Proceedings of: Workshop on Improving Building Design for Persons with Low Vision

Process for Developing Standards for the U.S. Access Board

Marsha Mazz , Director, Office of Technical and Information Services, U.S. Access Board

Introduction

I’m really pleased to be here. And I want to thank Vijay for being the instigator for this project.

Just a little bit about myself: I am director of the Office of Technical and Information Services with the U.S. Access Board. I am a person who is legally blind and I’m in the 2 percentile, for whatever that’s worth on that pie chart. And, just for the record, I want everyone here to understand that I do not have an age-related [disability]. I’ve been visually impaired pretty much since birth. Consequently, I think that perhaps I pass a little better than folks who acquire a vision impairment later.

I’m going to ask everyone a favor: When you speak, if you would identify yourself, that would make it easier for me to know who’s talking. Don’t assume I can see your nametag. You don’t want me looking at your chest to find out who you are. I’m famous for having introduced myself, of course, to my own father. I recognize people during a meeting over time, because I remember what they’re wearing. Tom’s got yellow on today; I know that. So I won’t lose Tom unless somebody loses him.

I want to talk about the Access Board, what our responsibilities are, what – how we do rulemaking. And so this is a real change of pace for this group, but Vijay made it clear from the get go that his goal was to have some enforceable standards. And to the extent that everybody here is going to support that goal, I think you need to know what you’re up against.

Background of U.S. Access Board

The U.S. Access Board is a federal agency (slide 2). Our real name is the U.S. Architectural and Transportation Barriers Complaints Board. We have more letters in our name than we have employees. We have about 27 staff; we have board members who are either very high level federal agency personnel and their liaison staff, such as Susan and Tom; or we have individuals who are appointed by the president to serve on the board. Half of our board members from the private sector must be people with various disabilities or parents of individuals with disabilities in some cases.

Our office is divided into three units: the Executive Office, which is sort of self-explanatory; Gen. Counsel Office, which again, is self-explanation; and Technical and Information Services. And Technical and Information Services, which is my unit, is the unit that conducts our rulemaking and also conducts our very miniscule research arm, as well as provides all the technical assistance and all the training related to our work.

And you can see Access Board programs, which I’ve listed here (slide 3). This is essentially what we’re authorized to do under various laws. The Architectural Barriers Act was actually passed in 1968. That gives you a clue as to how old Tom is. [The ABA] has applied to federal facilities.

Architectural Barriers Act (ABA) and the Americans with Disabilities Act (ADA)

The Architectural Barriers Act requires federal buildings to comply with accessibility standards. The U.S. Access Board, my agency and their Office of Gen. Counsel, enforces the [ABA], which functions like a building code. We will not enforce new standards on any existing building, unless that existing building is altered or added to. Our other authorities are under the Americans with Disabilities Act of 1990 are our architectural piece – our guidelines under the ADA – are a very small piece of the ADA.

The ADA, of course, applies to everybody that the ABA doesn’t apply to. And in fact, there can be some overlap, because the Barriers Act will reach into the private sector where federal construction dollars are used. As an example, almost all the stimulus work that’s being done is covered by the Architectural Barriers Act.

So many people really don’t really realize [how] much housing is also covered by the Architectural Barriers Act. There are a number of HUD programs that trigger not only HUD’s agency regulations, but also trigger Architectural Barriers Act requirements.

Under the ADA, there are a number of requirements to remediate existing buildings, both with and panel 2 and panel 3 of the ADA, that does – are unique to the ADA. So as we publish guidelines, and our guidelines become ADA standards, there’s always the potential for those guidelines or standards to be applied to the private sector and state-and-local-government sector in a retroactive way.

We’re also responsible – and I have to look here, under the rehabilitation act – for promulgating standards that cover the accessibility of electronic and information technology, as well as telecommunications. As I said earlier, we do technical assistance and training on all these regulations. We have a very small research program. And it’s fair to say that our research coordinator’s primary job is to convince other federal agencies to do work that we would like to see done, which is why, you know, I was able to con my friend, Vijay, into funding this meeting. 

