
will permit a small toilet room with two water closets or one water 
closet and one urinal to be considered a single-user toilet room 
provided the room has a privacy latch. In this way, a person needing 
assistance from a person of the opposite sex can lock the door to use 
the facility while temporarily inconveniencing only one other user. 
These provisions strike a reasonable balance and pose a lesser impact 
on covered businesses and other occupancies required to provide fewer 
plumbing fixtures.
    A commenter recommended that in shower compartments rectangular 
seats as provided in section 610.3.1 should not be permitted as a 
substitute for L-shaped seats as provided in 610.3.2.
    The proposed standards do not indicate a preference for either 
rectangular or L-shaped seats in shower compartments.

214 and 611 Washing Machines and Clothes Dryers

    The proposed standard, sections 214.2-3, 611.3, and 309.3 will 
specify the number of machines of each type required to be accessible 
(1-2 depending upon the total number provided). An exception will 
permit the maximum height for the tops of these machines to be 2 inches 
higher than the general requirement for high reach maximums over an 
obstruction.
    A commenter objected to the scoping provision for accessible 
washing machines and clothes dryers stating that the probability that 
more than one accessible machine will be needed at the same time would 
appear to be low in the context of transient lodging.
    The scoping in this provision is based on the relative size of the 
facility rather than the identity of the covered entity. The Department 
assumes that the size of the facility (and, therefore the number of 
accessible machines provided) will be determined by the covered 
entities' assessment of the demand for laundry facilities. The 
Department declines to assume that people with disabilities will have 
less use for accessible facilities in transient lodging than in other 
public accommodations.

216 and 703 Signs

    The following types of signs, though they are not specifically 
subject to the 1991 Standards for raised character and Braille signs, 
will now be explicitly exempted by sections 216.1, Exceptions 1-3, 
216.2, Exception, 216.3, 703.4.1, and 703.4.2, Exception. These types 
of signs include: Seat and row designations in assembly areas; occupant 
names, building addresses; company names and logos; signs in parking 
facilities (except those identifying accessible parking spaces and 
means of egress); and exterior signs identifying permanent rooms and 
spaces that are not located at the door to the space they serve. This 
requirement also will clarify that the exception for temporary signs 
applies to signs used for seven days or less.
    The proposed standards retain the option to provide one sign where 
both visual and tactile characters are provided or two signs, one with 
visual, and one with tactile characters.

217 and 704 Telephones

    Drive-up Public Telephones. Where public telephones are provided, 
the 1991 Standards, at section 4.1.3(17)(a), and proposed section 
217.2, Exception, require a certain number of telephones to be 
wheelchair accessible. The proposed requirement adds a new exception 
that exempts drive-up public telephones.
    Public Telephone Volume Controls. Current sections 4.1.3(17), 
4.30.7(2), and 4.31.5 require all wheelchair accessible public 
telephones and twenty-five percent (25%) of all other public telephones 
to have volume controls, and to be identified by signs. Proposed 
changes at sections 217.3 and 704.3 will require all public telephones 
to have volume controls, and will delete the requirement for 
identifying signs. The 1991 Standards require volume control telephones 
to provide a minimum gain of 12 dB and a maximum gain of 18 dB. A 
proposed change will require a gain up to 20 dB minimum and an 
automatic reset.
    The proposed change is expected to have minimum impact since the 
proposed scoping and technical requirements are consistent with 
guidelines and standards issued by the Access Board under section 255 
of the Telecommunications Act of 1998 (36 CFR 1193.43(e)), and Section 
508 of the Rehabilitation Act of 1973, as amended, (36 CFR 1194.23(f)) 
which require all new telephones to have volume controls.
    TTY. Section 4.1.3(17) of the 1991 Standards require a public TTY 
if there are four or more public pay telephones at a site and at least 
one is in an interior location. Proposed changes, 217.4.2, will require 
that a building or facility provide a public TTY on each floor that has 
four or more public telephones, and in each telephone bank that has 
four or more telephones as proposed by sections 217.4.1, 217.4.3, 
217.4.3.1, 217.4.3.2, 217.4.4, 217.4.5, 217.4.6, 217.4.7, and 217.4.8.
    Another commenter stated that requiring installation of telephones 
within the proposed reach range requirements would adversely impact the 
public and telephone owners and operators. According to the commenter, 
people without disabilities will not use telephones that are installed 
within the reach range requirements because they may be inconvenienced 
by bending to operate these telephones, and, therefore, owners and 
operators will lose revenues because of the reduction in use.
    This comment misunderstands the scoping requirements for wheelchair 
accessible telephones. Proposed section 217.2 provides that where one 
or more single units are provided, only one unit per floor, level, or 
exterior site is required to be wheelchair accessible. However, where 
banks of telephones are provided, only one telephone in each bank is 
required to be wheelchair accessible. The Department believes these 
scoping requirements for

[[Page 36978]]

wheelchair accessible telephones are reasonable and will not result in 
burdensome obligations or lost revenue for owners and operators.

218 and 810 Transportation Facilities

    Detectable Warnings. Detectable warnings are a distinctively 
textured surface of truncated domes that is identifiable by cane and 
underfoot. The 1991 Standards at sections 4.1.3(15); 4.7.7; 4.29.2; 
4.29.5; 4.29.6; and 10.3.1(8) require detectable warnings at curb 
ramps, hazardous vehicular areas, reflecting pools, and transit 
platform edges. The proposed revisions at sections 218.2; 218.3; 810.5; 
810.5.2; 705.1; 705.1.1; 705.1.2; 705.1.3; and 705.2 only require 
detectable warnings at transit platform edges. The proposal will change 
the technical specifications for the diameter and spacing of the 
truncated domes. The proposal also deletes the requirement for the 
material used to provide contrast to be an integral part of the 
truncated domes and for the truncated domes to contrast in resiliency 
or sound-on-cane contact from adjoining walking surfaces at interior 
locations.
    The proposed revisions to the 1991 Standards apply to detectable 
warnings on developed sites. They do not apply to the public-right-of-
way. Scoping for detectable warnings at all locations other than 
transit platform edges has been eliminated from this rule. However, 
because detectable warnings have been shown to significantly benefit 
individuals with disabilities at transit platform edges, the proposed 
standards will provide scoping and technical requirements for 
detectable warnings at transit platform edges.

219 and 706 Assistive Listening Systems

    Signs. Section 216.10 requires each covered assembly area to 
provide signs at each auditorium to inform patrons that assistive 
listening systems are available. However, an exception to this 
requirement permits assembly areas that have ticket offices or ticket 
windows to display the required signs at the ticket window.
    A commenter recommended eliminating the exception at 216.10 
because, for example, people who buy tickets through the mail, by 
subscription, or on-line may not need to stop at a ticket office or 
window upon arrival at the assembly area. The Department believes that 
an individual's decision to purchase tickets before arriving at a 
performance does not limit the discretion of the assembly operator to 
use the ticket window to provide other services to its patrons. The 
Department is retaining the exception at 216.10 to permit the venue 
operator some flexibility in determining how to meet the needs of its 
patrons.
    Audible Communication. The 1991 Standards at section 4.1.3(19)(b) 
require assembly areas where audible communication is integral to the 
use of the space to provide an assistive listening system if they have 
an audio amplification system or an occupant load of 50 or more people 
and have fixed seating. The proposed standards at section 219 will 
require assistive listening systems in spaces where communication is 
integral to the space and audio amplification is provided, and in 
courtrooms.
    The 1991 Standards require receivers to be provided for at least 4 
percent of the total number of seats minimum. The proposed standards at 
section 219.3, will revise the percentage of receivers required 
according to a table that correlates the required number of receivers 
to the seating capacity of the facility. Small facilities will continue 
to provide receivers for 4 percent of the seats. The required 
percentage declines as the size of the facility increases. The changes 
proposed also will require at least twenty-five (25%), but no fewer 
than two, of the receivers to be hearing-aid compatible. Assembly areas 
served by an induction loop assistive listening system will not have to 
provide hearing-aid compatible receivers.
    Commenters were divided in their opinion of this change. The 
Department believes that the reduction in the required number of 
assistive listening systems for larger assembly areas will meet the 
needs of individuals with disabilities. The new requirement to provide 
hearing-aid compatible receivers should make assistive listening 
systems more usable for people who have been underserved until now.
    Concerns were raised that the requirement to provide assistive 
listening systems may have an adverse impact on restaurants. This 
comment misunderstands the scope of coverage. The proposed standards 
define the term ``assembly area'' to include facilities used for 
entertainment, educational, or civic gatherings. Restaurants would fall 
within this category only if they are presenting programs to educate or 
entertain diners, and if the restaurant provides an audio amplification 
system.
    Same Management or Building. The proposed standards add a new 
exception that allows multiple assembly areas that are in the same 
building and under the same management, such as theaters in a multiplex 
cinema and lecture halls in a college building, to calculate the number 
of receivers required based on the total number of seats in all the 
assembly areas, instead of each assembly area separately, where the 
receivers are compatible with the assistive listening systems used in 
each of the assembly areas.
    Mono Jacks, Sound Pressure, etc. Section 4.33.7 of the 1991 
Standards does not contain specific technical requirements for 
assistive listening systems. The proposed changes at sections 706.1, 
706.2, 706.3, 706.4, 706.5, and 706.6 will require assistive listening 
systems to have standard mono jacks; and will require hearing-aid 
compatible receivers to have neck loops to interface with telecoils in 
hearing aids. The proposed changes also specify sound level pressure, 
signal-to-noise ratio, and peak clipping level. Currently available 
assistive listening systems meet the proposed technical requirements.

220 and 707 Automatic Teller Machines and Fare Machines

    Proposed changes at section 707 will add specific technical 
requirements for speech output, privacy, tactilely discernable input 
controls, display screens, and Braille instructions to current general 
accessibility requirements. Exceptions will be made that relate to the 
type of network or information provided (for example, audible tones 
will not be required for visible output where privacy is desirable). 
The 1991 Standards require these machines to be accessible to and 
independently usable by people with visual impairments, but do not 
contain any technical specifications.
    The Department received comments on this provision from the banking 
industry that focused primarily on the effects on operating policies 
and existing equipment. Those issues have been addressed in the 
preamble to the NPRM.

221 Assembly Areas

    Aisle Stairs and Ramps. The 1991 Standards sections 4.1.3 and 
4.1.3(4) require that interior, and exterior, stairs connecting levels 
that are not connected by an elevator, ramp, or other accessible means 
of vertical access shall comply with the technical requirements for 
stairs found in section 4.9. The proposed section 210.1 requires that 
stairs that are part of a means of egress shall comply with the 
technical requirements for stairs in proposed section 504. The 1991 
Standards currently do not contain any exceptions for aisle stairs in 
assembly areas. The proposed section 210.1, Exception 3, adds a new 
exception that exempts aisle stairs in assembly areas from the

[[Page 36979]]

technical requirements for stairs found in proposed section 504, 
including the handrail technical requirements found in proposed section 
505.
    The 1991 Standards at section 4.8.5 now exempt aisle ramps that are 
part of an accessible route, from providing handrails on the side 
adjacent to seating. The proposed regulations at section 405.1 exempt 
aisle ramps, adjacent to seating in assembly areas and not serving 
elements required to be on an accessible route, from complying with all 
the technical requirements for ramps proposed in section 405. Where 
aisle ramps in assembly areas serve elements required to be on an 
accessible route, the proposed regulation will require that the aisle 
ramps comply with the technical requirements for ramps in proposed 
section 405. The proposed standards will not require a handrail on an 
aisle ramp at adjacent seating because proposed sections 505.2 and 
505.3 provide exceptions for aisle ramp handrails. Section 505.2 
proposes that in assembly areas, a handrail may be provided at either 
side or within the aisle width when handrails are not provided on both 
sides of aisle ramps. Section 505.3 proposes that, in assembly areas, 
handrails need not be continuous in aisles serving seating.
    Wheelchair Spaces/Companion Seats. The proposed standards at 
section 221 reduce the number of wheelchair spaces and companion seats 
required in assembly areas that seat more than 500 patrons. The 1991 
Standards at 4.1.3 (19)(a) provide that assembly areas with more than 
500 seats must provide six wheelchair spaces plus one additional 
wheelchair space for each additional 100 seats. Sections 221.2; 
221.2.1.1; 221.2.1.2; and 221.2.1.3 of the proposed standards provide 
that assembly areas that have 501 to 5000 seats must provide six 
wheelchair spaces plus one additional wheelchair space for each 
additional 150 seats (or fraction thereof) between 501 and 5000. 
Assembly areas that have more than 5000 seats must provide 36 
wheelchair spaces plus one additional wheelchair space for each 200 
seats (or fraction thereof) over 5000. Both the 1991 Standards and the 
proposed standards require assembly areas to provide a companion seat 
adjacent to each wheelchair space.
    The proposed changes clarify that the scoping requirements are to 
be applied separately to general seating areas, and to each luxury box, 
club box, and suites in stadiums and arenas. In performing arts 
facilities with tiered boxes, the scoping requirement is applied to the 
total number of seats in the tiered boxes, and the wheelchair spaces 
are required to be dispersed among at least twenty percent (20%) of the 
tiered boxes.
    Commenters questioned why scoping requirements for assembly areas 
are being reduced. During the development of the 2004 ADAAG, industry 
providers, particularly those for larger stadium-style assembly areas, 
supplied data to the Access Board demonstrating the current scoping 
requirements for large assembly areas often exceed the demand. Based on 
the data provided to the Access Board, the Department now believes the 
reduced scoping requirements will adequately meet the needs of 
individuals with disabilities, while balancing concerns of the 
industry.
    Commenters raised concerns that the proposed changes clarifying 
requirements for scoping of seating areas to each luxury box, club box, 
and suites in stadiums and arenas could result in no wheelchair and 
companion spaces available for individuals with disabilities. These 
comments appear to misunderstand the proposed requirements. The rule 
will require that each luxury box, club box, and suite must be 
accessible. In addition, the remaining seating areas must contain the 
number of wheelchair and companion seating locations specified in the 
rule. In performing arts facilities with tiered boxes, the scoping 
requirement is applied to the total number of seats in the tiered 
boxes, and the wheelchair spaces are required to be dispersed among at 
least twenty percent (20%) of the tiered boxes. For example, if a 
performing arts facility has 20 tiered boxes with 5 fixed seats in each 
box, at least 4 wheelchair spaces must be provided in the boxes, and 
they must be dispersed among at least 4 of the 20 boxes.
    One commenter asked that scoping requirements for larger assembly 
areas be reduced even more than what was proposed. Although the 
commenter referenced data demonstrating that wheelchair spaces in 
larger facilities with seating capacity of 70,000 or more may not be 
used by individuals with disabilities, the data was not based on actual 
results, but was calculated at least in part based on probability 
assumptions.
    A commenter recommended that section 221.4, Designated Aisle Seats, 
be changed to require that aisle seats be on an accessible route, and 
be integrated and dispersed throughout an assembly area. Aisle seats, 
by their nature, are located with the general seating, and integration 
occurs automatically. The issue of dispersing aisle seats or locating 
them on accessible routes is much more challenging. The Access Board 
specifically requested public comment on the question of whether aisle 
seats should be required to be located on accessible routes. After 
reviewing the comments, the Access Board concluded that this could not 
be done without making significant and costly changes in the design of 
most assembly areas. However, section 221.4 requires that access aisle 
seats be the aisle seats closest to accessible routes. The Department 
concurs in that conclusion. Regarding the dispersion of aisle seats, 
the Department notes that the location of the seats is dictated to a 
great extent by the fact that they must be located on an aisle and on 
or close to an accessible route. In small facilities, very few seats 
meet those criteria. Therefore, the Department declines to propose 
further changes.
    Wheelchair Space Overlap in Assembly Areas. The 1991 Standards at 
sections 4.3.3 and the proposed changes at sections 402.1; 402.2; 
403.5.1; 802.1.4; and 802.1.5 require walkways that are part of an 
accessible route to have a 36 inch minimum clear width. The changes 
proposed specifically prohibit accessible routes from overlapping 
wheelchair spaces. This change is consistent with the technical 
requirements for accessible routes, since the clear width of accessible 
routes cannot be obstructed by any object. The proposed standards also 
specifically prohibit wheelchair spaces from overlapping circulation 
paths. An advisory note clarifies that this prohibition applies only to 
the circulation path width required by applicable building codes and 
fire and life safety codes since the codes prohibit obstructions in the 
required width of assembly aisles.
    The revision does not present any difficult design challenges and 
is expected to have minimal impact. Where a main circulation path is 
located in front of a row of seats that contains a wheelchair space and 
the circulation path is wider than required by applicable building 
codes and fire and life safety codes, the wheelchair space may overlap 
the ``extra'' circulation path width. Where a main circulation path is 
located behind a row of seats that contains a wheelchair space and the 
wheelchair space is entered from the rear, the aisle in front of the 
row may need to be wider in order not to block the required circulation 
path to the other seats in the row, or a mid-row opening may need to be 
provided to access the required circulation path to the other seats.
    Line-of-Sight. Proposed section 221.2.3 frames the basic 
comparability requirement in terms of viewing angles

