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/ Tuesday, January 13, 1998
[Federal Register: January 13, 1998 (Volume 63, Number 8)]
[Rules and Regulations]
[Page 1999-2058]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13ja98-22]
[[Page 1999]]
_______________________________________________________________________
Part II
Architectural and Transportation Barriers Compliance Board
_______________________________________________________________________
36 CFR Part 1191
Americans With Disabilities Act (ADA) Accessibility Guidelines for
Buildings and Facilities; State and Local Government Facilities; Final
Rule
[[Page 2000]]
ARCHITECTURAL AND TRANSPORTATION BARRIERS COMPLIANCE BOARD
36 CFR Part 1191
[Docket No. 92-2]
RIN 3014-AA12
Americans With Disabilities Act (ADA) Accessibility Guidelines
for Buildings and Facilities; State and Local Government Facilities
AGENCY: Architectural and Transportation Barriers Compliance Board.
ACTION: Final rule.
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SUMMARY: The Architectural and Transportation Barriers Compliance Board
(Access Board) is issuing final guidelines to provide additional
guidance to the Department of Justice and the Department of
Transportation in establishing accessibility standards for new
construction and alterations of State and local government facilities
covered by title II of the Americans with Disabilities Act (ADA) of
1990. The guidelines will ensure that newly constructed and altered
State and local government facilities are readily accessible to and
usable by individuals with disabilities in terms of architecture,
design, and communication. The standards established by the Department
of Justice and the Department of Transportation must be consistent with
the guidelines.
In addition to the provisions for State and local governments, the
Access Board has also made some editorial changes to the Americans with
Disabilities Act Accessibility Guidelines. These editorial changes are
not substantive.
DATES: Effective date: April 13, 1998.
FOR FURTHER INFORMATION CONTACT: David Yanchulis, Office of Technical
and Information Services, Architectural and Transportation Barriers
Compliance Board, 1331 F Street NW., suite 1000, Washington, DC 20004-
1111; telephone (202) 272-5434, ext. 27 or (800) 872-2253 ext. 27
(voice), and (202) 272-5449 (TTY) or (800) 993-2822 (TTY).
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-
5434 or (800) 872-2253, by pressing 1 on the telephone keypad, then 1
again and requesting the State and Local Government Facilities Final
Rule. Persons using a TTY should call (202) 272-5449 or (800) 993-2822.
Please record a name, address, telephone number and request this
publication. Persons who want a copy in an alternate format should
specify the type of format (audio cassette tape, Braille, large print,
or computer disk). This rule is available on electronic bulletin Board
at (202) 272-5448. This rule is also available on the Board's Internet
site (http://www.access-board.gov/rules/title2.htm).
Statutory Background
The Americans with Disabilities Act of 1990 (ADA) (42 U.S.C. 12101
et seq.) extends to individuals with disabilities comprehensive civil
rights protections similar to those provided to persons on the basis of
race, sex, national origin, and religion under the Civil Rights Act of
1964. Title II of the ADA, which became effective on January 26, 1992,
prohibits discrimination on the basis of disability in services,
programs and activities provided by State and local government
entities, and the National Railroad Passenger Corporation (Amtrak).
Section 202 of the ADA extends the nondiscrimination policy of section
504 of the Rehabilitation Act of 1973, as amended, (29 U.S.C. 794)
which prohibits discrimination on the basis of disability in federally
assisted programs and activities to all State and local governmental
entities whether or not such entities receive Federal funds. Most
programs and activities of State and local governments are recipients
of financial assistance from one or more Federal agencies and are
already covered by section 504 of the Rehabilitation Act of 1973.
Title III of the ADA, which also became effective on January 26,
1992, prohibits discrimination on the basis of disability by private
entities who own, lease, lease to, or operate a place of public
accommodation. Title III establishes accessibility requirements for new
construction and alterations in places of public accommodation and
commercial facilities.
Section 504 of the ADA requires that the Access Board issue minimum
guidelines to assist the Department of Justice and the Department of
Transportation in establishing accessibility standards under titles II
and III. Under sections 204(a) and 306(b) of the ADA, the Department of
Justice is responsible for issuing final regulations, consistent with
the guidelines issued by the Access Board, to implement titles II and
III (except for transportation vehicles and facilities). Sections 229
and 306(a) of the ADA provide that the Department of Transportation is
responsible for issuing regulations to implement the transportation
provisions of titles II and III of the ADA. Those regulations must also
be consistent with the Access Board's guidelines.
Rulemaking History
On July 26, 1991, the Access Board published the Americans with
Disabilities Act Accessibility Guidelines (ADAAG) to assist the
Department of Justice in establishing accessibility standards for new
construction and alterations in places of public accommodation and
commercial facilities. See 56 FR 35408, as corrected at 56 FR 38174
(August 12, 1991) and 57 FR 1393 (January 14, 1992), 36 CFR part 1191.
ADAAG contains scoping provisions and technical specifications
generally applicable to buildings and facilities (sections 1 through 4)
and additional requirements specifically applicable to certain types of
buildings and facilities covered by title III of the ADA: restaurants
and cafeterias (section 5); medical care facilities (section 6);
mercantile and business facilities (section 7); libraries (section 8);
and transient lodging (section 9).\1\
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\1\ On September 6, 1991, the Access Board amended ADAAG to
include additional requirements specifically applicable to
transportation facilities (section 10). See 56 FR 45500, 36 CFR
1191.1. On that same date, the Access Board also published separate
final guidelines to assist the Department of Transportation in
establishing accessibility standards for transportation vehicles.
See 56 FR 45530, 36 CFR part 1192. The Department of Transportation
has incorporated ADAAG and the Access Board's guidelines for
transportation vehicles and facilities in its final regulations. See
56 FR 45584 (September 6, 1991), 49 CFR parts 37 and 38.
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On July 26, 1991, the Department of Justice published its final
regulations implementing title III of the ADA which incorporated ADAAG
as the accessibility standards for newly constructed and altered places
of public accommodation and commercial facilities covered by title III.
See 56 FR 35544, 28 CFR part 36. On that same date, the Department of
Justice published its final regulations implementing title II of the
ADA. See 56 FR 35694, 28 CFR part 35. The Department of Justice's title
II regulations give State and local governments the option of choosing
between designing, constructing or altering their facilities in
conformance with the Uniform Federal Accessibility Standards (UFAS) \2\
(Appendix A to 41
[[Page 2001]]
CFR part 101-19, subpart 101-19.6) or with ADAAG (Appendix A to 28 CFR
part 36), except that if ADAAG is chosen, the elevator exemption
contained in title III of the ADA does not apply.\3\ See 28 CFR 35.151.
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\2\ UFAS was developed by the General Services Administration,
Department of Defense, Department of Housing and Urban Development,
and the United States Postal Service to implement the Architectural
Barriers Act of 1968 (42 U.S.C. 4151 et seq.) which requires certain
federally financed buildings to be accessible. Most Federal agencies
reference UFAS as the accessibility standard for buildings and
facilities constructed or altered by recipients of Federal financial
assistance for purposes of section 504 of the Rehabilitation Act of
1973, as amended.
\3\ In new construction and alterations, title III of the ADA
does not require elevators if a facility is less than three stories
or has less than 3,000 square feet per story, unless the facility is
a shopping center or mall; a professional office of a health care
provider; or a terminal, depot or other station used for specified
public transportation or an airport passenger terminal. See 28 CFR
36.401(d) and 36.404.
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When the Department of Justice published its title II regulations,
it noted that the Access Board would be supplementing ADAAG in the
future to include additional guidelines for State and local government
facilities. The Department of Justice further stated that it
anticipated that it would amend its title II regulations to adopt ADAAG
as the accessibility standards for State and local government
facilities after the Access Board supplemented ADAAG. 56 FR 35694,
35711 (July 26, 1991). Adopting essentially the same accessibility
standards for titles II and III of the ADA will help ensure consistency
and uniformity of design in the public and private sectors throughout
the country.
Proposed Guidelines
On December 21, 1992, the Access Board published a notice of
proposed rulemaking (NPRM) in the Federal Register which proposed to
add four special application sections to ADAAG specifically applicable
to certain types of buildings and facilities covered by title II of the
ADA. Those special application sections include:
11. Judicial, Legislative, and Regulatory Facilities.
12. Detention and Correctional Facilities.
13. Accessible Residential Housing.
14. Public Rights-of-Way.
The NPRM also proposed requirements and asked questions regarding
the addition of miscellaneous provisions specifically applicable to
State and local government facilities, including swimming pools, text
telephones (TTYs), automatic doors, airport security systems,
entrances, elevator exemptions, building signage, assistive listening
systems, and sales and service counters. 57 FR 60612 (December 21,
1992).
Following the publication of the NPRM, the Access Board held five
public hearings in various locations between February 22, 1993 and
March 15, 1993. A total of 148 people presented testimony on the
proposed guidelines at the hearings. In addition, 447 written comments
were submitted to the Access Board by the end of the comment period on
March 22, 1993. Another 127 comments were received after March 22,
1993. Although those comments were not timely, the Access Board
considered them to the extent practicable. In all, the Access Board
received nearly 7,000 pages of comments and testimony on the proposed
guidelines.
Interim Rule
On June 20, 1994, the Access Board published an interim rule
(hereinafter referred to as the interim rule) in the Federal Register
which added sections 11 through 14 and miscellaneous provisions to
ADAAG. 59 FR 31676 (June 20, 1994) as corrected at 59 FR 32751 (June
24, 1994). Many of the comments received by the Access Board in
response to the December 21, 1992 NPRM and the public hearings, as well
as modifications made to the NPRM based on the comments, were discussed
in the June 20, 1994 interim rule.
On that same date, the Department of Justice and the Department of
Transportation published notices of proposed rulemakings to adopt as
standards sections 11 through 14 and the miscellaneous provisions of
the Access Board's interim rule. See 59 FR 31808; June 20, 1994,
Department of Justice; 59 FR 31818; June 20, 1994, Department of
Transportation. Both the Access Board's interim rule and the notices of
proposed rulemaking published by the Departments of Justice and
Transportation sought comment on sections 11 through 14 and the
miscellaneous provisions, as published in the Federal Register on June
20, 1994.
Final Rule
As discussed above, the Access Board's guidelines provide guidance
to the departments of Justice and Transportation in establishing
accessibility standards for new construction and alterations of State
and local government facilities covered by title II of the ADA. The
standards ultimately established by those departments must be
consistent with and may incorporate the guidelines. It is important to
note that until such time as the Department of Justice or the
Department of Transportation adopt these guidelines as standards, the
guidelines are advisory only and are not to be construed as
requirements.
In finalizing the guidelines, the Access Board has considered all
comments previously received in response to the Access Board's NPRM for
State and local government facilities published on December 21, 1992,
as well as comments received in response to the Access Board's interim
rule and the Departments of Justice and Transportation's notices of
proposed rulemaking.
The Access Board and the departments received comments and
testimony from a broad range of interested individuals and groups,
including individuals who identified themselves as having a disability;
organizations representing persons with disabilities; State or local
code administrators; State, local and Federal government agencies;
manufacturers; design professionals; and national professional and
trade associations. In all, the Access Board and the Departments of
Justice and Transportation received 246 comments totaling over 1,200
pages on the interim rule.
