58768 Federal Register / Vol. 69, No. 189 / Thursday, September 30, 2004 / Proposed Rules 

1Part II of the Architectural Transportation 

Barriers Compliance Board’s revised guidelines 

applies to facilities subject to the ABA. Regulations 

implementing the ABA are issued by the 

Department of Defense, the Department of Housing 

and Urban Development, the General Services 

Administration, and the U.S. Postal Service.

2The Access Board’s revised ADA Accessibility 

Guidelines are available on the Access Board’s Web 

site at www.access-board.gov.

DEPARTMENT OF JUSTICE

28 CFR Parts 35 and 36 

[CRT Docket No. 2004–DRS01; AG Order 

No. 2736–2004] 

RIN 1190–AA46 and 1190–AA44 

Civil Rights Division; 

Nondiscrimination on the Basis of 

Disability in State and Local 

Government Services; 

Nondiscrimination on the Basis of 

Disability by Public Accommodations 

and in Commercial Facilities

AGENCY: Department of Justice, Civil 

Rights Division.

ACTION: Advance notice of proposed 

rulemaking. 

SUMMARY: The Department of Justice 

(Department) is issuing this Advance 

Notice of Proposed Rulemaking 

(ANPRM) in order to begin the process 

of adopting Parts I and III of the revised 

guidelines implementing the Americans 

with Disabilities Act of 1990 (ADA) and 

the Architectural Barriers Act of 1968 

(ABA),1 published by the Architectural 

and Transportation Barriers Compliance 

Board (Access Board) on July 23, 2004, 

at 69 FR 44083.2 The ADA requires the 

Department to adopt enforceable 

accessibility standards that are 

‘‘consistent with the minimum 

guidelines and requirements issued by 

the Architectural and Transportation 

Barriers Compliance Board’’ (42 U.S.C. 

12186). The Department adopts and 

enforces standards consistent with the 

Access Board’s guidelines under the 

Department’s regulations implementing 

Title II (Subtitle A) and Title III of the 

ADA as the ADA Standards for 

Accessible Design (ADA Standards). 

Prior to their adoption by the 

Department, the revised Access Board 

guidelines are effective only as guidance 

to the Department; they have no legal 

effect on the public until the 

Department issues a final rule adopting 

revised ADA Standards. In this ANPRM, 

the current, legally enforceable ADA 

Standards will be referred to as the 

‘‘current ADA Standards,’’ while the 

revisions that will be proposed in the 

NPRM, based on Parts I and III of the 

revised ADA and ABA Accessibility 

Guidelines, will be referred to as the 

‘‘revised ADA Standards.’’ The Access 

Board’s revised ADA Accessibility 

Guidelines will be cited as ‘‘ADAAG.’’

The purpose of this ANPRM is 

twofold: To solicit public input on 

various issues relating to the potential 

application of the revisions to the ADA 

Standards and to obtain background 

information for the regulatory 

assessment that the Department must 

prepare in the process of adopting the 

revisions to the ADA Standards.

DATES: All comments must be received 

by January 28, 2005.

ADDRESSES: Submit electronic 

comments and other data to 

adaanprm.org or www.regulations.gov. 

See SUPPLEMENTARY INFORMATION—

Electronic Submission of Comments and 

Electronic Access for file formats and 

other information about electronic 

filing. 

Address all written comments 

concerning this ANPRM to P.O. Box 

1032, Merrifield, VA 22116–1032.

FOR FURTHER INFORMATION CONTACT:

Anne Beckman or Kate Nicholson, 

Attorneys, Disability Rights Section, 

Civil Rights Division, U.S. Department 

of Justice, at (202) 307–0663 (voice or 

TTY). This is not a toll-free number. 

Information may also be obtained from 

the Department’s toll-free ADA 

Information Line at (800) 514–0301 

(voice) or (800) 514–0383 (TTY). 

You may obtain copies of this rule in 

large print, audiotape, or computer disk 

by calling the ADA Information Line at 

(800) 514–0301 (voice) and (800) 514–

0383 (TTY). This rule is also available 

in an accessible format on the ADA 

Home Page at www.ada.gov.

SUPPLEMENTARY INFORMATION: 

Electronic Submission of Comments 

and Electronic Access 

You may submit electronic comments 

to adaanprm.org or 

www.regulations.gov. You may view an 

electronic version of this proposed rule 

at www.regulations.gov. This rule is also 

available in an accessible format on the 

ADA Home Page at www.ada.gov. When 

submitting comments electronically, 

you must include CRT Docket No. 

2004–DRS01 in the subject box and you 

must include your full name and 

address.

Inspection of Comments 

All comments will be available to the 

public online at adaanprm.org and, by 

appointment, during normal business 

hours, at the office of the Disability 

Rights Section, Civil Rights Division, 

U.S. Department of Justice, located at 

1425 New York Avenue, Suite 4039, 

Washington, DC 20005. To arrange an 

appointment to review the comments, 

please contact the ADA Information 

Line listed above. 

Purpose 

On July 26, 1990, President George 

H.W. Bush signed into law the 

Americans with Disabilities Act (42 

U.S.C. 12101 et seq.), a comprehensive 

civil rights law prohibiting 

discrimination on the basis of disability. 

In 2001, President George W. Bush 

underscored the nation’s commitment to 

ensuring the rights of over 50 million 

individuals with disabilities nationwide 

by announcing the New Freedom 

Initiative (www.whitehouse.gov/infocus/

newfreedom). The New Freedom 

Initiative builds upon the legacy of the 

ADA by promoting improved access to 

assistive and universally designed 

technology, educational opportunities, 

the workplace, and community living 

for individuals with disabilities. The 

New Freedom Initiative also expressly 

recognizes the importance of ADA 

enforcement. The Access Board’s 

publication of revised accessibility 

guidelines is the culmination of a longterm effort to facilitate ADA compliance 

and enforcement by eliminating 

inconsistencies among Federal 

accessibility requirements and between 

Federal accessibility requirements and 

State and local building codes. In 

support of this effort, the Department is 

announcing its intention to adopt, in a 

separate Notice of Proposed Rulemaking 

(NPRM) to follow this ANPRM, 

standards consistent with Parts I and III 

of the Access Board’s revised guidelines 

as the ADA Standards for Accessible 

Design. To facilitate this process, the 

Department is seeking public comment 

on the issues discussed in this notice. 

The ADA and Department of Justice 

Regulations 

The ADA broadly protects the rights 

of individuals with disabilities in 

employment, access to State and local 

government services, places of public 

accommodation, transportation, and 

other important areas of American life 

and, in addition, requires that newly 

designed and constructed or altered 

public accommodations and commercial 

facilities be readily accessible to and 

usable by individuals with disabilities. 

Under the ADA, the Department is 

responsible for issuing regulations to 

implement Title II and Title III of the 

Act, except to the extent that 

transportation providers subject to Title 

II or Title III are regulated by the 

Department of Transportation. 

Title II applies to State and local 

government entities, and, in Subtitle A, 

protects qualified individuals with 

Federal Register / Vol. 69, No. 189 / Thursday, September 30, 2004 / Proposed Rules 58769

3After a two-year process of collaboration with 

the Access Board, the Advisory Committee issued 

‘‘Recommendations for a New ADAAG’’ in 

September 1996.

disabilities from discrimination on the 

basis of disability in services, programs, 

and activities provided by State and 

local government entities. Title II 

extends the prohibition of 

discrimination established by section 

504 of the Rehabilitation Act of 1973, as 

amended (Rehabilitation Act) (29 U.S.C. 

794) (hereinafter, Section 504), to all 

activities of State and local governments 

regardless of whether these entities 

receive Federal financial assistance (42 

U.S.C. 12131 et seq.). Title III prohibits 

discrimination on the basis of disability 

in the activities of places of public 

accommodation (businesses that are 

generally open to the public and that 

fall into one of twelve categories listed 

in the ADA, such as restaurants, movie 

theaters, schools, day care facilities, 

recreation facilities, and doctors’ offices) 

and requires newly constructed or 

altered places of public 

accommodation—as well as commercial 

facilities (privately owned, 

nonresidential facilities like factories, 

warehouses, or office buildings)—to 

comply with the ADA Standards (42 

U.S.C. 12182 et seq.). 

On July 26, 1991, the Department 

issued its final rules implementing Title 

II and Title III, which are codified at 28 

CFR part 35 (Title II) and part 36 (Title 

III). Appendix A of the Title III 

regulation, at 28 CFR part 36, contains 

the current ADA Standards, which were 

based upon the ADAAG published by 

the Access Board on the same date. 

Under the Department’s regulation 

implementing Title III, places of public 

accommodation and commercial 

facilities are required to comply with 

the current ADA Standards with respect 

to newly constructed or altered 

facilities. By contrast, under the 

regulation implementing Title II, State 

and local government entities are 

currently permitted to choose to apply 

either the requirements contained in the 

Uniform Federal Accessibility 

Standards (UFAS) or those contained in 

the ADA Standards with respect to their 

newly constructed or altered facilities. 

For greater uniformity, when the 

Department proposes to adopt the 

revised ADA Standards, the Department 

will also propose to withdraw the 

option of using UFAS under Title II. 

The Roles of the Access Board and the 

Department of Justice 

The Access Board was established by 

section 502 of the Rehabilitation Act, 29 

U.S.C. 792. The Board consists of 

thirteen public members appointed by 

the President, of whom a majority must 

be individuals with disabilities, and 

twelve Federal agencies designated by 

law, including the Department of Justice 

and the Department of Transportation. 

The ADA requires the Access Board to 

‘‘issue minimum guidelines that shall 

supplement the existing Minimum 

Guidelines and Requirements for 

Accessible Design for purposes of 

subchapters II and III of this chapter 

* * * to ensure that buildings, 

facilities, rail passenger cars, and 

vehicles are accessible, in terms of 

architecture and design, transportation, 

and communication, to individuals with 

disabilities’’ (42 U.S.C. 12204). The 

ADA requires the Department of Justice 

to issue regulations that include 

enforceable accessibility standards 

applicable to facilities subject to Title II 

or Title III that are consistent with the 

minimum guidelines issued by the 

Access Board (42 U.S.C. 12134, 12186). 

The Department of Justice was 

extensively involved in the 

development of the ADAAG. As a 

Federal member of the Access Board, 

the Department voted to approve the 

revised guidelines. Although the 

enforceable standards issued by the 

Department under Title II and Title III 

must be consistent with the minimum 

guidelines published by the Access 

Board, it is the responsibility solely of 

the Department of Justice to promulgate 

standards and to interpret and enforce 

those standards. 

The ADA also requires the 

Department to develop regulations with 

respect to existing facilities subject to 

Title II (Subtitle A) and Title III. How 

and to what extent the Access Board’s 

guidelines are used with respect to the 

readily achievable barrier removal 

requirement applicable to existing 

facilities under Title III of the ADA and 

with respect to the provision of program 

accessibility under Title II of the ADA 

is solely within the discretion of the 

Department of Justice. 

The Revised Guidelines

The revised ADA and ABA 

Accessibility Guidelines are the product 

of ten years of effort to modify and 

update the current guidelines, reflecting 

compromise and the cooperative efforts 

of a host of private and public entities. 

Part I provides scoping requirements for 

facilities subject to the ADA; scoping is 

a term used in the revised guidelines to 

describe requirements (set out in Parts 

I and II) that prescribe what elements 

and spaces and, in some cases, how 

many, must comply with the technical 

specifications set out in Part III. Part II 

provides scoping requirements for 

facilities subject to the ABA, and Part III 

provides uniform technical 

specifications for facilities subject to 

either statute. This revised format is 

intended to eliminate unintended 

conflicts between the two Federal 

accessibility standards and to minimize 

conflicts between the Federal 

regulations and the model codes that 

form the basis of many State and local 

building codes. 

Since 1998, the Access Board has 

amended ADAAG four times, adding 

specific guidelines in the following 

areas: State and local government 

facilities (63 FR 2000, Jan. 13, 1998); 

building elements designed for use by 

children (63 FR 2060, Jan. 13, 1998); 

play areas (65 FR 62497, Oct. 18, 2000); 

and recreation facilities (67 FR 56352, 

Sept. 3, 2002). These amendments to 

ADAAG have not previously been 

adopted by the Department as ADA 

Standards. 

The revisions to ADAAG that were 

published by the Access Board on July 

23, 2004, represented the culmination of 

a lengthy review process. In 1994, the 

Access Board began the process of 

updating the original ADAAG by 

establishing an advisory committee 

comprised of members of the design and 

construction industry, the building code 

community, State and local government 

entities, and people with disabilities. In 

1999, based largely on the report and 

recommendations of this advisory 

committee,3 the Access Board issued a 

proposed rule to jointly update and 

revise its ADA and ABA accessibility 

guidelines, 64 FR 62248–01 (Nov. 16, 

1999). In response to its rule, the Access 

Board received more than 2,500 

comments from individuals with 

disabilities, affected industries, State 

and local governments, and others. The 

Access Board provided further 

opportunity for participation by holding 

public hearings throughout the nation. 

From the beginning, the Access Board 

also worked vigorously to harmonize 

the ADA and ABA Accessibility 

Guidelines with industry standards and 

model codes that form the basis for 

many state and local building codes. 

The Access Board released an interim 

draft of its guidelines to the public in 

April 2002, 67 FR 15509, in order to 

provide an opportunity for entities with 

model codes to consider amendments 

that would promote further 

harmonization. By the date of its final 

publication on July 23, 2004, 69 FR 

44083, the revised ADA Accessibility 

Guidelines had been the subject of 

extraordinary public participation and 

review. Through this ANPRM, the 

Department is announcing its intention 

to publish a proposed rule that will 

58770 Federal Register / Vol. 69, No. 189 / Thursday, September 30, 2004 / Proposed Rules 

4Subtitle A of Title III of the ADA, at 42 U.S.C. 

12183, prohibits the design or construction of 

facilities that are not readily accessible to and 

usable by individuals with disabilities when such 

facilities are intended for first occupancy more than 

30 months after enactment of the ADA, except in 

cases of structural impracticability. This 

requirement is implemented in the Department’s 

Title III regulation at 28 CFR 36.401.

adopt revised ADA Standards consistent 

with all of the amendments to ADAAG 

since 1998.

The Department’s Request for 

Comments 

Before publishing a proposed rule, the 

Department is seeking public comment 

on the issues discussed below. These 

issues have been divided into four 

substantive sections in this ANPRM: I. 

General Issues; II. Specific Issues; III. 

Miscellaneous Matters; and IV. 

Regulatory Assessment Issues. 

Because the Department, as a member 

of the Access Board, has already had the 

opportunity to review comments 

provided to the Access Board during its 

development of the amendments to 

ADAAG, it is not necessary to resubmit 

those comments to the Department. In 

addition to seeking comments in 

response to the specific questions raised 

in this ANPRM, the Department is 

particularly interested in receiving 

comments from covered entities and 

from individuals with disabilities about 

the potential application of the new or 

revised ADAAG requirements as they 

may apply to existing facilities. 

I. General Issues 

The prospect of adopting revised ADA 

Standards raises a number of general 

issues, ranging from setting an effective 

date for the application of the revised 

ADA Standards to determining what 

effect the new provisions will have on 

those elements of facilities that are 

already in compliance with the current 

ADA Standards. Responses should 

clearly identify the specific question 

being addressed according to the 

numbered questions in this document. 

