28 CFR Part 36 Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities NPRM: Preamble (2008 Title III NPRM Preamble)

Background (SBREFA, Regulatory Flexibility Act, and Executive Order) Reviews

The Department must provide two types of assessments as part of its NPRM:  an analysis of the costs and benefits of adopting the 2004 ADAAG as its proposed standards, and a periodic review of its existing regulations to consider their impact on small entities, including small businesses, small nonprofit organizations, and small governmental jurisdictions.  E.O. 12866, 58 FR 51735 (Sept. 30, 1993), as amended by E.O. 13258, 67 FR 9385 (Feb. 26, 2002) and E.O. 13422, 72 FR 2763 (Jan. 18, 2007); Regulatory Flexibility Act of 1980, 5 U.S.C. 601, 603, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 610(a); OMB Circular A-4, http://www.whitehouse.gov/omb/circulars/a004/a-4.pdf; and E.O. 13272, 67 FR 53461 (Aug. 13, 2002).

The Department leaves open the possibility that, as a result of the receipt of comments on an issue raised by the 2004 ADAAG, or if the Department's Regulatory Impact Analysis reveals that the costs of making a particular feature or facility accessible are disproportionate to the benefits to persons with disabilities, the Attorney General, as a member of the Access Board, may return the issue to the Access Board for further consideration of the particular feature or facility.  In such a case, the Department would delay adoption of the accessibility requirement for the particular feature or facility in question in its final rule and await Access Board action before moving to consider any final action.

Regulatory Impact Analysis.

An initial regulatory impact analysis of the costs and benefits of a proposed rule is required by Executive Order 12866 (as amended by Executive Order 13258 and Executive Order 13422).  A full benefit-cost analysis is required of any regulatory action that is deemed to be significant--that is, a regulation that will have an annual effect of $100 million or more on the economy.  See OMB Circular A-4; Regulatory Flexibility Act of 1980, 5 U.S.C. 601, 603, as amended by SBREFA, 5 U.S.C. 610(a).

Early in the rulemaking process, the Department concluded that the economic impact of its adoption of the 2004 ADAAG as proposed standards for title II and title III was likely to exceed the threshold for significant regulatory actions of $100 million.  The Department has completed its initial regulatory impact analysis measuring the incremental benefits and costs of the proposed standards; the initial regulatory impact analysis is addressed at length with responses to public comments from the ANPRM, in Appendix B.

The public may notice differences between the Department's regulatory impact analysis and the Access Board's regulatory assessment of the 2004 ADAAG.  The differences in framework and approach result from the differing postures and responsibilities of the Department and the Access Board.  First, the breadth of the proposed changes assessed in Appendix A of this NPRM is greater than in the Access Board's assessments related to the 2004 ADAAG.  Unlike the Access Board, the Department must examine the effect of the proposed standards not only on newly constructed or altered facilities, but also on existing facilities.  Second, whereas the Access Board issued separate rules for many of the differences between the 1991 Standards and the 2004 ADAAG (e.g., play areas and recreational facilities), the Department is proposing to adopt several years of revisions in a single rulemaking.

According to the Department's initial Regulatory Impact Analysis ("RIA"), it is estimated that the incremental cost of the proposed requirements for each of the following eight existing elements will exceed monetized benefits by more than $100 million when using the 1991 Standards as the comparative baseline: Side reach; water closet clearances in single-user toilet rooms with in-swinging doors; stairs; elevators; location of accessible routes to stages; accessible attorney areas and witness stands; assistive listening systems; and accessible teeing grounds, putting greens, and weather shelters at golf courses.  However, this baseline figure does not take into account the fact that, since 1991, various model codes and consensus standards--such as the model International Building Codes ("IBC") published by the International Codes Council and the consensus accessibility standards developed by the American National Standards Institute ("ANSI")--have been adopted by a majority of states (in whole or in part) and that these codes have provisions mirroring the substance of the Department's proposed regulations.  Indeed, such regulatory overlap is intentional since harmonization among federal accessibility standards, state and local building codes, and model codes, is one of the goals of the Department's rulemaking efforts. 