ABA Enforcement

So what we do, in terms of ABA, and of course with barriers act enforcement, is essentially done by complaint (slide 4). If we receive a complaint in our office, we notify the federal agency that is the funding agency, and we work with that agency to resolve the complaint. There really isn’t a lot of interaction between the complainant and the federal agency because we protect the identity of the complainant, and that is because, under the ABA, this is a fact-based investigation: Does the building comply with the enforceable standards or does it not?

The fact that someone brought that complaint is irrelevant, because we don’t – that person doesn’t need to really have standing under the law to bring that complaint. So it’s, again, a very fact-based investigation. Often we find that we do not have jurisdiction because the building predates even the architectural barriers act, and the element that the person has complained about has not been, in any way, altered since prior to 1968 or prior to the effective standards. 

Rulemaking Authority

I want to talk about our rulemaking authority. Again, what we’re concerned here primarily is new construction and alterations. And I’m not accustomed to having to look at the screen, by the way. I usually sit my computer right in front of me, so bear with me as I check that out. Our guidelines are not enforceable until they are adopted by a standard-setting agency under the architectural barriers act or under the Americans with Disabilities Act. GSA is a standard-setting agency, and, quite frankly, GSA sets the standard for almost all federal construction. 

They’re going to set the standard for everything but military installations, housing and postal service – and post offices. So GSA is really your go-to agency on this.

Under the ADA and the ABA, our guidelines, as I said earlier, extend only to the built environment. We do not generally regulate things that get put into the environment that are not attached in some way to the building – so we’re not going to regulate this furniture (slide 6). But under the Americans With Disabilities Act and under other federal civil rights regulations, a federal entity may use our guidelines to benchmark accessibility, particularly where there is an individual complaint – someone with, who uses a wheelchair and says I can’t get up onto this table. They’re going to look at the knee and toe clearances that our guidelines establish in order to determine whether or not the table is generally useable to individuals who use wheelchairs.

Let’s see, I think it’s important just to mention the technology side of our office, because I think that, as time goes on, all of this is converging (slides 7 and 8). The built environment, technology, how we communicate, particularly within a building – a lot of this is sort of becoming one thing. So our technology guidelines, our technology standards, our information communication technology standards apply at this moment only to technology that is procured by the federal government itself.

Naturally, that was a really brilliant thing for Congress to do, because essentially what the federal government is saying is, we’re willing to buy it; you produce it. And, as a matter of fact, if there’s an accessible piece of technology out there, we are going to say that we have to buy the accessible piece of technology and not the inaccessible piece of technology. So the federal government is saying not only are they demanding accessibility to technology procured by the government, but “we’re willing to pay for it.”

By and large, we produce guidelines except under the section 508 regulations, in which case we produce standards, which are endorsed by the FCC. The difference being that our guidelines have to be adopted by other agencies before they are enforceable. 

Rulemaking Process

Our rulemaking process is like every other federal agency’s rulemaking process (slides 9 – 11). There are certain mandatory steps that we absolutely have to follow. So we can’t walk away today from this meeting and say, oh yes, we’re going to go out and write standards. Oh wait, we’re going to have to have an awful lot of evidence in order to write those standards or guidelines for the built environment.

The first step in federal rulemaking is always, at a minimum, a notice of proposed rulemaking in the Federal Register. So we publish that notice of proposed rulemaking in the Federal Register. It’s open for public comment. Anybody and everybody is allowed to comment on the substance of that rule, though we have to analyze those comments and ultimately issue a final rule in, again, in the Federal Register.

Now, the access board, and every other federal agency, must perform a regulatory assessment every time we do a proposed rule. To be quite honest, regulatory assessments are becoming much more difficult than they were in the past. For those of you who work with codes and standards, you will know that if you want to put in a proposal to the International Code Council to require a certain amount of lighting over stairs, or whatever, all you have to do is check a box that says, “This proposal will or will not increase the cost of construction.” That’s all you have to do. And it doesn’t matter whether you say it will increase the cost of construction because there’s not – nobody ever asks you by how much.

In the government, we have the Office of Management and Budget, and they will always ask us, how much is this going to cost? And then they want to know the benefits. The benefits of accessibility very often are completely unquantifiable. This is where we really need the research support to say that, well, if we control lighting in this way, x-percentage of the population with low vision will have improved mobility by this much. Now, you know, that seems almost impossible. But I think that with the talent around this table, we can begin to frame research projects that will, in fact, support rulemaking in this area. It will be a long, hard row to hoe. It’s not going to be easy. And, again Office of Management and Budget, they strain at gnats. So we have to have very strong evidence in order, anymore, to issue any kind of rules under either the architectural barriers act or the Americans With Disabilities Act. 