Effective Date: Time Period 

Current Approach. The Department 

must set an effective date for the 

application of the revised ADA 

Standards to facilities that will be newly 

constructed or altered following the 

publication of a final rule. When the 

ADA was enacted, the effective dates for 

various provisions were delayed in 

order to provide time for covered 

entities to become familiar with their 

new obligations. Title II and Title III of 

the ADA generally became effective on 

January 26, 1992, six months after the 

regulations were published. New 

construction under Title II and 

alterations under either Title II or Title 

III had to comply with the design 

standards on that date. For new 

construction under Title III, the 

requirements applied to facilities 

designed and constructed for first 

occupancy after January 26, 1993—

eighteen months after the ADA 

Standards were published by the 

Department.4

Possible New Approaches. The 

Department is seeking comment on the 

following three options. 

Option I: Eighteen months. Under this 

option, the effective date of the 

proposed revised ADA Standards would 

be eighteen months after publication of 

the final rule—the same time period 

used for the effective date of the ADA 

as a whole and for the effective date of 

the current ADA Standards with respect 

to new construction under Title III. 

Although this time period has the 

advantage of ample precedent, it was 

originally used in the context of a new 

law with which there was little or no 

familiarity or experience. It may be 

inappropriately long in the current 

context. 

Option II: Six months. Under the 

second option, the effective date of the 

proposed revised ADA Standards would 

be six months after publication of the 

final rule—the time period used for 

newly constructed and altered facilities 

subject to Subtitle A of Title II of the 

ADA and for altered facilities subject to 

Title III. The Department is considering 

this shorter period of time because the 

changes in scoping and technical 

specifications to the revised ADA 

Standards are primarily incremental. 

Further, those requirements that are 

new (for elements and spaces that are 

not addressed in the current ADA 

Standards) have been developed with 

extensive public participation and, in 

some cases, have been available to the 

public through the amended editions of 

ADAAG for several years. Finally, the 

new format and organization of the 

revised ADA Standards would follow 

the format and organization of the 

model codes and should be more 

familiar to covered entities and design 

professionals than were the current 

ADA Standards when adopted. The 

Department recognizes, however, that 

because covered entities may have large 

ongoing construction projects, such 

entities may need longer than this 

proposed six-month period to 

incorporate the final changes to the 

revised ADA Standards into the design 

of those projects. 

Option III: Twelve months. Under the 

third option, the effective date of the 

revised ADA Standards would be twelve 

months after publication of the final 

rule. This option shortens the time 

period envisioned by Option I, while 

providing more time than Option II in 

order to allow for the integration of the 

revised ADA Standards into larger 

construction projects. 

Question 1. Should the effective date 

of the proposed revised ADA Standards 

be modeled on the effective date used to 

implement the current ADA 

Standards—eighteen months after 

publication of the final rule—or a 

shorter period? If you favor a shorter 

period, please indicate which period 

you favor and provide as much detail as 

possible in support of your view.

Effective Date: Triggering Event 

The term ‘‘triggering event’’ identifies 

the event or action that compels 

compliance with the ADA Standards. 

The Department’s regulations 

implementing Title II (28 CFR Part 35) 

and Title III of the ADA (28 CFR Part 36) 

establish the separate triggering events 

for new construction and alterations 

that are explained below. The 

Department’s experience to date 

indicates that these triggering events 

work well; therefore, the Department is 

reluctant to change them. The 

Department recognizes, however, that 

ADAAG now includes requirements for 

types of facilities, such as recreation and 

play areas, that may pose design and 

construction issues compelling a 

different result. 

Current Approach. Title III of the 

ADA and the implementing regulations 

provide that covered entities must 

design and construct facilities ‘‘for first 

occupancy’’ after the effective date in 

accordance with the current ADA 

Standards (28 CFR 36.401). Thus, for 

purposes of Title III, the triggering event 

for newly constructed facilities, which 

is dictated by statute, is first occupancy. 

The Title III regulation defines ‘‘first 

occupancy’’ in relation to the 

completion of the application for a 

building permit (which had to have 

been completed less than twelve months 

before the effective date) and the 

issuance of a certificate of occupancy 

(which had to have been completed 

after the effective date). With respect to 

altered facilities under Title III, the 

triggering event is the date ‘‘physical 

alteration begins’’ (28 CFR 36.402(a)(2)). 

The implementing regulation for Title II 

provides that the triggering event for 

both new construction and alterations is 

the commencement of construction (28 

CFR 35.151). 

Possible Additional Approach. To the 

extent applicable, the Department 

intends to continue to use the same 

triggering event for each category 

Federal Register / Vol. 69, No. 189 / Thursday, September 30, 2004 / Proposed Rules 58771

5 If the Department decides to use the six-month 

effective date of Option II in Question 1, above, the 

application of the two-step test for first occupancy 

(building permit and certificate of first occupancy) 

currently used for new construction under Title III 

would be modified to fit within that period.

described above; that is, for new 

construction under Title III, first 

occupancy; 5 for alterations under Title 

III, when physical alteration begins; and 

under Title II, for both new construction 

and alterations, the commencement of 

construction. The Department is 

concerned, however, that while these 

triggering events are appropriate for 

most building situations, they may not 

necessarily be appropriate for all of 

them—particularly if there are Title III 

facilities that do not require building 

permits or that do not receive 

certificates of occupancy. The 

Department is concerned that, as 

applied to these different types of 

facilities, the triggering events 

established under the Title II and Title 

III regulations may be difficult to apply. 

Therefore, the Department is 

considering ‘‘first use’’ as an alternative 

trigger for such facilities.

Question 2. The Department is asking 

the public to identify any facilities for 

which the current triggering events 

might prove unworkable. Are there 

facilities covered by the revised ADA 

Standards that are subject to Title III for 

which first occupancy/physical 

alteration do not apply in the new 

construction/alteration context? Please 

be specific about the type of facility that 

would be affected, and what other 

event, such as ‘‘first use,’’ would work 

better for each specified type of facility. 

Are there facilities subject to Title II for 

which commencement of construction 

would be difficult to apply? Please be 

specific about the type of facility, and 

what other event, such as ‘‘first use,’’

would work better for each specified 

type of facility. 

Revised ADA Standards: Existing 

Facilities 

As noted above, the Department 

anticipates proposing revised ADA 

Standards for new construction and 

alterations that are consistent with 

ADAAG. In making this proposal, one of 

the most important issues that the 

Department must address is the effect 

that new or changed ADA Standards 

will have on the continuing obligation 

of public accommodations to remove 

architectural, transportation, and 

communication barriers in existing 

facilities to the extent that it is readily 

achievable to do so. This issue has not 

been addressed in ADAAG because it is 

outside of the scope of the Access 

Board’s authority under the ADA. 

Responsibility for implementing Title 

III’s requirement that public 

accommodations eliminate existing 

architectural barriers where it is readily 

achievable to do so rests solely with the 

Department of Justice. 

The Department’s current regulation 

implementing Title III of the ADA, 28 

CFR 36.304, establishes the 

requirements for readily achievable 

barrier removal by public 

accommodations. Under this regulation, 

the Department uses the ADA Standards 

as a guide to identify what constitutes 

an architectural barrier. Once adopted, 

the revised ADA Standards will present 

a new reference point for Title III’s 

requirement to remove the architectural 

barriers in existing places of public 

accommodation. The Department is 

concerned that the incremental changes 

in ADAAG may place significant cost 

burdens on businesses that have already 

complied with the ADA Standards in 

their existing facilities. The Department 

therefore seeks to strike an appropriate 

balance to ensure that people with 

disabilities are able to achieve access to 

buildings and facilities without 

imposing unnecessary financial burdens 

on existing places of public 

accommodation with respect to their 

continuing obligations under the readily 

achievable barrier removal requirement. 

The Department is considering several 

ways in which to reduce such financial 

burdens. One approach is to establish a 

safe harbor under which the Department 

would deem compliance with scoping 

and technical requirements in the 

current ADA Standards by elements in 

existing facilities to constitute 

compliance with the ADA for purposes 

of meeting barrier removal obligations. 

Another possible approach is to reduce 

the scoping requirements for some of 

the new or changed requirements as 

they are applied to existing facilities. 

Yet another potential approach is to 

determine that certain new or revised 

technical requirements are 

inappropriate for barrier removal and 

thus would not be required in 

satisfaction of a barrier removal 

obligation. These approaches can be 

used alone or in combination. 

Option I: Safe harbor for compliant 

elements. This option would provide a 

safe harbor for any elements of existing 

facilities that are in compliance with the 

specific requirements (scoping and 

technical specifications) of the current 

ADA Standards. For this purpose, 

compliance with the scoping and 

technical requirements of the current 

ADA Standards would be determined 

on an element-by-element basis in each 

covered facility; that is, only those 

elements in each covered facility that 

are in compliance with applicable 

scoping and technical requirements in 

the current ADA Standards would be 

subject to the safe harbor. Elements that 

are addressed for the first time in the 

revised ADA Standards, however, 

would not be subject to the safe harbor.

Several considerations support this 

approach. To the extent places of public 

accommodation have complied with the 

specific scoping and technical 

requirements of the current ADA 

Standards, it would be an inefficient use 

of resources to require them to retrofit 

simply to comply with the revised ADA 

Standards if the change provides only a 

minimal improvement in accessibility. 

In addition, covered entities would have 

a strong disincentive to comply 

voluntarily with the readily achievable 

barrier removal requirement if, every 

time the ADA Standards are revised, 

they are required once again to retrofit 

elements just to keep pace with the 

current standards. 

The Department recognizes that there 

are also considerations opposing this 

approach. When adopted, some of the 

revised ADA Standards will reflect upto-date technologies that could provide 

critical access for individuals with 

disabilities in certain contexts that is 

not provided under the current ADA 

Standards. While the incremental 

benefit of the revisions may be minimal 

with respect to some elements, with 

respect to others the revised ADA 

Standards could confer a significant 

benefit on some individuals with 

disabilities that would be forgone if this 

option is adopted. Because there are 

valid arguments on both sides of this 

issue, the Department is seeking public 

comment on the issue of whether or not 

to provide a safe harbor for design 

elements that comply with the current 

ADA Standards. 

This safe harbor option would, of 

course, have no effect on noncompliant 

elements. To the extent that elements in 

existing facilities are not already in 

compliance with scoping and technical 

requirements in the current ADA 

Standards, existing public 

accommodations would be required to 

remove barriers, to the extent readily 

achievable, to make elements comply 

with the revised ADA Standards. 

Here is an example of how that option 

would work. The current ADA 

Standards address maximum side reach 

ranges, which are required to be no 

higher than 54 inches. The revised ADA 

Standards lower that range to 48 inches 

(ADAAG 308.3). If this option was 

adopted, a public accommodation, e.g., 

a hotel chain, that had lowered its light 

switches to 54 inches or an entity that 

had lowered its pay phones to 54 inches 

58772 Federal Register / Vol. 69, No. 189 / Thursday, September 30, 2004 / Proposed Rules 

would not be required to do further 

barrier removal to reduce those 

elements to 48 inches. However, if this 

option was not adopted, even existing 

facilities that had complied with the 

current ADA Standards by ensuring that 

all required accessible elements were no 

higher than 54 inches would be required 

to retrofit those elements to lower them 

to 48 inches, assuming it was readily 

achievable to do so. Under both options, 

however, existing facilities that had not 

complied with the current ADA 

Standards (whose required accessible 

elements were, for example, located 60 

inches high) would still be required to 

undertake barrier removal to lower them 

to 48 inches, if readily achievable. 

This option involves only those 

elements that are addressed by, and in 

compliance with, specific requirements 

(scoping and technical specifications) in 

the current ADA Standards. Elements 

that will be addressed for the first time 

in the revised ADA Standards would 

not be eligible for the safe harbor. 

Question 3. Should the Department 

provide any type of safe harbor so that 

elements of facilities already in 

compliance with the current ADA 

Standards need not comply with the 

revised ADA Standards? Please provide 

as much detail as possible in support of 

your view. 

Option II: Reduced scoping for 

specified requirements. The scoping 

requirements in the revised ADA 

Standards apply to new construction 

and alterations. Under a reduced 

scoping option, the Department would, 

for the purposes of barrier removal, 

provide an alternative set of reduced 

scoping requirements applicable to 

certain specific new or changed 

technical requirements in the revised 

ADA Standards. Examples of such new 

technical requirements might include 

specific elements in the guidelines 

adopted for play areas and recreation 

facilities. 

For example, ADAAG now requires a 

swimming pool over 300 feet in 

perimeter to have two accessible means 

of entry to the pool (ADAAG 242.2). The 

Department anticipates adopting new 

standards based on this requirement. 

Under the current ADA Standards, 

while there have been requirements 

addressing parking, the entrance to the 

facility, common areas, and the route to 

the pool, there has been no scoping or 

technical requirement addressing entry 

into and exit from the pool itself. 

In implementing this new 

requirement with respect to existing 

facilities pursuant to the readily 

achievable barrier removal requirement, 

the Department is considering whether 

it might be appropriate to state that 

providing only one accessible means of 

entry to an existing pool satisfies the 

obligation for readily achievable barrier 

removal. Even with this reduced 

scoping, the readily achievable defense 

would still be available to covered 

entities that cannot afford to provide 

even one means of entry. Under this 

option, however, even if it would be 

readily achievable for that entity to 

provide two accessible means of entry, 

it would only be required to provide 

one. This is just one example of a 

requirement for which reduced scoping 

might be appropriate. Others might 

include the minimum number of 

accessible saunas and steam rooms 

required in existing facilities or the 

minimum number of accessible boat 

slips required in existing boating 

facilities. 

Option III: Exemption from specified 

requirements. The Department is also 

considering whether to identify 

particular elements in the scoping and 

technical requirements in the revised 

ADA Standards that will not be required 

for barrier removal. Among the 

possibilities is the requirement that 

handrails on stairs must meet 

accessibility requirements even in 

buildings that have elevator access 

(ADAAG 210). Under this option, the 

Department could determine that 

entities will not be required, for 

purposes of compliance with the readily 

achievable barrier removal requirement, 

to make handrails on stairs in an already 

existing elevator-accessible facility 

comply with the scoping and technical 

requirements in the revised ADA 

Standards. 

There is precedent for this third 

option in the Department’s current 

regulations, which currently exempt 

employee work areas from any 

obligation to retrofit pursuant to the 

readily achievable barrier removal 

requirement. Because the purpose of 

Title III is to ensure that public 

accommodations are accessible to their 

clients and customers, it is the 

Department’s longstanding view that the 

barrier removal requirement does not 

apply to areas used exclusively as 

employee work areas (28 CFR part 36, 

App. B). The Department intends to 

continue this exemption in the new 

regulations but notes that, 

notwithstanding this exemption, Title I 

of the ADA requires employers to 

provide reasonable accommodation for 

any employee with a disability. Thus, to 

the extent any provisions in the revised 

ADA Standards address elements or 

spaces in work areas, compliance with 

those provisions with respect to those 

elements or spaces will not be necessary 

to comply with an entity’s obligations 

under the readily achievable barrier 

removal requirement. 

Question 4. Reducing or exempting 

specified requirements. 

a. Should the Department adopt 

Option II, and develop an alternative set 

of reduced scoping requirements for the 

barrier removal obligation? If so, which 

specific requirements or elements 

should be addressed? If possible, 

provide detailed information about the 

costs or difficulties that would be 

incurred in making the modification. 

b. Should the Department adopt 

Option III, and exempt certain scoping 

and technical requirements in the 

revised ADA Standards that will not be 

required for barrier removal? If so, 

which specific requirements or elements 

should be addressed? If possible, 

provide detailed information about the 

costs or difficulties that would be 

incurred in making the modification. 

