36 CFR Parts 1190 and 1191 ADA and ABA Accessibility Guidelines - Preamble (Discussion of Comments and Changes)

Part II: ABA Application and Scoping

This part provides application and scoping requirements for facilities subject to the ABA. The ABA covers facilities that are designed, built, altered, or leased with Federal funds. The Board’s ABA guidelines serve as the basis for standards issued by four standard-setting Federal agencies: the General Services Administration (GSA), the Department of Defense (DOD), the Department of Housing and Urban Development (HUD), and the U.S. Postal Service (USPS). The standards originally issued by these agencies are known as the Uniform Federal Accessibility Standards (UFAS).

The Board based the ABA application and scoping documents (Chapters 1 and 2) on those in Part 1 for ADA facilities to ensure greater consistency between the level of access required for ADA and ABA facilities. While differences or departures from the ADA scoping and application sections have been minimized, some are unavoidable due to differences between the ABA and ADA statutes and regulations issued under them. For example, the ABA covers facilities leased by Federal agencies and the guidelines for the ABA reflect this statutory difference.

In the final rule, differences between the ADA and ABA application and scoping chapters pertain to modifications and waivers, definitions, additions, leases, general exceptions (specifically existing elements and employee work areas), and provisions specific to private buildings and facilities. In the proposed rule, the Board raised a question concerning housing on military installations that was applicable only to the ABA guidelines.

F103 Modifications and Waivers

The ABA recognizes a process under which covered entities may request a modification or waiver of the applicable standard. The standard-setting agencies may grant a modification or waiver upon a case-by-case determination that it is clearly necessary. This modification and waiver process is recognized in section F103 as a substitute to the provision for "equivalent facilitation" in section 103 provided for facilities subject to the ADA.

F106 Definitions

Definitions for "joint use," "lease," and "military installation," are included that pertain to provisions specific to the ABA covering leased facilities. Definitions of "private building or facility" and "public building or facility" are not included because these terms are used to distinguish between places of public accommodation and commercial facilities covered by title III of the ADA (private) and State and local government facilities covered by title II of the ADA (public). In addition, a definition of "employee work area" has been included in the ABA guidelines, consistent with the ADA guidelines.

F202.2 Additions

Section F202.2 addresses additions to existing facilities and provides specific criteria for accessible routes, entrances, and toilet and bathing facilities that derive from UFAS. These provisions have been retained but are not provided in the ADA scoping document. Provisions in this section for public pay telephones and drinking fountains have been included for consistency with a requirement in the ADA scoping document for an accessible path of travel for certain additions (202.2).

F202.6 Leases

The ABA requires access to facilities leased by Federal agencies. Section F202.6 contains scoping requirements for facilities that are newly leased by the Federal government, including new leases for facilities previously occupied by the Federal government. The negotiation of a new lease occurs when (1) the Federal government leases a facility that it did not occupy previously; or (2) an existing term ends and a new lease is negotiated for continued occupancy. The unilateral exercise of an option which is included as one of the terms of a preexisting lease is not considered the negotiation of a new lease. Negotiations which do not result in a lease agreement are not covered by this section. Provisions in this section address joint-use areas, accessible routes, toilet and bathing facilities, parking, and other elements and spaces. Corresponding changes concerning coverage of leased facilities appear in the sections stating the purpose (F101) and the overall scope of the guidelines (F201.1).

F203 General Exceptions

Section F203.2 establishes a general exception for elements complying with earlier standards issued pursuant to the ABA or to section 504 of the Rehabilitation Act of 1973. This exception, or "grandfather clause," applies only to individual elements and applies only to the extent that earlier standards contain specific provisions for the required element. For example, UFAS Section 4.17 contains provisions for wheelchair accessible toilet compartments, but does not contain provisions for ambulatory accessible toilet compartments. The technical criteria for wheelchair accessible toilet compartments in these guidelines at section 604.8.1 differ from UFAS 4.17; however, if an existing wheelchair accessible toilet compartment complies with UFAS 4.17 it need not comply with 604.8.1. On the other hand, where a Federal facility is altered, the toilet room may be subject to new accessibility requirements. In such cases, elements that were not addressed in earlier standards, such as the ambulatory accessible toilet stall, must be provided, unless it is technically infeasible to comply or a waiver or modification of the standards is obtained.