[[Page 36980]]

providing that ``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 
applies to all types of assembly areas, including stadium-style movie 
theaters, sports arenas, and concert halls.
    Commenters stated that the qualitative viewing angle language 
contained in section 221.2.3 is not appropriate for an enforceable 
regulatory standard unless the terms of such language are defined. 
Other commenters requested definitions for viewing angles, an 
explanation for precisely how viewing angles are measured, and an 
explanation for precisely how to evaluate whether one viewing angle is 
better than another viewing angle. The proposed regulatory language is 
sufficient to provide a performance standard for designers, architects, 
and others necessary to provide viewing angles required by the proposed 
standard. The Department believes that as a general rule, the vast 
variety of sizes and configurations found in assembly areas requires it 
to establish a performance standard for designers to adapt to the 
specific circumstances of the venue that is being designed. The 
requirement is to design so that lines of sight for wheelchair spaces 
offer a choice of viewing angles well within the range of viewing 
angles offered to others. The Department has proposed, in section 
36.406 of this NPRM, to provide more explicit requirements for stadium-
style theaters.
    Another commenter inquired as to what determines whether a choice 
of seating locations or viewing angles is better than that available to 
all other spectators. The answer to this question varies according to 
each assembly area that is being designed. That is why the regulation 
must provide performance standards applicable to all facilities. 
Nevertheless, the Department believes that for each specific facility 
that is designed, the owner, operator, and design professionals will be 
able to distinguish easily between seating locations and associated 
lines of sight from these seat locations that are desirable and those 
that are not.
    Stadium-style Movie Theaters. The Department will implement 
provisions specific to line-of-sight issues in stadium-style movie 
theaters. The horizontal and vertical dispersion requirements set forth 
in proposed section 221.2.3.1 and 221.2.3.2 may be adopted in their 
entirety and will apply independently of any line-of-sight requirements 
of the 1991 Standards at 4.33.3. The proposed line-of-sight regulations 
recognize the importance of viewing angles to the movie going 
experience and are aimed at ensuring that movie patrons with 
disabilities are provided views of the movie screen comparable to other 
theater patrons. Some commenters supported regulatory language that 
would require stadium-style theaters to meet standards of accessibility 
equal to those of nonstadium-style theaters, with larger theaters being 
required to provide accessible seating locations and viewing angles 
equal to those offered to individuals without disabilities.
    A commenter noted that stadium-style movie theaters, sports arenas, 
music venues, theaters, and concert halls each pose unique conditions 
that require separate and specific standards to accommodate patrons 
with disabilities, and recommended that the Department provide more 
specific requirements for sports arenas, music venues, theaters, and 
concert halls. The Department believes that these proposed standards 
have been drafted in a way that will provide sufficient flexibility to 
adapt them to the wide variety of assembly venues covered.
    Vertical Access. Section 4.33.3 of the 1991 Standards requires 
wheelchair spaces to be located in more than one area where the seating 
capacity exceeds 300 and to provide a choice of admission prices. Under 
the 1991 Standards, sports facilities typically locate some wheelchair 
spaces on each accessible level of the facilities.
    The proposed standards at sections 221.2.3.2 and 206.6 do not 
require wheelchair spaces to be dispersed based on admission prices 
because pricing is not always established at the design phase and may 
vary by event. The proposed standards will require wheelchair spaces to 
be vertically dispersed at varying distances from the screen, 
performance area, or playing field. The revised provisions also will 
require wheelchair spaces to be located in each balcony or mezzanine 
served by an accessible route. Sports facilities can meet the 
requirements by locating some wheelchair spaces on each accessible 
level of the facilities, which is consistent with the current 
requirements.
    Companion Seats. The 1991 Standards at section 4.33.3 require at 
least one fixed companion seat to be provided next to each wheelchair 
space. Proposed changes at sections 221.3 and 802.3 will permit 
companion seats to be readily removable, but will not require the seats 
to be designed so they can also serve as wheelchair spaces when 
removed.
    One commenter recommended that there should be a requirement at 
section 802.3 that when companion seats are fixed, each seat shall be 
identified by a sign or marker as a companion seat. The Department 
believes that it is not necessary to identify the companion seat with 
an accessibility symbol because its placement adjacent to the 
wheelchair location makes it easily identifiable.
    Commenters urged the Department to ensure that companion seats are 
positioned in a manner that places the user at the same shoulder height 
as their companions using mobility devices. The Department recognizes 
that some facilities have created difficulty by locating either the 
wheelchair space or the companion seat on a different floor elevation 
(often a difference of one riser). The proposed standards at section 
802.3.1 address this problem by requiring the wheelchair space and the 
companion seat to be on the same floor elevation. This should prevent 
any vertical discrepancies that are not the direct result of 
differences in the sizes and configurations of wheelchairs.
    Designated Aisle Seats. Existing requirements at section 
4.1.3(19)(a) require one percent (1%) of fixed seats in assembly areas 
to be designated aisle seats. Designated aisle seats must have either 
no armrests or folding or retractable armrests on the aisle side of the 
seat.
    Proposed sections 221.4; 802.4; 802.4.1; and 802.4.2 base the 
number of required designated aisle seats on the number of aisle seats, 
instead of all the seats in a sports facility as the 1991 Standards 
require. At least five percent (5%) of the aisle seats are required to 
be designated aisle seats and to be located closest to accessible 
routes. This option will almost always result in fewer aisle seats 
being designated aisle seats compared to the 1991 Standards. Sports 
facilities typically locate designated aisle seats on, or as near to, 
accessible routes as permitted by the configuration of the facilities.
    Dispersion of Wheelchair Spaces and Lines of Sight in Assembly 
Areas. The 1991 Standards at section 4.33.3 require wheelchair spaces 
to be an integral part of any fixed seating plan in assembly areas and 
to be dispersed, when the seating capacity exceeds 300. The 1991 
Standards also require wheelchair spaces to provide individuals with 
disabilities lines of sight comparable to the sightlines available to 
other spectators in assembly areas. The Department interprets 
comparable sightlines as requiring wheelchair spaces in sports stadiums 
and arenas to provide lines of sight over standing

[[Page 36981]]

spectators to the playing field, where spectators are expected to stand 
during events. The Department also interprets comparable lines of sight 
as requiring wheelchair spaces in stadium-style movie theaters to 
provide viewing angles comparable to those provided to other 
spectators.
    The proposed revisions at sections 221.2.2; 221.2.3; 221.2.3.1, 
Exceptions 1; 221.2.3.2, Exceptions 1 and 2; 802.2; 802.2.1; 802.2.1.1; 
802.2.1.2; 802.2.2; 802.2.2.1; and 802.2.2.2 add specific technical 
requirements for providing sightlines over seated and standing 
spectators; and require wheelchair spaces to provide individuals with 
disabilities choices of seating locations and viewing angles that are 
substantially equivalent to, or better than, the choices of seating 
locations and viewing angles available to other spectators. The 
proposed changes also clarify the dispersion requirements. Wheelchair 
spaces must be dispersed horizontally and vertically. The revisions 
include exceptions for assembly areas that have 300 or fewer seats, 
where the wheelchair spaces are located in the 2nd or 3rd quartile of 
the total row length and provide viewing angles that are equivalent to, 
or better than, the average viewing angle provided in the facility. The 
revisions are expected to have minimal impact since they are consistent 
with the Department's interpretations of the 1991 Standards.
    The 1991 Standards contain an exception that permits wheelchair 
spaces to be clustered in steeply sloped bleachers and balconies. The 
proposed changes will require wheelchair spaces to be located at the 
entry points to bleachers, and in each balcony or mezzanine that is on 
an accessible route.
    Lawn Seating in Assembly Areas. The 1991 Standards, section 
4.1.1(1), require all areas of newly constructed facilities to be 
accessible, but do not contain a specific scoping requirement for lawn 
seating in assembly areas. The proposed standards at section 221.5 
specifically will require lawn seating areas and exterior overflow 
seating areas without fixed seats to connect to an accessible route. 
The accessible route does not have to extend through the lawn seating 
area.
    A commenter recommended that in section 221.5, Lawn Seating, there 
should be a requirement for at least one level area for wheelchair 
seating on an accessible route. The Department believes that unless a 
lawn seating area has fixed or designated seating locations that would 
trigger scoping requirements for wheelchair locations, an assembly 
provider can satisfy its nondiscrimination obligations by ensuring that 
there is an accessible route to the area to enable people with 
disabilities who can take advantage of lawn seating to do so.

222 and 803 Dressing, Fitting, and Locker Rooms

    Dressing rooms, fitting rooms, and locker rooms in sports or 
recreation facilities will be required to meet the accessibility 
requirements of proposed sections 222 and 803. Where rooms are provided 
in clusters, five percent (5%) but at least one room in each cluster 
will have to be accessible.
    Proposed sections 225.2.1 and 811 will require lockers to meet 
accessibility requirements. Where lockers are provided in clusters, 5 
percent but at least one locker in each cluster will have to comply. 
Under the 1991 Standards, only one locker of each type provided had be 
accessible.
    Commenters stated that many retail establishments and clothing 
stores, in particular, are concerned with a changed provision on the 
placement of benches and other accessibility-related elements and 
features in customer dressing and fitting rooms that may require 
redesigns of entire changing areas or loss of sales or inventory space 
that will be redirected to the enlarged dressing and fitting rooms. 
Comments also expressed opposition to the accessibility requirements 
for locker rooms for similar reasons.
    The Department reminds the commenters that the requirements in the 
standards are designed to apply to new construction and alterations. 
The Department believes that in these situations creative designers can 
mitigate the impact of the changes.

224 and 806 Transient Lodging Guest Rooms

    General. The minimum number of guest rooms required to be 
accessible in transient lodging facilities is covered by section 224. 
Access is addressed for people with disabilities, including people with 
mobility impairments at section 224.2, and people who are deaf or hard 
of hearing at section 224.4.
    The U.S. Chamber of Commerce and others representing the hotel 
industry provided comments opposing the current requirements for guest 
rooms accessible to individuals with mobility impairments stating that 
statistics provided by the industry demonstrate that all types of 
accessible guest rooms are unused. They further claimed that the 
proposed requirements are too burdensome to meet in new construction, 
and that the proposed requirements will result in a loss of hotel 
living space. By contrast, commenters representing people with 
disabilities urged the Department to increase the number of guest rooms 
required to be accessible.
    The number of rooms accessible to people with mobility impairments 
and the number accessible to people with communication impairments in 
the proposed standards are consistent with the 1991 Standards and with 
IBC. The Department continues to receive complaints about the lack of 
accessible guest rooms throughout the country. Accessible guest rooms 
are used not only by individuals using mobility devices such as 
wheelchairs and scooters, but by individuals with a variety of physical 
impairments such as those using walkers, canes, and crutches.
    Data provided by the Disability Statistics Center at the University 
of California, San Francisco that demonstrated the number of adults who 
use wheelchairs has been increasing at the rate of six percent per year 
from 1969 to 1999; and by 2010, it is projected that two percent of the 
adult population will use wheelchairs. In addition to people who use 
wheelchairs, three percent of adults used crutches, canes, walkers, and 
other mobility devices in 1999; and the number is projected to increase 
to four percent by 2010. Thus, by 2010, up to six percent of the 
population may need accessible guest rooms.
    Some commenters have asked the Department to clarify and simplify 
the dispersion requirements set forth in section 224.5, in particular 
the scope of the term ``amenities.'' Section 224.5 requires that 
guestrooms with mobility features and guestrooms with communication 
features ``[s]hall be dispersed among the various classes of guest 
rooms, and shall provide choices of types of guest rooms, number of 
beds, and other amenities comparable to the choices provided to other 
guests. When the minimum number of guest rooms required * * * is not 
sufficient to allow for complete dispersion, guest rooms shall be 
dispersed in the following priority: guest room type, number of beds 
and amenities.'' This general dispersion requirement is intended to 
effectuate Congress' directive that a percentage of each class of hotel 
rooms is to be fully accessible to persons with disabilities. See H.R. 
Rep. No. 101-485 (II) at 391. Accordingly, the promise of the ADA in 
this instance is that persons with disabilities will have an equal 
opportunity to benefit from the various options available to hotel 
guests without disabilities, from single occupancy

[[Page 36982]]

guestrooms with limited features (and accompanying limited price-tags) 
to luxury suites with lavish features and choices. The inclusion of 
section 224.5 is not new to the requirements, as substantially similar 
language was contained in section 9.1.4 of the 1991 Standards.
    Commenters have specifically asked the Department to clarify what 
is meant by various terms used in section 224.5 and its advisory: 
``class,'' ``type,'' ``options,'' and ``amenities.'' The Department 
envisions that all of these terms are not to be considered terms of 
art, but will be used as in their normal course. For example, ``class'' 
is defined by Webster's Dictionary as ``a division by quality.'' 
``Type'' is defined as ``a group of * * * things that share common 
traits or characteristics distinguishing them as an identifiable group 
or class.'' Accordingly, these terms are not intended to convey 
different concepts, but are used as synonyms. Section 224.5 and its 
advisory require dispersion in such a varied range of hotels and 
lodging facilities that the Department believes that the chosen terms 
are appropriate to convey what is intended. Dispersion required by this 
section is not ``one size fits all'' and it is imperative upon each 
covered entity to consider its individual circumstance as it applies to 
this requirement.
    Commenters have raised concern that the factors included in the 
advisory to section 224.5 have been expanded. The advisory provides: 
``[f]actors to be considered in providing an equivalent range of 
options may include, but are not limited to, room size, bed size, cost, 
view, bathroom fixtures such as hot tubs and spas, smoking and 
nonsmoking, and the number of rooms provided.'' As previously 
discussed, the advisory materials provided by the Access Board are 
meant to be illustrative and do not set out specific requirements. In 
this particular instance, the advisory materials for section 224.5 set 
out some of the common types of amenities found at transient lodging 
facilities, and include common sense concepts as view, bathroom 
fixtures and smoking status. The intention of these factors is to 
indicate to the hotel industry the sorts of considerations that the 
Department, in its enforcement efforts since the enactment of the ADA, 
has considered as amenities that should be made available to persons 
with disabilities, just as they are made available to hotel guests 
without disabilities.
    Commenters for the hotel industry have offered several 
recommendations for addressing dispersion. One option includes the 
flexibility to use an equivalent facilitation option similar to that 
provided in 9.1.4(2) of the 1991 Standards. While the Department 
believes this is a legitimate option for existing hotels subject to 
readily achievable barrier removal, the Department does not view this 
as an acceptable option for those facilities subject to the new 
construction or alterations requirements, unless it can be demonstrated 
that it would not be feasible to provide accessibility through 
compliance with the guidelines. Because Congress made it clear that 
each class of hotel room be available to individuals with disabilities, 
the Department declines to adopt such a limitation. In considering the 
comments of the hotel industry and the Department's enforcement efforts 
in this area, the Department will consider (and seeks comment on) 
whether the dispersion requirements should be applied proportionally, 
or whether it meets the requirements of section 224.5 if access to at 
least one guest room of each type is sufficient.
    Some commenters have requested a specific exemption for small 
hotels of 300 or fewer guestrooms from dispersion regarding smoking 
rooms. The advisory to section 224.5 contains specific references to 
smoking and nonsmoking guestrooms as examples of the types of amenities 
to be considered for dispersion. The ADA requires that individuals with 
disabilities are entitled to the same range of options as persons 
without disabilities, and, therefore, the Department declines to add an 
exemption. It is noted, however, that the existence of this language in 
the advisory does not require a hotel that does not offer smoking 
guestrooms at its facility to do so only for individuals with 
disabilities.
    Guest Rooms with Communication Features. The 1991 Standards at 
sections 9.1.2 and 9.2 require hotels to provide a minimum number of 
guest rooms with mobility features based on the total number of guest 
rooms in the facility. These requirements provide that an additional 
minimum number of guest rooms shall provide roll-in showers. A number 
of other guest rooms as well as all guest rooms that are required to 
provide mobility features and roll-in showers also must be equipped 
with communication features for individuals who are deaf or hard of 
hearing.
    Commenters suggested that the proposed requirements for scoping and 
dispersion of guest rooms for people with mobility impairments and 
guest rooms with communication features are too complex for the 
industry to effectively implement. The Department believes the 
requirements are clear and that these requirements are necessary to 
provide equal opportunity for travelers with disabilities.
    The proposed revisions at section 224.4 effect no change from the 
1991 Standards with respect to the number of guest rooms required to 
provide communication features. The scoping requirement is consolidated 
into a single table, instead of appearing in three sections as in the 
1991 Standards. The revised provisions also limit the overlap between 
guest rooms required to provide mobility features and guest rooms 
required to provide communication features. At least one, but not more 
than ten percent (10%), of the guest rooms required to provide mobility 
features also can provide communication features.
    Visible Alarms in Guest Rooms with Communication Features. The 1991 
Standards at sections 9.3.1 and 4.28.4 require transient lodging guest 
rooms with communication features to provide either permanently 
installed visible alarms that are connected to the building fire alarm 
system, or portable visible alarms that are connected to a standard 
110-volt electrical outlet and are both activated by the building fire 
alarm system and provide a visible alarm when the single station smoke 
detector is activated.
    The proposed changes at sections 806.3; 806.3.1; and 702.1 will 
require transient lodging guest rooms with communication features to 
provide permanently installed visible alarms complying with the NFPA 
72, National Fire Alarm Code (1999 or 2002 edition). The NFPA 72 
contains technical requirements for visible alarms in sleeping areas, 
and requires combination smoke alarms and visible notification 
appliances that are connected to the building's electrical system.
    The revised provisions will add a new exception for alterations to 
existing facilities that exempt existing fire alarm systems from 
providing visible alarms, unless the fire alarm system itself is 
upgraded or replaced, or a new fire system is installed. Transient 
lodging facilities that alter guest rooms are not required to provide 
permanently installed visible alarms complying with the NFPA 72 if the 
existing fire alarm system has not been upgraded or replaced, or a new 
fire alarm system has not been installed.
    The U.S. Small Business Administration Office of Advocacy and 
others stated that small providers of transient lodging guest rooms 
raised concerns about the proposed changes to

[[Page 36983]]

prohibit the use of portable visible alarms used in transient lodging 
guest rooms. These commenters recommended retaining current 
requirements that allow the use of portable visible alarms.
    People who are deaf or hard of hearing have reported that portable 
visible alarms used in transient lodging guest rooms are deficient 
because the alarms are not activated by the building fire alarm system, 
and the alarms do not work when the building power source goes out in 
emergencies. The proposed revision is consistent with the model 
building codes and fire and life safety codes, which are adopted by all 
the States and require newly constructed transient lodging facilities 
to provide smoke alarms in guest rooms.
    Vanity Counter Space. Proposed section 806.2.4.1 provides that if 
vanity counter top space is provided in nonaccessible transient lodging 
guest toilet or bathing rooms, comparable vanity space must be provided 
in accessible hotel guest toilet or bathing rooms.
    A commenter questioned whether in existing facilities vanity 
countertop space may be provided through the addition of a shelf. In 
some circumstances, the addition of a shelf in an existing facility may 
be a reasonable way to provide access. However, this is a determination 
that must be made on a case-by-case basis.
    Shower and Sauna Doors in Transient Lodging Facilities. Section 9.4 
of the 1991 Standards and section 206.5.3 of the proposed regulations 
require doors in transient lodging guest rooms that do not provide 
mobility features to have at least 32 inches clear width. Congress 
directed this requirement to be included so individuals with 
disabilities can visit guests in other rooms. See, H. Rept. 101-485, 
pt. 2, at 118 (1990); S. Rept. 101-116, at 70 (1989). Proposed section 
224.1.2 will add a new exception to clarify that shower and sauna doors 
are exempt from the requirement.
    Platform Lifts in Hotel Guest Rooms and Dwelling Units. The 1991 
Standards at section 4.1.3(5), exception 4, and proposed sections 206.7 
and 206.7.6 limit the places where platform lifts are permitted to be 
used as part of an accessible route. The proposed regulations add a new 
scoping requirement that permits platform lifts to be used to connect 
levels within transient lodging guest rooms and dwelling units with 
mobility features.
    The Department prepared figures showing that the proposed 
requirements can be met without significant loss of hotel living space 
in hotel guest rooms or other areas. New construction requirements can 
be met without difficultly.
    The following Department prepared figures illustrate accessible 
hotel rooms that meet minimum requirements of 2004. These illustrations 
demonstrate that 12 and 13 foot wide accessible hotel rooms based on 
ADAAG 2004 do not decrease the size of rooms from the 1991 Standards.
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225 and 811 Storage

    Proposed section 225 provides that where storage is provided in 
accessible spaces, at least one of each type shall comply with the 
Standards. Self-service shelving is required to be on an accessible 
route, but is not required to comply with the reach range requirements. 
These requirements are consistent with the 1991 Standards. Proposed 
section 225.3 will add a new scoping requirement for self-storage 
facilities. Facilities with 200 or fewer storage spaces will be 
required to make at least five percent (5%) of the storage spaces 
accessible. Facilities with more than 200 storage spaces will be 
required to provide 10 accessible storage spaces, plus make at least 
two percent (2%) of the storage spaces over 200 accessible.
    Commenters recommended that the Department adopt language requiring 
public accommodations to provide access to all self-service shelves and 
display areas available to customers. Other comments opposed this 
requirement as too burdensome on retail and other entities and that 
significant revenue will be lost if this requirement is implemented.
    Any fixed or built-in self-service shelves or storage are required 
to be on accessible routes, but not all shelves are required to be 
within reach. Because the shelves are permitted to exceed the reach 
ranges, not all merchandise on the shelves will be accessible.