II. Specific Issues 

The prospect of adopting revised ADA 

Standards also raises a number of issues 

for the Department with respect to 

specific provisions, ranging from 

whether altered detention and 

correction cells should be required to be 

accessible to what kinds of housing 

currently classified as transient should 

be reclassified as residential. 

Reduced Scoping for Large Assembly 

Facilities 

The ADAAG section 221 will reduce 

the number of wheelchair spaces and 

companion seats required in assembly 

areas that seat more than 500 patrons. 

The current ADA Standards provide 

that assembly areas with more than 500 

seats must provide six wheelchair 

spaces plus one additional wheelchair 

space for each additional 100 seats. 

ADAAG provides that assembly areas 

that have 501 to 5000 seats must 

provide six wheelchair spaces plus one 

additional wheelchair space for each 

additional 150 seats (or fraction thereof) 

between 501 and 5000. Assembly areas 

that have more than 5000 seats must 

provide 36 wheelchair spaces plus one 

additional wheelchair space for each 

200 seats (or fraction thereof) over 5000. 

Both the current ADA Standards and 

ADAAG require assembly areas to 

provide a companion seat adjacent to 

each wheelchair space.

The Department has been asked 

whether the regulations requiring the 

maintenance of accessible features in 

covered facilities would require existing 

assembly areas that comply with the 

scoping of the current ADA Standards to 

maintain that level of scoping, or if 

those assembly areas would be 

permitted to reduce the number of 

Federal Register / Vol. 69, No. 189 / Thursday, September 30, 2004 / Proposed Rules 58773

wheelchair locations and companion 

seats to the level established in ADAAG. 

The Department’s regulations contain 

two provisions that would apply to this 

situation. The regulations implementing 

Title II and Title III both provide that 

covered entities are to maintain in 

operable condition ‘‘those features of 

facilities and equipment that are 

required to be readily accessible to and 

usable by persons with disabilities’’ (28 

CFR 35.133 and 36.211). In addition, the 

current ADA Standards prohibit 

alterations that decrease accessibility 

below the requirements for new 

construction in effect at the time of the 

alteration, 28 CFR pt. 36, App. A, 4.1.6 

(1) (a). Because these provisions clearly 

establish that covered entities must 

maintain only the required level of 

accessibility, the Department expects 

that the operators of existing assembly 

areas who want to adjust the number of 

wheelchair spaces in their facility to 

comply with the revised ADA Standards 

will be permitted to do so. 

Alteration of Cells in Correctional 

Facilities 

ADAAG establishes requirements for 

the design and construction of cells in 

detention and correctional facilities. 

The Access Board accepted comments 

on this issue during two separate 

rulemaking proceedings: the rulemaking 

that developed the guidelines for State 

and local government facilities 

completed in 1998, and the rulemaking 

that developed the guidelines that the 

Department is now proposing to adopt. 

The Department anticipates that it will 

propose revised ADA Standards that are 

consistent with the ADAAG 

requirements. However, when it 

adopted these new requirements, the 

Access Board specifically deferred one 

decision to the Attorney General. 

ADAAG sections 232.2 and 232.3 

provide that ‘‘Alterations to cells shall 

not be required to comply, except to the 

extent determined by the Attorney 

General.’’ This provision first appeared 

in the Access Board’s 1999 proposed 

rule. At that time, the Access Board 

explained that—

In publishing final amendments for State 

and local government facilities, the Board 

acknowledged that prison operators 

commenting on the proposed amendments 

urged that access not be required in altered 

correctional facilities because some existing 

facilities would not be able to support 

inmates with disabilities even if cells were 

made accessible. These comments also 

pointed to difficulties in complying due to 

design constraints unique to correctional 

facilities. In response, the Board had reserved 

a proposed scoping requirement for altered 

cells, but noted that public entities, including 

correctional entities, have an obligation to 

provide program access, as required by the 

Department of Justice (DOJ) title II 

regulations. Further, the Board noted that the 

program access requirement may effectively 

determine the degree of access necessary in 

an alteration. 64 FR 62259 (Nov. 16, 1999).

The Department anticipates that when 

it proposes to adopt ADA Standards 

consistent with ADAAG requirements 

applicable to facilities subject to Title II, 

the Department will establish 

requirements for alterations to cells. 

Therefore, the Department is now 

seeking public comment about the most 

effective means to ensure that existing 

correctional facilities are made 

accessible to prisoners with disabilities. 

The Department offers the three 

following alternatives for consideration: 

Option 1: Require all altered elements 

to be accessible. The first option is to 

maintain the current policy applicable 

to other ADA alterations requirements. 

Under the current regulations, when a 

facility is altered, each altered element 

and space must comply with the 

applicable provisions of the ADA 

Standards. Applying this rule would 

require correctional facilities to provide 

accessible elements as existing cells are 

altered until the required number of 

accessible cells has been provided. 

Option 2: Permit substitute cells to be 

made accessible within the same 

facility. The second option is to modify 

the alterations requirement by 

permitting the correctional authorities 

to meet their obligation by providing the 

required accessible features in cells 

within the same facility other than those 

specific cells in which alterations are 

planned. This would provide flexibility 

in deference to the unique 

circumstances presented in correctional 

and detention facilities by permitting 

local officials to choose between 

providing accessibility in the altered 

area or providing an appropriate 

accessible cell elsewhere in the altered 

facility. This alternative responds to the 

concern that the ADA’s alterations 

provision as applied to correctional 

facilities may result in piecemeal 

accessibility that does not always 

provide the level of accessibility needed 

by individuals with disabilities. This 

option permits correctional and 

detention facility operators to select the 

most appropriate location for the 

accessible cells, while retaining the 

requirement for providing accessibility 

at the time of an alteration. 

Option 3: Permit substitute cells to be 

made accessible within a prison system.

This option also responds to the 

expressed concern that the alterations 

requirement as applied to prisons 

results in piecemeal accessibility. The 

Department’s Title II regulation requires 

public entities to operate each service, 

program, or activity so that the service, 

program, or activity, when viewed in its 

entirety, is readily accessible to and 

usable by individuals with disabilities 

(28 CFR 35.150). The idea behind this 

alternative is to focus on ensuring that 

prisoners who have disabilities are 

housed in the facilities that best meet 

their needs. Under this option, 

correctional officials would not be 

required to include accessible cells in 

each facility that is being altered. 

Instead, they would be required to 

provide an equivalent accessible cell in 

an existing facility that is sufficiently 

accessible to ensure that prisoners can 

have access to the programs offered in 

the facility where they are housed. This 

option would address concerns that 

have been expressed that piecemeal 

alterations of cells may result in 

accessible cells being located in older 

facilities in which the existing 

construction provides limited 

opportunities to provide access to other 

areas of the facility. 

If this option is adopted, the 

Department anticipates that the 

regulation would specify that public 

entities that elect to provide 

accessibility through this alternative for 

detention and correctional facilities 

would be required to ensure that 

prisoners with disabilities are housed in 

facilities appropriate to the level of 

confinement that would apply to any 

other individual sentenced for a similar 

offense. Such facilities would also be 

required to make available a range of 

programs and benefits similar to that 

made available to the general prison 

population. 

Question 5. Should the Department 

retain the current ADA requirement to 

make each altered facility accessible to 

the extent required by the ADA 

Standards or should it adopt an 

alternative approach to ensure 

accessibility in correctional institutions? 

If you favor an alternative approach, 

please indicate which approach you 

favor and provide as much detail as 

possible in support of your view. 

Recreation Facilities: Golf Courses 

ADAAG now establishes 

comprehensive requirements for the 

design and construction of accessible 

golf courses. In addition to establishing 

scoping and technical requirements for 

individual elements in or serving the 

golf course, section 206.2.15 provides 

that—

At least one accessible route shall connect 

accessible elements and spaces within the 

boundary of the golf course. In addition, 

accessible routes serving golf car rental areas; 

bag drop areas; course weather shelters 

58774 Federal Register / Vol. 69, No. 189 / Thursday, September 30, 2004 / Proposed Rules 

complying with 238.2.3; course toilet rooms; 

and practice putting greens, practice teeing 

grounds, and teeing stations at driving ranges 

complying with 238.3 shall comply with 

Chapter 4 except as modified by 1006.2. 

EXCEPTION: Golf car passages complying 

with 1006.3 shall be permitted to be used for 

all or part of accessible routes required by 

206.2.15.

The Department anticipates that it 

will propose to adopt the ADAAG 

requirements for golf courses. However, 

the Department is aware that these 

requirements may raise operational 

issues that are within the purview of the 

Department’s enforcement 

responsibilities. 

The Department has been asked 

whether, and under what 

circumstances, a golf course must make 

specially designed or adapted golf cars 

available to persons with mobility 

impairments who are not able to walk 

from a golf car passage to the fairways 

or to the green. 

The Department is considering 

addressing this issue in its ADA 

regulations by requiring each golf course 

that provides golf cars to make at least 

one, and possibly two, specialized golf 

cars available for the use of persons 

with disabilities, with no greater 

advance notice to be required from the 

disabled golfer than from other golfers. 

The Department believes that relevant 

considerations in determining whether 

and under what circumstances this 

requirement should be imposed include 

(i) whether the golf course makes golf 

cars available to golfers who are not 

disabled, (ii) the burden that such a 

requirement would impose on golf 

course facilities, and (iii) whether the 

course requires the use of golf cars 

during play.

The Department understands that the 

principal type of special golf car 

currently available is a one-seater with 

hand controls and a swivel seat (the 

swivel seat enables the golfer to play 

from the car). Golf course operators have 

expressed concern in the past that the 

available one-person cars (i) tip over 

easily on steep terrain and (ii) are too 

heavy for green use. Producers of newer 

designs for one-person cars claim to 

have overcome these problems. 

Question 6. To what extent should 

golf courses be required to make 

accessible golf cars available to people 

with disabilities? Please provide as 

much detail as possible in support of 

your view. The Department also 

requests specific information 

concerning the extent to which the oneperson machines on the market are, in 

fact, stable, lightweight, and moderately 

priced. The Department also requests 

information about whether golf cars are 

being manufactured that are readily 

adaptable for the addition of hand 

controls and swivel seats and whether 

such cars are otherwise suitable for 

driving on fairways and greens. 

Coverage of Homeless Shelters, Halfway 

Houses, Transient Group Homes, and 

Other Social Service Establishments 

For the first time, ADAAG includes 

specific scoping and technical 

provisions that apply to new 

construction and alteration of 

residential facilities. Residential 

facilities are facilities that contain 

dwelling units used primarily as longterm residences. Residential facilities 

can be distinguished from transient 

lodging facilities, which are facilities 

that provide short-term 

accommodations used primarily for 

sleeping (such as hotels). Previously 

existing ADAAG requirements for 

transient lodging facilities have been 

revised. As part of this revision, the 

Access Board deleted section 9.5 of the 

1991 ADAAG, which established 

scoping and technical requirements for 

homeless shelters, group homes, and 

similar social service establishments. 

This deletion creates a gap in coverage 

that the Department’s regulation must 

address. 

The Department anticipates that when 

the ADA Standards are revised, the 

Department will provide that the 

facilities now covered by section 9.5 

will be subject to the ADAAG 

requirements for residential facilities 

rather than the requirements for 

transient lodging. The Department 

considers this approach to be the most 

appropriate because the listed facilities 

are subject to the ADA because of the 

nature of the services that they provide, 

not the duration of those services. 

Program participants may be housed on 

either a short-term or a long-term basis 

in facilities such as shelters, halfway 

houses, and group homes. 

The Department anticipates that this 

classification will also make it easier for 

the covered entities to satisfy their 

obligations under both the ADA and 

Section 504. The Department believes 

that many of these listed entities are 

recipients of Federal financial assistance 

from the Department of Housing and 

Urban Development (HUD). Therefore, 

they are subject to the requirements of 

both HUD’s Section 504 regulation and 

the ADA Standards. ADAAG’s 

specifications for the design of 

residential dwelling units have been 

coordinated with HUD’s Section 504 

requirements to eliminate 

inconsistencies and potential conflicts. 

The specifications for transient lodging 

units have not been similarly 

coordinated. 

Therefore, if the Department 

continues to treat these listed facilities 

as transient lodging, the facilities may 

be subject to the provisions of two 

separate, and possibly conflicting, 

regulatory requirements for design and 

construction. If the Department modifies 

its current ADA Standards to permit 

these facilities to be designed in 

compliance with the requirements 

applicable to residential dwelling units, 

the potential conflict will be eliminated. 

The Department is seeking public 

comment on this proposal. 

Equipment Issues 

In ADAAG, the Access Board has 

established guidelines applicable to a 

range of fixed equipment—equipment 

that is built into or permanently 

attached to a new or altered facility—

that is subject to the ADA. The 

Department intends to adopt regulations 

based on these ADAAG specifications to 

govern the installation of newly 

manufactured equipment in new 

construction or alterations. Because the 

Access Board’s jurisdiction extends only 

to the design, construction, and 

alteration of buildings and facilities, 

ADAAG does not address operational 

issues such as the acquisition of 

previously owned equipment, and it 

does not address coverage of movable or 

portable equipment or other personal 

property such as furniture. These issues 

are, however, within the jurisdiction of 

the Department. Therefore, the 

Department is seeking comments on the 

issues discussed below. 

Previously Owned Fixed Equipment.

The Department is aware that some 

building elements to which the ADA 

Standards apply, such as ATMs or 

amusement rides, utilize manufactured 

equipment that becomes built into the 

structure of a facility (so-called fixed 

equipment), which differs from 

equipment that continues to be portable 

or movable (so-called free-standing 

equipment). This fixed equipment may 

be new for the covered entity, but it is 

not necessarily newly manufactured. 

Some businesses traditionally elect to 

conserve costs by installing previously 

owned equipment and have expressed 

their concern that the Department will 

consider such fixed equipment as new 

for purposes of compliance with the 

revised ADA Standards merely because 

its first use occurs after the effective 

date of the revised ADA Standards. The 

Department generally views the 

installation of previously used 

equipment in a new location as an 

alteration, rather than new construction. 

Therefore, only the elements of the 

Federal Register / Vol. 69, No. 189 / Thursday, September 30, 2004 / Proposed Rules 58775

facility that are actually altered, such as 

the route to the equipment, the 

mounting height, or the entrance that 

provides access to the equipment must 

comply with the revised Standards. 

Previously owned equipment installed 

as fixed equipment will not be treated 

as new for purposes of compliance with 

the revised ADA Standards. 

Application of ADA Standards and 

ADA to Free-Standing Equipment. The 

Department is also aware that the public 

has expressed some uncertainty with 

respect to whether the ADA Standards 

apply to free-standing equipment, such 

as soft-drink dispensers, video arcade 

machines, free-standing ATMs, and 

furniture. Because ADAAG is intended 

to implement the ADA requirements 

applicable to the design, new 

construction, and alteration of buildings 

and facilities, the revised ADA 

Standards will apply directly only to 

fixed equipment—as described above, 

equipment that becomes built into the 

structure of a facility—and not to freestanding equipment.

The ADA itself, however, extends 

beyond the boundaries of new 

construction and alterations. The 

Department is required to develop 

regulations that implement the general 

nondiscrimination requirements of Title 

II and Title III, as well as the specific 

prohibitions on discrimination in Title 

III. Under this authority, the Department 

may establish requirements affecting 

equipment that is not fixed to ensure 

that people with disabilities have an 

equal opportunity to participate in the 

programs, services, and activities 

offered by covered entities. In 

establishing these requirements, the 

Department may look to the ADA 

Standards for guidance in determining 

whether various types of equipment or 

furnishings are accessible to people 

with disabilities. 