The comments and testimony were sorted by section and analyzed. A
large number of commenters expressed support for the guidelines. Some
comments requested changes and others requested clarifications. Due to
the large number of comments received, it is not possible for the
Access Board to respond to each comment in this preamble. Many of the
comments received in response to the initial NPRM were discussed in the
interim rule. A copy of that interim rule is available upon request.
(See: For Information Contact, above.) The Access Board has made every
effort to respond to significant comments in the general issues and
section-by-section analysis. As discussed under general issues and in
ADAAG 13 (Accessible Residential Housing) and 14 (Public Rights-of-
Way), the Access Board has reserved action in some areas pending
further analysis.
Editorial Amendments
Under section 502 of the Rehabilitation Act of 1973 (29 U.S.C.
792), the Access Board is responsible for establishing guidelines for
accessibility standards issued by other Federal agencies pursuant to
the Architectural Barriers Act of 1968 (42 U.S.C. 4151 et seq.). To
further the goal of uniform standards, the Access Board intends to use
ADAAG as the basis for accessibility guidelines for federally financed
facilities covered by the Architectural Barriers Act of 1968 since the
Federal government owns or operates many of the same types of
facilities as State and local governments which are addressed
[[Page 2002]]
in this final rule. In the near future, the Access Board anticipates
revising its current guidelines for federally financed facilities to be
more consistent with ADAAG. As a result, the Access Board has made a
number of editorial revisions to accommodate the use of ADAAG as the
basis for revising the guidelines covering Federal facilities.
The editorial changes made to facilitate the application of the
provisions of ADAAG to Federal facilities in future rulemaking and any
other clarifying editorial changes are addressed in the section-by-
section analysis that follows. None of the editorial changes made in
this final rule are substantive and therefore do not require the
issuance of an additional proposed rule.
General Issues
Unisex Toilet and Bathing Facilities
The Access Board received a number of comments concerning the need
for unisex toilet and bathing facilities to accommodate people with
personal attendants of the opposite sex. In the interim rule, the
Access Board noted that it would examine appropriate means of
addressing this issue. In May 1994, the Access Board held an
informational workshop to discuss the issue of scoping requirements for
unisex toilet and bathing facilities. Subsequently, at the Access
Board's request, the Board for the Coordination of Model Codes (BCMC)
developed scoping provisions for unisex toilet and bathing facilities.
BCMC recommended single-user toilet and bathing facilities in assembly
and mercantile occupancies where an aggregate of six or more fixtures
(e.g., toilets for either men or women) are provided. Assembly
occupancies include, but are not limited to, theaters, museums,
nightclubs, stadiums, amusement parks, restaurants, health clubs and
transportation facilities. Mercantile occupancies include public
accommodations for display and sales purposes, such as stores and
shopping malls. The BCMC report has been incorporated, with minor
modification, into the Uniform Building Code (UBC), the Standard
Building Code (SBC) and the National Building Code (BOCA). The Access
Board will continue to participate in the advancement of the
recommendations of the BCMC report. The Access Board anticipates that
the provisions concerning unisex toilet and bathing facilities will be
included in the International Building Code as it is developed for
publication in the year 2000.
Swimming Pools
The interim rule contained a requirement that at least one means of
access be provided into swimming pools covered by title II if the pool
was intended for recreational purposes and not intended solely for
diving or wading. Technical specifications for pool access were not
provided. This requirement has been removed in the final rule.
Comment. While many commenters supported a requirement for pool
access, concern was also expressed over the absence of any technical
guidance on meeting the requirement. Commenters noted that the ADAAG
specifications for ramps in 4.8.5 require handrails which, if applied
to swimming pool access, may pose a hazard below the water level to
swimmers and that devices, such as sling-type lifts, were not
independently operable. Commenters varied greatly on what means of
access into swimming pools should be required. The suitability of the
available design solutions depended on the needs and preferences of
individual users. It was recommended that any requirement for pool
access include technical specifications to prevent confusion and for
safety reasons. Commenters also considered pool access equally
important for facilities covered by title III of the ADA.
Response. The Access Board established a Recreation Access Advisory
Committee to provide recommendations for the development of
accessibility guidelines for swimming pools, other recreational
facilities, and outdoor developed areas. This advisory committee
identified important considerations in providing access into swimming
pools that merit further study. As a result, the Access Board sponsored
research on these issues to obtain information necessary for the
development of possible future technical specifications. The
requirement for access into pools has been removed. The Access Board
will consider the results of the study, as well as the advisory
committee's recommendations, when it conducts a separate rulemaking in
the future to address recreational facilities. These future guidelines
will apply to entities covered by both titles II and III of the ADA.
Other Issues
Several comments addressed other issues raised in the NPRM and
discussed in the interim rule, such as assembly areas, and voting
booths. Many of these comments supported rulemaking in these areas.
While the Access Board may address these issues in future rulemaking,
it is not prepared to do so as part of this final rule.
Section-by-Section Analysis
This section of the preamble contains a summary of the significant
comments received on the interim rule, and the departments of Justice
and Transportation's NPRMs, the Access Board's response to those
comments, and any changes made to the guidelines.
1. Purpose
In section 1 (Purpose) and throughout ADAAG, the reference to
sections 4.1 through 4.35 has been deleted and replaced with a general
reference to section 4. Additionally, the reference to ``guidelines''
has been replaced with ``scoping and technical requirements''. These
are editorial amendments and are not substantive changes. No other
changes have been made to this section.
3. Miscellaneous Instructions and Definitions
3.5 Definitions
Alteration. The definition for ``alteration'' in the interim rule
included references to pedestrian facilities in the public right-of-
way. This language has been removed. For further discussion, see ADAAG
14 below.
The interim rule also added a specific reference to ``resurfacing''
in the definition for ``alterations''. The addition of the term
``resurfacing'' was not intended as a new interpretation of what
constitutes an alteration, but rather to reinforce the original intent
that the resurfacing of streets, sidewalks, parking lots, and other
outdoor surfaces is considered an alteration. The term ``resurfacing''
has been retained in the final rule, however, the application of the
term has been clarified.
Comment. A few commenters were concerned that the inclusion of the
term ``resurfacing'' would broaden the scope of compliance to minor
street repair.
Response. The term ``resurfacing'' does not include minor repair
work to parking lots and paved surfaces, such as repainting existing
striping or repair of potholes. By definition, ``alteration'' excludes
normal maintenance that does not affect the usability of a facility.
Repairing potholes would be an example of normal maintenance. Other
relatively minor tasks, such as restriping of a parking lot, may
constitute alterations because they affect the usability of the
facility by creating an opportunity to increase accessibility. However,
the obligation triggered by such an alteration is limited by the scope
of the planned alteration. In the
[[Page 2003]]
case of restriping, the obligation would be to make the altered element
itself (e.g., the striping) conform to the provisions of these
guidelines.
Assembly Area. ADAAG provides requirements for wheelchair seating
and assistive listening systems in certain ``assembly areas.'' See
ADAAG 4.1.3(19). These requirements are intended to apply to judicial,
legislative, and regulatory facilities which are addressed in section
11. ``Assembly Area'' is defined, in part, as ``a room or space
accommodating a group of individuals for recreation, educational,
political, social or amusement purposes.'' For clarity, a reference to
``civic'' purposes has been added.
Continuous Passage. The definition for ``continuous passage'' in
the interim rule referenced ADAAG 14 (Public Rights-of-Way). This
definition has been removed. For further discussion, see ADAAG 14
below.
Curb Ramp. The definition for ``curb ramp'' in the interim rule
included a reference to ADAAG 14 (Public Rights-of-Way). This language
has been removed. For further discussion, see ADAAG 14 below.
Dwelling Unit. The definition for ``dwelling unit'' in the interim
rule included a reference to ADAAG 13 (Accessible Residential Housing).
This language has been removed. For further discussion, see ADAAG 13
below.
Private Facility and Public Facility. The final rule includes
definitions for ``private facility'' and for ``public facility.''
``Private facility'' is defined as a public accommodation or a
commercial facility subject to title III of the ADA and the Department
of Justice implementing regulation (28 CFR part 36) or a transportation
facility subject to title III of the ADA and the Department of
Transportation's ADA regulation covering facilities constructed or
altered by private entities (49 CFR 37.45). ``Public facility'' is
defined as those facilities or portions thereof that are constructed
by, on behalf of, or for the use of a public entity subject to title II
of the ADA and the Department of Justice implementing regulation (28
CFR part 35) or a transportation facility subject to title II of the
ADA and the Department of Transportation's regulations implementing the
ADA as it applies to facilities constructed or altered by public
entities (49 CFR 37.41 and 49 CFR 37.43). These terms are included in
the final rule to distinguish certain requirements in the rule that
apply only to facilities subject to title II or to facilities subject
to title III, but not both. The terms replace references to ``places of
public accommodation and commercial facilities'' and to references in
the interim final rule to ``facilities subject to title II of the
ADA.''
Public Rights-of-Way. The definition for ``public rights-of-way''
in the interim rule referenced ADAAG 14 (Public Rights-of-Way). This
definition has been removed. For further discussion, see ADAAG 14
below.
Public Sidewalk. The definition for ``public sidewalk'' in the
interim rule referenced ADAAG 14 (Public Rights-of-Way). This
definition has been removed. For further discussion, see ADAAG 14
below.
Public Sidewalk Curb Ramp. The definition for ``public sidewalk
curb ramp'' in the interim rule referenced ADAAG 14 (Public Rights-of-
Way). This definition has been removed. For further discussion, see
ADAAG 14 below.
Site Infeasibility. The definition for ``site infeasibility'' in
the interim rule referenced ADAAG 14 (Public Rights-of-Way). This
definition has been removed. For further discussion, see ADAAG 14
below.
TTY, TDD, and Text Telephone. The interim rule included editorial
revisions concerning the use of the terms ``text telephone'' and
``TTY''. Both terms are synonymous and refer to devices that make
telephones accessible to people who are deaf or hard of hearing or who
have speech impairments via typed messages through the standard
telephone network. The interim rule replaced the term ``text
telephone'' with ``TTY'' in this section and throughout ADAAG. The
final rule amends ADAAG 3.5 (Definitions), 4.1.3(17), 4.30.7, and
4.31.9 to include a reference to both ``text telephone'' and ``TTY''
for clarity. In addition, ``TDD,'' another synonymous term which is
used on the international symbol for these devices and in other
regulations, has been added to ADAAG 3.5 (Definitions).
Comment. Organizations representing people who are deaf or hard of
hearing preferred the original use of the term text telephone as it is
more descriptive than abbreviated terms such as TTY. Other commenters
recommended that both text telephone and TTY be used in ADAAG as the
abbreviation TTY is more commonly used.
Response. The definition of TTY in the interim rule has been
amended to reference the definition of text telephone. A reference to
TTYs has been added to the definition of text telephone. ADAAG has been
modified to include both text telephone and TTY when referencing
devices that make telephones accessible to people who are deaf or hard
of hearing or who have speech impairments.
Technically Infeasible. This term and a reference to its definition
in alterations (4.1.6(1)(j)) was added in the interim rule for
clarification. No substantive comments were received and no changes
have been made to this definition.