226 and 902 Dining Surfaces and Work Surfaces

    The proposed standards at section 226.1 provide that where dining 
surfaces are provided for the consumption of food or drink, at least 
five percent (5%) of the seating spaces and standing spaces at the 
dining surfaces will comply with section 902. Section 902.2 requires 
the provision of accessible knee and toe clearance.
    The U.S. Chamber of Commerce and others requested that cocktail 
style tables be exempt from the technical requirements for knee and toe 
clearance. ``Cocktail-style tables'' are not a defined term. The 
proposed standards apply to fixed or built-in tables provided for the 
consumption of food. If cocktail-style tables (that is, tables 
typically built for use by individuals who are standing) are fixed 
equipment, they will be subject to the rule. Furniture that is not 
fixed or built-in would be subject to the nondiscrimination 
requirements of the rule.
    Commenters stated that basing accessible seating on seating spaces 
and standing spaces is problematic and urged a return to the 1991 
Standard of requiring accessible seating based on fixed dining tables. 
Consistent with long-standing interpretation, the requirements in the 
ADA regulations will be applied to fixed building elements. The scoping 
change merely takes into account that tables may vary in size so that 
basing the calculation on the number of the tables rather than on the 
number of people that may be accommodated by the tables could 
unnecessarily restrict opportunities for people with disabilities.

227 and 904 Sales and Service, Check-out Aisles and Sales and Service 
Counters

    The 1991 Standards at sections 7.2(1), (2), (i), (ii), and (iii), 
and the proposed changes at sections 904.4, Exception; 904.4.1, 
Exception; and 904.4.2 contain technical requirements for sales and 
service counters. The 1991 Standards generally require counters to have 
an accessible portion at least 36 inches long and no higher than 36 
inches. The revised requirements will specify different lengths for the 
accessible portion of counters based on the type of approach. Where a 
forward approach is provided, the accessible portion of the counter 
must be at least 30 inches long and no higher than 36 inches, and knee 
and toe space must be provided under the counter. Where a parallel 
approach is provided, the accessible portion of the counter must be at 
least 36 inches long and no higher than 36 inches. The revised 
requirements add a new exception for alterations to counters in 
existing facilities that permits the accessible portion of the counter 
to be at least 24 inches long, where providing a longer accessible 
counter will result in a reduction in the number of existing counters 
or existing mailboxes.
    The revised requirements clarify that the accessible portion of the 
counter must extend the same depth as the sales or service counter top. 
Where the counter is a single-height counter, this requirement applies 
across the entire depth of the counter top. Where the counter is a 
split-height counter, this requirement applies only to the customer 
side of the counter top. The employee-side of the counter top may be 
higher or lower than the customer-side of the counter top.
    Proposed section 227.5 clarifies the requirements for food service 
lines. Queues and waiting lines serving counters or check-out aisles, 
including queues and waiting lines for food service must be accessible 
to individuals with disabilities.
    Commenters recommended that the Department consider a regulatory 
alternative exempting small retailers from the new knee and toe 
clearance requirement and retaining existing wheelchair accessibility 
standards for sales and service counters. These commenters believed 
that the proposed knee and toe clearance requirements will cause a 
reduction in the sales and inventory space at check-out aisles and 
other sales and service counters.
    The proposed standards, as do the current requirements, permit 
covered entities to determine whether they will provide forward or 
parallel approach. So any business that does not wish to provide the 
knee or toe clearance may avoid that option. However, the Department 
believes that permitting a forward approach without requiring knee and 
toe clearance is not adequate to provide accessibility because the 
person using a wheelchair will be prevented from coming close enough to 
the counter to see the merchandise or to transact business with a 
degree of convenience that is comparable to that provided for other 
customers. A parallel approach to sales and service counters also can 
provide accessibility required by the proposed standards. Individuals 
using wheelchairs can approach sales and service counters from a side, 
and, assuming the necessary elements, features, or merchandise 
necessary to complete a business transaction are within the reach range 
requirements for a side approach, the needs of individuals with 
disabilities can be met effectively.

229 Windows

    A new requirement at section 229.1 provides that if operable 
windows are provided for building users, then at least one window in an 
accessible space must be equipped with controls that comply with 
section 309.
    Commenters supported including this provision in the regulations, 
but some commenters asked whether the five-pounds (5 lbs.) of force 
requirement of section 309 applies to the window latch itself or only 
the force required to open the window. Section 309 applies to all 
controls and operating mechanisms, so the latch must comply.

230 and 708 Two-Way Communication Systems

    New provisions at sections 230.1 and 708 require two-way 
communications systems to be equipped with visible as well as audible 
signals.

231 and 808 Judicial Facilities and Courtrooms

    Accessible Courtroom Stations. Proposed requirements at sections 
231.2, 808, 304, 305, and 902 provide increased accessibility at 
courtroom

[[Page 36991]]

stations. Clear floor space for a forward approach will be required for 
all courtroom stations (judges' benches, clerks' stations, bailiffs' 
stations, deputy clerks' stations, court reporters' stations and 
litigants' and counsel stations). Other applicable specifications 
include accessible work surface heights and toe and knee clearance.
    Accessible Jury Boxes and Witness Stands. Vertical access by ramp, 
elevator, or platform lift will have to be fully in place at the time 
of construction or alteration as required by section 206.2.4.
    Raised Courtroom Stations Not for Members of the Public. Proposed 
section 206.2.4, Exception 1 provides that raised courtroom stations 
that are used by judges, clerks, bailiff, and court reporters will not 
have to provide full vertical access when first constructed or altered 
if they are constructed to be easily adaptable to provide vertical 
accessibility.
    A comment asserted that there is nothing inherent in clerks' 
stations, jury boxes, and witness stands that require them to be 
raised. While it would, of course, be easiest to provide access by 
eliminating height differences among courtroom elements, the Department 
recognizes that accessibility is only one factor that must be 
considered in the design process of a functioning courtroom. The need 
to ensure the ability of the judge to maintain order, the need to 
ensure sightlines between the judge, the witness, the jury, and other 
participants, and the need to maintain the security of the participants 
all affect the design of the space. The Department believes that the 
proposed standards have been drafted in a way that will achieve 
accessibility without unduly constraining the ability of a designer to 
address the other considerations that are unique to courtrooms.
    Commenters argued that permitting courtroom stations to be 
adaptable rather than fully accessible at the time of new construction 
likely will lead to discrimination in hiring of clerks, court 
reporters, and other court staff. The Department believes that the 
provisions will facilitate, not hinder, the hiring of court personnel 
who have disabilities. All courtroom work stations will be on 
accessible routes and will be required to have all fixed elements 
designed in compliance with the proposed standards. Elevated work 
stations for court employees may be designed to add vertical access as 
needed. Because the original design must provide the proper space and 
electrical wiring to install vertical access, the change should be 
easily accomplished.

232 Detention Facilities and Correctional Facilities

    New provisions at section 232 establish requirements for the design 
and construction of cells in detention and correctional facilities. 
Alterations to cells shall not be required to comply, except to the 
extent determined by the Attorney General. The Department has proposed 
new requirements in 28 CFR 35.152.

233 Residential Facilities

    General. Revised provisions in section 233 will now include 
specific scoping and technical provisions that apply to new 
construction and alteration of residential facilities. As part of this 
revision, section 9.5, which established scoping and technical 
requirements for homeless shelters, group homes, and similar social 
service establishments, has been deleted. The Department has proposed 
language in the NPRM at section 28 CFR section 36.406 that will provide 
that most social service establishments now subject to section 9.5 will 
be subject to requirements for residential facilities rather than the 
requirements for transient lodging. This approach will harmonize 
federal accessibility obligations under both the ADA and section 504 of 
the Rehabilitation Act of 1973, as amended. Dwelling units provided by 
places of education will be subject to the design requirements for 
transient lodging.
    Galley Kitchens. New requirements at section 804.2 require a 60-
inch clearance space in so-called galley kitchens, which have cabinets 
and appliances on opposite walls, if there is only one entry to the 
kitchen.
    New provisions at sections 804.2; 804.2.1; and 804.2.2 also specify 
clearances between opposing base cabinets, counters, appliances, or 
walls based on the layout of the kitchen:
     ``U-shaped'' kitchens, which are enclosed on three 
contiguous sides, are required to have 60 inches minimum clearance 
between opposing base cabinets, counters, appliances, or walls.
     ``Pass through'' kitchens, which have two entries, are 
required to have 40 inches minimum clearance between opposing base 
cabinets, counters, appliances, or walls.
     Kitchens that do not have a cooktop or conventional range 
are exempt from the clearance requirements.
    The revision will impact small dead-end or single-entry ``galley'' 
kitchens with base cabinets, counters, and appliances on two opposing 
walls. The 1991 Standards require this ``galley'' kitchen to have 40 
inches minimum clearance between the opposing base cabinets, counters, 
appliances, or walls. In multi-family residential facilities, kitchens, 
bathrooms, and closets are located along interior walls, and space 
constraints may limit adding a second entry to the kitchen.
    If a ``galley'' kitchen does not have two entries, the revised 
provisions require the kitchen to have 60 inches minimum clearance 
between the opposing base cabinets, counters, appliances, or walls. For 
a typical small ``galley'' kitchen that is 8 feet long, increasing the 
width of the kitchen to provide 60 inches clearance will add 
approximately 13 square feet to the kitchen.
    One commenter supported the provisions of section 804, Kitchens and 
Kitchenettes, but sought clarification whether this section applies to 
residential units only, or to lodging and office buildings as well. 
Section 212 makes section 804 applicable to all kitchens and 
kitchenettes in covered buildings.
    Residential Facilities. The UFAS at section 4.1.4(11) contains 
scoping requirements for the new construction of housing. The proposed 
standards will revise and update these requirements. Sections 233.1; 
233.2; 233.3; 233.3.1; 233.3.1.1; 233.3.1.2; and 233.3.2 differentiate 
between entities subject to the HUD regulations implementing section 
504 of the Rehabilitation Act, and entities not subject to the HUD 
regulations. The HUD regulations apply to recipients of federal 
financial assistance through HUD, and require at least five percent 
(5%) of dwelling units in multi-family projects of five or more 
dwelling units to provide mobility features and at least two percent 
(2%) of the dwelling units to provide communication features. The HUD 
regulations define a project unique to its programs as ``one or more 
residential structures * * * which are covered by a single contract for 
federal financial assistance or application for assistance, or are 
treated as a whole for processing purposes, whether or not located on a 
common site.'' To avoid any potential conflicts with the HUD 
regulation, the proposed regulation requires entities subject to the 
HUD regulations to comply with the scoping requirements in the HUD 
regulations, instead of the scoping requirements in the Department's 
proposed regulation.
    For entities not subject to the HUD regulations, the proposed 
regulations require at least five percent (5%) of the dwelling units in 
residential facilities provide mobility features, and at least two 
percent (2%) of the dwelling units provide communication features. The 
proposed regulations define facilities in

[[Page 36992]]

terms of buildings located on a site. The proposed regulations permit 
facilities that contain 15 or fewer dwelling units to apply the scoping 
requirements to all the dwelling units that are constructed under a 
single contract, or are developed as whole, whether or not located on a 
common site.
    The proposed regulation defers to HUD and agencies responsible for 
issuing regulations under Section 504 of the Rehabilitation Act to 
determine the extent to which accessible features are to be provided in 
publicly funded dwelling units offered for sale.
    Alterations to Residential Facilities. The UFAS at sections 4.1.6 
require federal, state, and local government housing to comply with the 
general requirements for alterations to facilities. Applying the 
general requirements for alterations to housing can result in partially 
accessible dwelling units where single elements or spaces in dwelling 
units are altered.
    The proposed regulations at sections 202.3 Exceptions 3; 202.4; 
233.3; 233.3.4; 233.3.4.1; and 233.3.4.2 Exception contain specific 
scoping requirements for alterations to dwelling units. Dwelling units 
that are not required to be accessible are exempt from the general 
requirements for alterations to elements and spaces and for alterations 
to primary function areas.
    The scoping requirements for alterations to dwelling units 
generally are based on the requirements in the current UFAS.
     Where a building is vacated for purposes of alterations 
and has more than 15 dwelling units, at least five percent (5%) of the 
altered dwelling units are required to provide mobility features and at 
least two percent (2%) of the dwelling units are required to provide 
communication features.
     Where a bathroom or a kitchen is substantially altered in 
an individual dwelling unit and at least one other room is also 
altered, the dwelling unit is required to comply with the scoping 
requirements for new construction until the total number of dwelling 
units in the facility required to provide mobility features and 
communication features is met.
    As with new construction, the proposed regulations permit 
facilities that contain 15 or fewer dwelling units to apply the scoping 
requirements to all the dwelling units that are altered under a single 
contract, or are developed as a whole, whether or not located on a 
common site. The proposed regulations also permit a comparable dwelling 
unit to provide mobility features where it is not technically feasible 
for the altered dwelling unit to comply with the technical 
requirements.

234 and 1002 Amusement Rides

    Section 234 provides accessibility guidelines for newly designed 
and constructed amusement rides. Mobile and temporary rides are exempt 
from these requirements. Altered rides will be required to provide 
accessible load or unload areas, but no changes will be required to the 
ride itself unless the structural or operational characteristics of the 
ride are altered to the extent that the amusement ride's performance 
differs from that specified by the manufacturer.
    Accessible Route. Proposed sections 206.2.9 and 1002.2 will require 
an accessible route to serve each ride, including the load/unload area.
    One commenter asked that section 234, Amusement Rides, make clear 
that the requirements for accessible routes include the routes leading 
up to and including the loading and unloading areas of amusement rides. 
Sections 206.2.9, Amusement Rides, and 1002.2, Accessible Routes, make 
clear that the requirements for accessible routes include the routes 
leading up to and including the loading and unloading areas of 
amusement rides.
    Wheelchair Space or Transfer Seat or Transfer Device. New sections 
234.3 and 1002.4-6 provide that each new amusement ride, except for 
mobile/temporary rides and a few additional excepted rides, will be 
required to provide at least one type of access by means of one 
wheelchair space or one transfer seat or one transfer device (the 
design of the transfer device is not specified).
    Commenters representing industry concerns urged the Department to 
revise the requirements for wheelchair space and transfer seats and 
devices because the majority of amusement rides are too complex to be 
reasonably modified or reengineered to accommodate the majority of 
individuals with disabilities. They argued that the experience of 
amusement rides will be significantly reduced if the proposed 
requirements are implemented.
    These proposed standards were developed with the assistance of an 
advisory committee that included representation from the design staffs 
of major amusement venues and people with disabilities. The Department 
believes that the resulting guidelines reflect sensitivity to the 
complex problems posed in adapting existing rides by focusing on new 
rides that can be designed from the outset to be accessible. To permit 
maximum design flexibility, the guidelines permit the designers to 
determine whether it is more appropriate to permit people who use 
wheelchairs to remain in their chairs on the ride, or to provide for 
transfer access.
    Maneuvering Space in Load and Unload Area. Specified maneuvering 
space as required by new sections 234.2 and 1002.3 in the load/unload 
area of each amusement ride will be required.
    Sign. Section 216.12 requires signs at entries to queues and 
waiting lines identifying type and location of access for the amusement 
ride.
    A member of the amusement parks and attractions industry raised 
concerns that smaller amusement parks tend to purchase used rides more 
frequently than new rides, and that the conversion of a used ride to 
provide the proposed accessibility may be difficult to ensure because 
of the possible complications in modifying equipment to provide 
accessibility.
    The Department agrees with this commenter. The Department notes, 
however, that the proposed standards will require modifications to used 
amusement rides only if a ride is undergoing an alteration intended to 
change its structural or operational characteristics. The Department 
expects that the focus of the requirements for rides that are not new 
will be to ensure that these rides are served by an accessible route 
and have accessible load/unload areas for the benefit of those people 
with disabilities who are able to use the ride. Mobile or temporary 
amusement rides that are set up for short periods of time generally 
will not be covered by the proposed regulations. However, the ADA 
authorizes the Department to require covered entities to provide 
general nondiscrimination opportunities to individuals with 
disabilities. Therefore, the Department will require mobile or 
temporary amusement rides that are set up for short periods of time to 
be on an accessible route.

235 and 1003 Recreational Boating Facilities

    These sections require accessible boat slips to be provided.
    Accessible Route. Newly added sections 206.2.10 and 1003.2 require 
an accessible route to all accessible boating facilities, including 
boat slips and boarding piers at boat launch ramps.
    Commenters raised concerns that because of water level fluctuations 
it may be difficult to provide accessible routes to all accessible 
boating facilities, including boat slips and boarding piers at boat 
launch ramps. The guidelines take this into account. A number of 
exceptions are provided from the

[[Page 36993]]

general proposed standards requiring accessible routes in order to take 
into account the difficulty of meeting accessibility requirements due 
to fluctuations in water level.
    Accessible Boarding Piers. If provided at boat launch ramps, new 
sections 235.3 and 1003.3.2 provide that five percent (5%) of boarding 
piers, but at least one, will have to be accessible.
    Accessible Boat Slips. New sections 235.2 and 1003.3.1 provide that 
a specified number of boat slips in each recreational boating facility 
will be required to meet specified accessibility standards. The greater 
the number of slips provided, then the larger number of slips must be 
accessible, e.g., if 100 boat slips are provide, 3 must be accessible, 
or if 500 boat slips are provided, 7 must be accessible. Accessible 
slips will have to be dispersed throughout the boat slip area.

236 and 1004 Exercise Machines and Equipment

    Accessible Route to Exercise Machines and Equipment. An accessible 
route will be required to serve accessible exercise machines and 
equipment by new provision 206.2.13.
    Concerns were raised that the requirement to provide accessible 
routes to serve accessible exercise machines and equipment will be 
difficult for some facilities to provide, especially some transient 
lodging facilities that typically locate exercise machines and 
equipment in a single room. The Department thinks that this requirement 
is a reasonable one for new construction and alterations. Barrier 
removal issues are addressed separately in section 36.304.
    Exercise Machines and Equipment. Newly added sections 236 and 1004 
will require one of each type of exercise machine to meet clear floor 
space specifications. Types of machines are generally defined according 
to the muscular groups exercised or the kind of cardiovascular exercise 
provided.
    Commenters were divided in response to this issue. Some supported 
requirements for accessible machines and equipment; others urged the 
Department not to require accessible machines and equipment because of 
the costs involved. The Department believes that this provision strikes 
an appropriate balance in ensuring that people with disabilities, 
particularly those who use wheelchairs will have the opportunity to use 
the exercise equipment provided by a public accommodation. Providing 
access to exercise machines and equipment recognizes the need and 
desires of individuals with disabilities to have the same opportunity 
as other patrons to enjoy the advantages of exercise and maintaining 
health.

237 and 1005 Fishing Piers and Platforms

    Accessible Route. Sections 206.2.14 and 1005.1 will require an 
accessible route to each accessible fishing pier and platform. The 
exceptions described under recreational boating will apply to gangways 
and floating piers.
    Accessible Fishing Piers and Platforms. Newly added sections 237 
and 1005 will require at least twenty-five percent (25%) of railings 
(if provided) to be of a specified maximum height so that a person 
seated in a wheelchair could cast a fishing line over the railing and 
dispersed among the piers and platforms. If railings, guards, or 
handrails are provided, accessible edge protection, clear floor or 
ground space, and turning space will be required.

