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

SUPPLEMENTARY INFORMATION:

Availability of Copies and Electronic Access

Single copies of this publication may be obtained at no cost by calling the Access Board’s automated publications order line (202) 272-0080, by pressing 2 on the telephone keypad, then 1 and requesting publication S-50 (ADA and ABA Accessibility Guidelines Final Rule). Please record your name, address, telephone number and publication code. Persons using a TTY should call (202) 272-0082. This document is available in alternate formats upon request. Persons who want a publication in an alternate format should specify the type of format (cassette tape, braille, large print, or ASCII disk). This document is also available on the Board’s website (http://www.access-board.gov).

Statutory Background

The Access Board is responsible for developing and maintaining accessibility guidelines for the construction and alteration of facilities covered by the Americans with Disabilities Act (ADA) of 1990.¹ The Board holds a similar responsibility under the Architectural Barriers Act (ABA) of 1968.² The Board's guidelines provide a minimum baseline for other Federal departments responsible for issuing enforceable standards.

The ADA recognizes and protects the civil rights of people with disabilities and is modeled after earlier landmark laws prohibiting discrimination on the basis of race and gender. To ensure that buildings and facilities are accessible to and usable by people with disabilities, the ADA establishes accessibility requirements for State and local government facilities under title II and places of public accommodation and commercial facilities under title III. The law requires that the Board issue minimum guidelines to assist the Department of Justice (DOJ) and the department of Transportation (DOT) in establishing accessibility standards under these titles. Those standards must be consistent with the Board's guidelines.

The ABA requires access to facilities designed, built, altered, or leased with Federal funds. Similar to its responsibility under the ADA, the Board is charged with developing and maintaining minimum guidelines for accessible facilities that serve as the basis for enforceable standards issued by four standard-setting agencies. The standard-setting agencies are the Department of Defense (DOD), the General Services Administration (GSA), the Department of Housing and Urban Development (HUD), and the U.S. Postal Service (USPS). Each Federal department responsible for standards based on the Board’s guidelines under the ADA or the ABA is represented on the Board. These departments have been closely involved in the development of this rule. Through this process, the Board and the standard-setting agencies coordinated extensively to minimize any differences between the Board’s guidelines and their eventual updated standards.

Rulemaking History

ADA Accessibility Guidelines

On July 26, 1991, one year after the ADA was signed into law, the Board published the ADA Accessibility Guidelines (ADAAG).³ The Board supplemented ADAAG to include additional requirements specific to transportation facilities on September 6, 1991.⁴ The Department of Justice (DOJ) and the Department of Transportation (DOT) incorporated ADAAG into their ADA implementing regulations, thus making ADAAG the enforceable standard under titles II and III of the ADA.⁵ In developing the original ADAAG, the Board identified subjects for further rulemaking based on information it received through public comments. Some addressed areas that had not been specifically covered by an access standard or code before. The Board initiated a long-term agenda of rulemaking a year after ADAAG was first published. It proceeded with this agenda independently from its update of the original document. On separate tracks, the Board developed ADAAG supplements covering:

• State and local government facilities (1998)⁶
• building elements designed for children’s use (1998)⁷
• play areas (2000)⁸
• recreation facilities (2002)⁹

These supplementary guidelines have not yet been adopted by the DOJ as enforceable standards under the ADA.

In 1994, the Board initiated an effort to update the original ADAAG by establishing an advisory committee to thoroughly review the document and to recommend changes. The ADAAG Review Advisory Committee consisted of 22 members representing the design and construction industry, the building codes community, State and local government entities, and people with disabilities.¹⁰ The committee was charged with reviewing ADAAG in its entirety and making recommendations to the Board on improving ADAAG’s format and usability, reconciling differences between ADAAG and national consensus standards, and updating its requirements so that they continue to meet the needs of persons with disabilities. Following a consensus-based process for the adoption of recommendations, the committee met extensively over a two-year period and fulfilled its mission with the issuance of a report, "Recommendations for a New ADAAG," in September, 1996.