The Department’s current regulations 

implementing Title II and Title III of the 

ADA address equipment in several 

different contexts. The definition of 

‘‘facility’’ in each regulation expressly 

includes ‘‘equipment’’ (28 CFR 35.104 

and 36.104). Fixed equipment required 

to be accessible in new construction and 

alterations is identified in the ADA 

Standards (28 CFR part 36, App. A). 

Examples of accessible equipment that 

may be required are included in the 

definitions of auxiliary aids in 28 CFR 

35.104 and 36.104. In addition, 

Appendix B to the Title III regulation, 

28 CFR part 36, App. B, Proposed 

Section 36.309, second paragraph, 

further explains that—

Purchase or modification of equipment is 

required in certain instances by the 

provisions in 36.201 and 36.202 [general 

prohibitions on discrimination]. For 

example, an arcade may need to provide 

accessible video machines in order to ensure 

full and equal enjoyment of the facilities and 

to provide an opportunity to participate in 

the services and facilities it provides. The 

barrier removal requirements of 36.304 will 

apply as well to furniture and equipment. 

***

Because covered entities continue to 

raise questions about the extent of their 

obligation to provide accessible freestanding equipment, the Department is 

considering whether there is a need for 

the Department’s ADA regulations to 

contain specific language about the 

acquisition and use of mobile, portable, 

and other free-standing equipment or 

furnishings used by covered entities to 

provide services. If the Department does 

address specific requirements for freestanding equipment, it may look to the 

ADA Standards for guidance in 

determining whether various types of 

free-standing equipment are accessible 

to people with disabilities. 

Question 7. The Department invites 

public comment on its approach to 

these issues. Because the Department 

anticipates that it may issue further 

guidance with respect to the acquisition 

and use of mobile, portable, and other 

free-standing equipment and 

furnishings used by covered entities to 

provide services, the Department is 

seeking comment on the question 

whether such guidance is necessary. If 

you think that such guidance is needed, 

please provide specific examples of 

situations that should be addressed. 

Stadium-Style Seating 

Background. Beginning in the mid1990s, the first stadium-style movie 

theaters were built in the United States. 

These theaters employed a new type of 

theater design whereby, rather than 

placing rows of seats on a gradually 

sloping floor as in traditional-style 

movie theaters, all but a few rows of 

seats near the front of each theater were 

located on a series of elevated tiers or 

risers (typically 12–18 inches in height). 

The enhanced lines of sight provided by 

these stadium-style movie theaters 

proved to be highly popular with the 

movie going public and, consequently, 

fueled a boom in stadium-style theater 

construction nationwide. 

While stadium-style theater designs 

have evolved somewhat over the years 

and typically vary from theater circuit to 

theater circuit, two essential features 

have remained constant: (i) Movie 

patrons seated in the stadium sections 

of stadium-style theaters enjoy 

enhanced lines of sight to the screen as 

compared to patrons seated in the 

traditional sections of these theaters; 

and (ii) movie patrons who use 

wheelchairs are excluded from the 

stadium sections of the great majority of 

existing stadium-style theaters 

nationwide. 

Section 4.33.3 of the current ADA 

Standards requires, among other things, 

that ‘‘[w]heelchair areas * * * shall be 

provided * * * lines of sight 

comparable to those for members of the 

general public.’’ This line-of-sight 

requirement has generated considerable 

debate as applied to stadium-style 

movie theaters. Persons with disabilities 

and disability rights organizations have 

complained to the Department that they 

are afforded inferior lines of sight when 

limited to the traditional section of 

stadium-style theaters. Specifically, they 

have complained that, due to design 

considerations particular to stadiumstyle theaters (such as, for example, 

typically larger and wider screens), 

sitting in rows close to the screen in the 

traditional section often results in a 

painful and uncomfortable viewing 

experience, as well as distortion of 

images on the screen. Movie theater 

owners and operators, on the other 

hand, have countered that they satisfy 

section 4.33.3’s line-of-sight 

requirement by providing patrons who 

use wheelchairs with ‘‘unobstructed’’

views of the movie screen. The movie 

theater industry has also expressed its 

view to the Department that section 

4.33.3 provides insufficient guidance for 

theater designers concerning the 

placement of wheelchair seating areas in 

stadium-style movie theaters. Indeed, in 

1999, the National Association of 

Theater Owners (NATO) petitioned the 

Department to promulgate revised 

regulations specifically addressing 

stadium-style movie theaters and 

suggested its preferred regulatory 

language. The Department responded 

that it was planning to review and 

update the current ADA Standards 

covering assembly areas, including 

stadium-style movie theaters, upon 

issuance of the revised ADAAG. 

As the entity charged with primary 

enforcement responsibility for Title III, 

the Department has played a central role 

in ensuring that persons with 

disabilities have full and equal 

enjoyment of stadium-style movie 

theaters. Since at least 1998, the 

Department has consistently and 

publicly stated through such forums as 

meetings with movie industry 

representatives, speeches to disability 

and business organizations, and 

litigation in Federal courts, that, when 

a movie theater company is marketing 

and selling the enhanced stadium-style 

movie going experience to the general 

58776 Federal Register / Vol. 69, No. 189 / Thursday, September 30, 2004 / Proposed Rules 

public, excluding patrons who use 

wheelchairs from these stadium sections 

violates Title III of the ADA. The 

Department has also emphasized that 

individuals who use wheelchairs need 

not be provided the best seats in the 

house, but neither should they be 

relegated categorically to locations with 

the worst views of the screen. Rather, 

the Department has interpreted section 

4.33.3 as requiring a qualitative 

comparison—including viewing 

angles—between the view of the screen 

afforded patrons who use wheelchairs 

and the views of the screen provided 

most other members of the movie 

audience. Such a reading of section 

4.33.3, the Department believes, best 

comports with the plain language of the 

regulation, the well-established usage of 

the term ‘‘lines of sight’’ in the theater 

industry, and the anti-discrimination 

goals underlying Title III of the ADA. 

Nonetheless, both the debates and 

litigation have continued. Since 1999, 

the Department has initiated 

enforcement actions against several 

movie theater companies and 

participated as well as amicus curiae in 

other private ADA litigation involving 

stadium-style theaters. To date, all 

Federal courts except one have adopted 

or endorsed the Department’s 

interpretation of section 4.33.3’s line-ofsight requirement. See United States v. 

Cinemark USA, Inc., 348 F.3d 569 (6th 

Cir. 2003), cert. denied, 72 U.S.L.W. 

3513 (U.S. June 28, 2004) (No. 03–1131); 

Oregon Paralyzed Veterans of Am. v. 

Regal Cinemas, Inc., 339 F.3d 1126 (9th 

Cir. 2003), cert. denied, Regal Cinemas, 

Inc. v. Stewmon, 72 U.S.L.W. 3310 (U.S. 

June 28, 2004) (No. 03–641); Lara v. 

Cinemark USA, Inc., 207 F.3d 783 (5th 

Cir. 2000); cert. denied, 531 U.S. 944; 

United States v. Hoyts Cinemas Corp.,

256 F. Supp. 2d 73 (D. Mass. 2003), 

appeals docketed, Nos. 03–1646, 03–

1787, and 03–1808 (1st Cir. June 5, 

2003); United States v. AMC Entm’t, 

Inc., 232 F. Supp. 2d 1092 (C.D. Cal. 

2002). 

Revised ADA Standards. Building on 

the line-of-sight heritage of the current 

ADA Standards, section 221.2.3 of 

ADAAG frames the basic comparability 

requirement in terms of viewing angles: 

‘‘Wheelchair spaces shall provide 

spectators with * * * viewing angles 

that are substantially equivalent to, or 

better than, the * * * viewing angles 

available to all other spectators.’’ This 

ADAAG provision applies to all types of 

public accommodations, including 

stadium-style movie theaters, sports 

arenas, and concert halls. The 

Department intends to adopt this 

ADAAG provision for all assembly 

areas.

The Department believes that it is 

prudent to supplement these generic 

assembly area requirements with more 

specific guidance on stadium-style 

movie theaters. In light of several 

factors—including the contentious 

nature of the debate surrounding the 

application of the current ADA 

Standards to stadium-style movie 

theaters, the movie industry’s request 

for additional regulatory guidance 

relating to stadium-style movie theaters, 

as well as the Department’s significant 

experience with issues relating to 

stadium-style theaters—the Department 

is considering proposing regulations 

specifically applicable to stadium-style 

movie theaters. The purpose of such a 

rule would be twofold. The Department 

would be seeking to ensure that patrons 

with disabilities have full and equal 

enjoyment of, and access to, stadiumstyle movie theaters. The Department 

would also be seeking to provide theater 

designers with detailed guidance 

concerning acceptable placement of 

wheelchair seating locations in stadiumstyle theaters, while also affording 

design flexibility. 

Therefore, the Department is now 

seeking public comment about the 

Department’s promulgation of rules 

specifically addressing stadium-style 

movie theaters. The Department 

anticipates such a regulation would 

only address line-of-sight issues. The 

Department also anticipates that the 

horizontal and vertical dispersion 

requirements set forth in ADAAG 

sections 221.2.3.1 and 221.2.3.2 would 

be adopted in their entirety and would 

apply independently of any line-of-sight 

regulation specifically applicable to 

stadium-style theaters. Finally, the 

Department does not believe that its 

proposed line-of-sight regulation 

represents a substantive change from the 

existing line-of-sight requirements of 

Standard 4.33.3 of the current ADA 

standards. As with the existing 

requirements, the proposed line-of-sight 

regulations would recognize the 

importance of viewing angles to the 

movie going experience and would be 

aimed at ensuring that movie patrons 

with disabilities are provided 

comparable views of the movie screen 

as compared to other theater patrons. 

The Department’s proposed stadiumstyle theater regulation would set forth 

two separate requirements. First, the 

regulation would require wheelchair 

seating locations to be placed in the 

stadium section of a stadium-style 

movie theater. Second, the regulation 

would also establish one or more 

standards governing the placement of 

wheelchair seating locations within the 

stadium section. The Department offers 

the three following standards, either 

alone or in combination, for 

consideration and comment: 

Option 1: Adopt Viewing Angle 

Requirement. One option would be 

simply to adopt the comparative 

viewing angle requirement set forth in 

ADAAG section 221.2.3. The advantage 

of this approach would be consistency 

of requirements as between stadiumstyle movie theaters and other types of 

public accommodation. 

Option 2: Adopt ‘‘Distance From the 

Screen’’ Requirement. The second 

option would be to adopt a ‘‘distance 

from the screen’’ approach for locating 

wheelchair seating as established by 

some national consensus standards. For 

example, the American National 

Standards Institute (ANSI) recently 

published a standard specifying that 

wheelchair seating should be located 

within the rear 70% of the seats 

provided in a movie theater. While 

distance from the screen presents an 

easily applied standard for theater 

designers and code personnel, the 

Department’s experience with stadiumstyle theaters suggests that such a 

distance from the screen generally 

would not be sufficient to provide 

patrons who use wheelchairs with an 

equivalent viewing experience as 

compared to the rest of the movie 

audience. Thus, if the Department 

adopted a distance from the screen 

standard, it would likely specify that 

wheelchair seating must be located 

within the rear 60% of seats provided in 

a stadium-style theater. 

Option 3: Adopt Combination 

Viewing Angle/Percentile Requirement.

The third option would be to adopt a 

combination viewing angle and 

percentile approach as used by the 

Department in a settlement agreement 

with a national theater circuit. This 

agreement specifies that wheelchair 

seating locations should be placed 

‘‘within the area of an auditorium in 

which the vertical viewing angles to the 

top of the screen are from the 50th to the 

100th percentile of vertical viewing 

angles for all seats as ranked from the 

seats in the first row (1st percentile) to 

seats in the back row (100th 

percentile).’’ To date, the Department 

has found this approach to provide a 

workable and effective standard for 

locating wheelchair seating in stadiumstyle theaters. 

Question 8. Should the Department 

promulgate a regulation specifically 

relating to stadium-style movie theaters? 

If so, should this regulation simply 

adopt ADAAG’s viewing angle 

requirement for lines of sight or should 

it instead also include alternative 

Federal Register / Vol. 69, No. 189 / Thursday, September 30, 2004 / Proposed Rules 58777

distance from the screen or viewing 

angle/percentile approaches? How 

should the ‘‘stadium’’ section of a 

stadium-style theater be defined? 

III. Miscellaneous Matters

There are a number of miscellaneous 

matters the Department may address in 

the NPRM. 

Withdrawal of Outstanding NPRMs 

The Department plans to notify the 

public of the withdrawal of three 

outstanding NPRMs: the joint NPRM of 

the Department and the Access Board 

dealing with children’s facilities, 

published on July 22, 1996, at 61 FR 

37964; the Department’s proposal to 

extend the time period for providing 

curb cuts at existing pedestrian 

walkways, published on November 27, 

1995, at 60 FR 58462; and the 

Department’s proposal to adopt the 

Access Board’s accessibility guidelines 

and specifications for State and local 

government facilities, published as an 

interim final rule by the Access Board 

on June 20, 1994, at 59 FR 31676, and 

by the Department as a proposed rule on 

June 20, 1994, at 59 FR 31808. To the 

extent that these amendments were 

republished in the July 23, 2004, 

publication of ADAAG, they will all be 

included in the Department’s new 

NPRM. 

Changes in Procedural Requirements for 

Certification of State Laws and Local 

Building Codes 

Section 308 (b)(1)(A)(ii) of the ADA 

authorizes the Attorney General to 

certify the accessibility requirements of 

State and local governments that meet 

or exceed the minimum requirements 

for accessibility and usability of 

buildings and facilities covered by the 

new construction and alterations 

requirements of Title III of the Act (42 

U.S.C. 12188 (b)(1)(A)(ii)). This 

procedure is voluntary and may be 

initiated at the discretion of a State or 

local government. In jurisdictions with 

certified accessibility codes, compliance 

with the certified code in the 

construction or alteration of covered 

buildings and facilities constitutes 

rebuttable evidence of compliance with 

the ADA in any enforcement proceeding 

that might be brought. The Department’s 

regulations implementing the 

certification process are published in 28 

CFR 36.601–36.608. 

While most of these sections restate 

the statutory provision or establish the 

obligations of the Department in 

responding to a request for certification, 

one section, 28 CFR 36.603, establishes 

the obligations of a submitting authority 

that is seeking certification of its code. 

The Department is considering ways in 

which these provisions can be 

streamlined to facilitate the process of 

seeking certification. 

The Department anticipates that it 

will propose to delete section 36.603 

from the current regulation. In its place, 

the Department will issue subregulatory guidance that will provide 

streamlined submission requirements. 

Changes in Public Hearing Procedure.

Section 36.605 (a)(2) of the Title III 

regulation requires that an informal 

hearing be held in Washington, DC, on 

the Department’s decision to issue a 

preliminary determination of 

equivalency for a jurisdiction’s 

accessibility code. The Department is 

considering substituting a requirement 

that an informal hearing be held within 

the relevant jurisdiction. The 

Department believes that a hearing 

conducted within the affected 

jurisdiction will generally provide a 

better opportunity for interested parties 

to comment. 