238 and 1006 Golf Facilities

    Accessible Route. Sections 206.2.15 and 1006.2 and 1006.3 require 
an accessible route to connect all accessible elements within the 
boundary of the golf course and, in addition, to connect golf car 
rental areas, bag drop areas, teeing grounds, putting greens, and 
weather shelters. An accessible route also will be required to connect 
any practice putting greens, practice teeing grounds, and teeing 
stations at driving ranges that will be required to be accessible. An 
exception permits the accessible route requirements to be met, within 
the boundaries of the golf course, by providing a ``golf car passage'' 
(the path typically used by golf cars) if specifications for width and 
curb cuts are met.
    Accessible Teeing Grounds, Putting Greens, and Weather Shelters. 
Sections 238.2 and 1006.4 will require that golf cars will have to be 
able to enter and exit each putting green and weather shelter. Where 
two teeing grounds are provided, the forward teeing ground will be 
required to be accessible (golf car can enter and exit). Where three or 
more teeing grounds are provided, at least two, including the forward 
teeing ground, shall be accessible.
    A national advocacy organization supported requirements for teeing 
grounds, particularly requirements for accessible teeing grounds. 
Accessible teeing grounds are essential to the full and equal enjoyment 
of the golfing experience.
    Accessible Practice Putting Greens, Practice Teeing Grounds, and 
Teeing Stations at Driving Ranges. Newly added section 238.3 requires 
that five percent (5%) but at least one of each of practice putting 
greens, practice teeing grounds, and teeing stations at driving ranges 
must permit golf cars to enter and exit.

239 and 1007 Miniature Golf Facilities

    Accessible Route to Holes. Sections 206.2.16, 239.3, and 1007.2 
will require an accessible route to connect accessible miniature golf 
course holes and will be required from the last accessible hole on the 
course directly to the course entrance or exit; generally, the 
accessible holes will have to be consecutive ones. Specified exceptions 
will be available for accessible routes located on the playing surfaces 
of holes.
    Accessible Holes. At least fifty percent (50%) of golf holes on 
miniature golf courses will be required by new sections 239.2 and 
1007.3 to be accessible (includes specified clear space at start of 
play).

240 and 1008 Play Areas

    Accessible Route to Play Components. Sections 206.2.17, 240.2.1-2, 
and 1008.2-3 will require that accessible routes be provided within 
each play area. Where required, accessible ground surfaces for play 
areas will follow special rules, incorporated by reference from 
nationally recognized standards for accessibility and safety in play 
areas, including those issued by the American Society for Testing and 
Materials (ASTM). The accessible route will have to connect to at least 
one ground level play component of each different type provided (e.g., 
for different experiences such as rocking, swinging, climbing, 
spinning, and sliding); to at least fifty percent (50%) of elevated 
play components (some exceptions will be provided from general 
accessible route rules); and to one or two entry points to soft 
contained play structures. If elevated play components are provided, 
the play area will have the option of either locating a specified 
additional number of its different types of ground level components on 
the accessible route or meeting a higher standard of accessibility for 
the elevated components (namely, fifty percent (50%) of the elevated 
components will have to be connected by a ramp and the connected 
components will have to be of at least three different types).
    A commenter noted that the proposed standards allow for the 
provision of transfer steps to elevated play structures based on the 
number of elevated play activities, but asserted that transfer steps 
have not been documented as effective means of access.
    The guidelines recognize that play structures are designed to 
provide unique experiences and opportunities

[[Page 36994]]

for children. The proposed rule provides for play components that are 
accessible to children who cannot transfer from their wheelchair, but 
it also provides opportunities for children who are able to transfer. 
Children often interact with their environment in ways that would be 
considered inappropriate for adults. Crawling and climbing, for 
example, are integral parts of the play experience for young children. 
Permitting the use of transfer platforms in play structures provides 
some flexibility for creative playground design.
    Accessible Play Components. Play components (including ground 
level, elevated, and soft contained play structures) will be required 
to be on an accessible route, including elevated play components that 
are required to be connected by ramps, and will themselves have to 
comply with accessibility requirements (including specifications for 
turning space and clear floor space and for play tables and transfer 
entry points and supports).
    A commenter expressed concerns that the general requirements of 
section 240.2.1, Play Areas, and the advisory accompanying section 
240.2.1, General, conflict. The comment asserts that section 240.2.1 
provides that the only requirement for integration of equipment is 
where there are two or more required ground level play components, 
while the advisory appears to suggest that all accessible components 
must be integrated.
    The commenter misinterprets the requirement. The ADA mandates that 
people with disabilities be able to participate in programs or 
activities in the most integrated setting appropriate to their needs. 
Therefore, all accessible playground equipment must be integrated into 
the general playground setting. Section 240.2.1 specifies that where 
there is more than one accessible ground level play component, the 
components must be both dispersed and integrated.
    Ground Surfaces. Section 1008.2.6, Ground Surfaces, provides that 
ground surfaces on accessible routes must comply with ASTM 
requirements.
    A commenter recommended that the Department closely examine the 
requirements for ground surfaces at play areas. The Department is aware 
that there is an ongoing controversy about ground surfaces arising from 
a concern that some surfaces that meet the ASTM requirements at the 
time of installation will become inaccessible if they do not receive 
constant maintenance. The Access Board is also aware of this issue and 
is undertaking research to explore solutions to the problems. The 
Department would caution covered entities selecting among the ground 
surfacing materials that comply with the ASTM requirements, that they 
must anticipate the maintenance costs that will be associated with some 
of the products. Permitting a surface to deteriorate so that it does 
not meet the proposed standards would be an independent violation of 
the Department's ADA regulations.

241 and 612 Saunas and Steam Rooms

    Saunas and steam rooms will be required by sections 241 and 612 to 
meet accessibility requirements, including accessible turning space and 
an accessible bench. Where they are provided in clusters, five percent 
(5%), but at least one sauna or stream room in each cluster will have 
to be accessible.
    Commenters raised concerns that the safety of individuals with 
disabilities outweighs the usefulness in providing accessible saunas 
and steam rooms. The Department believes that there is an element of 
risk in many activities available to the general public. One of the 
major tenets of the ADA is that individuals with disabilities should 
have the same opportunities as other people to decide what risks to 
take. It is not appropriate for covered entities to prejudge the 
abilities of people with disabilities.

242 Swimming Pools, Wading Pools, and Spas

    Accessible Means of Entry to Pools. At least two accessible means 
of entry will be required for larger pools (300 or more linear feet) 
and one entry will be required for smaller pools as required by section 
242.2. This section requires that at least one entry will have to be a 
sloped entry or a pool lift; the other could be a sloped entry, pool 
lift, a transfer wall, or a transfer system (technical specifications 
for each entry type are included).
    Accessible Means of Entry to Wading Pools. Sections 242.3 and 
1009.3 require that at least one sloped means of entry will be required 
into the deepest part of each wading pool.
    Accessible Means of Entry to Spas. Sections 242.4 and 1009.2, 
1009.4, and 1009.5 require spas to meet accessibility requirements, 
including an accessible means of entry. Where spas are provided in 
clusters, five percent (5%) but at least one spa in each cluster will 
have to be accessible. A pool lift, a transfer wall, or a transfer 
system will be permitted.
    Commenters, including individuals with disabilities and state 
entities, supported the proposed scoping and technical requirements for 
swimming pools. A national association representing the interests of 
recreation and park providers recommended that existing inaccessible 
swimming pools need only provide one means of access when meeting 
program access requirements under Title II or readily achievable 
barrier removal obligations under Title III. These issues are addressed 
elsewhere in this proposed rule.

243 Shooting Facilities With Firing Positions

    Sections 243 and 1010 will require an accessible turning space for 
each different type of firing position at a shooting facility if 
designed on site. Where firing positions are provided in clusters, five 
percent (5%), but at least one position of each type in each cluster 
will have to be accessible.

Additional Technical Requirements

304 Turning Space

    The turning space is required to be 60 inches diameter minimum and 
is permitted to include knee and toe clearance.
    Commenters urged the Department to retain the turning space 
requirement, but exclude knee and toe clearance from being permitted as 
part of this space. They argued that wheelchairs and other mobility 
devices are becoming larger and that more individuals with disabilities 
are using electric three- and four-wheeled scooters.
    The Department recognizes that there is a growing perception that 
the 1991 Standards, which are based on wheelchair dimensions, may not 
adequately meet the needs of people using some larger electric 
scooters. However, there is no consensus about the appropriate 
dimension on which to base revised requirements. The Department is 
aware that the Access Board is financing an extensive study of this 
issue in order to determine if new requirements are warranted. The 
Department plans to wait for the results of this study before changing 
the specifications in the Department's rules.

404 Doors, Doorways, and Gates

    Automatic Door Break-out Openings. The proposed standards do not 
contain any technical requirement for automatic door break out 
openings. The proposed standards at sections 404.1; 404.3; 404.3.1; and 
404.3.6 will require automatic doors that are part of a means of egress 
and that do not have standby power to have a 32 inch minimum clear 
break out opening when operated in emergency mode. The minimum clear 
opening width for automatic doors is

[[Page 36995]]

measured with all leaves in the open position. Automatic bi-parting 
doors or pairs of swinging doors that provide a 32 inch minimum clear 
break out opening in emergency mode when both leaves are opened 
manually meet the technical requirement. The proposed regulation 
includes an exception that exempts automatic doors from the technical 
requirement for break-out openings when accessible manual swinging 
doors serve the same means of egress.
    Maneuvering Clearance or Standby Power for Automatic Doors. The 
1991 Standards, section 4.13.6, do not require maneuvering clearance at 
automatic doors. Section 404.3.2, Exception of the proposed regulation 
will require automatic doors that serve as an accessible means of 
egress to either provide maneuvering clearance or to have standby power 
to operate the door in emergencies. This provision has limited 
application and will affect, among others, in-swinging automatic doors 
that serve small spaces.
    Commenters urged the Department to reconsider provisions that would 
require maneuvering clearance or standby power for automatic doors. 
They assert that these requirements would impose unreasonable financial 
and administrative burdens on all covered entities, particularly 
smaller entities. The Department declines to change these provisions 
because they are fundamental life-safety issues. The requirement 
applies only to doors that are part of a means of egress that must be 
accessible in an emergency. If an emergency-related power failure 
prevents the operation of the automatic door, a person with a 
disability could be trapped unless there is either adequate maneuvering 
room to open the door manually, or there is a back-up power source.
    Thresholds at Doorways. The 1991 Standards at section 4.13.8 
require thresholds at doorways not to exceed \1/2\ inch; and thresholds 
at exterior sliding doors not to exceed \3/4\ inch. Proposed sections 
404.1 and 404.2.5 will require thresholds at all doorways that are part 
of an accessible route not to exceed \1/2\ inch. The 1991 Standards and 
the proposed regulations require raised thresholds that exceed \1/4\ 
inch to be beveled on each side with a slope not steeper than 1:2. The 
proposed standards include an exception that exempts existing and 
altered thresholds that do not exceed \3/4\ inch and are beveled on 
each side from the requirement.

407 Elevators

    Section 407.4.8.2, Audible Indicators, and section 407.4.8.2.1, 
Signal Type, provide that an elevator signal shall be an automatic 
verbal annunicator that announces the floor at which the car is about 
to stop.
    A commenter noted that requiring an audible signal for elevators is 
important; however, the requirement that the signal be a verbal 
annunicator, presumably in English, is troubling to building owners and 
operators whose buildings may be located in multi-lingual communities 
or international tourist destinations. The commenter suggested that the 
1991 Standard's requirement for chimes or tones, once for up and twice 
for down, should be retained and the requirement for a verbal 
annunciation deleted from the proposed standards.
    The proposed standards, at section 407.2.2.3 permit building 
operators to choose an audible signal or a verbal annunciator to 
indicate the direction in which the elevator is traveling. Section 
407.4.8 provides an additional requirement for a verbal annunciator to 
identify the floor at which the elevator is stopping. This requirement 
is for an announcement within the elevator car to notify passengers of 
floor arrival. The Department will retain the requirement as drafted 
because the verbal annunciator provides more detailed locator 
information than would be provided by just the use of an audible 
signal. The Department notes, however, that nothing in the guidelines 
would preclude a building operator from providing this information in a 
language--or languages--other than English when the building operator 
deems it appropriate.

505 Handrails

    The proposed standards add a new technical requirement for 
handrails along walking surfaces. The 1991 Standards at sections 
4.8.5(2), (3); 4.9.4(2), (3); 4.26.2; and 4.26.4, and proposed sections 
505.5; 505.6 Exception 2; 505.7; 505.7.1; 505.7.2; 505.8; 505.10 and 
Exception 3; and 505.10.3 contain technical requirements for handrails. 
The revised regulations provide more flexibility than the 1991 
Standards as follows:
     The 1991 Standards require handrail gripping surfaces to 
have edges with a minimum radius of \1/8\ inch. The revised regulations 
will require handrail gripping surfaces to have rounded edges.
     The 1991 Standards require handrail gripping surfaces to 
have a diameter of 1\1/4\ inches to 1\1/2\ inches, or to provide an 
equivalent gripping surface. The revised regulations will require 
handrail gripping surfaces with a circular cross section to have an 
outside diameter of 1\1/4\ inches to 2 inches. Handrail gripping 
surfaces with a non-circular cross section must have a perimeter 
dimension of 4 inches to 6\1/4\ inches, and a cross section dimension 
of 2\1/4\ inches maximum.
     The 1991 Standards require handrail gripping surfaces to 
be continuous, and to be uninterrupted by newel posts, other 
construction elements, or obstructions. The revised regulation will 
require handrail gripping surfaces to be continuous along their length 
and not to be obstructed along their tops or sides. The bottoms of 
handrail gripping surfaces must not be obstructed more than twenty 
percent (20%) of their length. Where provided, horizontal projections 
must occur at least 1\1/2\ inches below the bottom of the handrail 
gripping surface. An exception permits the distance between the 
horizontal projections and the bottom of the gripping surface to be 
reduced by \1/8\ inch for each \1/2\ inch of additional handrail 
perimeter dimension that exceeds 4 inches.
     The 1991 Standards require handrails at the bottom of 
stairs to extend at least 12 inches plus the width of one tread beyond 
the bottom riser. The revised regulations will require handrails at the 
bottom of stairs to extend a horizontal distance at least equal to one 
tread depth beyond the last riser nosing. The revised regulations add a 
new exception for alterations to existing facilities that exempts 
handrails at the top and bottom of ramps and stairs from providing full 
extensions where it will be hazardous due to plan configuration.
    A commenter noted that handrail extensions are currently required 
at the top and bottom of stairs, but the proposed regulation does not 
include this requirement, and urged the Department to retain the 
current requirement. Other commenters questioned the need for the 
extension at the bottom of stairs.
    The Department's proposed guidelines, in sections 505.10.2 and 
505.10.3 will require handrail extensions at both the top and bottom of 
a flight of stairs. The requirement that handrails extend an additional 
12 inches at the bottom of stairs was deleted by the Access Board in 
response to public comments.
    Commenters noted that the revised regulations will require handrail 
gripping surfaces with a circular cross section to have an outside 
diameter of 2 inches, and that this requirement would impose a physical 
barrier to

[[Page 36996]]

individuals with disabilities who need the handrail for stability and 
support while accessing stairs.
    The requirement permits an outside diameter of 1\1/4\ inches to 2 
inches. This range allows flexibility in meeting the needs of 
individuals with disabilities and designers and architects. The 
Department is not aware of any data indicating that an outside diameter 
of 2 inches would pose any adverse impairment to use by individuals 
with disabilities.

Handrails Along Walkways

    The 1991 Standards do not contain any technical requirement for 
handrails provided along walkways that are not ramps. The proposed 
standards regulations, section 403.6, will specify that where handrails 
are provided along walkways that are not ramps, they shall comply with 
certain technical requirements. The proposed change is expected to have 
minimal impact.

Appendix B: Initial Regulatory Assessment

Background

    As directed by Executive Order 12866, as amended without 
substantial change to its requirements by Executive Order 13258, the 
Department is required to conduct an initial regulatory impact analysis 
(hereinafter ``RIA'' or ``regulatory assessment'') in order to assess 
the economic benefits and costs of its proposed regulations 
implementing titles II and III of the ADA. The purpose of regulatory 
analysis is to inform stakeholders in the regulatory process of the 
effects, both positive and negative, of the proposed regulations. In 
this context, the primary stakeholders are individuals with 
disabilities who will benefit from using accessible facilities and the 
owners and developers of covered entities that will incur the costs of 
compliance. In addition, as directed by the Regulatory Flexibility Act 
of 1980, as amended by the Small Business Regulatory Enforcement 
Fairness Act of 1996 (SBREFA), as well as Executive Order 13272, the 
Department is required to consider the potential impact of its proposed 
regulations on small entities.
    A key component of the Department's regulatory assessment is a 
comprehensive benefit-cost analysis of the proposed revisions to the 
ADA Standards. OMB Circular A-4 requires Federal agencies to conduct a 
full benefit-cost analysis for any regulation that is ``economically 
significant''--that is, a regulation that is expected to have an annual 
impact on the economy of $100 million or more. Such an analysis must 
include both quantitative and qualitative measurements of the benefits 
and costs of the proposed regulation, as well as a discussion of each 
potentially effective and reasonably feasible regulatory alternative. 
OMB Circular A-4 also stipulates that regulatory analyses should only 
assess those costs and benefits that arise as a result of the proposed 
regulations themselves --in other words, the incremental impact of the 
proposed regulations when compared to a baseline of the legal status 
quo that would continue to apply absent regulatory action.
    Early on in this process, the Department concluded that the 
economic impact of its adoption of the proposed standards was likely to 
exceed this $100 million threshold, not only because it would be 
proposing to adopt several years' worth of revised and supplemental 
accessibility guidelines at once, but also because the proposed 
standards would apply to all newly constructed and existing facilities. 
Accordingly, the Department has conducted an initial RIA for the 
proposed standards. Consistent with the requirements for regulatory 
analyses, the RIA assumes a 40-year lifecycle for the longest lasting 
facilities subject to the regulations (here, a typical newly 
constructed building) before they must be substantially altered, torn 
down, or rebuilt. The RIA also assumes that the proposed regulations 
will remain in force for 15 years, after which time it is presumed they 
would be superseded by future revisions to the title II and title III 
regulations.
    In September 2004, the Department issued an Advance Notice of 
Proposed Rulemaking (``ANPRM'') which, among other things, described 
its proposed methodology for the initial regulatory assessment and 
solicited public comment on this methodology generally. See 69 FR 
58,768 (Sept. 30, 2004). Additionally, section IV of the ANPRM entitled 
``Regulatory Assessment Issues'' posed specific questions for public 
comment relating to the application of the proposed standards to 
existing facilities, including general sources for benefit and cost 
data, information on the impact of the proposed rules on small entities 
and suggestions for regulatory alternatives, and recommended sources of 
data for certain types of facilities or requirements. Id. at 58,779-782 
(Question Nos. 9-49). The Department received many comments in response 
to the ANPRM and it has taken those comments into consideration during 
the regulatory assessment process.
    At the same time, the Department also received many comments 
expressing the view that economic analysis is irrelevant with respect 
to the implementation of a civil rights statute. Under this view, 
because the ADA is a civil rights statute protecting the rights of 
individuals with disabilities, regulations designed to implement its 
protections are necessary regardless of whether quantifiable benefits 
can be shown to outweigh costs. As these commenters noted, traditional 
benefit-cost analysis is not designed to measure the inherent value of 
civil rights protections or to make judgments about fairness or equity.
    The Department is sympathetic to the views expressed by these 
commenters. However, the Federal laws and regulations that require 
agencies to express the benefits and costs of regulations in economic 
terms do not distinguish between regulations that implement civil 
rights statutes like the ADA and regulations that implement other kinds 
of laws. The Department also believes that there is much to be gained 
from the comprehensive identification and description of the benefits 
of accessibility standards, which are, after all, designed to ensure 
equal access for everyone. Such benefits include not only the 
measurable benefits to individuals with disabilities but also the more 
subtle and far-reaching benefits for society as a whole. The majority 
of commenters representing industry groups also expressed the belief 
that the proposed standards would not confer any measurable benefit on 
individuals with disabilities, and, consequently, were perceived by 
some business owners as ``punitive.'' In fact, not only do the revised 
requirements confer measurable benefits on individuals with 
disabilities, in many cases, they also lower the costs for businesses. 
By conducting a comprehensive assessment of the benefits and costs of 
the proposed standards, the Department hopes to promote greater 
understanding of the ADA and to further compliance with its civil 
rights protections.
    Complete copies of the Department's RIA and accompanying 
Supplementary Results report are available on the Department's ADA Web 
site (http://www.ada.gov). The RIA itself is the work product of HDR/
HLB Decision Economics, Inc., the economics firm with which the 
Department has contracted to conduct its initial regulatory assessment. 
The Department has adopted the results of the RIA as its assessment of 
the benefits and costs that the proposed standards will confer on 
society. The Department invites the public to read the RIA and to 
submit electronic comments by visiting the

[[Page 36997]]

Department's Web site for public comments. See http://www.regulations.gov. When the Department publishes a final rule, it 
will also publish an accompanying final regulatory assessment. What 
follows is a general overview of the basic principles of the RIA, as 
well as the Department's responses to ANPRM comments concerning the 
methodology for this assessment.