The Board has added the exception at F203.2 because Federal agencies raised concerns that these guidelines contain provisions for leasing at section 202.6 that could require alterations to elements that would have been deemed accessible under UFAS. For example, when a new lease is negotiated, certain elements within the space must comply with 202.6 even if the space was previously occupied by the Federal agency. UFAS Section 4.1.6(1) (f) contains a provision that exempts elements in both federally owned and leased facilities from any new requirements for accessibility unless altered. These guidelines require leased facilities to provide certain accessible elements such as accessible routes, toilets, drinking fountains, and telephones. Where these elements comply with earlier standards, they need not comply with these guidelines. For example, section 602.2 of these guidelines requires drinking fountains to provide a forward approach while UFAS 4.15.5 permits either a forward or parallel approach. Therefore, an existing drinking fountain providing a parallel approach and complying with UFAS 4.15.5 need not comply with section 602.2. An advisory note further clarifies that this exception does not effect a Federal agency’s responsibilities under the Rehabilitation Act.

The ADA guidelines specify a limited degree of access within employee work areas (203.9). The level of access is not similarly limited in ABA facilities, consistent with the ABA’s statutory language. Consequently, there are specifications for work areas that apply to ADA facilities but not to ABA facilities. These provisions address circulation paths (206.2.8) and visual alarms (215.3), and include exceptions concerning technical specifications for accessible routes (403.5) and ramp handrails (405.8). Also, ADA scoping provisions for work surfaces are clarified in the final rule as not applying to those provided for use by employees (226.1). However, an exception is provided in the ABA guidelines for laundry equipment used only by employees (F214.1).

F214 Washing Machines and Clothes Dryers

The ABA guidelines specifically exempt washing machines and clothes dryers provided for employee use (214.1). Other types of employee use equipment are not exempted. General exceptions for employee work areas in the ADA guidelines (203.9) effectively exempt laundry and other types of equipment used only by employees for work purposes. Laundry equipment that is provided for use by employees as part of their housing, recreation, or other accommodation must be accessible because that equipment is not used by the employee to perform job related duties.

Private Buildings and Facilities

Certain provisions in the ADA scoping document are specific to private buildings and facilities (i.e., places of public accommodation and commercial facilities). These include an exception from the requirement for an accessible route in private multi-level buildings and facilities that are less than three stories or that have less than 3,000 square feet per floor (206.2.3, Exception 1) and TTY scoping provisions specific to private buildings (217.4.2.2 and 217.4.3.2). These provisions are not included in the ABA guidelines.

F228 Depositories, Vending Machines, Change Machines, and Mail Boxes

The Board has clarified coverage of fuel dispensers in the final rule by adding a reference to them in the both the ADA scoping document (section 228) and the ABA scoping document (section F228). These elements are subject to requirements for operable parts in section 309, which specify location within accessible reach ranges and maximum operating forces. Exceptions to these requirements are provided for fuel dispensers. In the final rule, the Board has exempted coverage of fuel dispensers used only for fueling official government vehicles, such as postal and military vehicles. The Board considered such an exception appropriate to minimize the impact on elements used only by employees as part of their work responsibilities. A similar exception was not included in the corresponding provision for facilities covered by the ADA because such facilities are held to a different level of access with respect to work areas. The ADA scoping document, unlike its ABA counterpart, does not require elements within work areas used only by employees to be accessible.

F234 Residential Facilities

Requirements for residential dwelling units subject to the ABA are substantively consistent with the ADA scoping document in distinguishing between residential facilities subject to HUD regulations (F233.2) and those that are not (F233.4). As discussed above in section 233, the Board has sought to ensure consistency between the requirements of this rule and regulations for housing issued by HUD. In addition, the Board has included provisions specific to housing provided on military installations (F233.3) which are consistent with those for facilities not covered by HUD regulations. The term "military installation," as defined in the final rule (F106.5), applies to all facilities of an installation, whether or not they are located on a common site.

The proposed rule did not include an exception for military housing that is provided in the current standards used to enforce the ABA (UFAS). UFAS (4.1.4(3)) permits the Department of Defense (DOD) the option of modifying dwelling units as needed on an installation-by-installation basis (4.1.4(3)), as opposed to providing access at the time of construction as is required for other types of dwelling units. This flexibility allows the military departments to modify units for access to suit the needs of families with disabilities.

Comment. The Board sought comment on whether the final rule should include a similar provision that would permit accessible dwelling units under control of the DOD to be designed to be readily and easily modifiable to be accessible provided that modifications are accomplished on a first priority basis when a need is identified (Question 17). The vast majority of comments, most of which were from persons with disabilities, opposed such a provision. DOD supported retaining this exception, consistent with UFAS, since it provides appropriate flexibility in accommodating families with disabilities at military installations.

Response. The Board has not included an exception for military housing in the final rule. Consistent with the proposed rule, certain exceptions are provided for residential dwelling units generally that permit the installation of accessible features after construction if specified conditions are met. For example, grab bars do not have to be installed during the construction of residential dwelling units if the proper reinforcement is provided to facilitate their later installation as needed.