Effect of the Revised ADA Standards 

on Certified Accessibility Codes. With 

the adoption of the revised ADA 

Standards, certifying State and local 

government codes as equivalent will be 

a more straightforward process because 

of the Access Board’s extensive efforts 

to harmonize the revised guidelines 

with the model codes, which form the 

basis of many State codes. The 

Department is currently considering 

what impact the revised ADA Standards 

should have on the status of 

accessibility requirements for 

jurisdictions that were determined in 

the past to have met or exceeded the 

ADA Standards. 

The Department invites public 

comment on each of these issues. 

Title II Complaints 

Complaint Investigation. One of the 

issues the Department will address in its 

upcoming NPRM relates to the 

Department’s current procedures with 

respect to the investigation of 

complaints alleging discrimination on 

the basis of disability by public entities 

under Title II of the ADA. In its revised 

regulation implementing Title II, the 

Department will clarify its enforcement 

procedures in order to streamline the 

Department’s internal procedures for 

investigating complaints, reduce the 

administrative burdens associated with 

implementing the statute, and ensure 

that the Department retains the 

flexibility to allocate its limited 

enforcement resources effectively and 

productively. 

Subtitle A of Title II of the ADA 

defines the remedies, procedures, and 

rights provided for qualified individuals 

with disabilities who are discriminated 

against on the basis of disability in the 

services, programs, or activities of State 

and local governments. While the ADA 

requires the Department to implement 

the requirements of Title II, it does not 

specify any particular means of doing 

so. It does not require the Department to 

investigate every complaint of 

discrimination, or even to rely upon 

complaints at all as a means of 

enforcement. The Department’s current 

Title II regulation is based on the 

enforcement procedures established in 

regulations implementing Section 504. 

Thus, the Department’s current 

regulation provides that the Department 

‘‘shall investigate each complete 

complaint’’ alleging a violation of Title 

II and shall ‘‘attempt informal 

resolution’’ of such complaint (28 CFR 

35.172(a)). 

In the years since the current 

regulation went into effect, the 

Department has received many more 

complaints alleging violations of Title II 

than its resources permit it to 

investigate. The Department’s 

experience dictates that it must have 

greater discretion to prioritize these 

complaints appropriately in order to 

ensure that resources are directed to 

resolving the most critical matters. 

Without the ability to exercise 

discretion in complaint processing, 

there will be substantial delays in the 

investigation of many meritorious 

complaints. These delays would make 

investigations more difficult, as 

witnesses disappear, memories fade, 

and circumstances change. In some 

time-sensitive cases, such delays might 

even result in an effective denial of 

justice as agency resources would be 

taken up by less sensitive cases. These 

problems would also result in increased 

uncertainty for complainants and 

covered entities, as they would be 

required to await disposition of their 

disputes without any knowledge of 

what might be required of them. 

The approach of the current Title II 

regulation may be contrasted with that 

reflected in the current Title III 

regulation, which recognizes that the 

Department has the discretion not to 

investigate all complaints alleging 

discrimination on the basis of disability 

by places of public accommodation (28 

CFR 36.502). To avoid the enforcement 

problems identified above, and to bring 

its Title II regulation into sync with its 

current enforcement procedures under 

both Title II and Title III, the 

Department will propose to clarify in its 

revised regulation that it may exercise 

its discretion in selecting Title II 

complaints for investigation and in 

determining the most effective means of 

58778 Federal Register / Vol. 69, No. 189 / Thursday, September 30, 2004 / Proposed Rules 

resolving those complaints. This 

clarification of the Department’s 

enforcement procedures reflects the 

Department’s determination to manage 

its Title II complaints as effectively as 

possible. It is not intended to create, 

eliminate, or otherwise alter any 

substantive rights or responsibilities 

under the ADA. It will not alter the 

Department’s essential obligation to 

implement Title II of the ADA 

effectively, but will simply recognize 

the Department’s discretion to 

determine how best to implement it.

As revised, the Department’s Title II 

regulation will make clear that the 

Department may, within its discretion, 

dispose of complaints with inadequate 

legal or factual bases quickly, and, thus, 

dedicate more of its enforcement 

resources to complaints with stronger 

allegations. This process will allow the 

Department to continue to establish 

priorities and allocate resources to most 

effectively achieve the goals of the ADA. 

It will also allow the Department to 

respond more quickly to matters that 

need immediate resolution and to more 

fully address matters of systemic 

discrimination. The Department’s 

resolution of those cases involving, for 

example, life-and-death situations, 

essential government services, and 

complex legal questions, will set highprofile precedents that will, in turn, 

facilitate local resolution of the types of 

complaints the Department is unable to 

pursue. 

Exhaustion of Administrative 

Remedies. Another issue the 

Department will address in the NPRM 

involves the effect of the Prison 

Litigation Reform Act (PLRA), 42 U.S.C. 

1997e, upon complaints by prisoners 

alleging unlawful discrimination on the 

basis of disability under Title II of the 

ADA. The PLRA amended the Civil 

Rights of Institutionalized Persons Act 

(CRIPA) to provide that ‘‘[n]o action 

shall be brought with respect to prison 

conditions under section 1983 of this 

title, or any other Federal law, by a 

prisoner confined in any jail, prison, or 

other correctional facility until such 

administrative remedies as are available 

are exhausted’’ (42 U.S.C. 1997e(a)). The 

plain language of the statute provides 

that individuals seeking to challenge 

prison conditions by invoking the 

provisions of ‘‘any * * * Federal law’’

are required first to exhaust ‘‘such 

administrative remedies as are 

available.’’ Title II of the ADA protects 

prisoners from unlawful discrimination 

on the basis of disability, and among the 

administrative remedies available to 

such individuals to redress 

discrimination is the filing of a Title II 

complaint with the Department. 

Therefore, in order to properly 

implement this legislation, the 

Department’s revised regulation 

implementing Title II of the ADA will 

provide that in order to exhaust 

administrative remedies as required 

under the PLRA, prisoners alleging 

unlawful discrimination on the basis of 

disability under Title II will be required 

to file an administrative complaint with 

the Department prior to filing suit in 

court. As with all complaints of 

discrimination under Title II, the 

Department may, in its discretion, 

investigate and attempt to resolve the 

allegations of unlawful discrimination 

made in these complaints. However, 

given the large number of prisoner 

complaints and the Department’s 

limited resources, it is unlikely that the 

Department will be able to investigate 

every such complaint. The Department 

wishes to ensure that this requirement 

does not prove to be a bar for prisoners 

with disabilities seeking redress of their 

grievances in the courts. Therefore, the 

Department will propose that, for 

purposes of the PLRA, a complainant 

will be deemed to have successfully 

exhausted the administrative remedy of 

filing a complaint with the Department 

if no action has been taken upon the 

complaint by the Department within a 

60-day administrative period. 

IV. Regulatory Assessment Issues 

A regulatory assessment—a report 

analyzing the economic costs and 

benefits of a regulatory action ‘‘is not 

required for this ANPRM. One purpose 

of this ANPRM, however, is to seek 

comment on the Department’s proposed 

methodology for the regulatory 

assessment that the Department must 

prepare in connection with the issuance 

of the NPRM. A regulatory assessment 

will be required for the NPRM under 

Executive Order 12866, as amended 

without substantial change to its 

requirements by Executive Order 13258, 

and the Regulatory Flexibility Act, as 

amended by the Small Business 

Regulatory Enforcement Fairness Act of 

1996. Executive Order 12866 requires 

Federal agencies to submit any 

‘‘significant regulatory action’’ to the 

Office of Management and Budget’s 

(OMB) Office of Information and 

Regulatory Affairs for review and 

approval prior to publication in the 

Federal Register. A proposed regulatory 

action that is deemed to be 

economically significant under section 

3(f)(1) of that order (having an annual 

effect on the economy of $100 million 

or more) is required to include a formal 

benefit-cost analysis. A formal benefitcost analysis must include both 

qualitative and quantitative 

measurements of the benefits and costs 

of the proposed rule as well as a 

discussion of each potentially effective 

and reasonably feasible alternative. 

As part of the Department’s initial 

NPRM regulatory assessment, the 

Department expects to adopt the final 

regulatory assessment prepared by the 

Access Board for the final ADAAG and 

approved by OMB. (See regulatory 

assessment for ADAAG at www.accessboard.gov. The assessment has also been 

placed in the dockets of both the Access 

Board and the Department and is 

available for public inspection.) 

However, the regulatory assessment for 

the Department’s NPRM must be 

broader than that of the Access Board in 

several respects. First, the Department 

must include as part of the estimated 

annual cost of the revised ADA 

Standards the cost of each of the 

supplemental guidelines (now folded 

into the final ADAAG document) issued 

by the Access Board subsequent to the 

1991 ADAAG. As discussed above, the 

Access Board adopted the supplemental 

guidelines in separate rulemaking 

initiatives before ultimately combining 

them into the final ADAAG document. 

The costs associated with these 

supplemental guidelines, therefore, 

were considered part of the Access 

Board’s baseline, and not as new costs 

associated with the Board’s issuance of 

ADAAG. Because the Department did 

not adopt any of the supplemental 

guidelines separately, the Department 

must consider their associated costs as 

part of adopting revised ADA Standards 

consistent with ADAAG. 

Further, unlike the Access Board, the 

Department must prepare an assessment 

of the costs and benefits arising from 

any compliance with the revised ADA 

Standards that may be required for 

barrier removal in existing facilities. 

Which elements of existing facilities 

will be required to comply with the 

revised ADA Standards and in what 

manner will depend upon which option 

the Department selects with respect to 

existing facilities under Questions 3 and 

4, above. 

Because the regulatory assessment for 

the NPRM will include both the costs 

associated with the supplemental 

guidelines and those associated with the 

compliance of certain elements of 

existing facilities, the NPRM may be 

deemed economically significant. If so, 

the Department will have to prepare a 

full benefit-cost analysis in connection 

with the NPRM. 

Also, consistent with the Regulatory 

Flexibility Act of 1980 and Executive 

Order 13272, the Department must 

consider the impacts of any proposed 

rule on small entities, including small 

Federal Register / Vol. 69, No. 189 / Thursday, September 30, 2004 / Proposed Rules 58779

businesses, small nonprofit 

organizations, and small governmental 

jurisdictions. The Department will make 

an initial determination as to whether 

the proposed rule is likely to have a 

significant economic impact on a 

substantial number of small entities, 

and if so, the Department will prepare 

an initial regulatory flexibility analysis 

analyzing the economic impacts on 

small entities and regulatory 

alternatives that reduce the regulatory 

burden on small entities while 

achieving the goals of the regulation. In 

response to this ANPRM, the 

Department encourages small entities to 

provide cost data on the potential 

economic impact of applying specific 

provisions of ADAAG to existing 

facilities and recommendations on less 

burdensome alternatives, with cost 

information. 

Basic Principles of Proposed Regulatory 

Framework 

The Proposed Regulatory Framework, 

which is set forth in Appendix A, 

describes the approach that the 

Department is considering for the 

regulatory assessment that it must 

prepare in connection with the NPRM. 

In brief, the framework proposes to 

assess benefits and costs associated with 

a proposed adoption of revised ADA 

Standards consistent with ADAAG in 

accordance with the following 

principles:

• The proposed framework assumes 

that the regulatory analysis for the 

proposed regulation will be required to 

include a full benefit-cost analysis 

subject to the requirements of OMB 

Circular A–4. The framework is 

designed to conform with those 

requirements. 

• The analysis will cover the benefits 

and costs of the revised ADA Standards 

for readily achievable barrier removal 

for existing buildings as well as the 

benefits and costs of the revised ADA 

Standards for new construction and 

alterations (only the latter has been 

estimated by the Access Board in its 

regulatory assessment for ADAAG). 

• Only incremental benefits and costs 

of the revised ADA Standards will be 

assessed. Benefits and costs associated 

with the current ADA Standards will be 

considered baseline benefits and costs. 

• Benefits will be addressed with 

regard to not only user value, but also 

insurance value and existence value, as 

explained in Appendix A. 

• The analysis will address the 

alternative approaches to application of 

the revised ADA Standards set out 

under Questions 3 and 4, above. 

• To estimate the incremental 

benefits and costs of the readily 

achievable barrier removal obligation, a 

computer simulation model will be 

developed based upon statistical 

databases developed to show cost per 

element or space to be modified and 

number of elements or spaces to be 

modified, taking into account the factor 

of ‘‘readily achievable.’’ The data will be 

stratified by age and size of facility, 

financial condition, and other 

applicable features. 

• The risk of measurement error will 

be addressed through risk analysis and 

threshold analysis, as explained in 

Appendix A. 

The following questions for public 

comment address issues raised in 

connection with the Proposed 

Regulatory Framework. The Department 

is seeking comments from covered 

entities, persons with disabilities, and 

all other members of the public with 

respect to both benefits and costs. 

Where applicable, responses should 

clearly identify the specific question 

being addressed according to the 

numbered question. For additional 

information, please see Appendix A to 

this document. 

Data Collection Questions, By Type of 

Entity 

The Department is not, in the 

following data collection questions, 

seeking information about the cost of 

applying revised ADA Standards to new 

construction and alterations. As stated 

above under Item IV, the Department 

expects to adopt the Access Board’s 

final regulatory assessment (see 

regulatory assessment for ADAAG at 

www.access-board.gov) as its 

assessment of the cost that will be 

incurred for new construction and 

alterations, which is the situation 

addressed in the Access Board’s 

regulatory assessment. The following 

data collection questions are intended to 

elicit information about the costs and 

benefits that will result if the new 

guidelines are used as the basis for 

mandatory barrier removal. Question 9 

is a general question soliciting data 

about the potential costs and benefits of 

using any or all of the changed or new 

requirements in the new guidelines as 

the basis for mandatory barrier removal. 

Question 10 is a general question 

soliciting information about the effect of 

the new or changed requirements on the 

obligations of small entities with respect 

to barrier removal. Questions 11–47 

contain numerous questions that 

reiterate this general question with 

respect to a sampling of specific new or 

changed requirements. The Department 

is seeking comments from all 

stakeholders ‘‘covered entities, persons 

with disabilities, and all other members 

of the public ‘‘with respect to both costs 

and benefits. The Department also 

wishes to solicit comments on any areas 

where additional costs may be imposed 

or benefits may be realized indirectly as 

a result of the ultimate regulations. 

Where applicable, responses should 

clearly identify the specific question 

being addressed according to the 

numbered question. 

All Types 

Question 9. Many of the new and 

changed requirements in ADAAG are 

expected to have negligible cost for new 

construction and alteration, such as the 

change in the maximum side reach from 

54 inches to 48 inches (ADAAG 308.3). 

See Chapter 6, item 6.20, of the 

regulatory assessment for ADAAG at 

www.access-board.gov. Other new and 

changed requirements are expected to 

have a cost impact for new construction 

and alterations. See Chapter 7 of the 

above cited regulatory assessment for 

ADAAG. The Department invites 

comments from covered entities, 

individuals with disabilities, and 

individuals without disabilities on the 

benefits and costs of applying these new 

and changed specifications to existing 

facilities pursuant to the readily 

achievable barrier removal requirement 

of Title III. Please be as specific as 

possible in your answers. (Changed 

requirements would not be applied 

under the barrier removal obligation to 

elements that comply with the current 

ADA Standards if the Department 

adopts the safe harbor provision 

addressed under Question 3. New 

requirements would be applied even if 

the Department adopts the safe harbor 

provision but their impact could be 

reduced under the options addressed 

under Question 4.) 