Methodology for Data Collection

    Several commenters proposed that the Department measure the 
relevant inputs for the RIA--such as the types of benefits individuals 
might realize from using a particular element or space in a facility, 
the unit costs that facilities will incur to comply with a requirement, 
or the likelihood that compliance will be readily achievable--by 
conducting surveys, focus groups, and similar types of studies. For 
example, commenters representing industry groups suggested that the 
Department conduct a nationwide survey of existing facilities 
representing a range of ages, sizes, and building methods in order to 
assess the unit costs to existing facilities of complying with the 
proposed regulations. Similarly, in order to measure the benefits to 
users, some commenters proposed that the Department conduct a national 
survey of people with disabilities using a broad sampling of ages, 
types of impairments and socioeconomic status. Other suggestions 
included interviewing support groups or State health officials and 
staff at long term care facilities, conducting a nationwide survey 
using the Social Security mailing list, and adding questions to the 
U.S. Census questionnaire.
    The Department has determined that it would be infeasible to 
conduct surveys or otherwise collect information from (or about) all 
facilities and all persons with disabilities nationwide. Nor would 
surveys on the ``real world'' costs of compliance have aided the 
regulatory assessment; only the incremental costs of compliance are 
relevant to the analysis. Similarly, the Department also has determined 
that it would be infeasible to conduct a nationwide survey of 
individuals with disabilities with respect to the incremental benefits 
they might be likely to experience from the proposed regulations.
    Instead, the RIA relies on publicly available data sources--
supplemented as necessary with estimates generated or verified by 
expert cost and benefit panels--to calculate the incremental impact of 
the proposed regulations. See RIA, Ch. 4. Public data sources used in 
the RIA are wide-ranging and include: the 2002 Economic Census (to 
estimate the number and types of existing facilities); RS Means 
publications (to estimate unit costs); Dodge Construction Potential 
Bulletins (to estimate new construction rates); firm size data compiled 
by the Small Business Administration's Office of Advocacy (to estimate 
the total number and sales receipts of small businesses); the Annual 
Time Use Survey published by the Bureau of Labor Statistics (to 
estimate facility use and travel time); population surveys by the U.S. 
Census Bureau (to estimate the percentage of U.S. population with 
disabilities and types of disabilities); and average hourly wage 
statistics compiled by the Bureau of Labor Statistics (to estimate the 
value of time per facility group). For those aspects of the RIA model 
that lacked publicly available data, estimates were developed by HDR/
HLB or Department architects (as appropriate) and then reviewed by 
expert cost and benefit panels. From the cost perspective, estimated 
values include the number and type of elements per typical facility. 
See RIA Sec. Sec.  4.1.2, 4.1.7. With respect to benefits, the expert 
panel developed estimates concerning the time savings due to changes in 
accessibility, the expected number of uses for each requirement, and 
the likelihood that persons with disabilities would realize benefits 
from a requirement. See RIA Sec. Sec.  4.2.4, 4.2.6.

The Access Board's Final Regulatory Assessment--2004 ADAAG

    In July 2004, the Access Board published its final regulatory 
assessment for the 2004 Americans with Disabilities Act and 
Architectural Barrier Act Accessibility Guidelines (``2004 ADAAG''). 
See Regulatory Assessment of the Final Revised Accessibility Guidelines 
for the Americans with Disabilities Act and Architectural Barriers Act, 
http://www.access-board.gov/ada-aba/reg-assess.htm (July 2004). A few 
years earlier, the Access Board also issued final regulatory 
assessments for its supplemental guidelines for play areas (2000) and 
recreation facilities (2002).\1\ The Access Board's final regulatory 
assessment for the 2004 ADAAG does not, however, incorporate these 
supplemental guidelines into its economic analysis since the costs of 
these guidelines had already been addressed in prior regulatory 
assessments.
---------------------------------------------------------------------------

    \1\ The Access Board's final assessments for its supplemental 
guidelines for play areas and recreation facilities are available on 
its Web site. See Assessment of Benefits and Costs of Final 
Accessibility Guidelines for Recreation Facilities, http://www.access-board.gov/recreation/reg-assessment.htm (Sept. 2002); 
Final Accessibility Guidelines for Play Areas--Economic Assessment, 
http://www.access-board.gov/play/assess.htm (Oct. 2000). The Board 
conducted an initial, but not a final, regulatory assessment for its 
supplemental guidelines for State and local government facilities 
issued in 1998.
---------------------------------------------------------------------------

    In summary, the Access Board's final regulatory assessment for the 
2004 ADAAG used a sampling approach to calculate the costs of the 
revised guidelines as applied to newly constructed and altered 
facilities. In this final regulatory assessment, the Board identified 
fourteen requirements that were projected to impose higher costs 
(relative to the 1991 ADAAG) for newly constructed or altered 
facilities. From this group of ``increased cost'' requirements, the 
Board selected ten requirements for direct economic analysis based on 
its determination that these requirements were likely to have the 
greatest cost impact on newly constructed and altered facilities. The 
Board then calculated the costs of applying these ten requirements to 
the new construction and alteration of four representative facility 
groups: office buildings; hotels; hospitals and nursing homes; and 
public (government) housing. These four facility groups were selected 
based on the assumption that they would most likely incur relatively 
higher costs for the ten selected requirements as compared to other 
facilities. Using the foregoing methodology, the Board's final 
regulatory assessment estimated that the aggregate national cost of the 
ten selected final revised guidelines for newly constructed or altered 
office buildings, hotels, hospitals and nursing homes, and public 
housing ranged from $12.6 million (using IBC 2000 & 2003 as the ``lower 
bound'' baseline) to $26.7 million (using an ``upper bound'' baseline 
of the 1991 ADAAG) annually.
    In the ANPRM, the Department stated that it expected to ``adopt'' 
the Access Board's final regulatory assessment for the 2004 ADAAG as 
its assessment of the cost impact that the proposed standards would 
have on newly constructed and altered facilities. At the same time, 
however, the Department recognized that its assessment of the costs for 
newly constructed and altered facilities would have to be broader than 
that of the Board. First, the Department's assessment would have to 
include the costs associated with the supplemental guidelines, which, 
because they had been adopted by the Board in earlier rulemaking 
initiatives, had not been included in the Board's final regulatory 
assessment of the 2004 ADAAG. In addition, as the Department

[[Page 36998]]

noted in the ANPRM, the unit costs estimated by the Board, though they 
might serve as a starting point, would nonetheless have to be 
supplemented with indirect costs, balanced with reduced costs, and then 
spread out over the 40-year lifecycle of the regulations. Finally, 
because the Department was undertaking a comprehensive benefit-cost 
analysis, the Department--unlike the Board--would have to include an 
assessment of benefits for each requirement.
    In response to the ANPRM, several commenters representing industry 
groups urged the Department not to simply ``adopt'' the Board's 
assessment but, instead, to conduct its own assessment of the benefits 
and costs of the proposed standards for newly constructed and altered 
facilities. Questioning the accuracy of the sampling approach employed 
in the Board's assessment, as well as its decision not to estimate unit 
costs for requirements it had concluded would impose ``reduced cost'' 
or ``no or minimal cost,'' these commenters urged the Department to 
conduct a comprehensive benefit-cost analysis that would assess the 
benefits and costs of all requirements as applied to all types of 
facilities.
    As a practical matter, the RIA does indeed follow the comprehensive 
benefit-cost approach suggested by these commenters. The Department had 
long planned to assess the incremental impact of revised and 
supplemental requirements at existing facilities on a per requirement 
and per facility basis with respect to barrier removal. Using a 
different methodology for newly constructed and altered facilities 
would have made it impossible to ``roll up'' the benefits and costs of 
the proposed regulations for each requirement, each facility group, and 
for the rule as a whole. The Department concluded that the most 
sensible approach would be to use the same methodology throughout its 
initial regulatory assessment. Thus, the Department did not ``adopt'' 
the Access Board's final regulatory assessment for the 2004 ADAAG, but, 
rather, conducted its own assessment of the proposed title II and title 
III regulations.
    Moreover, while the Department suggested in the ANPRM that it might 
use the Board's unit cost estimates as a starting point for newly 
constructed and altered facilities, the RIA does not, in fact, rely on 
the Access Board's cost figures. Instead, the RIA uses detailed cost 
estimates for each requirement as provided by an independent 
professional cost estimator. See RIA Sec. Sec.  4.1.3-4.1.6 & App. 3-H. 
These unit cost estimates were derived using standard industry 
practices and published sources for construction costs. Low, middle, 
and high unit cost estimates were developed for each requirement and 
separately applied to new construction, alterations and barrier 
removal. As with all data used in the RIA, the Department invites the 
public to comment on its unit cost estimates and to provide, where 
appropriate, any supporting information that might be necessary for the 
Department to properly consider the comment. Because this is an initial 
RIA, it will be followed by a final regulatory assessment when the 
Department publishes a final rule. The Department will carefully 
consider all comments relating to the initial RIA during the 
development of the final rules and final regulatory assessment.

Categorization of Requirements

    The Department's RIA assesses the incremental benefits and costs of 
110 proposed requirements (or series of closely-related requirements). 
For ease of reference, the RIA assigns a number to each proposed 
requirement. See RIA, Tbl. 1 & App. 2. The RIA's requirements largely 
follow the requirement categories developed by the Access Board in its 
final regulatory assessment for the 2004 ADAAG. The Department's 
categorization of requirements, however, does not track perfectly with 
the Board's final regulatory assessment for two primary reasons. First, 
the two assessments use different primary baselines. In the Access 
Board's final regulatory assessment, the 1991 ADAAG served as one of 
the two primary baselines, whereas the RIA employs the Department's 
1991 Standards as the primary baseline. Second, the Board's final 
regulatory assessment only directly calculated the cost impact of a 
limited subset of revised guidelines as applied to four representative 
newly constructed or altered facility groups. For situations in which 
either of these considerations altered the incremental substantive or 
monetary impact of a proposed requirement, the RIA categorizes that 
requirement differently than the Access Board. See RIA Sec.  2.2.
    Requirements in the RIA are categorized as either ``supplemental'' 
or ``revised'' requirements. Supplemental requirements represent 
proposed requirements that have no scoping or technical counterpart in 
the 1991 Standards. There are 44 requirements in the RIA categorized as 
``supplemental.'' See RIA, App. 2 (Req.  67-110) & 
App. 8 (Matrix of Changes). For the most part, these supplemental 
requirements come from the supplemental guidelines promulgated by the 
Access Board for judicial, detention, and correctional facilities 
(1998), play areas (2000), and recreational facilities (2002). The 
Department's title II and title III NPRMs also independently propose a 
handful of new regulatory requirements applicable to sports stadiums, 
post-secondary school multistory dormitory facilities, accessible 
prison cells, and social service establishments. See RIA, App. 2 (Req. 
 106-110) & App. 8 (Matrix of Changes). In general, 
supplemental requirements apply to features or elements that are 
typically found only in specific types of facilities such as 
courthouses, jails, recreational boating and fishing facilities, golf 
courses, amusement rides, and playgrounds. However, a few supplemental 
requirements (i.e., requirements relating to exercise facilities, 
swimming pools and play areas) apply to features or elements found in a 
broader range of facility types. Supplemental requirements in the RIA 
are assigned requirement numbers 67-110. See RIA, Apps. 2 & 8.
    The RIA also identifies 66 proposed requirements as ``revised'' 
requirements. Unlike supplemental requirements, revised requirements 
apply to features or elements that are currently subject to (or 
specifically exempted from) scoping or technical provisions in the 1991 
Standards. For the most part, revised requirements apply to elements 
that are found in a wide range of commonly used facility types, such as 
restaurants, retail stores, schools, hospitals, and office buildings. 
Also categorized as revised requirements in the RIA are requirements 
applicable to common building elements (such as windows) and commonly 
used facility types (such as residential dwelling units) that have long 
been subject to specific accessibility requirements, either through the 
Uniform Federal Accessibility Standards (``UFAS''), other Federal 
accessibility standards (such as the Fair Housing Act or Section 504 of 
the Rehabilitation Act), or the International Building Code (IBC). Each 
of the ``revised'' requirements in the RIA was adopted by the Board in 
2004 and is, therefore, also described in the final regulatory 
assessment accompanying the 2004 ADAAG. ``Revised'' requirements in the 
RIA encompass requirement numbers 1 through 66. See RIA, Apps. 2 & 8.
    For analytical purposes, the RIA also further divides ``revised'' 
requirements into two subcategories: ``more stringent'' and ``less 
stringent'' requirements. Generally speaking, more stringent 
requirements are requirements that have

[[Page 36999]]

been modified to mandate greater accessibility as compared to the 1991 
Standards. For the most part, the RIA's ``more stringent'' revised 
requirements generally correspond to requirements identified by the 
Board as ``no or minimal cost'' or ``increased cost'' requirements in 
its final regulatory assessment for the 2004 ADAAG. These differences 
in terminology arise out of the dissimilar methodologies underlying the 
respective regulatory assessments--namely, while the Board's final 
regulatory assessment assessed only the costs of the revised 
guidelines, the Department's RIA includes both incremental benefit and 
the cost calculations for each proposed requirement. ``More stringent'' 
requirements in the RIA include the following requirement numbers: 2-
11; 14-16; 19-24; 27-29; 32; 35-37; 40-42; 45-46; 48-49; 51-53; and 58-
62. See RIA, App. 8. Less stringent revised requirements, on the other 
hand, represent requirements that have been relaxed relative to the 
1991 Standards. Requirements categorized as ``less stringent'' in the 
RIA generally equate to ``reduced cost'' requirements in the Access 
Board's final regulatory assessment. In the RIA, less stringent revised 
requirements are represented by the following requirement numbers: 1; 
12-13; 17-18; 25-26; 30-31; 33-34; 38-39; 43-44; 47; 50; 54-57; and 63-
66. See RIA, App. 8.

Facilities--Categorization by Group

    The RIA calculates the incremental benefits and costs of the 
proposed standards for all public and private facilities covered by the 
ADA. With respect to places of public accommodation covered by title 
III, commenters stressed the need to consider each type of facility--
whether it is a restaurant, a hotel, a theater or an amusement park--in 
its own respective category. Commenters also encouraged the Department 
to break out facility groups in a way that reflects the homogeneity (or 
lack thereof) of the types of buildings and industries that fall within 
each group. For example, commenters representing the restaurant 
industry emphasized the diverse nature of the industry and urged the 
Department not to use a ``one size fits all'' approach. Similarly, 
commenters representing the amusement industry pointed out that their 
industry is ``not monolithic'' and encompasses amusement facilities of 
various types and sizes, ranging from large theme parks to small 
miniature golf courses. These commenters also related their view that 
amusement facilities have physical environments and construction costs 
that are fundamentally dissimilar from other types of facilities and 
should not be lumped in with places of public entertainment generally.
    The Department appreciates the need for a facility categorization 
scheme that reflects, to the greatest extent possible, the wide range 
of facilities covered by titles II and III of the ADA. Accordingly, 
rather than simply relying on the twelve facility categories enumerated 
in the ADA, the RIA features more than 65 different facility groups. 
See RIA, Tbl. 2 & App. 3-A to 3-C. All public (title II) and private 
(title III) facilities are assigned separate facility groups. 
Additionally, public and private facilities are also grouped according 
to general similarities in size, in underlying economic characteristics 
(including the responsiveness of average customers to changes in 
price), or both. Some of the resulting facility groups represent 
single-purpose facilities (i.e., elementary schools or hospitals), 
while other groups include classes of facilities (i.e., single level 
stores). A few facilities--namely, swimming pools and parking garages--
represent both individual facility groups and elements in larger 
facilities (such as hotels).
    While the range of facility groups in the RIA is thus broad, it is 
not limitless. No regulatory assessment can account for every nuance 
across all industries and facility types nationwide. The Department has 
nonetheless endeavored to craft as many facility groups as necessary to 
properly estimate the incremental benefits and costs of the proposed 
regulations, as well as to afford stakeholders a meaningful opportunity 
to assess the regulations in terms of their own particular 
circumstances. For example, due to the wide variations between 
transient lodging facilities and the fact that several revised 
requirements are directly related to the number of rooms in such 
facilities, places of lodging have been divided into three size-
specific groups: ``motels,'' ``inns,'' and ``hotels.'' Additionally, 
both because most of the supplemental requirements relate to specific 
types of recreation facilities and because such facilities vary greatly 
by size and features, the RIA includes distinct categories for each of 
the following public and private recreation-related facility groups: 
amusement parks; exercise facilities and health spas; aquatic centers; 
bowling alleys; golf courses; recreational boating facilities; fishing 
piers and platforms; miniature golf courses; and shooting facilities. 
The RIA does not, however, differentiate restaurants and other eating 
establishments into multiple facility groups as suggested by some 
commenters. Since more than 75% of restaurants are owned by small 
businesses, their respective sizes, features, and elements are 
relatively homogenous. See RIA, Ch. 6, Tbl. 17. Thus, for purposes of 
the RIA, restaurants and other eating establishments are collectively 
assigned to a unitary facility group. The Department, however, welcomes 
public comment on these and other facility groups used in the initial 
RIA and will consider such comments carefully when preparing the final 
RIA.