One of the things that the access board routinely does, in order to allay OMB’s fears of overregulation, is we involve stakeholders at a very early point in our rulemaking. Very often, we convene federal advisory committees – those federal advisory committees where a representative of the stakeholders who are affected, or potentially affected by the rulemaking – and we’ve done that in almost every rulemaking that we’ve been involved in, in the last 30 years (slide 12). That builds support for the rule. It helps us to reach out to individuals and organizations that can provide greater evidence for the necessity of the rule. And you’re going to hear that theme from me over and over and over again. And it’s not because – I myself am [not one] of those bean counters but I have to respond to them. I have to answer to them. I can’t just go to the Office of Management and Budget and say, these are good works. Please bless them. That won’t wash.

We’ve also done regulatory negotiations. And regulatory negotiations differ from advisory committees in that, when the agency becomes a party to the negotiation, the agency sits down and actually takes positions on the recommendations that come from the advisory committee, and then the agency is pretty much bound to publish the advisory committee’s deliberations as its notice of proposed rulemaking. We tend not to do those anymore, and that’s because, quite frankly, the advisers that we get on advisory committees are content experts, but they’re not good rule-writers. And so very often they deliver us a product that has to be pretty substantially changed, at least in its format, in order to be an acceptable guideline or standard that would be enforceable and unambiguous in the real world.

So again, we see this effort here as sort of the very beginning. We’re hoping that in the future we can proceed to a rulemaking, but we are going to need – this is just a shot of our advisory committee – we’re going to, we’re going to, we’re going to need to be prepared to move forward when we take that first step. And this is just a list of all of our previous rulemakings going back to the ‘90s or so (slide 13). Actually, we did rulemaking prior to that, but these are the ones that are most recent, and you’ll be familiar with them, including the ADA accessibility guidelines and all the supplements to the ADA accessibility guidelines. You can see from this list that we cover everything, from playgrounds, to courtrooms, to boat and ferry docks. Our guidelines are very, very broad reaching and they will – they really do cover everything, not just office buildings.

We also cover transportation vehicles (slide 14). Actually, lighting has become an issue in the promulgation of our vehicles rules, because often there’s not sufficient light at the boarding point, where people step up onto a bus in order for them to negotiate that step. I’ll tell a funny story myself. For those of you who are from the D.C. area, you know that all our buses used to have three steps up, and they were the big, tall buses. And then we went and acquired these low-floor buses. Well, the first time I encountered one of those low-floor buses, I took a step, preparing for the big step onto – the three steps up. I just assumed those three steps were there. And so here’s this wonderful, accessible, very easy to use lowfloor bus, and I went to step into it and fell flat on my face. It was – I learned very quickly – by experience. So these are some of the barriers that we all encounter every day.

The update of the ADA and ABA accessibility guidelines was – the project that Tom referred to as endless, and it did take 10 years – but in our defense, we convened a federal advisory committee; they worked for two years. We then decided to combine our guidelines under the architectural barriers act with our guidelines under the Americans With Disabilities Act, so they would be internally consistent. And because they’re two different laws, that required us to develop two separate allocation and scoping provisions, but all the technical criteria are the same now. And I’m proud to say that these 2004 guidelines have now been adopted by all the ADA standard-setting agencies – that’s Justice and Department of Transportation, and the ABA, the barriers act standard-setting agencies, except for HUD. 

These are the rulemakings that we had in development. And you can see, with our 27-staff, and in my unit are 12 to 15 staff members, this is a very full plate. We’re working on new guidelines for outdoor developed areas – picnicking and camping areas; passenger vessels; public rights-of-way; transportation vehicles – that’s a refresh of our existing rules; information and communications technology, which is a complete rewrite and refresh of our section 508 standards and our telecommunications standards under 255 of the telecommunications act.