Transient Lodging. The interim rule modified the definition of
``transient lodging'' to clarify that a transient lodging facility is
not considered a residential facility. An appendix note was added
referencing the Department of Justice's policy and rules regarding
transient lodging. No substantive comments were received regarding this
definition or the appendix note and no changes have been made to this
provision or the appendix note.
4. Accessible Elements and Spaces: Scope and Technical Requirements
4.1 Minimum Requirement
4.1.1 Application. 4.1.1(1) General. 4.1.1(2) Application Based
on Building Use. ADAAG 4.1.1(1) (General) and 4.1.1(2) (Application
Based on Building Use) were editorially revised in the interim rule for
clarity. Few comments were received regarding these sections and no
substantive changes have been made in the final rule.
4.1.1(5) General Exceptions. As revised in the interim rule, ADAAG
4.1.1(5)(b) exempts from the requirements for accessibility, prison
guard towers, fire towers, fixed life guard towers, and other areas
raised for purposes of security or life or fire safety; non-occupiable
spaces accessed only by tunnels and frequented only by personnel for
maintenance or occasional monitoring of equipment; and single occupant
structures accessed only by passageways above or below grade. A
reference to ``lookout galleries'' has been added to the final rule for
clarification. No substantive changes have been made to this provision
in the final rule.
Comment. One disability group opposed the exceptions for fire
towers and prison guard towers. Both the Eastern Paralyzed Veterans
Association (EPVA) and the Paralyzed Veterans of America opposed
exceptions for toll booths. These commenters pointed to the employment
opportunities available to persons with disabilities at such
facilities. In addition, EPVA provided information regarding a newly
built facility where elevator access has been provided to toll booths
accessed from tunnels below. One commenter expressed support for the
exception for non-occupiable spaces.
Response. Originally, ADAAG 4.1.1(5)(b) provided that accessibility
was not required to ``(i) observation galleries which were used
primarily for security purposes; or (ii) non-occupiable
[[Page 2004]]
spaces which were accessed only by ladders, catwalks, crawl spaces,
very narrow passageways, or freight (non-passenger) elevators, and
frequented only by service personnel for repair purposes'' (e.g.,
elevator pits, elevator penthouses, piping or equipment catwalks). The
interim rule amended the language of 4.1.1(5)(b)(i) by providing that
accessibility was not required to ``raised areas used primarily for
purposes of security or life or fire safety'' (e.g., observation
galleries, prison guard towers, fire towers or fixed life guard
stands). Section 4.1.1(5)(b)(ii), as amended in this final rule,
includes a reference to areas ``frequented only by service personnel
for maintenance, repairs, or occasional monitoring of equipment'' in
lieu of areas ``frequented only by service personnel for repair
purposes''. The interim rule provided several examples of such areas,
including water or sewage treatment pump rooms and stations, electric
substations and transformer vaults, and highway and tunnel utility
facilities. The final amendment to this provision includes the addition
of a third paragraph referencing single occupant structures accessed
only by passageways below grade or elevated above grade, including, but
not limited to, toll booths that are required to be accessed from
underground tunnels. This provision was not intended to exempt
structures accessed by passageways merely elevated by a curb and has
been clarified in the final rule as applying to single occupant
structures that are accessed by passageways elevated above standard
curb height.
The additions made to 4.1.1(5)(b) in the interim rule were not
intended to broaden the basis of exempt areas, but to address
structures specific to the public sector that are similar to those
areas which were exempt under the earlier version of this provision
because of design constraints. The examples specifically referenced in
the interim rule as exempt areas, such as prison guard, fire, and fixed
life guard towers are subject to design constraints which are similar
to, if not greater than, those relevant to observation galleries raised
for security purposes. Since these facilities are typically for limited
use and not open to the public, the Access Board sought to provide
accessibility requirements for State and local government facilities
consistent with the level of access required for the private sector.
With respect to toll booths, elevator or lift access may provide
access to booths accessed from tunnels below or passageways above.
However, providing elevators or lifts in full compliance with ADAAG
will significantly impact the design and cost of such structures. The
exception applies only to toll booths accessed from below or above
grade, not to those that can be accessed at grade.
Comment. A correctional entity recommended that prison boot camps,
national guard facilities, and firing ranges be exempt since such
facilities are typically not intended to serve persons with
disabilities.
Response. As discussed in the interim rule, the Access Board has
not provided any exceptions based on the presumed physical abilities of
the occupants of the facilities. Instead, exceptions in 4.1.1(5)(b) are
based primarily on the structural and cost impacts of access to certain
limited use structures.
Comment. One commenter recommended an exemption for elevated
control rooms such as those found in correctional facilities.
Response. Such facilities, depending on their design and use, may
be exempt under the exception for ``raised areas used primarily for
purposes of security.''
4.1.3(5) Elevators. The interim rule added several exceptions to
the requirement for elevator access for State and local government
facilities.
Exception 1(a) of ADAAG 4.1.3(5) contains an exception based on the
number of stories or square footage per floor specific to private
facilities, which are defined in 3.5 as those facilities subject to
title III of the ADA.
Exception 1(b) of ADAAG 4.1.3(5) provides that elevators are not
required in drawbridge towers and boat traffic towers, lock and dam
control stations, train dispatching towers and similar structures
subject to title II of the ADA as a public facility that are less than
three stories and not open to the public, where the story above or
below the accessible ground floor houses no more than five persons and
is less than 500 square feet. This provision has been editorially
revised for clarity.
Comment. One commenter opposed this exception because it may deny
persons with disabilities certain job opportunities. Another commenter
recommended that the language of the exception, including the reference
to ``similar structures,'' be more specific.
Response. Exception 1(b) is based on the design and cost impact of
providing elevator access in small limited use structures and applies
only to those facilities that are less than three stories, are not open
to the public, and where the story above or below the accessible ground
floor has a maximum occupancy of five and is less than 500 square feet.
Each of these conditions must be met for the exemption to apply.
Specific facilities such as drawbridge and boat traffic towers, lock
and dam control stations, and train dispatching towers are referenced
to illustrate the type of structures the exception may cover.
Exception 4 (Platform Lifts). The interim rule also recognized
additional situations in which a platform lift can be used to provide
vertical access. Exception 4(e) to ADAAG 4.1.3 permits lift access to
judges' benches, clerks' stations, raised speakers' platforms, jury
boxes and witness stands. It is possible that some designs may include
areas that are lower than the floor of a courtroom, such as the well of
the court, instead of raised spaces such as jury boxes. For clarity and
consistency, a reference has been added to ``depressed areas'' in
addition to the raised spaces originally listed. Exception 4(f) which
applied specifically to dwelling units has been deleted in the final
rule. For further discussion regarding the application of accessibility
requirements for dwelling units, see ADAAG 13 (Accessible Residential
Housing) below.
Exception 5 (Air Traffic Control Towers). Exception 5 exempts air
traffic control towers from the requirement that an elevator serve each
level of a facility. Under this exception, elevator access is not
required to the cab or to the floor immediately below the cab since an
elevator serving such levels would obstruct the 360-degree clear view
necessary in an air traffic control tower. No changes have been made to
this provision in the final rule.
Comment. A few comments opposed the exception for air traffic
control towers since possible design alternatives currently under
review, (e.g., the use of glass observation elevators), may provide
feasible solutions to the problem of providing an unobstructed 360-
degree clear view.
Response. As discussed in the interim rule, the exception for air
traffic control towers is based on the impact of providing vertical
access to the cab level. While solutions for this access may exist,
their impact on design is significant according to information from the
Federal Aviation Administration. It is for these reasons that an
exception for vertical access to the cab and the level immediately
below the cab has been provided.
4.1.3(8) Entrances. ADAAG 4.1.3(8)(a) requires that, at a minimum,
50 percent of all public entrances be accessible. It also requires
accessible entrances to be provided in a number at least equivalent to
the number of exits required by the applicable building or fire code.
However, this is required only to the extent that the number of
entrances planned for a facility is equal to or
[[Page 2005]]
greater than the number of exits required; if the number of exits
exceeds the number of planned entrances, all planned entrances are
required to be accessible. Additional entrances are not required.
Paragraph (a) also states that, ``where feasible, accessible entrances
shall be those used by the majority of the people visiting or working
in the building.'' The interim rule added an additional requirement
that facilities subject to title II of the ADA must include all
``principal public entrances'' when meeting this requirement. These
entrances were defined as those entrances designed and constructed to
accommodate a substantial flow of pedestrian traffic to a major
function in a facility subject to title II. Appendix material provided
examples to clarify the application of this requirement. This
requirement, definition, and appendix note for principal public
entrances has been removed in the final rule. Since ADAAG requires
access to entrances used by the majority of visitors or employees where
feasible, the Board considered the requirement for principal public
entrances in the interim final rule as a possible source of confusion.
Further, the Board is concerned that designers might have difficulty
determining which entrances constituted a ``principal public
entrance.'' In addition, editorial revisions have been made to this
section for clarity and consistency.
ADAAG 12 (Detention and Correctional Facilities) requires that
public entrances, including entrances that are secured, shall be
accessible as required by 4.1.3(8). This requirement does not increase
the number of entrances required to be accessible by 4.1.3(8) and
provides an exception from certain ADAAG specifications for doors and
doorways. This exception applies to doors or doorways operated only by
security personnel or where security requirements prohibit full
compliance with the guidelines. See ADAAG 12.2.1. A cross reference to
this section has been added to 4.1.3(8)(a) in the final rule.
ADAAG 4.1.3(8)(b) requires that, where provided, one direct
entrance to an enclosed parking garage and one entrance to a pedestrian
tunnel or elevated walkway must be accessible in addition to those
entrances required to be accessible by 4.1.3(8)(a). ADAAG 11 contains
additional requirements for access to restricted and secured entrances
in judicial, legislative, and regulatory facilities. A cross reference
to these requirements has been added to 4.1.3(8)(b) in the final rule.
4.1.3(17)(c) Text Telephones (TTYs). ADAAG 4.1.3(17)(c)(i)
provides that if an interior public pay telephone is provided in a
public use area of a building that is part of a public facility, then
at least one interior public text telephone (TTY) shall be provided in
the building in a public use area. This requirement, which was located
at 4.1.3(17)(c)(iv) in the interim rule, has been revised to cover
``buildings'' instead of ``facilities'' for clarity. The existing
requirement for a public text telephone where four or more public pay
telephones are provided on a site and at least one is in an interior
location has been clarified as applying to private facilities subject
to title III of the ADA.
ADAAG 4.1.3(17)(c)(ii) requires that in public facilities that are
stadiums, arenas and convention centers, at least one public text
telephone (TTY) shall be provided on each floor level having a public
pay telephone. ADAAG 4.1.3(17)(c)(iv) requires that if an interior
public pay telephone is provided in a secured area of a detention or
correctional facility, then at least one public text telephone (TTY)
shall be provided in at least one secured area. ADAAG 4.1.3(17)(d)
provides that, where a bank of telephones in the interior of a building
consists of three or more public pay telephones, at least one public
pay telephone in each such bank shall be equipped with a shelf and
outlet in compliance with ADAAG 4.31.9(2). This provision contains an
exception for the secured areas of detention or correctional facilities
where outlets are prohibited for purposes of security or safety. No
substantive changes have been made to these sections.
Comment. Several commenters supported this provision. Other
commenters supported an increase in the number of text telephones
(TTYs) required and offered various recommendations. The American
Public Communications Council, a trade association comprised of
suppliers of public pay telephones and other services, was concerned
that the requirement could have the unintended result of decreasing the
number of public pay telephones available to all members of the public.