Facilities--Estimation of Number of Elements per Facility

    The primary building blocks for the RIA's economic analyses are the 
estimated number of elements in each facility. Elements represent the 
architectural features, amenities, or spaces that are subject to 
revised or supplemental proposed requirements. As noted previously, it 
was not feasible for the Department to conduct a nationwide survey of 
all buildings and facilities. Nor are published sources available that 
document the number and types of elements--as defined in the RIA--in 
all facilities across the country. Estimating the number of elements 
per facility thus required the development of specifications for each 
element, as well as a methodology for counting the number of elements 
in each facility. These estimates were initially developed by 
Department architects and HDR and then verified (or, as needed, 
modified) by a panel of experts with broad experience in architecture, 
code consulting, and cost estimation across a wide spectrum of 
facilities. See RIA Sec. Sec.  3.1, 4.1.2 & Apps. 3-D, 3-E, 7.
    The end result of this element estimation process is a constructed 
element count for all types of ADA-covered facilities nationwide. 
Within each facility group, the RIA assumes a ``typical'' or average 
facility for each facility group that applies to all facilities in that 
group. See RIA, App. 3-C. Examples of assumptions about facility size 
include square footage, number of stories or elevators, and seating 
capacity. For each typical facility, in turn, the RIA assumes a 
specified set of elements. See RIA, App. 3-E. As a general rule, larger 
facilities have more elements, and smaller facilities have fewer 
elements. However, the specific number and type of elements in a 
typical facility are determined by the size and nature of the facility. 
For example, the typical restaurant is assumed to potentially have up 
to the following number of elements subject to change: Valet parking 
garages (1); passenger loading zones (1); parking

[[Page 37000]]

spaces (1); urinals (1); water closet clearances in single-user toilet 
rooms (2); side reach (3); sales and service counters (1); limited 
access spaces and machinery spaces (1); detectable warnings (1); and 
small play area (1). See RIA, App. 3-E1.
    In actuality, of course, not every facility will share precisely 
the same set of elements that are assumed for the typical facility in 
the facility group. For example, even though it is estimated that the 
typical restaurant facility has one passenger loading zone, many 
restaurants are located on streets, in shopping malls, or other 
interior spaces where passenger loading zone requirements do not apply. 
The RIA takes this uncertainty factor into account by incorporating 
likelihood values into the model. That is, each element is assigned a 
range of values (low, medium, and high) representing the likelihood 
that the element is both located in the typical facility and subject to 
change in order to bring it into compliance with applicable revised or 
supplemental requirements. See RIA Sec. Sec.  3.1, 4.1.2 & Apps. 3-F, 
3-G. Continuing with the restaurant example, the ``most likely'' value 
for passenger loading zones being located at a particular facility and 
requiring change is assumed to be 10%, with high and low values equal 
to plus or minus 5% respectively. See RIA, App. 3-G. Thus, by 
quantifying and incorporating likelihoods into the model with respect 
to facility element counts (and other estimated cost and benefit 
values), the RIA more realistically addresses some of the inherent 
uncertainties underlying benefit-cost analyses. See RIA Sec. Sec.  3.3, 
4.3.1 (discussing ``Risk Analysis'' approach) & App. 6 (RAP Primer).

Facilities--Application of Model to Newly Constructed and Existing 
Facilities

    The universe of facilities required to comply with the Department's 
proposed standards will be divided into mutually exclusive categories--
facilities that are ``newly constructed'' after the effective date, and 
facilities that are already ``existing'' as of the effective date. 
Facilities constructed after the effective date of the regulations will 
be required to build in conformance with the requirements governing new 
construction. Elements and spaces within existing facilities will be 
subject to the proposed standards through either alterations or barrier 
removal requirements. In the RIA, each of these types of construction 
is modeled separately with respect to each facility group (and each 
requirement) so that stakeholders will be able to better assess the 
impact of the proposed regulations on their own particular facilities 
or circumstances.
    Application of the RIA cost model to new construction is relatively 
straightforward. The number of new facilities constructed each year 
after the effective date of the regulations (up to the 15th year) is 
generally based on published industry and sector-specific annual growth 
rates. See RIA Sec. Sec.  3.1, 4.1.1 & App. 3-B. In simplified form, 
the total incremental cost for a particular facility group in a given 
year is calculated by multiplying the number of newly constructed 
facilities for that group for the year by the total number of elements 
across all newly constructed facilities in that group and the unit cost 
per element (that includes both initial and recurring costs). As a 
general rule, new construction costs are typically lower than the costs 
for other types of construction. Indeed, many proposed requirements are 
expected to have zero costs for new construction either because the 
cost of the element is negligible, or because it is presumed that 
architects can ``design around'' the new requirement in the planning 
stages with no appreciable increase in design or construction costs.
    For existing facilities, compliance with the proposed standards may 
come in the form of either alterations or barrier removal. The 
alterations requirement is only triggered when an entity voluntarily 
undertakes an alteration project, and, even then, generally applies 
only to the particular elements undergoing alteration. (Alterations 
affecting ``primary function areas'' are also required, absent certain 
circumstances, to ensure that the path of travel to the altered area is 
accessible to persons with disabilities.) Moreover, not all existing 
facilities would be altered within the presumed 15-year lifespan of the 
proposed regulations. The RIA thus incorporates a historically derived 
alterations schedule for each facility group based on published data. 
See RIA Sec.  3.4 & App. 3-B. Based on this alterations schedule, the 
total incremental alterations cost for a particular facility group are 
then calculated using the same basic formula as described above for new 
construction costs. Alterations costs reflect only the incremental 
costs necessary to bring the affected element(s) into compliance and 
exclude costs otherwise attributable to other planned aspects of the 
alteration. Overall, alterations costs vary greatly by facility group, 
with some facilities experiencing minimal alterations costs (or even 
cost savings) under the proposed regulations (e.g., stadiums, 
convention centers, airport terminals, depots, ski facilities, bowling 
alleys, fishing piers, and public amusement parks), and other 
facilities projected to incur relatively higher alterations costs 
(e.g., single-level stores, indoor service establishments, offices of 
health care providers, office buildings, and courthouses). See Initial 
Regulatory Impact Analysis--Supplemental Results (``Supplemental 
Results''), pp. 14-147. The variability in alterations costs are 
largely driven by the mix of affected elements in each respective 
facility group.
    Barrier removal, by contrast, is a continuing obligation that 
applies to all public areas of existing title III-covered facilities. 
For this reason, all elements in these existing facilities--
irrespective of compliance with the current 1991 Standards--potentially 
would be required to satisfy applicable supplemental or revised 
proposed requirements to the extent barrier removal was readily 
achievable. Factors in the barrier removal calculus include whether 
elements are subject to more stringent revised requirements and, 
thereby, potentially exempt from barrier removal under the Department's 
safe harbor proposal; whether elements are subject to supplemental 
requirements for which safe harbor protection does not apply; when the 
facility was originally constructed; whether, or to what extent, 
elements have been altered; and whether removal of architectural 
barriers is readily achievable under the 1991 Standards or proposed 
requirements respectively.
    Taking all of the foregoing factors into consideration makes 
barrier removal cost calculations potentially more complex (or, put 
another way, more variable-driven) as compared to costs for other types 
of construction. Figure 1 in the RIA fully illustrates the various 
conditions under which particular elements in an existing facility may 
become compliant and whether the costs associated with such compliance 
is assessed under barrier removal or alterations. As a practical 
matter, however, barrier removal cost calculations in the RIA can be 
distilled down to two essential considerations. First, the RIA assumes 
that elements in existing facilities subject to supplemental 
requirements may potentially incur barrier removal costs. Since the 
Department's proposed safe harbor is conditioned on compliance with the 
1991 Standards, elements covered by supplemental requirements--which, 
by definition, have no counterpart in the 1991 Standards--are 
necessarily ineligible for safe harbor protection. Second, with respect 
to revised requirements, the RIA

[[Page 37001]]

presumes no barrier removal costs will be incurred by virtue of the 
safe harbor provision. (Instead, modifications to existing elements 
subject to revised requirements proceed on the alterations schedule and 
are costed accordingly.)
    The RIA presents the overall results for barrier removal under two 
scenarios--a comparison of total net present value (``NPV'') under 
``safe harbor'' and ``no safe harbor'' conditions, and a comparison of 
varying assumptions about readily achievable barrier removal rates 
(i.e., 0%, 50%, and 100%). See RIA, Figures ES-3 & ES-4. (Total barrier 
removal costs are also presented for each respective facility group 
under the ``Safe Harbor'' scenario in the Supplemental Results.) In 
sum, many title III-covered facilities are expected to incur few--if 
any--costs for barrier removal due to the Department's proposed safe 
harbor provision. Indeed, when taking safe harbor into account, one-
half of the 38 facility groups comprised of title III-covered (private) 
facilities are projected to incur no barrier removal costs. See 
Supplemental Results, pp. 14-147. Such facility groups include: motels; 
restaurants; movie theaters; single-level stores; shopping malls; 
museums and libraries; day care centers; and homeless shelters. Other 
facilities, on the other hand, are expected to incur barrier removal 
costs under the proposed regulations due to the presence of elements 
affected by supplemental requirements. For such existing facilities, 
barrier removal costs typically run higher than new construction costs 
because: (1) retrofitting existing buildings or facilities is often 
more expensive than new construction; and (2) from an economic 
perspective, the full cost of bringing existing elements into 
compliance with the proposed regulations is attributable to barrier 
removal whereas, for new construction, only the incremental cost 
differential between compliant and noncompliant elements is 
attributable to new construction. See RIA Sec.  4.1.3. Title III-
covered facility groups with expected barrier removal costs that are 
higher relative to their respective new construction costs include 
amusement parks; exercise facilities; aquatic centers; and golf 
courses.

Facilities--Assumption of Compliance With Current Law

    In accordance with the principle that regulatory analyses should 
only assess the incremental benefits and costs attributable to proposed 
regulations, the RIA assumes that elements in existing facilities 
covered by the ADA are currently in compliance with applicable 
regulatory standards. Indeed, if the RIA did not make this assumption, 
the benefits and costs of entities' noncompliance with their legal 
obligations would be improperly charged to the proposed regulations.
    While the RIA's assumption of compliance has implications 
throughout the assessment, its impact is most obvious with respect to 
existing private (title III) facilities subject to barrier removal. As 
discussed previously, the Department is proposing a safe harbor 
provision that would exempt elements in existing facilities that comply 
with the 1991 Standards from barrier removal that might otherwise be 
necessary to bring them into compliance with revised standards in the 
proposed regulations. In this context, the RIA presumes that existing 
facilities have already satisfied their legal obligations by removing 
architectural barriers to the extent readily achievable. Thus, any 
remaining barriers are those for which barrier removal has not yet been 
readily achievable under the 1991 Standards. Moreover, if barrier 
removal to date has not been readily achievable under the current 
Standards (which, by definition, are less stringent than the proposed 
revised requirements), it is reasonable to assume that barrier removal 
will also remain beyond reach under more stringent revised 
requirements.
    For existing public (title II) facilities, however, the assumption 
of compliance with current law plays out differently. Existing public 
facilities are not subject to barrier removal requirements. Instead, 
title II-covered public entities must ensure that their programs and 
services, ``when viewed in their entirety,'' are accessible to 
individuals with disabilities. Compliance with program accessibility 
requirements thus does not necessarily require structural modifications 
to existing facilities since compliance is determined on a program-
wide--rather than element-by-element--basis.
    For these reasons, the RIA follows the methodology outlined in the 
ANPRM and generally does not assess the impact of the proposed 
regulations on existing public facilities covered by title II. However, 
there are two limited circumstances in which the regulatory assessment 
does include existing public facilities in the economic calculus. 
First, alterations to existing public facilities must still comply with 
the proposed regulations irrespective of program accessibility 
requirements. Thus, the RIA model assumes that when an existing title 
II-covered facility undergoes alteration, the incremental costs and 
benefits of that alteration are included in the regulatory assessment. 
Second, the RIA takes into account program access when calculating the 
estimated incremental impact of the proposed regulations with respect 
to supplemental requirements relating to existing swimming pools, 
saunas and steam rooms, and play areas. The RIA includes program 
accessibility in the regulatory calculus in the context of these three 
sets of requirements for several reasons. Even in the context of 
program accessibility, compliance with these supplemental requirements 
would undoubtedly require some structural modifications unless the 
facilities that compose the program were already--pursuant to program 
accessibility or otherwise--accessible in the same manner and to the 
same extent as required by the proposed standards. Moreover, the 
Department is proposing certain regulatory exemptions and exceptions 
that exclusively apply to existing title II-covered facilities with 
swimming pools, saunas and steam rooms, or play areas.
    The Department's statement in the ANPRM that it did not intend to 
include existing title II-covered public facilities in the assessment 
generated several objections by commenters. In summary, these 
commenters asserted that existing public facilities should be included 
in the regulatory assessment since they would be affected by the 
proposed standards in various circumstances, including voluntary 
efforts to improve access, determinations that compliance with program 
accessibility requirements could only be met with structural changes or 
litigation.
    As stated previously, however, the purpose of the RIA is to measure 
the incremental benefits and costs of the Department's proposed 
regulations. Because the program accessibility provisions in title II 
require public entities to ensure access to programs, rather than 
facilities, the necessity for structural modifications cannot be 
assumed.\2\ (By comparison, the obligation to remove structural 
barriers in existing private facilities is both mandatory and amenable 
to assessment on an element-by-element basis.) Moreover, as with 
existing private facilities, public facilities newly constructed or 
altered since the effective date of the 1991 Standards should already 
be fully or largely accessible, and older facilities--those built 
before

[[Page 37002]]

1993--have been required to meet the program accessibility requirements 
for at least 15 years, if not longer. It is thus reasonable to assume 
that if structural modifications were necessary to provide program 
access, they likely would have been implemented by now.
---------------------------------------------------------------------------

    \2\ Nor will public entities be required to retrofit elements in 
existing title II-covered facilities to bring them into compliance 
with the applicable revised standards so long as such elements 
presently comply with either the 1991 Standards or UFAS. To make 
this clear, the Department is proposing a safe harbor provision for 
existing public facilities.
---------------------------------------------------------------------------

Benefits--Public Comments Relating to the Measurement of Benefits

    The Department received many public comments with suggestions about 
how the RIA should measure the benefits of the proposed standards to 
individuals with disabilities. With the exception of those commenters 
who expressed the view that any form of economic analysis is 
inappropriate for regulations implementing a civil rights statute, 
commenters were unanimous that the assessment should balance costs 
against a comprehensive assessment of benefits, both economic and 
social. Generally speaking, commenters also recognized that quantifying 
benefits would be a difficult, if not impossible task, since the 
paucity of hard data on the economic benefits of accessibility would 
require the Department to generate such data from scratch.
    Most comments relating to the assessment of benefits tended to be 
global in nature. That is, rather than suggesting methods for 
estimating the incremental benefits of the proposed regulations, the 
majority of proposals appeared better suited to a comprehensive 
assessment of the overall societal benefits of accessibility itself. 
For example, commenters representing disability groups recommended that 
the Department adopt a process of benefit-based analysis recommended to 
the President by the National Council on Disability (NCD) in its report 
entitled ``National Disability Policy: A Progress Report, December 
2002-December 2003.'' Recognizing the need for ``vastly more data'' on 
the effects of societal decisions on people with disabilities, these 
commenters urged the Department to analyze the long-term benefits of 
the proposed regulations for people with disabilities, as well as 
economic activities foregone by persons with disabilities due to 
inaccessibility. As one commenter noted: ``An individual with a 
disability able to access the local aquatic center will be able to seek 
physical activity and recreation opportunities that promote healthy 
living and wellness, reduce the risk for disease and declining health, 
seek additional opportunities for community participation including 
employment and thereby reduce reliance on governmental subsidies for 
housing, welfare or health care.''
    Other commenters representing disability groups recognized that, 
while certain short-term benefits could be measured, gauging the more 
enduring or meaningful benefits of the changes represented by the 
proposed regulations for people with disabilities and for society as a 
whole would be very difficult. For example, determining the incremental 
impact that one change--or even all of the changes--might have on the 
earning power of people with disabilities would ``require a much more 
complex exercise than construction cost estimating.'' Other 
unquantifiable benefits noted by commenters included the extent to 
which the incremental changes reflected in the proposed regulations 
might lower the liability exposure faced by facilities by making 
accessible elements and spaces safer for persons with disabilities.
    Commenters representing industry groups suggested that the RIA 
assess the benefits of accessibility on an element-by-element basis in 
order to establish a ``breakeven'' value for each proposed 
requirement--that is, how much benefit an accessible element would need 
to provide to be worth the cost of making it accessible. One commenter 
representing the design and construction industry described this 
approach as measuring ``performance outcomes'' (i.e., the quantifiable 
benefits and costs conferred by each proposed requirement), as compared 
to other types of analysis that measure ``social outcomes'' (i.e., the 
overall impact of the proposed requirement on society). This comment 
suggested that ``cost effectiveness analyses'' focus on quantifiable 
performance outcomes, while ``cost utility analyses'' focus on 
qualitatively describing the range of social benefits and costs. In the 
RIA, the Department is doing both--quantifying the incremental benefits 
and costs of each proposed requirement to the extent they can be 
quantified, and, to the extent they cannot, describing the 
unquantifiable benefits and costs in qualitative terms.
    Several commenters representing disability groups or industry 
groups suggested that the practical effect of accessibility 
requirements is to redistribute economic resources from society as a 
whole to the ``under served'' population of individuals with 
disabilities. Commenters representing disability groups hailed the 
redistribution as an obvious social good, asserting that civil rights 
regulations need not confer benefits on ``society as a whole'' to be 
worthwhile. By contrast, commenters representing industry groups 
questioned whether such redistribution was cost-efficient. These 
commenters referred the Department to Part D of OMB Circular A-4 
(``Distributional Effects''), which applies when the benefits and costs 
of a regulation are unevenly distributed throughout the U.S. population 
or economy. Distributional effects may be imbalanced for different 
industrial sectors or regions of the country, or, as urged here, for 
different subpopulations of people. As OMB Circular A-4 puts it, the 
uneven distribution of regulatory impacts occurs when ``[t]hose who 
bear the costs of [the] regulation and those who enjoy its benefits * * 
* are not the same people.'' These commenters urged the Department to 
recognize that the proposed regulations would have uneven 
distributional effects because, in their view, those who will 
purportedly bear all the costs of compliance (facility owners and 
operators) and those who will enjoy its benefits (people with 
disabilities) are not the same groups.
    From the Department's perspective, however, the redistribution 
analogy is inapposite. Accessibility requirements do not represent a 
transfer of resources from one group of people to another, but, rather, 
a dedication of shared resources to a particular end. In contrast to 
the types of subpopulations mentioned in OMB Circular A-4 (i.e., race, 
sex, or income level), disability is not a fixed or even relatively 
static category; rather, it is inherent in the human condition. The 
vast majority of individuals who are fortunate enough to reach an 
advanced age will benefit personally from an accessible environment. 
Business owners and people with disabilities are not discrete 
subpopulations--just as people with disabilities own businesses, many 
business owners have or will acquire a disability during their 
lifetime. Moreover, while the direct costs of compliance with the 
proposed standards may be incurred initially by businesses, as 
commenters representing industry groups have repeatedly stated, such 
costs eventually may be passed along to consumers. In other words, all 
members of society will pay the price for accessibility, just as all 
will benefit from it. Rather than representing a transfer of resources 
between distinct groups of people, then, accessibility requirements 
represent--for all members of society, whether they will benefit from 
accessibility now or at some point in the future--a choice among 
different forms of societal benefits.