The advisory committee’s report recommended significant changes to the format and style of ADAAG. In fact, its recommendations reorganize much of the document. The changes were recommended to provide a guideline that is organized and written in a manner that can be more readily understood, interpreted, and applied. The recommended changes would also make the arrangement and format of ADAAG more consistent with model building codes and industry standards. The advisory committee coordinated closely with the American National Standards Institute (ANSI) A117 Committee, which was in the process of updating its standard. The ANSI A117.1 standard is a national consensus standard that provides technical requirements for accessible buildings and facilities. The A117.1 standard is referenced by the International Building Code and various state codes, among others. While ADAAG requirements derive in large part from an earlier version of the ANSI standard, there are considerable differences between them. Both the advisory committee and the ANSI committee sought to reconcile differences between ADAAG and the ANSI A117.1‒1998 standard.

ABA Accessibility Guidelines

The Board issued minimum guidelines for federally funded facilities under the ABA in 1982. These guidelines served as the basis for enforceable standards known as the Uniform Federal Accessibility Standards (UFAS). The Board has coordinated the update of its ABA guidelines with its review of ADAAG in order to reconcile differences between them and to establish a more consistent level of accessibility between facilities covered by the ADA and those subject to the ABA.

ADA and ABA Accessibility Guidelines

On November 16, 1999, the Board published a proposed rule to jointly update and revise its ADA and ABA accessibility guidelines. This proposal was largely based on the ADAAG Review Advisory Committee’s report. In preparing the proposed rule, the Board had reviewed all of the committee’s recommendations and adopted most of them with some changes of its own. Additionally, the Board developed new figures to illustrate various provisions and provided updated advisory information. In an accompanying discussion of the proposed revisions, the Board posed a number of questions to the public on a variety of issues to solicit information for its use in finalizing the rule. The proposed rule contained three parts:

• application and scoping requirements for facilities covered by the ADA

• application and scoping requirements for facilities covered by the ABA

• a common set of technical provisions referenced by both scoping documents

The proposed rule also incorporated supplements to ADAAG that the Board developed independently from its review of ADAAG. In 1998, the Board issued a supplement to ADAAG covering State and local government facilities, including courthouses and prisons. At the same time, the Board published specifications for building elements designed for children’s use as amendments to ADAAG, which, as originally published, only contained requirements based on adult dimensions. The Board also incorporated into the proposed rule requirements for residential housing which were based on those developed by the ANSI A117 Committee in 1998.

The proposed rule was made available for public comment for six months. During this comment period, which ended May 15, 2000, the Board held public hearings in Los Angeles, CA (January 31, 2000) and in the Washington, DC area (March 13, 2000), which provided an additional forum for people to provide comment, either orally or in writing. About 140 persons provided testimony at these hearings.

More than 2,500 comments on the proposed rule were submitted to the Board by mail, e-mail, or fax. Almost three quarters of the comments were submitted by individuals, primarily persons with disabilities. Most of these comments addressed reach range requirements for people of short stature, access for people with multiple chemical sensitivities, movie theater captioning for persons who are deaf or hard of hearing, and access to certain elements, such as automatic teller machines (ATMs) for people with vision impairments. Comments were also submitted by trade associations and manufacturers, disability groups, design and codes professionals, government agencies, and building owners and operators, among others. Some of the most common topics included alarms, handrails, assembly areas, van spaces and ATMs. Comments received after the deadline were entered into the docket as the Board has a policy of considering late comments to the extent practicable.

The Board has finalized the guidelines according to its review and analysis of the comments to the proposed rule. Comments and resulting changes in the rule are discussed below in the Section-by- Section Analysis.

From the outset of this rulemaking, the Board has sought to harmonize the ADA and ABA Accessibility Guidelines with industry standards, particularly the ANSI A117.1 standard and the International Building Code (IBC). On April 2, 2002, the Board placed in the rulemaking docket for public review a draft of the final guidelines to further promote such harmonization.¹¹ The ANSI A117 Committee and the International Code Council (ICC) were in the process of updating the ANSI A117.1‒1998 standard and the IBC, respectively. The Board proposed changes to these documents based on the draft final guidelines, some of which were approved. In addition, the Board made revisions to the guidelines for consistency with proposed changes to the ANSI A117.1 standard and the IBC. As a result, some of the remaining differences between the draft final guidelines and these documents were reconciled. Changes to the guidelines as a result of this harmonization, as well as public comments received on the draft final guidelines, are noted in the Section-by-Section Analysis.