They stated that the business of providing public pay telephones
operates on a very thin margin and the increased investment cost of an
additional $1000 or more may mean that neither independent public pay
telephone providers nor local exchange carriers will be able or willing
to provide a public pay telephone in a low-traffic facility. The
commenter submitted documentation detailing a few instances where
telephone companies have removed public pay telephones because the pay
telephones were deemed not to be profitable.
Response. It is the covered entity that has the responsibility to
ensure that the public pay telephone service is accessible to persons
with disabilities and to select from the various options available on
how to provide that service. In developing the interim rule, the Access
Board considered the options currently available. The cost for text
telephones (TTYs) generally ranges from $230 to $300 for portable
devices and $700 to $1200 for those permanently installed. In addition,
text telephones (TTYs) may be leased for approximately $30 a month
under programs that include long-term maintenance and technology
upgrade services. ADAAG 4.31.9(3) includes a provision for equivalent
facilitation which permits the use of portable devices, in lieu of
permanently installed public text telephones (TTYs), if the portable
device is equally available during the same hours as the public pay
telephone. This provision ensures equal access, and allows the entity
greater flexibility in selecting a secure and cost effective method of
providing access. For example, an administrative office in a town hall
may provide a portable text telephone (TTY) for use in the office or at
public telephones as long as the office is open to the public the same
hours that the public telephone is available for use by the public.
Directional signage must be provided at the public pay telephones
indicating the location of the text telephone (TTY).
Comment. One commenter requested clarification of the term ``public
use area''.
Response. ADAAG 3.5 (Definitions) defines ``public use'' as the
interior or exterior rooms or spaces that are made available to the
general public. Some entities covered under title II of the ADA may not
have a public use area.
4.1.6 Accessible Buildings: Alterations. 4.1.6(1)(k) Elevator
Exception. This provision states that the exception to the requirement
for an elevator in ADAAG 4.1.3(5) for newly constructed facilities also
applies to altered facilities. This exception was editorially revised
in the interim rule consistent with the revision of ADAAG 4.1.3(5). No
changes have been made to this provision in the final rule.
4.1.7 Accessible Buildings: Historic Preservation. 4.1.7(1)(a)
Exception. This section addresses the requirements for access in
alterations to qualified historic facilities. The interim rule
contained an exception referencing provisions for program access in the
Department of Justice's title II and III regulations where compliance
with
[[Page 2006]]
ADAAG would threaten or destroy the historic significance of a
facility. See 28 CFR 35.151(d)(2) and 28 CFR 36.405(b). This provision
has been relocated to the appendix as it did not function as an
``exception'' to ADAAG but as an advisory note.
4.33 Assembly Areas
4.33.7 Types of Listening Systems. Information was submitted which
addressed the incompatibility of some receivers with hearing aids.
People who wear hearing aids often need them while using an assistive
listening system. A requirement for hearing-aid compatibility was not
included in the proposed or interim final rules. The Access Board
intends to consider this issue in future rulemaking which would address
assembly areas in general. However, the Department of Justice's
regulations implementing titles II and III of the ADA require public
entities and public accommodations to provide appropriate auxiliary
aids and services where necessary to ensure effective communication.
Where assistive listening systems are used to provide effective
communication, the Department of Justice considers it essential that a
portion of receivers be compatible with hearing aids. This information
has been added to an appendix note to section 4.33.7.
Special Occupancy Sections: 5. Restaurants and Cafeterias through
10. Transportation Facilities. General provisions in each of these
sections have been editorially revised to refer to ``section 4'' of
ADAAG instead of section ``4.1. to 4.35'' to facilitate future revision
of the guidelines.
7. Business, Mercantile and Civic
This section addresses business, mercantile, and civic occupancies.
In the final rule, a reference to ``civic'' has been added to clarify
the applicability of this section to state and local government
facilities.
7.2 Sales and Service Counters, Teller Windows, Information Counters.
ADAAG 7.2(1) and (2) require access at sales and service counters,
teller windows, and information counters in State and local government
facilities where goods and services are available to the public. Both
provisions are existing requirements which have been editorially
revised to include their application to State and local government
facilities as well. Section 7.2(3) of the interim rule contained the
requirements for State and local governments. These requirements are no
longer necessary with the editorial revisions to 7.2(1) and (2). ADAAG
7.2(3) requires access to facilitate voice communication at counters
and teller windows with solid partitions or security glazing provided
in public facilities. This provision also requires that, where
provided, telecommunication devices shall be equipped with volume
controls complying with ADAAG 4.31.5. In the final rule, this
requirement has been editorially revised and has been clarified as
applying to the telecommunication devices provided on the public side
of counters or teller windows.
Comment. Several commenters supported this section, while several
other commenters recommended modifications. For example, one commenter
recommended that knee and toe clearances be specified beneath counters.
Another commenter recommended that information display screens at
counters should be mounted at 43 to 51 inches from the floor.
Response. Since the counters addressed by this section are
typically used for brief periods of time in the conduct of business
transactions, knee and toe clearance underneath counters is not
required as it is for fixed seating and tables covered by ADAAG 4.32.
Requirements for the mounting heights for equipment have not been
included in the absence of supporting technical data.
10. Transportation Facilities
10.4 Airports
10.4.1 New Construction. 10.4.1(8) Security Systems. This
provision requires an accessible route complying with ADAAG 4.3 to be
provided at each single security barrier or group of security barriers
in airports covered by title II of the ADA as public facilities.
Comment. One commenter was concerned that the exemption for doors,
doorways and gates to be operated only by security personnel would
limit job opportunities for persons with disabilities.
Response. This provision applies to security gates at airport
security checkpoints. Such gates are designed to prevent air carrier
passengers from entering secured areas until they have been cleared.
Normally, such gates are adjacent to unobstructed routes allowing
exiting passengers to leave the secured area. Airport employees are
typically allowed free access through such routes and, therefore,
employees with disabilities would not need to use the security gate. A
reference in this exception to ADAAG 4.13.6, which specifies
maneuvering clearances at doors, including latch-side clearance, has
been removed. This reference had been included in the interim rule for
doors operated by security personnel since such operation precludes the
need for clearance at the latch side of doors. However, since ADAAG
4.13.6 also contains specifications for maneuvering space, which is
essential for passage through doors, including those operated by
security personnel, it has been applied to these doors and gates. A
reference to ``path of travel'' in this exception has been changed to
``circulation path'' to avoid confusion with the use of the term ``path
of travel'' as it relates to alterations to primary function areas in
ADAAG 4.1.6(2).
11. Judicial, Legislative and Regulatory Facilities
This section addresses those facilities where judicial,
legislative, and regulatory functions occur. Judicial facilities
consist of courthouses. Legislative facilities include town halls, city
council chambers, city or county commissioners' meeting rooms, and
State capitols. Regulatory facilities are those which house State and
local entities whose functions include regulating, governing, or
licensing activities. For example, this section would address those
rooms where school Board meetings, housing authority meetings, zoning
appeals, and adjudicatory hearings (e.g., drivers license suspensions)
are held.
Comment. Two commenters requested clarification of section 11 as it
applies to legislative and regulatory facilities. The commenters felt
that section 11 is so courtroom specific that it was difficult to
extrapolate the applicable requirements of seating for legislators,
Board, council and commission members.
Response. Section 11 has been reorganized to clarify the
application of requirements to judicial facilities (11.2) and to
legislative and regulatory facilities (11.3). Provisions applicable to
all facilities covered by section 11 have been relocated to 11.1. An
appendix note to 11.3 provides examples of legislative and regulatory
facilities to further clarify the application of this section.
[[Page 2007]]
11.1 General
11.1.1 Entrances. This provision requires that, where provided, at
least one restricted and at least one secured entrance be accessible.
Restricted entrances differ from public entrances in that they are used
only by judges, public officials, facility personnel and other
authorized parties, such as jurors on a controlled basis. Secured
entrances are used only by detainees and detention officers. The
interim rule exempted secured entrances operated only by security
personnel from ADAAG 4.13.6. However, since ADAAG 4.13.6 also contains
specifications for maneuvering space, which is essential for passage
through doors, including those operated by security personnel, the
exemption from 4.13.6 has been removed. The requirements in ADAAG 4.13
are not known to pose any conflict with security requirements for
doors. References in the interim rule to accessible routes have been
removed as section 4 of ADAAG requires that accessible entrances be
connected to an accessible route. Similarly, a requirement in the
interim rule for passenger loading zones provided for detainees has
been removed as accessible passenger loading zones are addressed in
4.1.2(5).
11.1.2 Security Systems. This provision requires an accessible
route complying with ADAAG 4.3 (Accessible Route) to be provided
through fixed security barriers at required accessible entrances. Where
security barriers incorporate equipment such as metal detectors,
fluoroscopes, or other similar devices which cannot be made accessible,
an accessible route is required adjacent to such security screening
devices to facilitate an equivalent circulation path. This provision
has been editorially revised to reference a circulation path in lieu of
a path of travel. No substantive changes have been made to this
provision.
11.1.3 Two-way Communication Systems. This provision requires that
where a two-way communication system is provided to gain admittance to
a facility or to restricted areas within the facility, the system shall
provide both visual and audible signals and shall comply with 4.27
(Controls and Operating Mechanisms). No changes have been made to this
provision.
11.2 Judicial Facilities
11.2.1 Courtrooms. ADAAG 11.2.1 applies to courtrooms in judicial
facilities and requires access to spectator seating and press areas,
jury boxes, witness stands, judges' benches, and other courtroom
stations. Areas that are raised, such as witness stands, or depressed
and accessed by ramps or platform lifts with entry ramps must provide a
turning space complying with 4.2.3 so that the space can be entered and
exited in a forward direction safely. A reference to ``depressed
areas'' has been added to raised spaces and elements consistent with
the provision allowing use of platform lifts in 4.1.3(5), Exception 4.
Requirements in the interim rule for accessible routes, doors and
gates, clear floor space, and controls and operating mechanisms have
been removed from the final rule as they are addressed in ADAAG section
4.
Comment. Several commenters stated that a turning space is not
necessarily required within witness stands accessed by platform lifts.
Commenters provided examples of customized designs that incorporate
lifts which serve as the floor of the witness stand. This should
obviate the necessity for an entry ramp into the lift since the surface
of the lift is level with the adjacent floor.
Response. The requirement for unobstructed turning space has been
revised to apply only to raised or depressed areas accessed by ramps or
platform lifts with entry ramps. Enclosures and gates cannot restrict
required maneuvering spaces.
Comment. One commenter questioned whether doors to jury boxes must
be automatically operable.
Response. Where provided, doors and gates must comply with ADAAG
4.13 (Doors) which does not require automated doors, but does contain
other technical requirements.
Comment. In the interim rule, sections 11.2.1(2) (Jury Boxes and
Witness Stands), 11.2.1(4) (Fixed Judges' Benches, and Clerks'
Stations), 11.2.1(5) (Fixed Bailiffs' Stations, Court Reporters'
Stations, Litigants' and Counsel Stations), and 11.2.1(6) (Fixed
Lecterns) required that the maximum height of controls and operating
mechanisms be 48 inches. One commenter questioned why control and
operating mechanisms were restricted to a maximum height of 48 inches
when ADAAG allows up to 54 inches where a side approach is provided.