[[Page 37003]]

Benefits--Quantification and Monetization of User Benefits in the RIA

    From an economic perspective, the value that people derive from 
accessibility can be divided into three categories: ``use value'' (the 
value that people derive from using accessible facilities), ``option 
value'' (the value that people with and without disabilities derive 
from the opportunity to obtain the benefit of accessible facilities in 
the future) and ``existence value'' (the value that people with and 
without disabilities derive from the simple existence of accessible 
facilities including the fulfilment of constitutional guarantees of 
equal protection and nondiscrimination). The RIA, however, only 
quantifies and monetizes the incremental benefits to users (i.e., 
persons with disabilities) conferred by changes in accessibility due to 
the proposed regulations. This is largely due to data constraints. The 
overall benefits of the proposed regulations will be experienced by 
nearly all members of society to a greater or lesser extent during the 
projected 40-year lifecycle of facilities affected by these 
regulations. However, quantification of these benefits is beyond the 
scope of the Department's regulatory assessment, and, likely, any 
regulatory assessment. Instead, the RIA is necessarily limited to 
assessing the value of specific types of benefits that can be 
quantified and assigned monetary values (i.e., user benefits) for a 
demographically defined population of people (i.e., persons with 
disabilities). In this sense, the regulatory assessment must be 
considered conservative since it almost certainly understates the 
overall value of the proposed regulations to society.
    The RIA quantifies and monetizes user benefits in two ways. First, 
an expert panel developed estimates of the amount of time persons with 
disabilities can be expected to save time either gaining access to a 
facility (e.g., a retail store), waiting to use a particular amenity in 
that facility (e.g., a restroom), or using an amenity in the facility 
(e.g., an ATM inside the store) as a result of the proposed 
regulations. See RIA Sec. Sec.  3.2.2, 4.2.6 & Apps. 4-H, 4-K, 4-L, and 
4-N. Second, for proposed requirements--primarily, supplemental 
requirements--that can be expected to create new users who previously 
were unable to visit a facility (e.g., fishing piers) or to use a 
facility amenity independently (e.g., hotel swimming pools), the 
assessment quantifies the value of the new uses generated by the change 
in accessibility. See RIA Sec.  3.2.3 & App. 4-I. Each of these 
components of user benefits is then monetized using an appropriate 
``value of time''--namely, an expression of a user's willingness to pay 
for changes at the facility. In keeping with common economic 
assumptions, user benefits associated with accessibility changes are 
monetized based on the value of the user's time. See RIA Sec. Sec.  
3.2, 4.2.5 & App. 4-J.
    The benefits model in the RIA also places a ``premium'' on the 
value of certain types of time savings. The RIA describes the theory 
and mechanics of this approach in greater detail. See RIA Sec.  4.2.5 & 
App. 4-J. Briefly stated, the assessment assumes that individuals would 
be willing to pay more for time saved gaining access to a facility due 
to improved accessibility than their respective typical uses of the 
same amount of time. This presumption derives from studies in the 
transportation industry concluding that the inherent discomfort of 
having to wait (as compared to the satisfaction of feeling like one is 
at least moving in the direction one wants to go) leads people waiting 
at a bus stop to prefer to have the bus arrive sooner, even if it means 
that the bus ride itself will take longer (so that the net travel time 
is the same). Essentially, people experience the time they spend 
waiting for the bus as a more negative experience--by a factor of two 
to one--as compared to the time they spend riding the bus and, 
consequently, ``value'' decreasing the time spent waiting more than 
they would an equivalent amount of bus time. In the RIA, this premium 
is applied, as applicable, to the incremental time savings benefit 
afforded by each revised or supplemental requirement.
    In the end, the approach the Department has taken with respect to 
the assessment of benefits in the RIA is closest to the proposals of 
commenters representing industry groups. By calculating the incremental 
benefits (and costs) for each supplemental and revised requirement, the 
assessment generates a benefit-cost ratio for each such requirement. 
Although this approach has allowed the Department to gauge the 
incremental cost-effectiveness of the change represented by each 
revised or supplemental requirement as applied to a particular element, 
it should be understood that it is also fundamentally different from 
gauging the absolute cost-effectiveness of requiring a given element to 
be accessible. Most of the inherent value of an accessible element, as 
with accessibility generally, derives not from the incremental changes 
represented by the proposed standards, but from the fact that the 
element is required to be accessible at all.
    Finally, not all of the revised requirements will confer increased 
benefits on persons with disabilities. The ``less stringent'' revised 
requirements generally reduce both benefits and costs, though such 
reductions may not be distributed equally. As a general matter, 
requirements have been made less stringent to clarify the meaning of 
the current requirement, or to provide an exception that takes into 
account special circumstances in specific facilities. For less 
stringent requirements that propose reductions in scoping, these 
revisions were typically based on the Access Board's determination that 
demand for the affected accessibility feature or communication device 
was not high enough to warrant the current numerical requirements. For 
purposes of the RIA, when less stringent revised requirements confer 
lower benefits relative to the current requirements, these reduced 
benefits have been assessed only with respect to new construction and 
alterations. Elements in existing facilities subject to less stringent 
requirements are assumed to be compliant already, either with current 
(more stringent) requirements or revised (less stringent) requirements. 
Facility owners would have neither a legal obligation nor a financial 
incentive to undergo barrier removal for such elements in order to 
``comply'' with the revised standard. The RIA thus assumes that 
reductions in benefits due to less stringent revised requirements will 
not be realized for elements in existing facilities unless the affected 
elements are altered.

Benefits--Nature and Significance of Unquantified Benefits

    In addition to the foregoing monetized user benefits, the RIA 
acknowledges that the proposed regulations would, if promulgated in 
final form, undoubtedly confer significant and important benefits on 
society that defy easy quantification or monetization. These benefits 
include the option and existence values discussed previously. Other 
benefits would also likely accrue to businesses through reduced 
administrative costs (from harmonization of the 2004 ADAAG with model 
codes) or increased worker productivity (due to greater workplace 
accessibility). The regulatory assessment discusses these types of 
benefits in qualitative, rather than quantitative, terms. See RIA 
section 5.4.
    Perhaps the most significant unquantified benefit is the myriad 
ways in which the proposed standards--to

[[Page 37004]]

the extent they make the built environment more accessible--would 
improve the lives of many persons with disabilities. Even on an 
incremental level, the beneficial domino effect of increased access to 
all types of facilities, for each individual and, ultimately, for 
society as a whole, simply cannot be measured, much less reduced to 
monetary terms. An example related by one commenter referred to the way 
in which the proposed regulations would enable many individuals with 
disabilities to begin independently accessing various types of 
recreational facilities for the first time. This commenter observed how 
``[r]egular involvement and participation in recreation, social, and 
leisure activities plays a significant role in living and maintaining a 
healthy lifestyle,'' and ensures that people ``remain physically 
active, develop social skills, and develop the skills necessary to 
enjoy lifelong leisure activities.'' Among the many collateral benefits 
of access to recreational opportunities are the ``prevention of 
obesity, [a] decrease of secondary conditions, improved social and 
problem solving skills, promotion of physical and emotional health and 
decreased likelihood of being hospitalized for another illness,'' not 
to mention ``increased independent living skills and preparation for 
employment.''
    Unquantified benefits from the proposed regulations, moreover, are 
not limited to those accruing from the increased accessibility of 
recreational facilities. The revised requirements would increase 
accessibility throughout the entire range of public and private 
facility groups. For example, one commenter cited a study published in 
a recent issue of the Journal of Consumer Affairs presenting the 
perspectives of people with disabilities regarding the effectiveness of 
the ADA. Based on a national sample of one thousand 
noninstitutionalized individuals with disabilities, the study found 
that respondents who interacted more frequently with the marketplace, 
or even simply perceived the marketplace as more accessible, were more 
satisfied with life. According to this comment, study authors Carol 
Kaufman-Scarborough and Stacey Menzel Baker stated that their finding 
``indicates the value behind efforts designed to empower consumers with 
disabilities by offering services that assist them * * * and by 
creating environments that enable them to experience full participation 
in society.'' Increased accessibility of the marketplace as a whole, 
which can be expected to heighten facility use across a wide range of 
facility groups, will also lead to greater benefits over time. A 
commenter representing a State government echoed this theme, citing 
potentially increased usage of public recreation areas and greater 
participation in the democratic process.
    Additionally, the number of Americans with disabilities is expected 
to continue increasing over time. As many commenters pointed out, the 
proportion of the U.S. population that has a disability not only has 
been growing steadily over the last forty years, but also is projected 
to continue growing during the 40-year lifecycle of the regulations. 
Data provided by the Disability Statistics Center at the University of 
California at San Francisco demonstrates that the number of adults who 
use wheelchairs increased at a rate of 6% per year between 1969 and 
1999; by 2010, it is projected that 2% of the adult population in the 
U.S. will use wheelchairs. In addition to people who use wheelchairs, 
in 1999, 3% of adults used crutches, canes, walkers, and other mobility 
devices; by 2010, that number is projected to have increased to 4%. 
Thus, by 2010, up to 6% of the U.S. population is projected to have 
mobility impairments. Moreover, because this figure was based on data 
from 1999, it does not take into account the influence of the current 
war in Iraq. This war is creating a new generation of young men and 
women with disabilities, the majority of whom are returning from war in 
their early twenties and can be expected to outlive the 40-year 
lifecycle of any building subject to these proposed regulations. Just 
as the original Federal disability rights legislation--Section 504 of 
the Rehabilitation Act of 1973--was enacted in direct response to the 
thousands of disabled war veterans returning home from Vietnam, the 
need to ensure an accessible built environment is now more critical 
than ever.
    Benefits from the proposed regulations potentially would also 
extend to the public generally irrespective of disability status. For 
some, value may be derived simply from the existence of enhanced 
accessibility and improved social equity brought on by the proposed 
regulations. Others may take ``insurance'' value from the opportunity 
to make use of accessible features or facilities in the event they 
should need them in the future. Accessible facilities also benefit 
individuals without disabilities. Several commenters noted that 
improved accessibility features might benefit, for example, elderly 
persons, athletes temporarily on crutches, expectant mothers, or mail 
carriers using hand carts to deliver large packages. Moreover, because 
individuals tend to patronize facilities--especially places of public 
accommodation like hotels and restaurants--in pairs or groups, the 
benefits of accessibility also extend to the partners, companions, 
friends, family members, and personal assistants of people with 
disabilities. Finally, although requirements that apply to existing 
facilities pursuant to the barrier removal requirement are not 
primarily intended to benefit employees, employees with disabilities 
will certainly benefit from the accessibility of such features, which, 
given the importance of employment to the economic vitality of an 
individual, their family, and society as a whole, magnifies the 
benefits of accessibility throughout the economy.
    Lastly, businesses--as well as State and local governments--would 
also likely experience benefits from the proposed regulations in ways 
that are not quantified in the RIA. Increased harmonization of the 
revised ADA Standards with model codes and consensus standards will 
yield substantial benefits to businesses, architects, and State and 
local governments by eliminating confusion and reducing administrative 
costs.\3\ Harmonization will also make it easier for code-setting 
governmental entities to have their respective State or local codes 
certified as meeting or exceeding Federal standards. Businesses may 
also experience increased workforce

[[Page 37005]]

efficiency and productivity as a result of accessibility changes in the 
proposed regulations. For example, one commenter representing the 
design and construction industry pointed out that greater independence 
for users of facilities confers a ``productive'' benefit for 
businesses, whose staff can be redirected from providing assistance to 
customers with disabilities to potentially more economically rewarding 
tasks.
---------------------------------------------------------------------------

    \3\ While the benefits of harmonization between the ADA 
Standards and the model codes are clear, a few commenters noted the 
potential short-run downsides of harmonization. For example, some 
commenters complained that it would be expensive for small 
businesses to purchase copies of the IBC which is privately 
published by the International Code Council. Other commenters 
expressed concern that, since the 2004 ADAAG has a revised 
organization and format, they will have to learn a whole new 
regulatory system should the Department adopt these guidelines as 
the revised ADA Standards. The Department recognizes that, while 
harmonization will make ADA compliance easier for all covered 
entities (including small business owners) over the lifespan of the 
regulation, this benefit may not be fully realized by all entities 
immediately. To assist in the transition to the 2004 ADAAG, the 
Access Board has published a side-by-side comparison between the 
2004 ADAAG and IBC 2003--including the provisions that have been 
incorporated by reference in the 2004 ADAAG--on its Web site 
(www.access-board.gov). The ICC offers free downloads of a similarly 
detailed comparison between the 2004 ADAAG and IBC 2006 on its Web 
site (www.iccsafe.org). The Department is exploring the possibility 
of publishing a similar side-by-side analysis on its Web site that 
compares the ADA Standards (both current and as revised) to one or 
more editions of the IBC (including any IBC provisions incorporated 
by reference) following promulgation of the final regulations. 
Additionally, when the proposed regulations become final, the 
Department will publish small entity compliance guides required by 
SBREFA and other appropriate technical assistance.
---------------------------------------------------------------------------

Analytical Scenarios--Safe Harbor

    The most significant of the regulatory alternatives proposed by the 
Department is the ``safe harbor'' for certain existing title III-
covered facilities and elements. As noted previously, the safe harbor 
proposal exempts covered facilities from barrier removal obligations 
that might otherwise arise under the proposed regulations so long as 
the elements therein are in compliance with the 1991 Standards. The 
Department has proposed this safe harbor to mitigate the impact of the 
proposed regulations on existing private facilities.
    The RIA results indeed reflect the significant impact of the safe 
harbor proposal. In order to both assist the Department with its 
consideration of the safe harbor provision and inform the public of the 
benefits and costs of its adoption, the RIA compares the total NPV for 
``safe harbor'' versus ``no safe harbor'' scenarios. See RIA, Figures 
ES-3 & 13. These comparative scenarios use the 1991 Standards as the 
primary baseline and assume barrier removal is readily achievable for 
50% of the elements in existing facilities. Based on these assumptions, 
the RIA shows that there is most likely a $4.3 billion difference in 
total NPV between the ``safe harbor'' scenario ($7.6 billion) and the 
``no safe harbor'' scenario ($3.3 billion).

Analytical Scenarios--Barrier Removal

    By statute, an action to remove barriers is considered ``readily 
achievable'' if, for a particular entity, it is ``easily accomplishable 
and able to be carried out without much difficulty or expense.'' 42 
U.S.C. 12182(b)(2)(A)(iv). In practice, what is readily achievable for 
any given entity with respect to a given element must be determined on 
a case-by-case basis, and has no monetary or other absolute 
parameters--it is specific to the individual facility and to the 
particular time, place, and context in which that facility operates. 
The Department's current title III regulations provide a list of 
factors that should be considered in determining whether an action is 
readily achievable. Only one of those factors--the nature and cost of 
the action--relates to the element itself. All of the other factors 
specifically relate to the business entity, including the impact of the 
action on the operation of the site; the overall financial resources of 
the entity and any parent corporation; the type of operation of the 
entity or parent corporation (including the composition, structure, and 
functions of the relevant workforce); the geographic, administrative 
and fiscal relationships between the facility, entity, and parent 
company; and the effect of the action on any legitimate safety 
requirements that may be necessary for safe operation.
    Recognizing the infeasibility of conducting an empirical assessment 
of the individualized barrier removal efforts by facility owners and 
operators nationwide, the Department proposed in the ANPRM to develop a 
computer simulation model that would assess the statistical probability 
that existing facilities would be required to remove barriers in order 
to comply with supplemental or revised requirements. Several commenters 
expressed concern that the lack of reliable data would make the results 
of a simulation model useless. Other commenters suggested that the same 
indefinite parameters that make compliance with the barrier removal 
requirement difficult would also complicate any attempt to accurately 
calculate the likelihood that compliance would be required. In 
addition, these commenters stated that modeling readily achievable 
barrier removal as a function of the financial resources of an entity 
would underestimate the costs of compliance since entities, faced with 
an ambiguous definition of ``readily achievable,'' purportedly often 
spend more on barrier removal efforts than required by the ADA. Rather 
than using definite parameters to evaluate an indefinite requirement, 
these commenters proposed that the Department simply make an honest 
attempt to quantify the costs of compliance and to describe the 
distributional impacts of the rule across individuals and industries.
    The Department agrees that the lack of reliable data on existing 
facilities' barrier removal efforts would render any statistical 
analysis too indefinite to be of value. Therefore, rather than basing 
calculations of total incremental benefits and costs on potentially 
arbitrary assumptions about whether (or to what extent) elements at 
existing facilities have undergone barrier removal, the RIA takes a 
more practical approach. First, with respect to existing elements 
subject to supplemental requirements, the RIA calculates an expected 
total NPV based on the assumption that barrier removal would be readily 
achievable for every element (100%) in a manner that is fully compliant 
with the new standards. Second, the RIA then calculates total NPV under 
two other compliance scenarios (0% and 50%) to show how varying barrier 
removal rates impact the overall results. Taken together, these three 
barrier removal scenarios reflect the range of probabilities of barrier 
removal obligations that existing facilities would have under the 
proposed regulations. Presenting the data this way enables the facility 
owner who could potentially incur the costs of compliance, as well as 
the individual with a disability who could potentially benefit from 
that compliance, to gauge the impact that the proposed standards might 
have on a particular facility by selecting the scenarios that most 
closely match the level of compliance and resources of the covered 
entity.

Primary Baseline

    The 1991 Standards serve as the primary baseline for the RIA 
because they are the only uniform set of accessibility standards that 
apply to every place of public accommodation, every commercial 
facility, and every State or local government facility in the country. 
According to statistics compiled by the International Code Council 
(which publishes the IBC), a version of the IBC--either IBC 2000, IBC 
2003 or IBC 2006--has been adopted at the State or local level in all 
50 States and the District of Columbia. Nonetheless, there is still 
variation among states with respect to model code adoption. For 
example, because model codes such as the IBC are voluntary, public 
entities sometimes modify or carve out particular provisions or 
sections or leave adoption to the discretion of local jurisdictions. By 
contrast, because the ADA is a mandatory Federal law, it applies the 
same standards to every facility in the country, ensuring a uniform 
level of accessibility--as well as a uniform means of baseline 
assessment--nationwide.
    Because of this uniformity, the 1991 Standards baseline is the only 
baseline against which the incremental costs and benefits of the 
proposed regulations are estimated on a requirement-by-requirement and 
facility-by-facility basis. The results for the primary baseline are 
summarized in the main RIA text and presented in full in the 
accompanying Supplemental Results. It also bears noting that the 
primary baseline assumes that facilities subject to the 1991 Standards 
are not also required to comply with equivalent provisions in model 
codes (such as the

[[Page 37006]]

IBC) that have been adopted as State or local building codes--even 
though compliance with State or local building codes necessarily is 
compulsory. In other words, the primary baseline does not take into 
account the substantial overlap between requirements in the proposed 
regulations and model code provisions in the IBC. While this approach 
likely leads to significant overstatement of the costs (and benefits) 
of the proposed regulations with respect to many requirements, it also 
nonetheless represents the only means of uniformly assessing the 
incremental impact of the proposed regulations across all facilities 
nationwide.
    Some commenters representing industry groups expressed the view 
that the Department should not use the 1991 Standards as a baseline 
because, in their view, the benefits and costs of the current 
requirements were not adequately measured when the requirements were 
first adopted in 1991. Instead, these commenters propose that the 
Department assess the absolute benefits and costs of the proposed 
standards as measured against a zero baseline--that is, the full cost 
of compliance with the proposed regulations irrespective of the current 
level of accessibility of facilities due to the 1991 Standards.
    The Department disagrees with these comments. OMB Circular A-4 is 
very clear that regulatory analyses should only account for those 
incremental benefits and costs that arise as a result of the proposed 
regulatory action itself. To assess the absolute (or total) benefits 
and costs of compliance with the proposed regulations would improperly 
attribute to the proposed standards all of the benefits and costs of 
the 1991 Standards, thereby distorting the economic impact of the 
proposed regulations. The 1991 Standards are the law of the land and 
facilities have been subject to the current requirements for 15 years. 
Assessing the benefits and costs of the proposed standards as if the 
ADA had just been enacted would thus drastically overstate both the 
benefits and the costs of the proposed regulations. For these reasons, 
the RIA uses the 1991 Standards as the primary baseline and assesses 
the incremental impact of the proposed standards accordingly.