General Issues

Comments were received on the organization and format of the revised guidelines. The final rule has been structurally reorganized in several respects. Two technical chapters covering specific occupancies (transportation facilities and residential facilities) were integrated into other chapters. A new chapter was added through the incorporation of guidelines for recreation facilities and play areas that the Board previously finalized in separate rulemakings. These changes are further detailed in this section. In addition, comments were received on issues that the Board is involved in but were not made part of this rulemaking. These issues, further discussed below, concern multiple chemical sensitivities and electromagnetic sensitivities, classroom acoustics, and certain elements specific to public rights-of-ways.

Organization and Format

Most commenters supported the new organizational structure of the guidelines and found it to be clearer and easier to use than the original ADAAG. Several suggested that the final rule contain a subject index, that pages not be numbered separately for each part of the rule, and that a table of contents be provided for advisory material and figures listing the figure with section number, the title of the figure, and page number where it is located. Several commenters recommended that there be one table of contents at the beginning of the document rather than separate tables of contents for each part of the rule. There was support for placing advisory material near the provision it discusses but commenters recommended even greater distinction of their non-legal, non-binding status since the advisory notes stand out more than the requirements. Commenters also recommended that figures should have titles and numbers and be clearly linked to the text. A few commenters recommended that advisory information be adopted as enforceable language or be deleted.

The Board has revised the format and structure of the guidelines in response to these comments. The final rule includes a subject index to facilitate use of the document. In the proposed rule, the ADA and ABA scoping documents and the technical section were paginated separately; in the final rule, the pages are numbered consecutively through the entire document. In addition, the Board has simplified the table of contents structure, provided titles for figures, and reformatted advisory notes so that they appear subordinate to the requirements they discuss. Advisory notes are provided for informational purposes only and are not mandatory. Throughout the final rule, advisory notes have been added or revised based on comments or revisions to text requirements. In most cases, advisory notes clarify the meaning of a requirement or provide recommendations for good practice.

Some commenters felt that the Board should reference other codes and standards for greater consistency with the model building codes and that more cross references should be made to other codes and standards. In the final rule, the Board has added references to other codes and standards to enhance consistency with model building codes and standards. Scoping and technical requirements for accessible means of egress have been replaced with a reference to corresponding requirements in the International Building Code (IBC), as further discussed below in the Section-by-Section Analysis under section 207. Criteria for fire alarm systems have been replaced by a reference to the National Fire Protection Association (NFPA) standard upon which they were based, as discussed below in section 702.

Existing Facilities

Commenters expressed concern about how changes to these guidelines would impact existing facilities that were previously retrofitted under ADA requirements, such as those requiring barrier removal and program access. The ADA requires the removal of barriers in existing places of public accommodation where it is readily achievable. State and local government entities are required to provide access to programs, which may necessitate retrofit of existing facilities. Commenters expressed concern that further retrofit efforts would be triggered due to new requirements in the revised guidelines. Specifically, commenters asked whether elements that comply with the original ADAAG would need to be altered to meet the requirements of the updated guidelines under the obligations for barrier removal or program access.

The Board’s authority under the ADA only extends to the development and maintenance of accessibility guidelines for construction and planned alterations and additions. It does not have jurisdiction over requirements for existing facilities that are otherwise not being altered, except for certain types of transit stations (key stations and intercity rail stations). Under the ADA, regulations issued by the Department of Justice (DOJ) and the Department of Transportation (DOT) effectively govern requirements that apply to existing facilities. How, and to what extent, the Board’s guidelines are used for purposes of retrofit, including removal of barriers and provision of program access, is wholly within the purview of these departments. It is the Board’s understanding that the Department of Justice is aware of the concern outlined in comments and that the Department plans to address these concerns in its rulemaking to revise its ADA standards consistent with the Board’s final rule.