Question 10. Consistent with the 

Regulatory Flexibility Act and Executive 

Order 13272, the Department will 

determine whether a proposed rule 

adopting all or part of the Access 

Board’s ADAAG revisions would be 

likely to have a significant economic 

impact on a substantial number of small 

entities, and if so, what the Department 

could do to reduce that economic 

impact while achieving the goals of its 

regulation. The Department welcomes 

comments providing information on the 

rule’s potential economic impact on 

covered small entities, including 

retrofitting costs. Also, please provide 

any potential regulatory alternatives that 

could reduce those burdens. 

Question 11. The Department is 

considering excluding as a barrier 

removal obligation for existing facilities, 

if it selects Option II under Question 4, 

above, the requirement at ADAAG 210 

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that accessible handrails be added to 

stairs in buildings with elevators. The 

Department is soliciting comments from 

all stakeholders on this approach. Please 

be as specific as possible in your 

response. 

Question 12. ADAAG 229.1 is a new 

requirement that at least one window be 

accessible to persons with disabilities in 

a room with windows that can be 

opened by persons without disabilities. 

The Department wishes to collect data 

about the effect of this new requirement 

if it is applied to existing facilities 

under the barrier removal requirement 

of Title III. Do you have rooms with 

windows that open, of the sliding or 

double hung type, in your existing 

facility? If so, how many? Would the 

hardware that works for new windows 

in new buildings work on these 

windows in your existing facility 

without additional cost? 

Persons with disabilities and the 

general public are invited to comment 

on the incremental benefit of having at 

least one accessible window in each 

room that has windows that are 

operable by persons without disabilities.

Office Buildings 

Question 13. New requirements at 

ADAAG 230.1 and 708.1 require twoway communications systems (except in 

residential facilities) to be equipped 

with visible as well as audible signals. 

The Department wishes to collect data 

about the effect of this new requirement 

if it is applied to existing facilities 

under the readily achievable barrier 

removal requirement of Title III. Do you 

use a two-way communications system 

in your existing office building? What 

would be the cost of equipping a unit 

with both audible and visible signals? 

How many two-way communications 

systems do you have in your existing 

office building? 

Persons with disabilities and the 

general public are invited to comment 

on the incremental benefit of having 

both audible and visual signals on twoway communications systems in 

existing office buildings. 

Question 14. Under the current ADA 

Standards, men’s toilet rooms with six 

or more water closets and urinals, but 

fewer than six toilet compartments, are 

not required to provide an ambulatory 

accessible toilet compartment with grab 

bars. Under ADAAG 213.1, urinals will 

be counted, so that if there are a total 

of six urinals or water closets, an 

ambulatory accessible toilet 

compartment with grab bars will be 

newly required. Additional costs in new 

construction include the costs of adding 

grab bars but because of fire code 

requirements, no cost is allocated with 

respect to new construction and 

alterations to the requirement that an 

accessible compartment must be 

between 35 and 37 inches wide and 60 

inches deep. The Department wishes to 

collect data about the effect of this 

requirement in existing facilities. Are 

some or all of the men’s rooms in your 

existing office building required to have 

an ambulatory accessible toilet 

compartment? Will the changed 

requirement result in more such 

compartments being necessary in your 

existing office building? If so, what 

would be the unit cost of adding such 

a compartment? How many additional 

ambulatory accessible toilet 

compartments would you be required to 

add in your existing office building? 

Persons with disabilities and the 

general public are invited to comment 

on the incremental benefit of having 

additional ambulatory accessible toilet 

compartments in men’s rooms in 

existing office buildings. 

Question 15. Under the current ADA 

Standards, a private office building 

must provide a public TTY if there are 

four or more public pay telephones in 

the building. Under the revised ADA 

Standards, a private office building will 

also be required to provide a public TTY 

on each floor that has four or more 

public telephones (ADAAG 217.4.2) and 

in each telephone bank that has four or 

more telephones (ADAAG 217.4.1). The 

Department wishes to collect data about 

the effect of this requirement if it is 

applied to existing facilities under the 

barrier removal requirement of Title III. 

Will the changed requirement result in 

more TTYs being necessary in your 

existing office building? How many 

more? Can a TTY be added to an 

existing facility at the same cost as to a 

new or altered facility? 

Persons with disabilities and the 

general public are invited to comment 

on the incremental benefit of having 

additional TTYs in existing office 

buildings. 

Question 16. What data source do you 

recommend to assist the Department in 

estimating the number of existing office 

buildings categorized by such features 

as size, age, type, physical condition, 

and financial condition? 

Question 17. What data source do you 

recommend to assist the Department in 

estimating the extent to which existing 

office buildings comply with the current 

ADA Standards? 

Question 18. What data source do you 

recommend to assist the Department in 

estimating the incremental cost of 

making noncompliant elements of 

existing office buildings comply with 

the revised ADA Standards? 

Hotels and Motels 

Question 19. A new requirement at 

ADAAG 806.2.4.1 provides that if vanity 

counter top space is provided in 

nonaccessible hotel guest toilet or 

bathing rooms, comparable vanity space 

must be provided in accessible hotel 

guest toilet or bathing rooms. The 

Department wishes to collect data about 

the effect of this requirement if it is 

applied to existing facilities under the 

readily achievable barrier removal 

requirement of Title III. Do you 

currently provide any accessible vanity 

counter space in your existing 

accessible guest toilet or bathing rooms? 

How much available extra room, usable 

for an accessible vanity counter top, is 

there on average in your existing 

accessible guest toilet or bathing rooms? 

Persons with disabilities and the 

general public are invited to comment 

on the incremental benefit of having 

comparable vanity space in accessible 

hotel guest toilet or bathing rooms. 

Question 20. What data source do you 

recommend to assist the Department in 

estimating the number of existing hotels 

and motels categorized by such features 

as size, age, type, physical condition, 

and financial condition? 

Question 21. What data source do you 

recommend to assist the Department in 

estimating the extent to which existing 

hotels and motels comply with the 

current ADA Standards? 

Question 22. What data source do you 

recommend to assist the Department in 

estimating the incremental cost of 

bringing noncompliant elements of 

existing hotels and motels into 

compliance with the revised ADA 

Standards? 

Stadiums and Arenas 

Question 23. What data source do you 

recommend to assist the Department in 

estimating the number of existing 

stadiums and arenas categorized by 

such features as size, age, type, physical 

condition, and financial condition? 

Question 24. Are there data sources 

that the Department could consult to 

estimate the extent to which existing 

stadiums and arenas comply with the 

current ADA Standards? 

Question 25. What data source do you 

recommend to assist the Department in 

estimating the incremental cost of 

bringing noncompliant elements of 

existing stadiums and arenas into 

compliance with the revised ADA 

Standards? 

Hospitals and Long Term Care Facilities 

Question 26. A new requirement at 

ADAAG 607.6 provides that the shower 

spray unit in an accessible shower 

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compartment must have an on-off 

switch. The Department wishes to 

collect data about the effect of this 

requirement if it is applied to existing 

facilities under the readily achievable 

barrier removal requirement of Title III. 

Do all of the shower spray units that you 

currently use for accessible shower 

compartments in your existing hospital 

or long-term care facility have on-off 

switches? If not, how many shower 

spray units in accessible shower 

compartments do you have without onoff switches? Would you have to 

purchase a new shower spray unit to 

add the on-off feature or is there a way 

to adapt your current unit for this 

purpose? 

Persons with disabilities and the 

general public are invited to comment 

on the incremental benefit of having an 

on-off switch on the shower spray unit 

in an accessible shower compartment. 

Question 27. What data source do you 

recommend to assist the Department in 

estimating the number of existing 

hospitals and long-term care facilities 

categorized by such features as size, age, 

type, physical condition, and financial 

condition? 

Question 28. Are there data sources 

that the Department could consult to 

estimate the extent to which existing 

hospitals and long-term care facilities 

comply with the current ADA 

Standards?

Question 29. Are there data sources 

that the Department could consult to 

assess the incremental cost of bringing 

noncompliant elements of existing 

hospitals and long-term care facilities 

into compliance with the revised ADA 

Standards? 

Residential Dwelling Units 

Question 30. A changed requirement 

at ADAAG 804.2 requires a 60-inch 

(rather than the current 40-inch) 

clearance space in so-called galley 

kitchens, which have cabinets and 

appliances on opposite walls, if there is 

only one entry to the kitchen. The 

Department wishes to collect data about 

the effect of this requirement if it is 

applied to existing facilities under the 

readily achievable barrier removal 

requirement of Title III. Are any of the 

kitchens in the accessible dwelling units 

of your existing housing facility of the 

one-entry galley type? Is clearance of 60 

inches provided? If not, is extra space 

available for this purpose? 

Persons with disabilities and the 

general public are invited to comment 

on the incremental benefit of having a 

60-inch (rather than the current 40-inch) 

clearance space in galley kitchens. 

Question 31. What data source do you 

recommend to assist the Department in 

estimating the number of existing 

residential dwelling units categorized 

by such features as size, age, type, 

physical condition, and financial 

condition? 

Question 32. What data source do you 

recommend to assist the Department in 

estimating the extent to which existing 

residential dwelling units comply with 

the current ADA Standards? 

Question 33. What data source do you 

recommend to assist the Department in 

estimating the incremental cost of 

bringing noncompliant elements of 

existing residential dwelling units into 

compliance with the revised ADA 

Standards? 

State and Local Government Buildings: 

Cells and Courtrooms 

Question 34. How many State and 

local detention and holding cells were 

newly constructed or altered in each of 

the past five years? How many would 

you project will be newly constructed or 

altered in each of the next five years? 

Question 35. How many State and 

local courtrooms were newly 

constructed or altered in each of the 

past five years? How many would you 

project will be newly constructed or 

altered in each of the next five years? 

Question 36. What data source do you 

recommend to assist the Department in 

estimating the number of existing cells 

and courtrooms categorized by such 

features as size, age, type, physical 

condition, and financial condition? 

Question 37. What would be a good 

source to assist the Department in 

estimating how many State and local 

government building codes already meet 

the requirements that will be in the 

revised ADA Standards for cells and 

courtrooms? 

Question 38. What would be a good 

source to assist the Department in 

estimating the cost of bringing existing 

cells and courtrooms into compliance 

with the revised ADA Standards? 

Play Areas 

Question 39. Among the new 

requirements at ADAAG 240 are new 

scoping provisions for the minimum 

number of ground level and elevated 

play components that are required to be 

on an accessible route for newly 

constructed or altered play areas. The 

basic requirement for ground level play 

components is that one of each type 

must be on an accessible route. If a new 

or altered play area contains elevated 

play components that fail to meet 

specified accessibility requirements, 

then a specified greater number of 

ground level play components must be 

on an accessible route. The Department 

wishes to collect data about the effect of 

this requirement in existing play areas. 

Are any of the ground level play 

components in your existing play area 

on an accessible route? Is one of each 

type of ground level play component in 

your existing play area on an accessible 

route? Are there elevated play 

components in your existing play area? 

Are any of them on an accessible route? 

Question 40. What data source do you 

recommend to assist the Department in 

estimating the number of existing play 

areas categorized by such features as 

size, age, type, physical condition, and 

financial condition? 

Question 41. What would be a good 

source to assist the Department in 

estimating the cost of bringing existing 

play areas into compliance with the 

revised ADA Standards? 

Recreation Facilities 

Question 42. A new requirement at 

ADAAG 234.3 provides that every new 

or altered amusement ride must provide 

at least one wheelchair space or transfer 

seat or transfer device. The preamble to 

the final recreation facilities guidelines 

provides that the transfer device may be 

separate from, rather than integral to, 

the ride. The Department wishes to 

collect data about the effect of this 

requirement if it is applied to existing 

amusement rides under the barrier 

removal requirement of Title III. With 

respect to your existing rides, have you 

used transfer devices or other means to 

make the ride accessible to persons with 

disabilities? If so, what did the transfer 

device cost? 

Persons with disabilities and the 

general public are invited to comment 

on the incremental benefit of having 

transfer devices available for use on 

existing rides. 

Question 43. A new requirement at 

ADAAG 235.2 requires accessible boat 

slips to be provided in accordance with 

a table, which ranges from one 

accessible boat slip for facilities with 25 

or fewer boat slips to 12 accessible boat 

slips for facilities with 901 to 1,000 boat 

slips. ADAAG 1003.3.1 provides that an 

accessible boat slip must be at least 60 

inches wide along its entire length (with 

an exception for two-foot sections at 

least 36 inches wide if separated by 60-

inch wide sections at least 60 inches in 

length). The Department wishes to 

collect data about the effect of this 

requirement if it is applied to existing 

boat slips under the readily achievable 

barrier removal requirement of Title III. 

How many boat slips are there in your 

existing facility? When was your facility 

built? The Department is considering 

reducing the number of boat slips that 

must be accessible in existing facilities 

if it selects Option II under Question 4, 

58782 Federal Register / Vol. 69, No. 189 / Thursday, September 30, 2004 / Proposed Rules 

above. The Department is soliciting 

comments from all stakeholders on this 

approach. Please be as specific as 

possible in your response. 

Question 44. An exception to the new 

requirement at ADAAG 206.2.15 

permits the accessible route 

requirements (which must connect all 

greens, weather shelters, rental areas, 

and the like) for golf courses to be 

satisfied by golf car passages, defined at 

ADAAG 1006.3 as a 48-inch wide 

passage, providing 60-inch wide 

openings in curbs or other constructed 

barriers every 75 yards. The Department 

wishes to collect data about the effect of 

this requirement if it is applied to 

existing golf courses under the readily 

achievable barrier removal requirement 

of Title III. What would you have to do 

to your existing golf course to make it 

comply with the requirements for golf 

car passages? 

Question 45. A new requirement at 

ADAAG 242.1 requires a new swimming 

pool whose perimeter is over 300 linear 

feet to have at least two accessible 

means of entry, at least one of which 

must be a lift or a sloped entry. The 

Department is considering reducing the 

number of accessible entries for a pool 

over 300 feet in perimeter in existing 

facilities if it selects Option II under 

Question 4, above. The Department is 

soliciting comments from all 

stakeholders on this approach. Please be 

as specific as possible in your response. 

Question 46. What data source do you 

recommend to assist the Department in 

estimating the number of existing 

recreational areas of each type to be 

covered in the revised ADA Standards, 

categorized by such features as size, age, 

type, physical condition, and financial 

condition? 

Question 47. What data source do you 

recommend to assist the Department in 

estimating the cost of making each of 

the following types of existing 

recreation facilities comply with the 

revised ADA Standards: amusement 

rides, boating facilities, fishing piers 

and platforms, golf, miniature golf, 

sports facilities (bowling, shooting, and 

exercise facilities, among others), and 

swimming pools and spas? 

General Data Collection Questions 

Concerning Benefits

Question 48. Do you have any general 

comments or concerns about the 

Department’s proposed methodology for 

determining benefits? As discussed in 

the text of the proposed framework, the 

Department is charged with ascertaining 

the value of the benefits that the revised 

ADA Standards will provide for both 

people with disabilities and others. The 

Department is seeking comments from 

the public on how best to quantify, 

monetize, or describe the benefits 

provided by the proposed revised 

regulations, including suggestions on 

how to quantify, monetize or describe 

use values, insurance values, and 

existence values, each as described in 

Appendix A. 

Question 49. What benefits do you see 

in the revised ADA Standards for people 

with disabilities? For example, how 

might the revised requirements for 

accessible routes be of benefit to the 

users of a building? How could these 

benefits be quantified? 