Response. The interim rule provided that the maximum height for
controls and operating mechanisms was 48 inches. This limitation has
been removed in the final rule to allow a 54 inch side reach.
Comment. The interim final rule contained a requirement for access
to fixed lecterns which required knee space at least 27 inches high, 30
inches wide, and 19 inches deep. Several commenters considered this
requirement excessive in view of standard lectern dimensions.
Information was received indicating that lecterns are typically not
fixed in judicial facilities.
Response. This requirement has been removed in the final rule.
11.2.1(1)(a) Spectator, Press and Other Areas with Fixed Seats.
This provision specifies the number of wheelchair spaces required where
spectator, press, or other areas with fixed seats are provided
according to ADAAG 4.1.3(19)(a). This requirement has been clarified in
the final rule as applying to each type of area with fixed seats.
Comment. The interim rule required that where spectator seating
capacity exceeds 50 and is located on one level that is not sloped or
tiered, accessible spaces must be provided in more than one seating
row. One commenter considered this requirement excessive and
inconsistent with current ADAAG requirements in 4.1.3(19)(a).
Response. This requirement has been removed in the final rule.
11.2.1(1)(b) Jury Boxes and Witness Stands. This provision
requires at least one accessible wheelchair space within jury boxes and
witness stands. An exception allows that, in alterations, a wheelchair
space may be located outside the jury boxes or witness stands where
providing ramp or lift access poses a hazard by restricting or
projecting into a means of egress required by the appropriate local
authority. A requirement in the interim rule requiring counters in
witness stands to comply with ADAAG 4.32 has been removed since this
provision which may be excessive for counters provided in witness
stands.
Comment. The interim rule recognized the use of portable lifts in
alterations where provision of a permanent platform lift is technically
infeasible. One commenter requested clarification regarding securement
of portable lifts. Concern was raised that portable lifts are subject
to tipping if they are not secured to the floor. Concern was also
expressed over a potential hazard where a ramp or platform lift would
project into the circulation paths in the well of a courtroom.
Response. The reference to portable lifts has been removed in the
final rule as it is not clear that all portable lifts meet the safety
standard referenced in ADAAG 4.11.2. This modification does not
preclude the use of portable platform lifts provided they fully comply
with ADAAG 4.11.2. In addition, the exception to this provision has
been modified to allow placement of a wheelchair accessible space
outside
[[Page 2008]]
raised witness stands and jury boxes in alterations where a ramp or
platform lift poses a hazard by restricting or projecting into
necessary circulation paths. The reference to technical infeasibility
has been removed as that exception is already provided in ADAAG
4.1.6(j).
11.2.1(1)(c) Judges' Benches and Courtroom Stations. This
provision requires that judges' benches, clerks' stations, bailiffs'
stations, deputy clerks' stations, court reporters' stations, and
litigants' and counsel stations comply with ADAAG 4.32 (Fixed or Built-
in Seating and Tables). An exception permits designs that allow later
installation of a means of vertical access without substantial
reconstruction of the space. This exception has been clarified in the
final rule.
Comment. A few commenters recommended that only a percentage of
raised judges' benches and clerks' stations be adaptable or accessible.
Response. Due to the complexity of courtroom design and the
difficulty of accommodating subsequent alterations, the Access Board
believes that requiring either accessible or adaptable judges' benches
and clerks' stations will significantly facilitate a reasonable
accommodation for an employee in the future.
11.2.1(2) Assistive Listening Systems. This section requires each
courtroom in a judicial facility to have a permanently installed
assistive listening system complying with 4.33. This provision
specifies the minimum number of receivers for assistive listening
systems. This number must be equal or greater than four percent of the
room occupant load, but in no case less than two. This requirement is
consistent with ADAAG requirements for assembly areas in 4.1.3(19).
Comment. The interim rule provided that a permanently installed
assistive listening system was required in only 50 percent of certain
areas in judicial, legislative and regulatory facilities. Several
commenters recommended a requirement for 100 percent permanently
installed assistive listening systems in State and local government
facilities. These commenters cited operational problems such as
scheduling and the inability of staff to locate and set up portable
systems. Other commenters preferred portable systems because they
believe them to be more flexible, cost effective and easier to replace
as technology evolves. Two commenters requested that smaller hearing
rooms be allowed to provide portable systems. The commenters stated
that the majority of hearing rooms are not utilized exclusively for
adjudicatory proceedings but for other purposes a disproportionate
percentage of the time.
Response. The Access Board has revised the final rule to require a
permanently installed assistive listening system in each courtroom. A
requirement in the interim rule requiring permanently installed
assistive listening systems in 50 percent of hearing rooms, jury
deliberation rooms, and jury orientation rooms has been removed as
these areas are addressed in ADAAG 4.1.3(19)(b). The definition of
``assembly area'' in ADAAG 3.5 has been clarified as applying to those
rooms or spaces accommodating a group of individuals for ``civic''
purposes.
Comment. Information was submitted which addressed the
incompatibility of some receivers with hearing aids. People who wear
hearing aids often need them while using an assistive listening system.
Ear buds require removal of hearing aids. Headsets that cover the ear
can produce disruptive interference due to hearing aid T-coils. It was
recommended that neckloops and headsets that can be worn as neckloops
be specified over other receiver types since they are compatible with
hearing aids.
Response. The compatibility of hearing aids and assistive listening
receivers is an issue that pertains not only to facilities covered in
section 11 but to other assembly areas as well. The Access Board
intends to consider this issue in future rulemaking which would address
assembly areas in general. An appendix note has been added to the final
rule recommending receivers that are compatible with hearing aids.
Section 11.8 of the interim rule required electrical outlets and
appropriate wiring, conduit, or raceways in various areas, including
courtrooms, to support communication equipment for persons with
disabilities. This requirement has been removed as it may be too vague
for purposes of design without further specification on the type of
equipment to be supported. Such equipment often is portable and not
appropriately addressed by ADAAG.
11.2.2 Jury Assembly Areas and Jury Deliberation Areas. This
provision requires that where provided, refreshment areas and drinking
fountains in jury assembly areas and jury deliberation rooms must be
accessible. References in the interim rule to fixed seating and tables
and vending machines have been removed as ADAAG sections 4.1.3(18) and
5.8 address access to these elements. In addition, the requirement for
access to drinking fountains for people who may have difficulty bending
or stooping has been removed. The final rule requires that where
drinking fountains are provided, at least one comply with ADAAG 4.15.
11.2.3 Courthouse Holding Facilities. Section 11.2.3(1) applies a
scoping requirement to courthouse holding facilities including central
holding cells and court-floor holding cells serving courtrooms. Where
provided, at least one adult male, juvenile male, adult female, and
juvenile female central holding cell must comply with the requirements
in this section. Central holding facilities are typically designed with
sight and sound separation between men, women and juveniles. Where such
cell separation is provided, the guidelines require at least one of
each type of cell to be accessible. While there may be additional
``types'' of cells (i.e., isolation, group or individual cells) the
definition of ``type'' is limited to adult male, juvenile male, adult
female, and juvenile female holding facilities. Court-floor holding
cells, however, are not necessarily designed with sight and sound
separation between adult males, juvenile males, adult females, and
juvenile females. For example, some courthouses have numerous
courtrooms with two court-floor holding cells provided between every
two courtrooms. Detainees are escorted through a secured route directly
from the central holding cell to the court-floor holding cell. In such
instances, this provision would require only one accessible court-floor
holding cell. Such a cell may serve more than one courtroom. A
clarification has been added that cells may serve more than one
courtroom. No other changes have been made to this provision.
Section 11.2.3(2) contains the minimum requirements for accessible
cells. In the interim rule, 11.2.3(2)(a) (Doors and Doorways) exempted
doors and doorways operated only by security personnel from ADAAG
4.13.6. However, since ADAAG 4.13.6 also contains specifications for
maneuvering space, which is essential for passage through doors,
including those operated by security personnel, the exemption from
4.13.6 has been removed. The requirements in ADAAG 4.13 are not known
to pose any conflict with security requirements for doors. This
provision has also been modified to require fixed benches to provide
back support (e.g., attachment to the wall).
Comment. One commenter requested that the term ``maximum extent
feasible'' be applied to situations where altering the facility would
require substantial demolition of the existing
[[Page 2009]]
components of the facility in order to come into compliance.
Response. If compliance with alterations requirements is
technically infeasible, ADAAG 4.1.6(1)(j) requires that the alteration
provide accessibility to the maximum extent feasible. Technically
infeasible means, with respect to an alteration of a building or a
facility, that it has little likelihood of being accomplished because
existing structural conditions would require removing or altering a
load-bearing member which is an essential part of the structural frame;
or because other existing physical or site constraints prohibit
modification or addition of elements, spaces, or features which are in
full and strict compliance with the minimum requirements for new
construction and which are necessary to provide accessibility. Any
elements or features of the building or facility that are being altered
and can be made accessible are required to be made accessible within
the scope of the alteration.
Comment. Several combination stainless steel water closet and
lavatory units are available that cannot incorporate a 36 inch grab bar
behind the water closet. One manufacturer of combination fixtures
stated that the two main reasons such units are specified is to reduce
costs and minimize vandalism. Combination units reduce the square
footage needed in cell design and reduce costs by only requiring one
wall opening for plumbing connections, rather than two wall openings if
separate fixtures are provided. The commenter further stated that there
is a reduction in vandalism by having one large fixture mounted to the
wall which makes it much more difficult to remove or destroy than a
single lavatory or toilet. The commenter stated that major retooling
and redesign of the units would defeat the reasons why the units are
currently preferred and proposed that a 24 inch grab bar behind the
water closet be allowed instead of a 36 inch grab bar.
Response. Although the use of combination units are preferred for
space efficiency and security, they are generally not mandatory. An
exception for the length of the rear grab bar on combination units has
not been provided since separate, accessible lavatories and toilets are
readily available.
Section 11.2.3(3) requires that where fixed cubicles are provided,
at least five percent, but not less than one, must have the maximum
counter height and knee clearance underneath as required by ADAAG 4.32
(Fixed or Built-in Seating or Tables) on both the public and detainee
sides. It also requires a method to facilitate voice communication if
solid partitions or security glazing separates visitors from detainees.
No changes have been made to this provision.
11.3 Legislative and Regulatory Facilities
This section contains requirements for legislative and regulatory
facilities. Legislative facilities include town halls, city council
chambers, city or county commissioners' meeting rooms, and State
capitols. Regulatory facilities are those which house State and local
entities whose functions include regulating, governing, or licensing
activities. This section has been clarified in the final rule as
applying to public meeting rooms, hearing rooms, and chambers. An
appendix note provides examples of the facilities and spaces covered by
this section.
Section 11.3.1 requires access to raised speakers' platforms,
spectator seating and press areas. Areas that are raised such as
speakers' platforms, or depressed and accessed by ramps or platform
lifts with entry ramps must provide a turning space complying with
4.2.3 so that the space can be entered and exited in a forward
direction safely. For clarity, those requirements in the interim rule
applicable to hearing rooms and chambers are provided in this section
separately from those in 11.2 for courtrooms.