Reorganization of Chapters on Transportation Facilities and Residential Facilities

The proposed rule, consistent with the advisory committee’s recommendations, minimized classifications and structural delineations in the guidelines based on facility or occupancy type. As a result, special occupancy chapters of the original ADAAG had been integrated into the main body of the document in the proposed rule. It was felt that this change would help underscore the premise that the guidelines must be consulted and applied in its entirety regardless of the facility type. It is also consistent with the overall aim of encouraging an integrated approach to accessibility as reflected by other proposed format and organizational changes. However, the proposed rule did retain two technical chapters based on occupancy types: transportation facilities (Chapter 10) and residential facilities (Chapter 11). In the final rule, the provisions of these technical chapters have been incorporated into other chapters, as appropriate, for greater consistency with the rest of the document. The revisions related to this reorganization are further detailed in the Section-by-Section Analysis.

Incorporation of Guidelines for Play Areas and Recreation Facilities

In separate rulemakings, the Board developed supplements to ADAAG covering play areas and recreation facilities. These supplemental guidelines, developed independently from this rulemaking, were finalized after the Board published the proposed rule.

On October 18, 2000, the Board issued final guidelines for play areas.¹² The guidelines are one of the first of their kind in providing a comprehensive set of criteria for access to play areas. They cover the number of play components required to be accessible, accessible surfacing in play areas, ramp access and transfer system access to elevated structures, and access to soft contained play structures. The guidelines address play areas provided at schools, parks, child care facilities (except those based in the operator’s home, which are exempt), and other facilities subject to the ADA. The Board developed the guidelines through regulatory negotiation, a supplement to the traditional rulemaking process that allows face-to-face negotiations among representatives of affected interests in order to achieve consensus on the text of a proposed rule. The regulatory negotiation committee represented a variety of interests, including play equipment manufacturers, landscape architects, parks and recreation facilities, city and county governments, child care operators, and people with disabilities. The committee submitted a report to the Board upon which the guidelines are based. The Board published the guidelines in proposed form for public comment in April 1998 and finalized them according to its review and analysis of the comments it received.

On September 3, 2002, the Board finalized guidelines that address access to a variety of recreation facilities covered by the ADA, including amusement rides, boating facilities, fishing piers and platforms, golf courses, miniature golf, sports facilities, and swimming pools and spas.¹³ The requirements are largely based on recommendations prepared by the Recreation Access Advisory Committee, which the Board had established for this purpose. These recommendations are contained in a report, "Recommendations for Accessibility Guidelines: Recreational Facilities and Outdoor Developed Areas," which the Board had made widely available as a source of guidance pending the development of guidelines. The Board published the guidelines in proposed form in July 1999, and made them available for public comment for six months. During the comment period, the Board held public hearings on the proposed guidelines in Dallas, TX and Boston, MA. In an effort to provide the public with an additional opportunity for input on the rule before it was finalized, the Board published a summary of changes it intended to make to the guidelines. This summary was published on July 21, 2000, and was made available for public comment for two months. During the comment period, the Board held informational meetings on the summary in Washington, DC and San Francisco, CA. Approximately 70 comments on the summary were received.

The Board issued a notice on September 3, 2002, making the final guidelines issued for play areas and recreation facilities applicable to federally funded facilities covered by the ABA.¹⁴ No comments were received in response to the notice.

The Board has integrated the guidelines for play areas and those for recreation facilities into this final rule. Referenced standards and definitions have been added to Chapter 1 (sections 105 and 106), scoping provisions have been incorporated into Chapter 2 (sections 234 through 243), and technical provisions are provided in Chapter 6 (Plumbing Elements and Facilities) and Chapter 10 (Recreation Facilities and Play Areas). In addition, various provisions and exceptions have been integrated into existing scoping provisions in Chapter 2 (sections 203 through 206, 210, 216, and 221) and technical provisions in Chapter 3 (section 302 and 303). These criteria have been editorially revised to fit into the new structure and format of the revised ADA and ABA accessibility guidelines. No substantive revisions have been made in incorporating them into this final rule. While the Board has otherwise sought to avoid technical chapters that are based solely on an occupancy type, it has located the technical provisions of the play areas and recreation facilities guidelines into a separate chapter. Since these guidelines are new and comprehensive in their coverage of a variety of distinct facility types, the Board felt that users could more readily familiarize themselves with the requirements if they remained localized in a separate chapter.

Multiple Chemical Sensitivities and Electromagnetic Sensitivities

The Board received approximately 600 comments from individuals with multiple chemical sensitivities and electromagnetic sensitivities. They reported that chemicals released from products and materials used in the construction, alteration, and maintenance of buildings; electromagnetic fields; and inadequate ventilation are barriers that deny them access to buildings. They requested the Board to include provisions in this final rule to make the indoor environment accessible to them.