Even though the 1991 Standards are an appropriate baseline to compare the new requirements against, since they represent the current set of uniform federal regulations governing accessibility, in practice it is likely that many public and private facilities across the country are already being built or altered in compliance with the Department's proposed standards with respect to these elements.  Because the model codes are voluntary, public entities often modify or carve out particular standards when adopting them into their laws, and even when the standards are the same, local officials often interpret them differently.  The mere fact that a state or local government has adopted a version of the IBC does not necessarily mean that the facilities within that jurisdiction are legally subject to its accessibility provisions.  Because of these complications, and the inherent difficulty of determining which baseline is the most appropriate for each provision, the RIA accompanying this rulemaking compares the costs and benefits of the proposed requirements to several alternative baselines, which reflect various versions of existing building codes.  In addition, since the Department is soliciting comment on these eight particular provisions with high net costs, the Department believes it is useful to further discuss the potential impact of alternative baselines on these particular provisions.

For example, the Department's proposed standards for existing stairs and elevators have identical counterparts in one or more IBC versions (2000, 2003, or 2006). Please note, however, that the IBC 2006 version bases a number of its provisions on guidelines in the 2004 ADAAG.  These IBC versions, in turn, have been adopted collectively by forty-six (46) states and the District of Columbia on a statewide basis.  In the four (4) remaining states (Colorado, Delaware, Illinois, and Mississippi), while IBC adoption is left to the discretion of local jurisdictions, the vast majority of these local jurisdictions have elected to adopt IBC as their local code.  Thus, given that nearly all jurisdictions in the country currently enforce a version of the IBC as their building code, and to the extent that the IBC building codes may be settled in this area and would not be further modified to be consistent if they differ from the final version of these regulations, the incremental costs and benefits attributable to the Department's proposed regulations governing alterations to existing stairs and elevators may be less significant than the RIA suggests over the life of the regulation.  

In a similar vein, consideration of an alternate IBC/ANSI baseline would also likely lower the incremental costs and benefits for five other proposed standards (side reach; water closet clearances in single-user toilet rooms with in-swinging doors; location of accessible routes to stages; accessible attorney areas and witness stands; and assistive listening systems), albeit to a lesser extent.  Each of these proposed standards has a counterpart in either Chapter 11 of one or more versions of the IBC, ANSI A117.1, or a functionally equivalent state accessibility code.  While IBC Chapter 11 and ANSI A117.1 have yet not been as widely adopted as some other IBC chapters, the RIA nonetheless still estimates that between 15% and 35% of facilities nationwide are already covered by IBC/A117.1 provisions that mirror these five proposed standards.  It is thus expected that the incremental costs and benefits for these proposed standards may also be lower than the costs and benefits relative to the 1991 Standards baseline.          

Question 1:  The Department believes it would be useful to solicit input from the public to inform us on the anticipated costs or benefits for certain requirements.  The Department therefore invites comment as to what the actual costs and benefits would be for these eight existing elements, in particular as applied to alterations, in compliance with the proposed regulations (side reach, water closet clearances in single-user toilet rooms with in-swinging doors, stairs, elevators, location of accessible routes to stages, accessible attorney areas and witness stands, assistive listening systems, and accessible teeing grounds, putting greens, and weather shelters at golf courses), as well as additional practical benefits from these requirements, which are often difficult to adequately monetize.       

The Department does not have statutory authority to modify the 2004 ADAAG; instead the ADA requires the Attorney General to issue regulations implementing the ADA that are "consistent with" the ADA Accessibility Guidelines issued by the Access Board.  See 42 U.S.C. 12134(c), 12186(c).  As noted above in other parts of this preamble, the Department leaves open the possibility of seeking further consideration by the Access Board of particular issues based on disproportionate costs compared to benefits and public comments.  The Access Board did not have the benefit of our RIA or public comment on our RIA as it pertains to the 2004 ADAAG.

Question 2:  The Department would welcome comment on whether any of the proposed standards for these eight areas (side reach, water closet clearances in single-user toilet rooms with in-swinging doors, stairs, elevators, location of accessible routes to stages, accessible attorney areas and witness stands, assistive listening systems, and accessible teeing grounds, putting greens, and weather shelters at golf courses) should be raised with the Access Board for further consideration, in particular as applied to alterations.   