Section 11.3.1(1) requires access to at least one of each type of
raised speakers' platform. This provision has been revised for clarity
and a reference to ADAAG 4.32 has been removed since it may be
excessive and not all speakers' platforms contain counters. Section
11.3.1(2) addresses spectator, press, and other areas. This provision
has been revised consistent with a similar requirement for courtrooms
in 11.2. See 11.2.1(1)(a) above.
Most city council chambers and legislative chambers contain a
public address system and multiple microphones for numerous speakers.
In such facilities, it is more efficient to supplement an audio-
amplification system with a permanently installed assistive listening
system to enable people who are deaf or hard of hearing to participate
in the proceedings. Section 11.3.2 requires a permanently installed
assistive listening system in each assembly area equipped with an
audio-amplification system. The interim rule required a permanently
installed assistive listening system in 50 percent of all hearing
rooms, meeting rooms, and chambers designated for public use. As
revised in the final rule, this provision is more consistent with
existing ADAAG requirements in 4.1.3(19)(b). This provision differs
from 4.1.3(19)(b) in that it applies without respect to occupancy load
or the provision of fixed seating.
12. Detention and Correctional Facilities
This section addresses detention and correctional facilities where
occupants are under some degree of restraint or restriction for
security reasons and provides scoping and technical requirements for
accessible cells or rooms.
12.1 General
This provision identifies the types of facilities covered by
Section 12, including jails, prisons, reformatories, and juvenile
detention centers. All public areas and those common use areas serving
accessible cells are subject to existing ADAAG except the requirements
for areas of rescue assistance and signage. In response to inquiries
concerning the need for elevator access or complying stairs to the
upper tiers of housing facilities where there are no accessible cells,
an exception has been added in the final rule. Under this exception, an
elevator complying with 4.10 or stairs complying with 4.9 are not
required in multi-story housing facilities where accessible cells or
rooms and all common use areas serving them, as well as all public use
areas, are on an accessible route.
12.2 Entrances and Security Systems
This section covers entrances and security screening devices.
Section 12.2.1 requires that public entrances, including those that are
secured, be accessible as required by ADAAG 4.1.3(8). Entrance doors
that are operated by security personnel are exempt from the
requirements in ADAAG 4.13 (Doors) for door hardware, opening forces,
and automatic doors. Doors subject to security requirements prohibiting
full compliance with the provisions of ADAAG 4.13 are similarly exempt.
The exception in 12.2.1 may apply to doors used by persons other than
inmates and facility staff, such as counselors and instructors. It is
important that evacuation planning address egress for all persons who
may access secured areas since a person with a disability might not be
able to independently operate doors meeting this exception. This
consideration has been included in an appendix note. Section 12.2.2
requires that an accessible route be provided through or around
security screening devices located at accessible entrances. Section
12.2.2 has been editorially revised to
[[Page 2010]]
reference a circulation path in lieu of a path of travel.
Section 12.2.2 of the interim rule contained requirements for
entrances and passenger loading zones used only by inmates or detainees
and security personnel. These requirements have been removed in the
final rule as ADAAG 4.1.3(8) addresses all types of entrances except
service entrances and ADAAG 4.1.2(5) addresses passenger loading zones.
Comment. In the interim rule, the exception in 12.2.1 for doors
subject to security requirements required compliance to the ``maximum
extent feasible.'' One comment from a State agency recommended that
this term be removed because it complicates enforcement.
Response. The term ``maximum extent feasible'' has been removed
from the exception in 12.2.1 and the exception has been further
modified for clarity. In addition, a reference in this exception to
ADAAG 4.13.6, which specifies maneuvering clearances at doors,
including latch-side clearance, has been removed. This reference had
been included in the interim rule for doors operated by security
personnel since such operation precludes the need for clearance at the
latch side of doors. However, since ADAAG 4.13.6 also contains
specifications for maneuvering space, which is essential for passage
through doors, including those operated by security personnel, the
exemption from 4.13.6 has been removed. The requirements in ADAAG
4.13.6 are not known to pose any conflict with security requirements
for doors. An identical exception in 12.5.2(1) for doors and doorways
serving holding or housing cells has been similarly modified.
12.3 Visiting Areas
This section addresses non-contact visiting areas. At least five
percent of fixed cubicles on both the public and secured side must be
accessible under 12.3(1). Accessible cubicles for inmates or detainees
are required only in those visiting areas serving accessible housing or
holding cells. Section 12.3(2) requires cubicles separated by solid
partitions to be equipped with devices to facilitate voice
communication. These requirements are consistent with those for
visiting areas covered by section 11.4.3 (Courthouse Holding
Facilities). Few comments were received and only editorial changes have
been made to this provision.
12.4 Holding and Housing Cells or Rooms: Minimum Number
12.4.1 Holding Cells and General Housing Cells or Rooms. Minimum
Number. This section requires that a minimum of two percent, but not
less than one, of the total number of holding or general housing cells
or rooms provided in a facility be accessible in new construction.
The interim rule provided that at least three percent, but not less
than one, of the total number of housing or holding cells or rooms
provided in a facility shall be accessible.
Comment. Most comments from detention and correctional authorities
considered the three percent minimum specified in the interim rule
excessive in view of the demonstrated need. Several State correctional
agencies recommended one percent. The Illinois Department of
Corrections and 33 concurring State correctional agencies urged that
the minimum not exceed two percent. One disability organization
supported the three percent requirement. With respect to detention
facilities, one county government recommended one percent for holding
cells.
Most of the recommendations for a lower percentage were based on
survey data submitted in response to the NPRM. As noted in the interim
rule, among various responding States, the percentage of inmates with
mobility impairments ranged from .12 to 1.35 percent and the average
was .46 percent. A survey conducted by the Association of State
Correctional Administrators (ASCA) provided a significantly higher
average of 3.39 percent, suggesting that a wider range of disabilities,
not just mobility impairments, was included. In response to the interim
rule, the California Department of Corrections compiled additional
survey data from States, the ASCA, and the Federal Bureau of Prisons.
The results of that survey indicated that the average percentage of
inmates with some type of disability is 1.56 percent.
Few comments provided survey data on city or county facilities. In
response to the NPRM, several State entities that oversee such
facilities submitted survey results. The percentage of inmates with
disabilities housed in jails in Nebraska and Texas was .07 percent and
.48 percent, respectively. New York City previously indicated that .25
percent of its inmate population used wheelchairs. Other estimates for
local facilities ranged from less than one percent to two percent.
The three percent minimum specified in the interim rule was based
in part on the aging of the prison population, a consideration several
commenters raised, and existing data demonstrating that the prevalence
of disability increases with age. However, comments from State
correctional agencies to the interim rule indicated that the perceived
aging of the prison population is not supported by current demographic
data. The California Department of Corrections indicated that
nationally the average age of inmates is 29.8 years and inmates aged 60
years or older comprise less than one percent of the total population
based on its survey of States. The Illinois Department of Corrections
documented among various States that the number of inmates over 50
years old has remained constant or increased only slightly. The highest
increase reported by any State was 1.2 percent over a six year period.
One comment from a county authority also considered increases in this
population to be negligible.
Response. Consistent with a large majority of commenters, as well
as the survey data provided, the minimum number of holding or general
housing cells or rooms required to be accessible in new construction
has been reduced to two percent.
Dispersion. The interim rule provided that accessible cells shall
be dispersed among all categories and types of general housing and
holding areas. The final rule does not contain a requirement for
dispersion of accessible cells.
Comment. Many comments from State and local corrections officials
reiterated arguments made in response to the NPRM that accessible cells
should be required on a system-wide basis instead of for each newly
built or altered facility. This would provide a level of administrative
discretion operators consider essential in determining which facilities
of a system are appropriate for housing inmates with disabilities.
According to the commenters, the availability of certain programs,
services, and staff, not just architectural accessibility, are
important criteria in making this determination and that freedom of
choice, a fundamental consideration in ensuring access to public
housing and transient lodging, is not pertinent to the assignment of
housing among inmates. The California Department of Corrections stated:
[T]he primary service of correctional facilities is to help
maintain public safety through incarceration of offenders.
Classification to determine placement within the system is based on
many factors such as security requirements, medical needs, and other
administrative determinates. Accessibility is another one of these
factors
[[Page 2011]]
in the classification process. Given the mission of detention and
correctional facilities, it is appropriate to provide equal
accessibility to programs, service, and activities in an integrated
environment in the most economic manner possible which includes
mitigating staffing costs, making use of community resources and
grouping inmates with disabilities to provide specialized services
or training. The Access Board's concept that assignment polices may
change and that construction opportunities applied piecemeal will
eventually lead to full accessibility is clearly based on
assumptions of accessibility applied to most government services and
public accommodations. In a custodial setting, accessibility is only
one placement consideration which applies to an extremely slight
population number. . . . Accessibility can be optimally provided in
a limited number of facilities much more thoroughly and
economically, and with a comparable quality of providing inmate
services, programs, and activities.
Similar arguments were made by the Illinois Department of
Corrections in comments supported by 33 other State correctional
entities. Commenters emphasized these concerns in the context of
alterations where requirements for accessible cells may be triggered in
existing facilities that cannot support inmates with disabilities
either architecturally or programmatically. According to the
commenters, provision of accessible cells in an alteration will by no
means ensure that the necessary level of access to programs, services,
common use areas and other amenities available to inmates will be
achieved. According to commenters, providing access in some existing
facilities will waste limited resources and lead to a greater number of
accessible cells available only to inmates without disabilities where
misuse of elements, such as grab bars, is more likely to occur. Thus,
correctional authorities recommended that a percentage of accessible
cells be required for the entire system instead of at each newly
constructed or altered facility.
Response. New construction presents the greatest opportunity for
access. Why this would not hold true for detention and correctional
facilities was not clearly indicated in comments. Rather, the concerns
expressed in this area are relevant primarily to the requirement for
access in alterations in 12.4.5 (Alterations to Cells or Rooms). In the
interim rule, this provision applied the minimum scoping percentage of
new construction to the total number of cells or rooms altered in a
facility. Alterations provide important opportunities for access as
recognized by the ADA; however, corrections authorities make a
compelling case for allowing discretion in detention and correctional
facilities. Concerns of practicality, and those of feasibility raised
in the NPRM, and various operational factors indicate that in many
instances the cost of achieving access at many existing facilities will
greatly outweigh the benefits. For these reasons, section 12.4.5 and
the requirement for alterations have been reserved, thus limiting to
new construction the two percent scoping requirement. This requirement
has been reserved, rather than permanently removed, since it may be
revisited in the future. Further, there will be instances when the
opportunities for access in alterations should be considered,
particularly where a system has few, if any, accessible cells. In
certain cases, complying with the requirements of section 12 may be
practical, technically feasible, and facilitate compliance with other
ADA requirements, including those for program access. While reserving
this requirement may pose confusion over the minimum level of access
required in alterations, the obligation correctional entities have in
providing program access may effectively and practically determine the
degree of access that should be provided in an alteration. The
Department of Justice's title II regulation states that public entities
must operate each service, program, or activity so that the service,
program, or activity, when viewed in its entirety, is readily
accessible to and useable by individuals with disabilities. Thus, the
lack of a specific requirement for accessible prison alterations does
not excuse a public entity from providing access to all of the prison's
programs and services, when viewed in their entirety.