The Board recognizes that multiple chemical sensitivities and electromagnetic sensitivities may be considered disabilities under the ADA if they so severely impair the neurological, respiratory, or other functions of an individual that it substantially limits one or more of the individual's major life activities. The Board plans to closely examine the needs of this population, and undertake activities that address accessibility issues for these individuals.

The Board plans to develop technical assistance materials on best practices for accommodating individuals with multiple chemical sensitivities and electromagnetic sensitivities. The Board also is sponsoring a project on indoor environmental quality. In this project, the Board is bringing together building owners, architects, building product manufacturers, model code and standard-setting organizations, individuals with multiple chemical sensitivities and electromagnetic sensitivities, and other individuals. This group will examine building design and construction issues that affect the indoor environment, and develop an action plan that can be used to reduce the level of chemicals and electromagnetic fields in the built environment.

Neither the proposed rule nor the draft final rule included provisions for multiple chemical sensitivities or electromagnetic sensitivities. The Board believes that these issues require a thorough examination and public review before they are addressed through rulemaking. The Board does not address these issues in this final rule.

Classroom Acoustics

Comments were received that urged the Board to address the acoustical performance of buildings and facilities, in particular school classrooms and related student facilities. Research indicates that high levels of background noise in classrooms compromises speech intelligibility for many children to such an extent that their reading, communication, and learning skills may not be developing adequately. At particular risk are children who have mild to moderate hearing loss, temporary hearing loss, speech impairments, or learning disabilities. Instead of undertaking rulemaking of its own on this issue, the Board opted to work with the private sector in the development of classroom acoustic standards. In 1999, the Board partnered with the Acoustical Society of America (ASA) on the development of a new standard for acoustics in classrooms that takes into account children who are hard of hearing. ASA had previously established a special working group for this purpose. The Board helped sponsor the work of this group and expanded its membership through the addition of representatives from disability groups, school systems, designers, and government agencies. At the Board’s urging, ASA committed to a two-year time frame for the completion of standards. The standard, completed in 2002, has been approved as ASA/ANSI S12.60‒2002, Acoustical Performance Criteria, Design Requirements and Guidelines for Schools. It sets specific criteria for maximum background noise (35 decibels) and reverberation time (0.6 to 0.7 seconds for unoccupied classrooms). These and other specifications are consistent with long-standing recommendations for good practice in acoustical design. Taken by itself, the standard is voluntary unless referenced by a code, ordinance, or regulation. The Board submitted a proposal to the International Code Council (ICC) recommending that core provisions contained in the ASA/ANSI standard be incorporated into the next edition of the International Building Code (IBC). The Board’s proposal was taken up for consideration at an ICC hearing in September 2002, but was not adopted. However, school systems in various states and cities are applying the criteria in the ASA/ANSI standard to the design of classrooms. The Board is participating in outreach and education activities to promote greater understanding of the need for good classroom acoustics.

Public Rights-of-Way

Some comments asked that the final rule address certain elements common in public rights-of-ways. These comments addressed roadway design, speed bumps, crosswalks, on-street parking, audible signs and pedestrian signals, and emergency call boxes. The Board will address and invite comment on issues regarding access to public rights-of-way in a separate rulemaking. On June 17, 2002, the Board released for public comment a set of draft guidelines on accessible public rights-of-way in advance of publishing a proposed rule. The guidelines would supplement the ADA and ABA accessibility guidelines by adding new provisions for sidewalks, street crossings, and related pedestrian facilities. The draft guidelines were based on a report submitted to the Board by the Public Rights-of-Way Access Advisory Committee in January 2001. This committee, which the Board created to make recommendations on the guidelines, included representatives from the transportation industry, Federal, State and local government agencies, the disability community, and design and engineering professionals. The advisory committee’s report, "Building A True Community," is available from the Board.

Section-by-Section Analysis

In finalizing this rule, the Board has revised various requirements in the guidelines based on its review and analysis of public comments. This section discusses public comments to the rule and details revisions that represent a substantive change from the proposed rule. Not all editorial or non-substantive revisions are addressed in this discussion.