We have a new responsibility for accessibility to medical diagnostic equipment, and this is – this is quite interesting. There have been many [legal] settlement agreements around the country against hospitals and doctors’ offices, because people can’t get on exam tables; they can’t get into examination chairs. And yes, it will probably impact Hopkins and our optometry friends, because people need to be able to use the sitting devices in order to obtain a diagnosis. Most of my friends who use wheelchairs haven’t been weighed since they were disabled, because there are very few facilities now that have scales which you can roll onto. So this is a very big deal.

The interesting thing about this particular ruling is that we’re to write essentially a standard for medical diagnostic equipment, but we’re not to apply it to anybody. There’s no mandatory provision in the law that says that anybody has to comply with it. But the Department of Justice has already signaled, in an advance notice of proposed rulemaking, that they are planning to use our medical diagnostic equipment guidelines as the basis for enforceable requirements under the Americans With Disabilities Act. So again, the board’s work does ultimately impact those things that are not built into the environment.

And then shared-use paths is another thing that we’re working on. Shared-use paths are routes that are usually referred to as hiker/biker trails. They’re used primarily for transportation to get from point A to point B. And people with disabilities, again, want to use these paths just like everybody else.

And then classroom acoustics – I can’t forget classroom acoustics. This is a project that I’ve been working on for a very long time. And this is an example of federal rulemaking I think at its best. What we did was we recognized that there was, indeed, a problem in classrooms, in terms of acoustics, in providing an adequate learning environment for not only children who are hard of hearing, but also for children who had English as a second language, children who have learning disabilities, and just children in general. So we reached out to the Acoustical Society of America that had convened a voluntary consensus standard(s) working group to actually write and improve a standard that they were working on for classrooms and classroom acoustics.

We have been shocked that improved standard for classroom acoustics – which is now code referenceable, which is something that Acoustical Society of America has not heretofore valued. They write standards using nonmandatory language in a lot of guidance embedded in the standard. And so it took a lot of effort to get them to rewrite the standard to be code referenceable. And for those of you who are [architects and engineers], we hired Ken Schoonover, former vice president of BOCA, Building Officials and Code Administrators, and International Code Council to rewrite it. And now we’re shopping that to the International Building Code. I have to say that we’ve been shot down. One of the reasons we’ve been shot down is these requirements are not in the ADA. I’ve had wonderful luck getting the International Code Council to adopt provisions that are already federal laws. I’ve gone to them and said, here’s your chance to adopt this and it won’t be a federal law. They haven’t quite understood that.

And, unfortunately for ICC, now it’s going to be a federal law. We are going to introduce classroom acoustics requirements into the Americans With Disabilities Act accessibility guidelines and the architectural barriers act accessibility guidelines. Ultimately people will have a private right of action, if they want to, to sue under these requirements, which they would not have had, had these only been building code requirements. 

Again, here’s a little bit about our technical assistance (slide 15). Our technical assistance is available to everybody. And with that, here’s our training, some of our training folks (slide 16). And we have a number of very small research projects. This is a shot of a research project that we’re doing on surfaces for accessible trails, and the like (slide 17). And one of the issues there is, you know, you can’t have the surface displaced as someone who’s trying to push a wheelchair through it.

Then we have a very major research project that’s being conducted, and we’ve only funded in part, at the State University of New York on anthropometry related to that dynamic envelope that a person who uses a powered mobility device might occupy, looking at their reach and the space requirements for that occupied wheelchair. [This] is really groundbreaking research, since almost all the accessibility criteria in the Americans With Disabilities Act, the ANSI 117.1, and the Architectural Barriers Act are based on research conducted on returning male veterans who use big manual wheelchairs. The profile of people with disabilities has changed substantially since then, and their devices have changed substantially, and that has space consequences in the built environment.

We have an airport issue (slide 18). We’re developing all new technical assistance. We have [recently] acquired a whole bunch of new toys with our head, our Revit – a bunch of other tools from modeling. And in the next few years, you’re going to see our website convey a lot of technical assistance about the requirements in the Americans With Disabilities Act. As was mentioned earlier, we will also be able to demonstrate how lighting can affect a space in the built environment. So that’s very, very exciting.

Our website, www.access-board.gov (slide 20). And sign up for our newsletter. Sign up for our e-mail alerts. They’re very timely. They all inform you of anything that’s going on, on the board, and anything that’s going on that is significant in the area of accessibility.