Question 50. The proposed framework 

states that the Department will ‘‘roll up’’

the elements by type of building facility, 

the five principal regulatory groupings, 

new construction and alterations, and 

the entire proposed revisions. Is this a 

sufficiently detailed organization of the 

benefits and costs? Will it give all 

stakeholders an accurate picture of how 

the proposed revisions will be of 

benefit? If not, what sort of organization 

of the benefits would be more useful for 

accurately conveying the important 

information? 

Regulatory Assessment Process 

Questions 

OMB Circular A–4 

(www.whitehouse.gov/omb/circulars/

a004/a-4.pdf) provides guidance to 

Federal agencies on the development of 

regulatory analysis. Regulatory analysis 

is a tool agencies use to anticipate and 

evaluate the likely consequences of 

rules. It provides a formal way of 

organizing the evidence on the key 

effects of the various alternatives that 

should be considered in developing 

regulations. The motivation is to (i) 

learn if the benefits of an action are 

likely to justify the costs or (ii) discover 

which of various possible alternatives 

would be the most cost-effective. 

This ANPRM seeks additional 

information to assist the Department in 

preparing a regulatory analysis under 

Circular A–4, in particular the 

provisions of sections D (Analytical 

Approaches) and E (Identifying and 

Measuring Benefits and Costs). 

Question 51. Circular A–4 describes 

several analytical approaches including 

benefit-cost analysis and costeffectiveness analysis. Stakeholders are 

encouraged to express their views and 

to advise the Department as to how best 

to conduct these analyses as part of any 

rulemaking that is published to adopt 

the revised ADA Standards. 

Question 52. The Department is 

seeking comment, advice, and 

information on its proposed approach in 

the three key application areas, as 

follows: 

a. Categorizing the revised ADA 

Standards for purposes of identifying 

benefits and costs; 

b. Defining baselines in accordance 

with OMB Circular A–4, sec. E.2.; and 

c. Identifying and quantifying benefits 

and costs. 

Question 53. Stakeholders are invited 

to provide the Department with 

comments and advice on the proposed 

classification, the proposed roll-ups, 

and other related matters. 

Question 54. With respect to elements 

in existing facilities that may be subject 

to the revised ADA Standards through 

the readily achievable barrier removal 

requirement, the use of market prices (or 

willingness to pay) as a measure of 

benefits may be insufficient where a 

given provision in the revised ADA 

Standards renders an existing facility 

more accessible rather than newly 

accessible. Such might be the case, for 

example, with respect to the provision 

requiring an independent means of 

getting in and out of the pool in an 

otherwise accessible swimming facility. 

The public is asked to comment on 

ways and means of handling this issue.

Dated: September 23, 2004. 

John Ashcroft, 

Attorney General.

Appendix A—Proposed Framework for 

the Regulatory Analysis 

1. Introduction 

As directed by Executive Order 12866 and 

OMB Circular A–4, as well as the Regulatory 

Flexibility Act and Executive Order 13272, 

the Department may be required to conduct 

a comprehensive Regulatory Impact Analysis 

of the revised ADA Standards. A Regulatory 

Impact Analysis may include a statement of 

need for the proposed regulation, the 

identification of a reasonable range of 

alternatives, the conduct of a Benefit-Cost 

Analysis of the proposed regulation and the 

alternatives, and an analysis of uncertainty in 

the identification and quantification of costs 

and benefits. The Benefit-Cost Analysis 

entails the comprehensive description of the 

incremental costs and benefits of each 

alternative, to the extent practicable, in terms 

of monetary value. In this context, a BenefitCost Analysis would apply to each of the 

new or changed scoping and technical 

provisions in the revised ADA Standards that 

represent substantive changes from the 

current ADA Standards, as well as to possible 

alternatives to those provisions. The 

proposed Regulatory Impact Analysis would 

be included as part of the NPRM, and while 

the public will have an opportunity to 

comment on its assumptions and results at 

that time, this is the time to suggest 

significant changes to the Department’s 

proposed methodology. In presenting in this 

ANPRM its current thinking on how it might 

approach the regulatory analysis, the 

Department seeks to engage the public in the 

choice of its methodology before significant 

Federal Register / Vol. 69, No. 189 / Thursday, September 30, 2004 / Proposed Rules 58783

time and effort is expended on its 

implementation.

Role of Regulatory Impact Analysis in the 

ADA Regulatory Process 

Regulatory Impact Analysis is intended to 

inform stakeholders in the regulatory process 

of the effects, both positive and negative, of 

proposed new regulations. The principal 

stakeholders are those who will be directly 

affected by the proposed regulations, namely 

people with disabilities and the owners and 

developers of facilities that will incur the 

direct costs of compliance. However, the 

public at large, including people both with 

and without disabilities, is also a key 

stakeholder in the regulatory process. The 

costs and cost savings associated with the 

proposed regulatory action will ripple 

throughout the economy, potentially 

affecting business costs and consumer prices. 

Businesses may respond to the new and 

revised requirements in a number of ways, 

some of which entail costs that may be easily 

measurable, such as increased or reduced 

construction, operating, and maintenance 

costs, and others of which entail costs that 

may not be as easily measurable, such as 

delays in construction and renovation. Thus, 

in addition to their effect on direct capital, 

operating, and maintenance costs, new and 

revised accessibility requirements influence 

less obvious but equally genuine aspects of 

cost, such as construction schedules. 

Construction schedules might be lengthened 

where the regulations impose new 

requirements and shortened where the 

burden of a given scoping or technical 

provision has been reduced relative to the 

current ADA Standards. The Regulatory 

Impact Analysis will seek to recognize and 

account for such schedule-related changes in 

costs. 

The public at large will also benefit from 

the proposed regulations. Accessible 

facilities benefit persons with and without 

disabilities alike. This represents their use 

value. For individuals with disabilities, use 

value will include benefits arising from the 

ability to participate in previously 

inaccessible facility-based activities, or the 

availability of more convenient or 

independently usable facility elements or 

spaces. In addition, because people who do 

not need the protections of the ADA in the 

present may need them in the future, like an 

insurance policy, people without disabilities 

may place a value on accessible features. 

People may also place some value on the 

existence of accessible features unrelated to 

their anticipation of future personal need for 

them. This is reflected in people’s possible 

willingness to pay something to ensure that 

equal access is provided for others (family, 

friends, and other members of society) who 

are or might become temporarily or 

permanently disabled, or to safeguard the 

principle of equal protection for people with 

disabilities, regardless of the risk of onset or 

the general incidence of disability. BenefitCost Analysis helps the general public 

ascertain whether the value of these 

‘‘nonuse’’ related benefits is quantitatively 

significant relative to the costs. 

Some stakeholders might believe that 

economic analysis of any kind is simply 

irrelevant with respect to the implementation 

of a civil rights statute. The ADA is a 

comprehensive civil rights statute protecting 

the rights of persons with disabilities, and as 

such, could provide sufficient justification 

for regulatory action even if the Benefit-Cost 

Analysis were to produce negative results. 

Others might believe that, although economic 

yardsticks must not override the protections 

laid down in Federal statutes, the 

comprehensive articulation, if not 

quantification, of all benefits, including the 

nonuse values discussed above, can help 

promote understanding and further societal 

implementation of the protections 

established in law. Some might also believe 

that Benefit-Cost Analysis can be helpful in 

evaluating options for exempting certain 

elements or spaces in existing facilities from 

the provisions of the revised ADA Standards. 

Stakeholders are encouraged to express their 

views and to advise the Department as to 

how best to conduct these analyses as part of 

any rulemaking that is published to adopt the 

revised ADA Standards. 

2. Scope of the Regulatory Impact Analysis 

In conducting its analysis, the Department 

will be required to take a broader approach 

to the assessment of the benefits and costs of 

the revised ADA Standards than the Access 

Board was required to take in assessing 

ADAAG. The Department’s broader approach 

is required for two reasons. First, while the 

Access Board developed the guidelines 

contained in ADAAG incrementally over 

several years, the Department is now 

proposing to adopt ADAAG as a whole, as 

the revised ADA Standards. Since 1992, the 

Access Board has undertaken five separate 

and distinct rulemaking actions. The most 

recent of those rulemaking actions involves 

68 substantive changes and additions to the 

scoping and technical requirements provided 

in the current ADA Standards (estimated to 

impose annual incremental costs on new or 

altered facilities of between $12.6 and $26.7 

million). The other four rulemaking actions 

involved the adoption of supplemental 

guidelines for children’s facilities ($0); state 

and local facilities; play areas (between $37 

and $84 million); and recreational facilities 

(between $26.7 and $34.4 million). Examined 

singly, the Board estimated each of the five 

rulemaking actions to entail incremental 

annual costs of less than $100 million, which 

is the threshold established in OMB Circular 

A–4 as the trigger for the Benefit-Cost 

Analysis requirement. 

The Department, however, is proposing to 

adopt the revisions to the current ADA 

Standards and the four supplemental 

guidelines as a whole as the revised ADA 

Standards. When combined, the Access 

Board’s estimated annual cost of all of the 

ADAAG revisions falls within a range 

between $76.3 million and $145.1 million 

(uncorrected for between-year inflation). 

With the mid-point of this range at about 

$111 million, there is a material probability 

that the combined cost of adopting the 

revised ADA Standards as a whole will 

exceed the $100 million threshold. 

The second reason that the Department 

will likely be required to undertake a full 

Benefit-Cost Analysis is that the Department, 

unlike the Access Board, is responsible for 

implementing the requirements of the ADA 

with respect to existing facilities. Thus, the 

Department must account for the additional 

incremental costs and benefits attributable to 

the adoption of the revised ADA Standards 

to the extent that the new or revised 

provisions will apply to existing facilities. 

The additional incremental cost associated 

with these requirements increases the 

likelihood that the total regulatory costs will 

exceed the $100 million threshold for 

Benefit-Cost Analysis. 

To the extent practicable, the Department 

proposes to apply state-of-the-art methods of 

Benefit-Cost Analysis as provided in OMB 

Circular A–4. While Circular A–4 is 

definitive with respect to principles, it leaves 

Federal agencies with discretion with respect 

to the means and methods of application. 

The Department is seeking comment, advice, 

and information on its proposed approach in 

the three key application areas, as follows: (1) 

Categorizing the revised ADA Standards for 

purposes of identifying costs and benefits; (2) 

defining baselines and incremental costs; and 

(3) identifying and quantifying costs and 

benefits. 

3. Categorization of the Revised ADA 

Standards for Purposes of Assessing Costs 

and Benefits

The adoption of the current ADA 

Standards represented a fundamental change 

in the accessibility of facilities and, 

accordingly, in the extent to which people 

with disabilities are able to participate in the 

mainstream activities of daily life. Most 

provisions of the revised ADA Standards 

represent improvements in the quality of 

accessibility and the degree of inclusion. 

However, unlike the current ADA Standards, 

many of the improvements in the quality and 

degree of accessibility resulting from the 

revised ADA Standards will derive from 

changes in the scoping, design, and features 

of specific elements and spaces of a facility, 

rather than as a result of changes to the 

facility as whole. 

The various elements and spaces addressed 

in the revised ADA Standards vary among 

different types of facilities and will be 

classified accordingly. In addition, the 

impact of the new and revised requirements 

may be fundamentally different with respect 

to facilities that are newly constructed or 

altered after the effective date of the revised 

ADA Standards, on the one hand, and 

existing facilities, on the other. This in turn 

requires an additional level of categorization. 

The Department and the stakeholders in this 

regulatory action have an interest in viewing 

the combined costs, benefits, and net benefits 

with respect to the substantive new and 

revised provisions in the revised ADA 

Standards both as a whole and as applied to 

particular types of facilities. 

Under the Department’s proposed 

categorization scheme, the Department will 

assess costs and benefits for each element 

addressed in the revised ADA Standards, as 

categorized by building and facility type, 

separately for newly constructed or altered 

facilities and existing facilities. Once costs 

and benefits are assessed for each element, 

they (costs, benefits, and net benefits) will be 

58784 Federal Register / Vol. 69, No. 189 / Thursday, September 30, 2004 / Proposed Rules 

aggregated (‘‘rolled-up’’) with respect to (i) 

the type of building and facility; (ii) newly 

constructed or altered facilities; (iii) existing 

facilities; and (iv) the revised ADA Standards 

as a whole. The different ‘‘roll-ups’’ will 

enable stakeholders to examine the 

regulatory analysis from their particular 

perspective. 

4. Distinguishing the Baselines From the 

Incremental Costs and Benefits 

OMB Circular A–4 stipulates that a 

regulatory analysis is only supposed to 

account for those costs and benefits that arise 

as a result of the proposed regulatory action 

itself. Such costs and benefits are called 

‘‘incremental’’ because they reflect only the 

costs and benefits imposed by the adoption 

of the regulation—excluded are any costs and 

benefits that are imposed by already existing 

requirements. The latter costs and benefits 

constitute the ‘‘baseline’’ against which the 

incremental costs and benefits of the new 

regulation are compared. The baseline thus 

represents the costs and benefits that would 

arise whether or not the proposed regulations 

are adopted. Although the current 

enforceable ADA Standards clearly impose 

costs and benefits upon society, for the 

purpose of the proposed Regulatory Impact 

Analysis, which will be designed to identify 

the incremental costs and benefits of the 

proposed rulemaking, the current ADA 

Standards and other Federal requirements 

will be considered the baseline, and as such, 

will be assigned zero costs and benefits. 

Thus, technically, if compliance with a 

current requirement costs $40, and 

compliance with the changed requirement 

costs $50, this will be stated as baseline of 

zero, incremental cost of $10. 

As a general principle, the Department 

proposes to determine the incremental cost 

for each element or space addressed by a new 

or revised standard in the revised ADA 

Standards by first determining whether or 

not the current ADA Standards specify 

scoping and technical requirements for that 

element or space. If the current ADA 

Standards do address the element or space, 

then the provision in the revised ADA 

Standards will be referred to as a change in 

existing requirements. If not, the provision in 

the revised ADA Standards will be referred 

to as a new requirement. 

Incremental Costs Applied to Newly 

Constructed or Altered Facilities 

Where a given provision in the revised 

ADA Standards reflects a change in the 

existing requirements applicable to a 

particular element or space, the incremental 

cost (or savings) for that element or space in 

facilities newly constructed or altered after 

the effective date of the revised ADA 

Standards will be only the difference 

between the costs and benefits imposed by 

the requirement in the current ADA 

Standards and other Federal requirements 

with respect to that element or space and the 

costs and benefits imposed by the changed 

requirement. This is because, if the revised 

ADA Standards were not adopted, those 

elements in such facilities would still be 

required to comply with the current ADA 

Standards and other Federal requirements. If, 

with respect to any given element or space, 

it costs more to implement the revised 

Standard than it would have cost to 

implement the current Standards, the 

assessment of incremental cost will capture 

that additional amount. If it costs less, the 

assessment of incremental savings will 

capture that amount.

With respect to new requirements, the 

entire actual cost of compliance will be 

attributed to the revised ADA Standards. 

New requirements are those applicable to 

elements and spaces for which there were 

previously no standards. For example, all 

amusement rides built or altered after the 

effective date of the revised ADA Standards 

are required to be accessible to persons who 

use wheelchairs or other mobility devices. 

Neither the current ADA Standards nor other 

Federal requirements contain any 

requirement with respect to amusement 

rides. Therefore, the costs and benefits of 

complying with this requirement can be 

attributed entirely to the revised ADA 

Standards. 