Stages.

The proposed requirement to provide direct access to stages represents an effort to ensure that individuals with disabilities are able to participate in programs in an integrated setting.  Under the current 1991 Standards, a compliant accessible route connecting seating locations to performing areas is permitted to go outside the assembly area and make use of an indirect interior accessible route to access the stage area.  As a result, even when other audience members are able to access a stage directly via stairs in order to participate in ceremonies, skits, or other interactive on-stage events, persons with mobility disabilities may be required to use an inconvenient indirect entrance to the stage.  As graduates or award recipients, they may be required to part company with their peers, to make their way to the stage alone, and to make a conspicuous entrance.  To address this situation, the proposed requirement mandates that, when a direct circulation path (for audience members) connects the seating area to a stage, the accessible route to the stage must also be direct.

The Department has generally determined that the overall costs for this requirement are relatively high in the alterations context, due to the expense of having to provide a lift or ramp to access the stage area directly, regardless of which baseline is used for the analysis.  The Department, however, has had difficulty in estimating the real costs of this requirement because of a lack of information about whether colleges, elementary and secondary schools, and entertainment venues now routinely provide such access when they are altering existing auditoriums or how frequently such alterations occur.  Also, the Department currently lacks sufficient data or other sources with which to quantify the benefits that accrue to students and other persons with disabilities who, as a result of direct access to stages, would be able to participate fully and equally in graduation exercises and other events. 

Question 3: The Department would welcome information from operators of auditoriums on the likelihood that their auditoriums will be altered in the next fifteen years, and, if so, whether such alterations are likely to include accessible and direct access to stages.  In addition, the Department would like specific information on whether, because of local law or policy, auditorium operators are already providing a direct accessible route to their stages.  (The Department is also interested in whether having to provide a direct access to the stage would encourage operators of auditoriums to postpone or cancel the alteration of their facilities.)  The Department also seeks information on possible means of quantifying the benefits that accrue to persons with disabilities from this proposed requirement or on its importance to them.  To the extent that such information cannot be quantified, the Department welcomes examples of personal or anecdotal experience that illustrate the value of this requirement.

The Department's RIA also estimates significant costs, regardless of the baseline used, for the proposed requirement that court facilities must provide an accessible route to a witness stand or attorney area and clear floor space to accommodate a wheelchair. These costs arise both in the new construction and alteration contexts.  If the witness stand is raised, then either a ramp or lift must be provided to ensure access to the witness stand.  While the RIA quantifies the benefits for this proposed requirement (as it does for all of the proposed requirements) primarily in terms of time savings, the Department fully appreciates that such a methodology does not capture the intangible benefits that accrue when persons with mobility disabilities are able to participate in the court process as conveniently as any other witness or party.  Without access to the witness stand, for example, a wheelchair user, or a witness who uses other mobility devices such as a walker or crutches, may have to sit at floor level.  If the witness with a mobility disability testifies from a floor level position, the witness could be placed at a disadvantage in communicating with the judge and jury who may no longer be able to see the witness as easily, or, potentially at all.  This may create a reciprocal difficulty for the judge and jurors who lose the sightline normally provided by the raised witness stand that enables them to see and hear the witness in order to evaluate his or her demeanor and credibility--difficulty that redounds to the detriment of litigants themselves and ultimately our system of justice.

Question 4:  The Department welcomes comment on how to measure or quantify the  intangible benefits that would accrue from accessible witness stands.  We particularly invite anecdotal accounts of the courtroom experiences of individuals with disabilities who have encountered inaccessible witness stands, as well as the experiences of state and local governments in making witness stands accessible, either in the new construction or alteration context.