Comment. The interim rule contained a requirement that accessible
cells be dispersed among each type or category of housing or holding
cells. A few commenters recommended that prison operators have greater
discretion in locating cells on a site. The Bureau of Prisons noted
that according to its records inmates with disabilities are rarely
housed in maximum security facilities and recommended that accessible
cells not be required in this category of housing.
Response. The requirement for dispersion of accessible cells in
each category or type of housing or holding cell has been removed.
Thus, at sites where different categories of housing or levels of
security are provided, operators need not locate accessible cells in
each category or security level. A recommendation that accessible cells
be dispersed among different types of holding cells and different
categories and security levels of housing has been added to an appendix
note.
Comment. Several commenters requested clarification that the
minimum percentage applies to a facility generally and that accessible
cells are not required in each building of a facility.
Response. The minimum scoping requirement of two percent is based
on the total number of housing or holding cells or rooms provided in a
``facility.'' As defined in ADAAG 3.5 (Definitions), the term
``facility'' includes the buildings and structures of a site. While the
percentage is based on the total number of cells or rooms that may be
provided at a site, the location of accessible cells or rooms in each
building is not required.
12.4.2 Special Holding and Housing Cells or Rooms. This section
requires that where holding or housing cells or rooms are provided for
special purposes, at least one of each type must be accessible. This
includes those used for purposes of protective custody, disciplinary
detention, detoxification, and medical isolation.
Comment. One correctional authority recommended that this
requirement reference other purposes, including disciplinary
segregation, administrative detention, and orientation.
Response. These special purposes have been added to the
requirement.
Comment. The interim rule noted that ``an accessible special
holding or housing cell or room may serve more than one purpose.'' One
disability organization indicated that this should only be permitted
where inaccessible cells also serve multiple purposes, otherwise
inmates with disabilities may not have access to the same level of
service provided. This comment also suggested that a recommendation be
included in the appendix for a greater number of accessible special
purpose cells at large facilities.
Response. The statement concerning accessible cells serving more
than one purpose has been removed to ensure equivalency in the
provision of access. Accessible special holding cells may serve more
than one purpose where other special holding cells serve more than one
purpose. Where special holding cells serve different purposes, then one
of each type must be accessible. This clarification has been included
as an appendix note to 12.4.2. Also added to this appendix note is a
recommendation that more than one of each type should be accessible in
large facilities where a number of cells of each type serve different
holding areas or housing units.
Comment. One correctional agency recommended that this section
should only apply to those medical isolation
[[Page 2012]]
cells that are specifically designed for that purpose and not general
housing cells or medical care rooms that may also be used to isolate
inmates for medical purposes.
Response. An appendix note in the interim rule that distinguished
between medical isolation cells covered by 12.4.2 and patient bedrooms
covered by 12.4.4 has been relocated to this section. Additional
clarification has been added to this appendix note indicating that
12.4.2 applies to cells specifically designed for purposes of medical
isolation.
Comment. One corrections agency recommended that cells or rooms
used to monitor inmates or detainees likely to attempt suicide be
exempt from the requirement for grab bars. Such cells or rooms are
typically designed without any protrusions.
Response. The NPRM asked questions concerning grab bars and the
risk of suicide. A majority of the responses did not generally regard
grab bars as posing a greater risk since effective suicide prevention
is based on a variety of measures, including evaluation,
classification, and surveillance of inmates, not just cell design.
However, the installation of grab bars may complicate the design of
facilities that are used for the purpose of suicide watch. An exception
to the requirement in ADAAG 4.16 (Water closets) for grab bars has been
added for cells or rooms specially designed to be used solely for the
purpose of suicide prevention.
12.4.3 Accessible Cells or Rooms for Persons with Hearing
Impairments. This section requires access for persons who are deaf or
hard of hearing in housing or holding cells or rooms equipped with
audible emergency warning systems or permanently installed telephones.
Comment. One State correctional authority recommended that the
scoping be reduced from three to one percent based on survey data
received in response to the NPRM.
Response. The data received in response to the NPRM indicated that
the population of inmates who are deaf or hard of hearing is only
slightly higher than the population of inmates with mobility
impairments. Consistent with the requirement for accessible cells in
section 12.4.1, the minimum scoping has been reduced from three to two
percent.
12.4.4 Medical Care Facilities. This section applies the
requirements of ADAAG 6 (Medical Care Facilities) to medical care
facilities in detention and correctional facilities. Few comments
addressed this provision and no changes have been made.
12.4.5 Alterations to Rooms or Cells. This section has been
reserved. See the discussion under 12.4.1 (Holding Cells and General
Housing Cells or Rooms), ``Dispersion''.
12.5 Requirements for Accessible Cells or Rooms
This section contains the minimum requirements for accessible cells
or rooms. These requirements, which are similar to those for holding
cells in judicial facilities in ADAAG 11.4 (Courthouse Holding
Facilities), are based primarily on existing ADAAG specifications,
including those for transient lodging in section 9 (Accessible
Transient Lodging). Requirements are provided for doors and doorways,
toilet and bathing facilities, beds, drinking fountains, fixed seating
and tables, benches, storage, controls, and accommodations for persons
with hearing impairments. The majority of the comments received in
response to this provision addressed restrooms, beds, and fixed seating
and tables.
Section 12.5.2 has been revised to address those situations where a
covered element or space serves an accessible cell or room but is
located outside the cell or room.
(1) Doors and Doorways. This section contains an exception for
doors that are operated only by security personnel or subject to
security requirements prohibiting full compliance from the requirements
in ADAAG 4.13 (Doors). This exception has been modified consistent with
12.2.1 and 12.2.2. (For further discussion of the modifications, see
12.2 (Entrances).
(2) Toilet and Bathing Facilities. Comment. Several commenters
recommended that a grab bar shorter than the required 36 inches be
permitted behind water closets so that combination lavatory and water
closet units may be used. Currently, such units are equipped with a
grab bar approximately 24 inches long. A manufacturer of such units
indicated that developing a fully compliant unit is cost-prohibitive.
Response. An exception for the length of the rear grab bar on
combination units has not been provided since separate, accessible
lavatories and toilets are readily available. For further discussion,
see 11.4.2 (Requirements for Accessible Cells).
Comment. One commenter recommended that floor-mounted grab bars be
permitted.
Response. ADAAG does not specifically address floor-mounted grab
bars. However, in some situations they may provide an effective
alternative to wall-mounted grab bars so long as the requirements of
ADAAG 4.26 (Handrails, Grab Bars, and Tub and Shower Seats), including
the specifications for structural strength, are met.
(3) Beds. Comment. Several comments addressed the requirements for
beds. One comment recommended that the minimum clear floor space
required along one side of beds be 5 feet long instead of the full
length of the bed. One comment from an inmate with a disability
recommended that headroom between bunkbeds be specified while another
commenter advised the height of beds should be 19 to 21 inches.
Response. Clear floor space 36 inches wide is required along side
of beds the full length. However, elements, such as writing counters,
may overlap this space so long as the required knee and toe clearance
is provided. An appendix note provides some guidance on headroom
between bunkbeds and recommends a height for beds of 17 to 19 inches
based on existing ADAAG requirements for water closets and benches. No
changes have been made to this provision.
Technical inquiries have been received concerning the number of
beds that should be accessible in large barracks-style rooms with many
beds. Since beds may not be fixed, a minimum number of accessible beds
is not specified in this section, consistent with existing ADAAG.
However, a recommendation has been added to the appendix that the
minimum scoping for cells or rooms (two percent) also be applied to the
number of beds in large cells or rooms with many beds.
(4) Drinking Fountains. (5) Fixed or Built-In Seating and Tables.
(6) Fixed Benches. One comment concerning fixed or built-in seating and
tables seemed to confuse the requirements of section 12.5.2 with those
for common use areas in 12.1. Section 12.5.2 applies only to elements
located within accessible cells or rooms. Those elements located
outside cells for common use by inmates, such as in dayrooms which
adjoin cells, are subject to 12.1 and its application of existing ADAAG
for common use areas serving accessible cells. An appendix note has
been added to 12.5.2 to clarify this. In addition, the requirements in
12.5.2 for drinking fountains, fixed or built-in seating and tables,
and fixed benches have been modified to more clearly apply to elements
located within housing or holding cells. Paragraph (4) has been
modified to require ``at least one'' wheelchair accessible drinking
fountain where provided within a holding or housing cell. Drinking
fountains located in common use areas
[[Page 2013]]
are subject to existing ADAAG and its requirement that drinking
fountains be accessible to both persons using wheelchairs and those who
may have difficulty bending or stooping. Paragraph (5), which covers
fixed or built-in seating and tables, and paragraph (6), which
addresses fixed benches, has been similarly modified. In addition,
paragraph (6) has been modified to require fixed benches to be mounted
to the wall or provide back support.
(7) Storage. (8) Controls. (9) Accommodations for Persons with
Hearing Impairments. Few comments addressed these sections and no
changes have been made to these provisions.
12.6 Visual Alarms and Telephones
This section contains technical requirements for cells that are
accessible to persons who are deaf or hard of hearing. Section 12.6
requires that where cells are equipped with audible emergency warning
systems, a visual alarm complying with ADAAG 4.28.4 (Auxiliary Alarms)
shall also be provided. This section also requires that permanently
installed telephones, if provided in cells, shall have volume controls
complying with ADAAG 4.31.5 (Hearing Aid Compatible and Volume Control
Telephones). An exception from the requirement for visual alarms is
provided where inmates or detainees are not allowed independent means
of egress. No substantive changes have been made to this provision.
The interim final rule clarified that portable devices may be used
in lieu of permanent devices if necessary wiring and outlets are
provided. This was noted as an example of ``equivalent facilitation,''
a provision in ADAAG 2.2 that permits alternative designs that provide
equal or greater access. Since equivalent facilitation pertains to all
ADAAG provisions, this specific example has been removed in the final
rule.
Comment. The Committee on Acoustics in Corrections recommended that
design guidelines on acoustics developed by the American Correctional
Association should be incorporated in section 12. These specifications
are particularly essential in the noisy environments of detention and
correctional facilities and may help prevent hearing loss caused by
constant exposure to loud noise.
Response. Guidelines for acoustics have not been incorporated into
this rule because none had been previously recommended or proposed and
made available for public comment. While acoustics in correctional
facilities is an important design consideration, it involves concerns
such as prevention of hearing loss, that lie beyond the scope of ADAAG
and its minimum criteria for access to the built environment. Some of
these issues may be more appropriately addressed by agencies that
oversee correctional systems or provide accreditation.
13. Accessible Residential Housing
In the interim rule, ADAAG 13 addressed accessibility requirements
for residential facilities. This section has been reserved in the final
rule.
Since the publication of the interim rule, the American National
Standards Institute (ANSI) A117 Committee has developed a draft
proposal to add new sections pertaining to accessible and adaptable
residential housing to the CABO/ANSI A117.1 standard. The CABO/ANSI
standard for Accessible and Usable Buildings and Facilities will be
revised in 1997 to incorporate these new technical and scoping
provisions.
The Access Board is committed to coordinating its guidelines with
private sector standards and model codes to the extent possible. The
development of accessibility standards for accessible residential
housing by the ANSI committee at the time the Access Board is
publishing guidelines in the same area, presents a unique opportunity
for the Access Board to promote greater uniformity in accessibility
standards. Accordingly, the Access Board is reserving ADAAG 13
(Accessible Residential Housing) until it has an opportunity to review
the final CABO/ANSI standard. Upon completion of its review, the Access
Board will issue guidelines for accessible residential housing.