In its regulatory analysis, the Access Board 

presented results based on two baseline 

concepts, one in which the baseline is taken 

as the current ADAAG requirements, and a 

second in which the baseline is taken as the 

voluntary model codes, in which the 

requirements are very similar to the revised 

ADA Standards that will be proposed in the 

NPRM. That regulatory analysis also 

discussed the extent to which State and local 

governments have adopted the model codes. 

The Department may take a similar approach 

in its Regulatory Impact Analysis or it may 

calculate incremental costs in new and 

altered facilities, with respect to those States 

and localities that have adopted a model 

code, as the difference between the model 

code requirements and the revised ADA 

Standards if that is determined to be 

practicable. 

Incremental Costs Applied to Existing 

Facilities 

The same principles will apply with 

respect to incremental costs applicable to 

elements and spaces in existing facilities 

(those that were or will be newly constructed 

or altered prior to the effective date of the 

revised ADA Standards). Thus, with respect 

to elements and spaces in existing facilities, 

the relevant incremental costs (savings) will 

be only the difference between the costs and 

benefits imposed by the requirement in the 

current ADA Standards and other Federal 

requirements with respect to that element or 

space and the costs and benefits imposed by 

the changed requirement. 

The Department is considering several 

options with respect to existing facilities 

with respect to their continuing obligations 

under the readily achievable barrier removal 

requirement. Which options the Department 

chooses will affect the calculation of costs 

and benefits with respect to elements and 

spaces in those existing facilities with respect 

to that requirement. For example, if the 

Department were to exempt elements and 

spaces that are compliant with the current 

ADA Standards from any obligation to 

comply with the revised ADA Standards 

pursuant to the readily achievable barrier 

removal requirement, the incremental costs 

and benefits of the revised ADA Standards 

with respect to those elements and spaces 

will be zero. In that case, only the 

incremental costs and benefits (actual costs 

and benefits of the revised ADA Standards, 

minus the costs and benefits of the current 

ADA Standards) of implementing the revised 

ADA Standards with respect to noncompliant 

(nonexempt) elements of such facilities, to 

whatever extent that may be required under 

the readily achievable barrier removal 

requirement, would be counted. 

The Department is also considering other 

options that may affect the calculation of 

incremental costs and benefits for existing 

facilities with respect to their obligations 

under the readily achievable barrier removal 

requirement. Under one option, existing 

facilities would be permitted to apply 

reduced scoping requirements for specified 

elements and spaces in the revised ADA 

Standards, such as the number of accessible 

entries to swimming pools. Whether or not 

this option is selected, the entire cost of the 

requirement would be attributable to the 

revised ADA Standards because, in the 

absence of the new regulation, there would 

be no requirement applicable to these 

elements or spaces. However, should the 

Department elect to apply reduced scoping to 

such elements and spaces, the incremental 

costs and benefits of the revised ADA 

Standards will likely be lower than they 

would be if the Department did not apply 

reduced scoping. Under another option, for 

purposes of the readily achievable barrier 

requirement, the Department may simply 

exempt existing facilities from compliance 

with certain scoping and technical 

requirements in the revised ADA Standards 

that are deemed inappropriate for barrier 

removal. Under this option, the incremental 

costs and benefits will also be lower than 

they would be if the Department did not 

provide such exemption. 

5. Identifying and Quantifying Costs, 

Benefits, and Net Benefits 

While the revised ADA Standards will 

apply directly to newly constructed or 

altered facilities, the Department will 

determine in its ADA regulation whether and 

to what extent the revised ADA Standards 

will apply to existing facilities. The cost of 

any required compliance with the revised 

ADA Standards by existing facilities will be 

more difficult to determine than the cost of 

compliance for newly constructed and 

altered facilities. Many existing facilities are 

subject only to the readily achievable barrier 

removal requirement. Under that 

requirement, what is readily achievable for 

any given facility must be determined on a 

case-by-case basis and, by statute, has no 

monetary or other absolute parameters. In 

addition, cost estimates are more readily 

available with respect to newly constructed 

and altered facilities. Thus, while the basic 

principles are the same for both, the 

Department is considering rather different 

technical approaches to the Benefit-Cost 

Analysis of the revised ADA Standards with 

respect to newly constructed and altered 

facilities, on the one hand, and existing 

facilities, on the other. 

Federal Register / Vol. 69, No. 189 / Thursday, September 30, 2004 / Proposed Rules 58785

Costs and Benefits of Provisions Applied to 

Newly Constructed and Altered Facilities 

For facilities that will be newly 

constructed or altered after the effective date 

of the revised ADA Standards, the 

Department will seek to estimate the 

economic value of the incremental costs and 

benefits of each new or revised provision, 

and from there the net costs or benefits of the 

rule as a whole, by fairly conventional 

means. Using the Access Board’s estimates of 

direct unit costs as a starting point, the 

Department will estimate the direct life-cycle 

costs (based on an estimated 50-year life 

cycle of a building) imposed by each 

provision. These direct costs may include 

one-time cash expenditures occurring at the 

time of construction or alteration (also 

known as ‘‘capital’’ costs), annual cash 

expenditures necessary to cover the 

incremental costs of maintaining and 

operating accessible elements and spaces, 

and any loss of economic value caused by the 

reduction of productive space or 

productivity. Indirect costs include losses in 

social value that may arise as a result of the 

revised ADA Standards, such as reduced 

accessibility or, due to the increased cost of 

construction, a reduction in the number of 

total facilities and buildings that are 

constructed. 

Benefits are primarily represented by the 

creation of social value, and can be divided 

into three categories. ‘‘Use value’’ is the value 

that people both with and without 

disabilities derive from the use of accessible 

facilities. ‘‘Insurance value’’ is the value that 

people both with and without disabilities 

derive from the opportunity to obtain the 

benefit of accessible facilities. Finally, 

‘‘existence value’’ is the value that people 

both with and without disabilities derive 

from the guarantees of equal protection and 

non-discrimination that are accorded through 

the provision of accessible facilities. Other 

kinds of benefits include the saving of direct 

costs, such as from reduced construction, 

alteration, or retrofitting expenses resulting 

from reduced accessibility requirements. 

Based on the estimates of costs and 

benefits, the Department will calculate the 

annualized value and the net present value 

of the rule as whole. In addition to requiring 

the presentation of annualized costs and 

benefits, OMB Circular A–4 stipulates that 

net present value is to be regarded as a 

principal measure of value produced by a 

Benefit-Cost Analysis when costs and 

benefits are separated from each other over 

time (i.e., when some people benefit from 

accessible facilities long after their 

construction). A net present value greater 

than zero would indicate that benefits exceed 

costs and that the regulation can be expected 

to increase the general level of economic 

welfare accordingly. While a net present 

value of less than zero could mean that costs 

exceed benefits, the existence of significant 

unmeasured and qualitative benefits must be 

taken into account. The Department proposes 

to identify and discuss all unmeasured and 

qualitative benefits. As one means of 

accounting for measurement risk, the 

Department also proposes to adopt the 

method of Threshold Analysis. Under this 

method, if quantitatively measured costs 

appear to exceed quantitatively measured 

benefits, the Department will calculate the 

value that society would need to assign to 

un-quantified benefits in order to balance the 

ledger. This ‘‘threshold value’’ will be 

reported for public review and comment in 

the NPRM, along with a qualitative 

description of the un-quantified benefits at 

issue.

Quantification of Costs and Benefits 

Among the conventions of economic 

analysis, and an accepted principle in OMB 

Circular A–4, is that the amount of money 

people either pay or are willing to pay for 

goods and services represents a reasonable 

index of the total benefit they derive from 

such goods and services. This is called 

‘‘willingness to pay.’’ The Department 

recognizes that the research community has 

made significant progress in the 

measurement of willingness to pay using 

proxies from market prices, surveys, and 

other methods. The Department also 

recognizes that some values nevertheless 

defy measurement. For example, while 

society clearly values the existence of 

constitutional protections, ascertaining the 

monetary equivalence of such values might 

be controversial and technically 

impracticable. Accordingly, the Department 

proposes to express benefits that are difficult 

to measure in qualitative rather than 

quantitative terms. 

Circular A–4 indicates that, where 

available and relevant, market prices 

represent the appropriate starting point for 

ascertaining willingness to pay. Thus, for 

example, if a movie theater or swimming 

pool becomes newly accessible as a result of 

the revised ADA Standards, the resulting 

user value could be determined by 

multiplying the volume of new visits by 

people with disabilities by the market price 

of entry (namely, the ticket price). However, 

an issue with market prices arises where a 

provision in the revised ADA Standards 

renders an existing facility ‘‘more’’ accessible 

rather than newly accessible. Such might be 

the case, for example, with respect to the 

provision requiring an independent means of 

getting in and out of the pool in an otherwise 

accessible swimming facility, or the 

provision requiring equal access to the good 

seats in an otherwise accessible theater. In 

such cases, it may be argued that the price 

of entry overstates the value of the provision, 

since entry per se would still be feasible 

without the change. On the other hand, 

others may argue that the swimming or 

theater experience is fundamentally altered, 

perhaps even newly facilitated in a 

meaningful way, by the availability of 

improved, independent access. In practice, 

practitioners of Benefit-Cost Analysis employ 

empirical data, opinion surveys, expert 

judgment, and sensitivity analysis to obtain 

reasoned estimates of use value. 

Economists also recognize that, as applied 

to people with low incomes, the willingnessto-pay index can underestimate economic 

value from the perspective of public policy. 

For example, the food purchases of single 

parents living below the poverty line are 

smaller than similarly constituted 

households with higher incomes. While both 

constitute willingness-to-pay data, for the 

low-income household, the data indicate 

affordability, not the economic value 

obtained from nutrition. In this regard, the 

Department recognizes that the median 

income among people with disabilities is 

significantly lower (about half) than that of 

the U.S. population generally. As a result, the 

willingness of people with disabilities to pay 

for access to architecturally improved 

facilities might not reflect the value of such 

facilities as viewed by the framers of the 

ADA and other policy makers. In practice, 

most Regulatory Impact Analyses use benefit 

values, such as a value of a statistical life in 

assessing health and safety regulations, 

assuming that the population receiving the 

benefits is of average income. 

Another issue that arises when willingness 

to pay is used as an index of value is that 

market prices simply do not exist for all 

goods and services. Such might be the case 

with a municipal swimming pool provided 

free of charge, or for a token, largely 

subsidized user fee. Another example might 

be the improvement of a particular element 

or space, such as a kitchen or toilet, in an 

otherwise accessible office building. Surveybased information is the principal means of 

obtaining willingness-to-pay data in such 

cases. A commonly used survey approach in 

Regulatory Impact Analysis is called the 

‘‘Stated Preference’’ method. Stated 

Preference surveys pose carefully conceived 

and scientifically structured hypothetical 

choices and trade-offs to random samples of 

survey respondents. Special statistical 

analysis of the survey data is then employed 

in order to obtain estimates of willingness to 

pay. A concern with the Stated Preference 

surveys is that respondents may not have 

sufficient incentives to offer thoughtful 

responses that are consistent with their 

preferences, or that respondents may be 

inclined to bias their responses for one 

reason or another. Without a real budgetary 

constraint, for example, respondents with 

disabilities might be inclined to exaggerate 

their willingness to pay for more accessible 

facilities. On the other hand, respondents 

without disabilities might understate their 

true willingness to pay for accessibility 

measures due to a tendency to underestimate 

the risk of becoming disabled oneself. 

Additionally, people might have difficulty 

articulating the strength of their feelings 

regarding, for example, the integration of a 

child with a disability into a mainstream 

school or play area if they do not have a child 

with a disability. Perhaps people are more 

likely to underestimate than overestimate 

their willingness to pay for the existence of 

legal protections if they have not experienced 

disability first-hand or within their family. 

The Department recognizes the need to 

anticipate the risk of both under- and overestimation of value based on the hypothetical 

willingness-to-pay questions posed in Stated 

Preference surveys. The Department 

recognizes as well that, other things being 

equal, ‘‘revealed preference’’ data—data 

based on actual transactions—is to be 

preferred over Stated Preference data because 

revealed preferences represent actual 

decisions in which market participants enjoy 

or suffer the consequences of their decisions. 

58786 Federal Register / Vol. 69, No. 189 / Thursday, September 30, 2004 / Proposed Rules 

Finally, measurement error is inevitable in 

the assessment of both costs and benefits. 

The revised Standards will have different 

implications for elements and spaces in 

facilities of different types and different ages. 

The number of elements and spaces in 

facilities is itself uncertain. Data will often be 

sparse and will be subject to recording errors 

of many kinds. In addition to the method of 

Threshold Analysis described above, the 

Department proposes to adopt the method of 

Risk Analysis to help ensure that the analysis 

is transparent with respect to measurement 

risk. While rather technical in application, 

the principle is straightforward: with Risk 

Analysis, every number employed in the 

analysis is expressed as a range—what 

statisticians call a ‘‘probability 

distribution’’—that reflects the whole array of 

possible outcomes and the probability of 

each occurring. When all the ranges are 

combined into estimates of total costs and 

total benefits for a given regulatory provision, 

the result is not a single ‘‘best guess’’ of net 

benefit, but a probability range of possible 

outcomes. 

Costs and Benefits of Provisions Applied to 

Existing Facilities Under the Barrier Removal 

Requirement: Proposed Simulation Model 

Title III of the ADA reflects Congress’s 

specific intent not to establish—either in the 

statute or regulations—absolute technical or 

monetary standards for what constitutes 

readily achievable barrier removal in existing 

buildings. Some stakeholders, particularly 

businesses (and especially small businesses), 

have long expressed concern regarding the 

need to assess the costs of compliance with 

the readily achievable barrier removal 

requirement in absolute terms, 

notwithstanding the essentially relative 

nature of the statutory requirement. 

The Department is considering the 

development of a computer simulation model 

to estimate the incremental costs and benefits 

of the revised ADA Standards as applied to 

existing facilities that may be required to 

retrofit particular elements or spaces only to 

the extent required by the readily achievable 

barrier removal requirement. For each new or 

revised scoping or technical provision in the 

revised ADA Standards representing a 

substantive change from the current ADA 

Standards, the computer model would assess 

the statistical probability that existing 

facilities would be required to implement the 

provision pursuant to the readily achievable 

barrier removal requirement. In order to 

determine whether a provision would apply 

to a given facility, the Department 

contemplates plugging a range of different 

factors relevant to the ‘‘readily achievable’’

analysis into the model, including the 

possibility of using multiple criteria that 

distinguish among small- and large-sized 

enterprises. 

Two statistical databases would be 

developed in order to implement the 

simulation model. One is a database of costs 

associated with retrofitting elements and 

spaces in existing facilities, where the 

facilities are stratified by type, age, physical 

condition, and financial size. This database 

would also include estimates of user and 

nonuser benefits. The second database would 

include the estimated number of elements 

and spaces in existing facilities that would be 

subject to the readily achievable barrier 

removal requirement (in each year of the lifecycle analysis) in each stratum. Within each 

stratum, the incidence of facilities in various 

classes would permit the model to be 

executed for each of the options under 

Departmental consideration. The Department 

would collect the information used to 

populate the databases from all available 

sources. As set out above, all entries in the 

databases would be expressed as a range of 

probabilities in order to account for the 

inevitable risk of error and varying degrees of 

sampling quality. Thus, the model would be 

statistical by nature, which means that 

different types and sizes of facilities would 

be represented as sample data, not data for 

each facility in the nation. Costs would be 

statistical in the same sense.

[FR Doc. 04–21875 Filed 9–29–04; 8:45 am] 

BILLING CODE 4410–13–P