Under the 1991 Standards, Assistive Listening Systems ("ALS") are required in courtrooms and in other settings where audible communication is integral to the use of the space and audio amplification systems are provided for the general audience.  However, these Standards do not set forth technical specifications for such systems.  Since 1991, advancements in ALS and the advent of digital technologies have made these systems more amenable to uniform technical specifications.  In keeping with these technological advancements, the revised requirements create a technical standard that, among other things, ensures that a certain percentage of required ALS have hearing-aid compatible receivers. Requiring hearing-aid compatible ALS enables persons who are hard of hearing to hear a speech, a play, a movie, or to follow the content of a trial.  Without an effective ALS, people with hearing loss are effectively excluded from participation because they are unable to hear or understand the audible portion of the presentation.

From an economic perspective, the cost of a single hearing-aid compliant ALS is not high--about $500 more than a non-compliant system--and compliant equipment is readily available on the retail market.  As estimated in the RIA, the high overall costs for the revised technical requirements for ALS are instead driven by the assumption that entities with large assembly areas (such as universities, stadiums, and auditoriums) will be required to purchase a relatively large number of compliant systems.  On the other hand, the overall scoping for ALS has been reduced in the Department's proposed requirement, thus mitigating the cost to covered entities.  The proposed revision to the technical requirement merely specifies that (25% or at least 2) of the required ALS receivers must be hearing-aid compatible.  The RIA estimates that a significant part of the cost of this requirement will come from the replacement of individual ALS receivers and system maintenance. 

Question 5: The Department seeks information from arena and assembly area administrators on their experiences in managing ALS.  In order to evaluate the accuracy of the assumptions in the RIA relating to ALS costs, the Department welcomes particular information on the life expectancy of ALS equipment and the cost of ongoing maintenance.

The Department's proposed requirements mandate an accessible (pedestrian) route that connects all accessible elements within the boundary of the golf course and facility, including teeing grounds, putting greens, and weather shelters.  Requiring access to necessary features of a golf course ensures that persons with mobility disabilities may fully and equally participate in a recreational activity.  

From an economic perspective, the Department's RIA assumes that virtually every tee and putting green on an existing course will need to be regraded in order to provide compliant accessible (pedestrian) routes to these features.  However, the Department's proposal also excuses compliance with the requirement for an accessible (pedestrian) route so long as a "golf car passage" (i.e., the path typically used by golf cars) is otherwise provided to the teeing ground, putting green, or other accessible element on a course.  Because it is likely that most public and private golf courses in the United States already provide golf passages to most or all holes, the actual costs of this requirement for owners and operators of existing golf courses should be reduced with little to no practical loss in accessibility.

Question 6: The Department seeks information from the owners and operators of golf courses, both public and private, on the extent to which their courses already have golf car passages to teeing grounds, putting greens, and weather shelters, and, if so, whether they intend to avail themselves of the proposed exception.

Analysis of impact on small entities.

The second type of analysis that the Department has undertaken is a review of its existing regulations for title II and title III in order to consider the impact of those regulations on small entities. The review requires agencies to consider five factors:  (1) The continued need for the rule; (2) the nature of complaints or comments received concerning the rule from the public; (3) the complexity of the rule; (4) the extent to which the rule overlaps, duplicates, or conflicts with other federal rules, and, to the extent feasible, with state and local governmental rules; and (5) the length of time since the rule has been evaluated or the degree to which technology, economic conditions, or other factors have changed in the area affected by the rule.  5 U.S.C. 610(b).  Based on these factors, the agency should determine whether to continue the rule without change, or to amend or rescind the rule to minimize any significant economic impact of the rule on a substantial number of small entities.  Id. at 610(a).

In performing this review, the Department has gone through its regulation section by section, and, as a result, proposes several clarifications and amendments in this NPRM. Amendments to its title II regulation are proposed in the NPRM for title II published concurrently with this rule.  The proposals reflect the Department's analysis and review of complaints or comments from the public as well as changes in technology.  Many of the proposals aim to clarify and simplify the obligations of covered entities.  As discussed in greater detail above, a significant goal in the development of the 2004 ADAAG was to eliminate duplication or overlap in federal accessibility guidelines as well as to harmonize the federal guidelines with model codes.  The Department has also worked to create harmony where appropriate between the requirements of titles II and III.  Finally, while the regulation is required by statute and there is a continued need for it as a whole, the Department proposes several modifications that are intended to reduce its effects on small entities.