14. Public Rights-of-Way
In the interim rule, ADAAG 14 included provisions for new
construction and alterations of pedestrian and related facilities in
the public rights-of-way. This section has been reserved in the final
rule.
Comment. The majority of the comments received in response to the
NPRM and the interim rule concerned ADAAG 14 (Public Rights-of-Way).
Commenters were particularly concerned with the application of the new
construction provisions of section 14 to existing facilities. Many of
these commenters, including public works agencies, transportation
departments, and traffic consultants, were concerned that ADAAG 14.1
would be applied to transition plan construction, and in particular,
the number, location, and design of curb ramps, in existing developed
rights-of-way.
Response. Section 14 of the interim rule contained new construction
provisions which were not intended to apply to existing facilities in
the public right-of-way. With respect to alterations, section 14
contained less stringent scoping and technical provisions for
alterations to established rights-of-way where there is site
infeasibility. Few critical comments were directed to the accessibility
requirements for alterations. The response to both the NPRM and the
interim rule clearly indicated the need for substantial education and
outreach regarding the application of guidelines in this area.
Pedestrian facility design, and in particular, accessible
pedestrian design, is a new responsibility for many traffic engineers.
Within the highway industry, there is disparate understanding of
pedestrian accessibility criteria generally, and the application of the
ADAAG 14 provisions for new construction contained in the interim rule,
in particular. As a result, the Access Board has elected to reserve
ADAAG 14 (Public Rights-of-Way) in this final rule. The Access Board
has embarked upon an ambitious program of outreach to governmental and
private-sector organizations in the transportation industry to promote
the incorporation of pedestrian accessibility criteria into current and
proposed industry guidelines, standards, and recommended practices. The
guidelines contained in section 14 of the interim rule have been
adopted by the State of Alabama and are being used to guide policies on
pedestrian accessibility in the States of California, New Jersey and
Florida. Several cities, including Portland, Oregon and Seattle,
Washington have pedestrian planning requirements that are substantially
similar to those contained in the interim rule.
In a future rulemaking, the Access Board will review its education
and outreach program and the impact of the States' and localities'
regulatory efforts in this area, and will consider publication of
requirements for accessibility in the public right-of-way.
Technical Assistance
Under both the Architectural Barriers Act and the Americans with
Disabilities Act, the Access Board provides technical assistance and
training for entities covered under the acts. The Access Board's toll-
free number allows callers to receive technical assistance and to order
publications. The Access Board conducts in-depth training programs to
advise and educate the general public, as well as architects and other
professionals on the accessibility
[[Page 2014]]
guidelines and requirements. In addition, the Access Board is
developing a manual for use by both technical and general audiences.
The general manual on ADAAG requirements will be a useful tool in
understanding ADAAG whether for purposes of compliance or as a
reference for accessible design.
Regulatory Process Matters
Regulatory Assessment
These guidelines are issued to provide guidance to the Department
of Justice and the Department of Transportation in establishing
accessibility standards for new construction and alterations of State
and local government facilities covered by title II of the ADA. The
standards established by the Department of Justice and the Department
of Transportation must be consistent with these guidelines.
Under Executive Order 12866, the Board must determine whether these
guidelines are a significant regulatory action. The Executive Order
defines a ``significant regulatory action'' as one that is likely to
result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serous inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President' priorities, or the principles set forth in the
Executive Order.
For significant regulatory actions that are expected to have an
annual effect on the economy of $100 million or more or adversely
affect in a material way the economy, a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local or tribal governments or communities, a written
assessment must be prepared of the costs and benefits anticipated from
the regulatory action and any potentially effective and reasonably
feasible alternatives of the planned regulation. In both the proposed
and interim rules for accessibility guidelines for State and local
government buildings and facilities, the Board determined that those
rules met the criteria for a significant regulatory action in paragraph
(1) above under Executive Order 12866. As a result, a Preliminary
Regulatory Impact Analysis was prepared for the proposed rule and a
Regulatory Assessment was prepared for the interim final rule. In
addition to miscellaneous provisions, both the proposed rule and the
interim final rule addressed the addition of four new sections to the
Americans with Disabilities Accessibility Guidelines. Those sections
included judicial, legislative and regulatory facilities (section 11);
detention and correctional facilities (section 12); housing (section
13) and public rights-of-way (section 14).
As discussed in more detail in the Section-by-Section analysis
above, there have been three major revisions made in this final rule:
(1) the reserving of section 13 which previously addressed
accessibility requirements in housing; (2) the reserving of section 14
which addressed public rights-of-way; and (3) the reduction of the
scoping for accessible cells in detention facilities from three percent
to two percent. In addition, the final rule eliminates requirements for
(1) outlets, wiring and conduit for communications in judicial,
regulatory and legislative facilities; (2) areas of rescue assistance
in detention facilities; and reduces scoping requirements for visible
alarms from three percent to two percent in detention facilities. These
and other revisions have greatly reduced the economic impact previously
imposed by the interim rule for State and local government facilities.
The final rule has created a small increase in costs in only one
aspect: in Section 11.2.2, the scoping for permanent listening systems
has been increased from 50 percent of the courtrooms to 100 percent of
the courtrooms. Accordingly, because the overall effect of the final
rule reduces, rather than increases, the impact of the interim final
rule, the Board has determined that this final rule does not meet the
criteria for a significant rule under paragraph (1) above in that it
will not have an annual effect on the economy of $100 million or more
or adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities. Because the final rule does not meet the criteria under
paragraph (1) above, a regulatory assessment has not been prepared.
The Board and the Office of Management and Budget (OMB) have,
however, determined that this final rule meets the other criteria for a
significant regulatory action (i.e., the final rule raises novel, legal
or policy issues arising out of legal mandates), and OMB has reviewed
the final rule.
The guidelines adhere to the principles of the Executive Order.
Following the issuance of the proposed rule, the Board held five public
hearings in major cities across the country. Notices of the hearings
and invitations to attend were sent to major state and local government
entities in those areas. In addition, copies of the notice of proposed
rule and the interim final rule as well as the regulatory assessments
prepared in connection with those rules were mailed directly to major
associations of State and local governmental entities across the
country and various responsible agencies in individual states for their
review and comment. Those comments were carefully analyzed and the
major issues discussed in both the interim final rule and this final
rule.
Regulatory Flexibility Act Analysis
Under the Regulatory Flexibility Act, the publication of a rule
requires the preparation of a regulatory flexibility analysis if such
rule could have a significant economic impact on a substantial number
of small entities. For the reasons discussed above, the Board has
determined that these guidelines will not have such an impact and
accordingly, a regulatory flexibility act analysis has not been
prepared.
Federalism Statement
These guidelines will have limited Federalism impacts. The impacts
imposed upon State and local government entities are the necessary
result of the ADA itself. Every effort has been made by the Access
Board to lessen the impact of these guidelines on State and local
government entities. As discussed in more detail in the Section-by-
Section analysis above, the final rule has revised the ADA
Accessibility Guidelines for State and Local Government facilities and
has greatly reduced the economic impact of the interim guidelines.
The Preliminary Regulatory Impact Analysis (PRIA) prepared in
connection with the proposed rulemaking and the Regulatory Assessment
prepared for the interim final rule served as the Federalism Statements
for those rules under Executive Order 12612. Because the overall impact
of this final rule reduces rather than increases the impact of the
interim rule, an additional Federalism Statement is unnecessary for
purposes of this rule.
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Unfunded Mandates Reform Act
Under the Unfunded Mandates Reform Act, Federal agencies must
prepare a written assessment of the effects of any Federal mandate in a
final rule that may result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year. Excluded from the requirements of that
Act, are provisions which (1) enforce the constitutional rights of
individuals; or (2) establish or enforce a statutory right that
prohibits discrimination on the basis of race, color, religion, sex,
national origin, age, handicap or disability. Guidelines promulgated
pursuant to the Americans with Disabilities Act are therefore excluded
from the application of the Unfunded Mandates Reform Act and a written
assessment is not required for this final rule.
Enhancing the Intergovernmental Partnership
As discussed in the supplementary information above, on December
21, 1992, the Access Board published a NPRM in the Federal Register
which proposed to amend ADAAG (36 CFR part 1191) by adding four special
application sections and miscellaneous provisions specifically
applicable to buildings and facilities covered by title II of the ADA.
Executive Order 12875, Enhancing the Intergovernmental Partnership,
encourages Federal agencies to consult with State and local governments
affected by the implementation of legislation. Accordingly, following
the issuance of the NPRM, the Access Board held five public hearings in
major cities across the country. Notices of the hearings and
invitations to attend were sent to major State and local government
entities in those areas. In addition, copies of the NPRM were mailed
directly to major associations of State and local governmental entities
across the country and various responsible agencies in individual
States. In response to the NPRM and the public hearings, a total of 148
people presented testimony on the proposed guidelines, 447 written
comments were submitted to the Access Board by the end of the comment
period, and an additional 127 comments were received after the close of
the comment period. Although the latter comments were not timely, the
Access Board considered them to the extent practicable. Two hundred and
five of the comments and testimony received were from affected State
and local governments.
In addition, following the publication in the Federal Register of
the Access Board's interim rule on June 20, 1994, and the notices of
proposed rulemaking by the departments of Justice and Transportation,
copies of the Access Board's interim rule and the departments' NPRMs,
as well as the Regulatory Assessment prepared in connection with the
notices were forwarded to major State and local government associations
and agencies for their review and comment. The Access Board received
246 comments on the interim rule. Almost two thirds of the comments
received were from State and local governments. Many of those comments
were from public works agencies, transportation departments, and
traffic consultants.
The comments received in response to the NPRMs issued by the Access
Board, the Department of Justice and the Department of Transportation,
as well as the Access Board's interim rule were carefully analyzed and
the major issues are discussed in the Section-by-Section Analysis,
which also indicates the Access Board's position on each issue.
List of Subjects in 36 CFR Part 1191
Buildings and facilities, Civil rights, Individuals with
disabilities, Transportation.
Authorized by vote of the Access Board on May 14, 1997.
Patrick D. Cannon,
Chairperson, Architectural and Transportation Barriers Compliance
Board.
Editorial Note: This document was received at the Office of the
Federal Register on December 22, 1997.
For the reasons set forth in the preamble, part 1191 of title 36 of
the Code of Federal Regulations is amended as follows:
PART 1191--AMERICANS WITH DISABILITIES ACT (ADA) ACCESSIBILITY
GUIDELINES FOR BUILDINGS AND FACILITIES
1. The authority citation for 36 CFR part 1191 continues to read as
follows:
Authority: 42 U.S.C. 12204.
2. Appendix A to Part 1191 is amended by revising the title page,
pages i, ii, 1 through 14, 14A, 15, 54, 56, 59 through 63, 67, 71
through 76; and removing pages 61A and 77 through 92 as set forth
below.
3. In Part 1191, the appendix to appendix A is amended by revising
pages A1, A1A, A2, A15 through A21 and removing pages A22 through A30
as set forth below.
The revisions read as follows:
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[FR Doc. 98-615 Filed 1-12-98; 8:45 am]
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