Alternate Baselines

    While the RIA uses the 1991 Standards as the primary baseline, the 
assessment nonetheless still accounts for the impact of the widespread 
adoption of model codes by using alternate IBC baselines for several 
analyses. Due to the high degree of overlap between the IBC, the 2004 
ADAAG, and the Department's proposed standards, the widespread adoption 
of various versions of the IBC by State and local jurisdictions means 
that most buildings and facilities nationwide are already being 
constructed or altered in compliance with many of the proposed 
standards. (Indeed, one of the Access Board's goals in revising ADAAG 
was to harmonize these guidelines with model codes, such as the IBC, 
precisely because they form the basis of most State and local building 
codes.) Thus, for facilities located in one of the many jurisdictions 
that have adopted--in whole or in part--a version of the IBC, the 
Department's adoption of the proposed regulations will have far less 
impact as compared to other facilities.
    For these reasons, several commenters representing disability 
groups urged the Department to use the IBC, in conjunction with other 
accessibility standards that have been adopted by States or local 
governments, as the primary baseline in lieu of the 1991 Standards. 
Commenters representing industry groups also recognized that versions 
of the IBC had been adopted in many States and localities, but 
suggested that the Department only use the IBC as a baseline for those 
jurisdictions in which its provisions had actually been adopted into 
law by code-making authorities.
    As noted in the Regulatory Framework section of the ANPRM, the 
Department considered following a State-by-State approach in which the 
relevant baseline for newly constructed and altered facilities would 
vary from State to State, depending on which IBC version each State or 
local jurisdiction had adopted. Under this approach, the 1991 Standards 
would only have been used as a default baseline for jurisdictions that 
had not yet adopted any version of the IBC. However, the many 
variations among State and local jurisdictions concerning the extent to 
which various IBC-related accessibility provisions (i.e., IBC Chapter 
11, IBC Appendix E, and ANSI A117.1) have been adopted without 
revision, adopted in a modified fashion, or carved out completely, make 
the creation of State-by-State baselines infeasible for every 
supplemental and revised requirement across all facilities nationwide. 
First, given these variations among States, use of State-by-State 
baselines would effectively require the creation of over one hundred 
separate baselines in order to accurately reflect which jurisdictions 
have adopted IBC provisions that are equivalent to each of the revised 
and supplemental requirements assessed in the RIA. Moreover, State-by-
State baselines would also necessarily require information concerning 
the precise geographical location, age, and type of occupancy of all 
existing facilities nationwide. The Department, however, is not aware 
of any publicly available ``facility census'' to provide this requisite 
information. Such considerations would have made State-by-State (or, as 
applicable, locality-by-locality) baselines both extremely time-
consuming to create and likely unreliable in application.
    Thus, while the RIA applies alternate baselines for three different 
versions of the IBC (i.e., IBC 2000, IBC 2003, and IBC 2006) to assess 
the overall impact of the proposed regulations, it employs a simplified 
approach to the creation of these baselines. Specifically, the RIA 
assumes that the applicable version of the IBC applies equally to all 
facilities nationwide, and that relevant provisions of ANSI A117.1, IBC 
Chapter 11 and IBC Appendix E have been incorporated by all State and 
local jurisdictions. This latter assumption is necessary because these 
three sources establish most of the accessibility standards that apply 
under the IBC. If none of them were assumed to apply, adoption of the 
IBC by a jurisdiction would tell us little about the accessibility of 
its facilities, and, if some but not all of them were assumed to apply, 
predicting which provisions would apply to which facilities would be 
impossible. The alternate IBC baselines in the RIA, therefore, do not 
present the overall results on a State-by-State basis. However, these 
baselines nonetheless still permit facilities to see how the impact of 
the proposed standards varies depending on which version of the IBC the 
State or local code authorities have or might adopt in the future.
    The RIA presents the comparative results for the three alternate 
IBC baselines in summary ``rolled-up'' fashion that combines all 
proposed requirements and facility groups. That is, for each alternate 
IBC baseline, the regulatory assessment provides a graphic 
representation (in the shape of a so-called ``S-Curve'') of the NPV at 
various likelihoods of occurrence. See RIA, Figure ES-5 & 15. Unlike 
the primary (1991 Standards) baseline, the results for each of the 
alternate IBC baseline scenarios are not further broken down to show 
the incremental benefits and costs for each requirement or facility 
group. Since requirement-by-requirement and facility-by-facility 
results are already calculated for the primary baseline, similarly 
detailed analyses for each IBC baseline effectively would have amounted 
to

[[Page 37007]]

conducting four separate regulatory assessments.
    Moreover, to further assist stakeholders in assessing the impact of 
the proposed regulations, the RIA also presents several more limited 
analyses that assess the incremental impact of four illustrative 
proposed requirements against requirement-specific alternate IBC/ANSI 
baselines. When constructing these four requirement-specific IBC 
baselines, the Department endeavored to determine (or approximate) the 
actual extent to which the relevant equivalent IBC provisions have been 
adopted by every State or local jurisdiction nationwide. The results of 
these analyses underscore the point that consideration of alternate 
requirement-specific IBC baselines on a requirement-by-requirement 
basis would likely lead to markedly lower incremental costs and 
benefits for many proposed requirements. For example, the first 
scenario in the RIA uses requirement-specific IBC baselines to assess 
the incremental impact of the proposed revisions with respect to two 
proposed requirements--alterations to existing stairs and elevators--
that have equivalent provisions in the ``main'' IBC chapters (Chapters 
10 and 34) and, thus, have been adopted by virtually every State and 
local jurisdiction nationwide. See RIA, Table 10. This first scenario 
shows that the incremental costs for these two requirements 
collectively would be reduced by about $1.1 billion over the lifespan 
of the regulations when using the requirement-specific alternate IBC 
baselines as compared to the primary baseline (1991 Standards). A 
second scenario in the RIA employs requirement-specific alternate IBC/
ANSI baselines to assess the incremental impact of proposed revisions 
to two other requirements--relating to side reach and water closed 
clearances--whose corresponding IBC provisions are only incorporated by 
reference into the IBC (through Chapter 11 and ANSI A117.1). See RIA, 
Table 11. These incorporated provisions have not been as uniformly 
adopted as other IBC provisions. Nonetheless, the incremental costs for 
these latter two requirements still would be reduced by about $660 
million over the lifespan of the regulations when using requirement-
specific IBC baselines as compared to the primary baseline (1991 
Standards).

Regulatory Alternatives--Existing Facilities

    As required by the Regulatory Flexibility Act of 1980, as amended 
by SBREFA, as well as Executive Order 13272, the Department has 
considered regulatory alternatives that would achieve the same 
statutory and regulatory goals but impose less cost on society. With 
respect to new construction and alterations, the ADA requires the 
Department to adopt standards that are ``consistent with'' the minimum 
guidelines issued by the Access Board. The Department does not have the 
statutory authority to modify the 2004 ADAAG. The Department does, 
however, have the discretion to determine whether--or to what extent--
those guidelines should apply to existing facilities.
    The most far-reaching regulatory alternative in the proposed 
regulations is the safe harbor provision that potentially exempts 
certain elements at existing facilities from barrier removal 
obligations under the proposed regulations. The RIA results demonstrate 
that this safe harbor proposal is expected to reduce substantially the 
total monetary impact of revised (more stringent) requirements on 
existing facilities, whether owned by small entities or larger groups 
or organizations. See RIA, Table ES-3.
    Another regulatory alternative being proposed by the Department 
would--for the first time--place a monetary limit on the barrier 
removal obligations of qualifying small businesses. Qualifying small 
businesses are those small entities that satisfy small business size 
standards promulgated by the Small Business Administration. Pursuant to 
this proposal, a ``qualified small business'' would have met its 
readily achievable barrier removal obligations for a given year if, in 
the preceding tax year, that entity had spent at least one percent (1%) 
of its gross revenues removing architectural barriers.
    The RIA does not, however, incorporate this monetary cap on barrier 
removal expenditures for qualifying small businesses into its cost or 
benefit models. Assessing the incremental impact of this provision 
would have required assumptions regarding the number of small 
businesses satisfying the definition of ``qualified small business'' in 
any given year, as well as the nature and extent of barrier removal 
efforts by such businesses in the preceding year. For example, even 
assuming it could be determined (or assumed) that a particular small 
retail establishment satisfied the ``qualified small business'' 
definition in a particular year, several sets of assumptions would 
nonetheless still be required to model the presumed barrier removal 
efforts made by that small retailer in the preceding year. For example, 
should it be assumed that the small retailer had removed architectural 
barriers related to a ramp, accessible routes, and accessible parking 
spaces in the preceding year? Or had this small retailer instead 
focused its barrier removal efforts on removing barriers concerning 
sales and service counters, doorways, and a single-user toilet room? In 
either case, did the small retailer's efforts result in complete or 
partial removal of the affected architectural barriers? Such questions 
underscore the difficulty in creating a reliable framework for modeling 
the individualized determinations that are necessarily part of the 
barrier removal calculus. The Department thus determined that 
incorporating the provision for qualifying small businesses into the 
RIA would have been neither feasible nor useful. Nonetheless, 
interested parties may still get a rough gauge of the potential impact 
of this proposed safe harbor by reviewing the ``Small Business Impact 
Analysis'' in Chapter Six of the RIA.
    Lastly, the Department is also proposing several regulatory 
alternatives directed at lessening the monetary impact of certain 
supplemental requirements relating to existing play areas, swimming 
pools, and saunas and steam rooms at public and private facilities. 
Smaller existing and unaltered play areas, pools, and saunas (meeting 
specified size limits) would be exempt from technical and scoping 
standards in the supplemental requirements. Facilities exceeding the 
proposed size threshold would nonetheless have reduced scoping 
requirements for elevated play components (play areas) or accessible 
means of entry (swimming pools). Because there are few sources of 
reliable data concerning the number and relative size of existing play 
areas, swimming pools, and saunas and steam rooms in the United States, 
the RIA does not incorporate this proposed regulatory alternative into 
the model. However, to the limited extent such information was 
available, it is used in the RIA to modify, as appropriate, the 
likelihood of occurrence or unit cost of the element. See RIA, Apps. 3-
E, 3-G, and 3-H.
    Commenters representing small business groups expressed 
appreciation for the Department's efforts--represented by the foregoing 
regulatory proposals--to mitigate the potential impact of the proposed 
regulations. These commenters noted that such regulatory alternatives 
``have the potential to remove much regulatory uncertainty and provide 
a level playing field for small businesses anxious to provide 
accessibility to their customers.''

[[Page 37008]]

Summary of Results--Main Regulatory Assessment

    From an economic perspective (as specified in OMB Circular A-4), 
the primary determinant of whether proposed regulations increase social 
resources and thus represent a public good is whether monetized 
benefits exceed monetized costs--that is, whether the regulations have 
a positive net present value. The Department's proposed regulations 
indeed have a positive NPV under each of the four scenarios calculated 
in the regulatory assessment. The RIA's first scenario examines the 
incremental impact of the proposed regulations using the ``main'' set 
of assumptions (i.e., assuming a primary baseline (1991 Standards), 
safe harbor applies, and barrier removal readily achievable for 50% of 
elements subject to supplemental requirements). Under this first set of 
assumptions, the proposed regulations have an expected NPV of $31.1 
billion (3% discount rate) and $7.5 billion (7% discount rate). See 
RIA, Table ES-1 & Figure ES-2. The second RIA scenario calculates the 
incremental impact of ``safe harbor'' versus ``no safe harbor'' 
scenarios with all other assumptions remaining equal. The expected NPV 
for the proposed regulations under a ``no safe harbor'' scenario would 
still remain positive, albeit at a significantly reduced level. See 
RIA, Table ES-3. Third, the RIA explores the incremental impact of 
varying the assumptions concerning the percentage of existing elements 
subject to supplemental requirements for which barrier removal would be 
readily achievable. Readily achievable barrier removal rates are 
modeled at 0%, 50%, and 100% levels. The results of this third scenario 
show that, while the expected NPV is positive for each readily 
achievable barrier removal rate, varying this assumed rate has little 
impact on expected NPV. See RIA, Table ES-4. Lastly, the RIA's fourth 
scenario demonstrates the impact of using three alternate baseline 
scenarios (i.e., IBC 2000, IBC 2003, and IBC 2006) instead of the 
primary baseline. As with the other scenarios, use of these alternate 
IBC baselines results in positive expected NPVs in all cases. See RIA, 
Table ES-5. These results also indicate that IBC 2000 and IBC 2006 have 
the respective highest and lowest expected NPVs. These results are due 
to changes in the make-up of the set of requirements that are included 
in each alternative baseline.

Summary of Results--Small Business Impact Analysis

    In addition to its benefit-cost analysis of the impact of the 
proposed standards on all entities subject to titles II or III of the 
ADA, the Department is required under the Regulatory Flexibility Act 
(``RFA'') to analyze the impact of its proposed regulations on ``small 
entities''--namely, small businesses, small non-profit organizations, 
and small governmental jurisdictions with populations of less than 
50,000. If the proposed regulations are projected to have a 
``significant economic impact on a substantial number of small 
entities,'' the RFA requires an agency to prepare and make available 
for public comment an initial regulatory flexibility analysis 
(``IRFA''). On the other hand, no IRFA need be prepared should the head 
of the agency certify that the proposed rules--if promulgated--would 
not have a such an economic impact on a substantial number of small 
entities.
    The Access Board certified, in both its NPRM and final rule 
promulgating the 2004 ADAAG, that its revised guidelines would not have 
a significant economic impact on a substantial number of newly 
constructed and altered small facilities. See 64 FR. 62,248 (Nov. 16, 
1999) (NPRM); 69 FR 44,084 (July 23, 2004) (final rule). Consequently, 
the Access Board was not statutorily required to prepare either an 
initial or final regulatory flexibility analysis for the 2004 ADAAG.
    In the ANPRM, the Department encouraged small entities to provide 
cost data on the potential economic impact of applying specific 
provisions of the 2004 ADAAG to existing facilities and to recommend 
less burdensome alternatives. Small businesses were well represented 
among ANPRM commenters. Many commenters representing industry groups of 
all sizes said that ``the possibility of having to modify existing 
facilities presents the most severe and burdensome compliance scenario 
for most businesses'' and that the biggest potential cost of the 
proposed standards was represented by the ``no safe harbor'' scenario. 
By contrast, several commenters representing disability groups urged 
the Department not to adopt a safe harbor, asserting that the ``readily 
achievable'' defense provided in the ADA adequately addresses the 
concerns of small businesses.
    The Department agrees with the commenters representing small 
businesses that a safe harbor provision is a reasonable means of 
lowering the potential costs of the regulation and, with these NPRMs, 
is proposing to adopt the safe harbor scenario. Because the potential 
costs of compliance with the proposed standards pursuant to the barrier 
removal requirement was consistently identified by commenters as their 
paramount concern, the Department's adoption of the safe harbor should 
go a long way toward addressing the concerns of small businesses.
    Some commenters representing small businesses also suggested that 
the Department employ a different methodology for its regulatory 
assessment than the Access Board. Specifically, these commenters 
recommended that the Department assess the incremental benefits and 
costs for all facilities, rather than just a few. These comments noted 
that many of the facility groups for which the Board did not provide a 
direct assessment of costs--including retail stores, restaurants, small 
manufacturers, and small service providers--are more typically small 
businesses. By comparison, as noted previously, the Department's RIA 
assesses the impact of the proposed regulations on all public and 
private facilities. Moreover, the Department's small business impact 
analysis includes all facility groups (for which statistical 
information was available) that could potentially be effected by the 
proposed regulations, including facility groups within which small 
businesses predominate.
    Several commenters representing industry groups pointed to 
particular revised requirements as likely to have a disproportionate 
cost impact on small businesses, including the requirement relating to 
public entrances (which they suggest could impose greater costs on 
small businesses, which are more likely to have only two entrances, 
both of which would now be required to be accessible), and the 
requirement relating to operable windows (which are more typically 
found in small or rural motels rather than large urban high rises). 
Commenters also noted that small businesses are more likely to be 
located in older buildings, which cost more to renovate than newer 
buildings, and discussed the greater marginal impact that any 
regulation (particularly one as complex as the proposed standards) has 
on small businesses due to their smaller economies of scale. The 
Department notes that the revised requirement relating to public 
entrances is expected to effect no change for small facilities, and to 
the extent it effects a change at all, it will be for very large 
facilities for which it will be ``less stringent'' than the current 
requirement. Similarly, the operable windows requirement can be met 
using inexpensive add-on hardware

[[Page 37009]]

(similar to a light switch extension handle).
    More generally, with respect to requirements that may impose a 
fixed cost, several commenters representing small businesses suggested 
that the Department provide small businesses with a lower cost 
alternative by permitting equivalent facilitation. In the proposed 
regulations for title III, the Department has specifically recognized 
the continued legitimacy of equivalent facilitation as a means of 
lowering the potential costs associated with barrier removal. In all 
cases, measures to remove barriers are only required when they are 
readily achievable, but if substantially equivalent access can be 
provided at less cost through alternative measures, entities are 
entitled to use them.
    Chapter Six of the RIA sets forth the Department's comprehensive 
assessment of the estimated impact of the proposed regulations on small 
entities. For the most part, this analysis uses the same methodology as 
the underlying ``main'' regulatory assessment except that some 
additional publicly-available statistics (from, for example, the Census 
Bureau and the Office of Advocacy of the Small Business Administration) 
are incorporated into the model in order to permit particularized 
calculations for small entities.
    In sum, the Department's small business impact analysis uses the 
following methodological approach. First, the analysis estimates (by 
facility group) the total number of facilities owned or operated by 
small entities and their respective total annual sales receipts. Since 
governmental entities typically do not have sales receipts, 
expenditures--broken down by category (e.g., education, hospitals, 
parks, museums)--serve as a proxy for ``sales receipts'' for small 
governmental jurisdictions. The resulting figures for small entity-
owned facilities and sales receipts are compared to the ``typical'' 
facility. See RIA, Table 17. Second, the analysis compares the net 
costs of the proposed regulations on small entities and the ``typical'' 
facility for each facility group. See id., Table 18. Lastly, the 
analysis estimates total annual costs and annual costs as a percentage 
of sales for both small entities and ``typical'' facilities. See id., 
Table 19.
    The results of the Department's small business impact analysis 
demonstrate that the proposed regulations would not have a significant 
economic impact on a substantial number of small entities. See RIA, Ch. 
6. For small government jurisdictions, annualized costs are not 
expected to be greater than 0.5% of sales for any type of facility. 
Similarly, for all but a handful of small private entities, annualized 
costs are not expected to be greater than 0.5% of sales. Only with 
respect to two types of facilities owned or operated by small private 
entities--aquatic centers and miniature golf courses--are annualized 
costs estimated to exceed 0.5% of sales. However, as noted previously, 
the RIA does not incorporate the Department's proposed monetary limit 
(i.e., 1% of gross revenue) on barrier removal obligations for 
qualified small entities. Application of this monetary cap on barrier 
removal costs for qualifying small businesses that own or operate 
aquatic centers or miniature golf courses would mitigate the 
incremental impact of the proposed regulations on these (or any other) 
qualified small entities.

     Dated: June 19, 2008.
Rosemary Hart,
Federal Register Liaison Officer.
 [FR Doc. E8-14388 Filed 6-27-08; 8:45 am]
BILLING CODE 4410-13-P