Americans With Disabilities Act (ADA) Accessibility Guidelines for Buildings and Facilities; State and Local Government Facilities

SUMMARY: The Architectural and Transportation Barriers Compliance Board

(Board) is issuing interim 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

and may incorporate the guidelines.

In addition to the provisions for State and local governments, the

Board has also made some editorial changes to the Americans with

Disabilities Act Accessibility Guidelines to further clarify the

guidelines. These editorial changes are not substantive.

DATES: Effective date: December 20, 1994.

Comment date: New comments responding to this Interim Final Rule,

which have not already been sent in response to the Notice of Proposed

Rulemaking for State and Local Government Facilities published on

December 21, 1992, should be received by December 20, 1994. (See

Comments, Supplementary Information). Comments received after this date

will be considered to the extent practicable.

ADDRESSES: Comments should be sent to the Office of the General

Counsel, Architectural and Transportation Barriers Compliance Board,

1331 F Street NW., suite 1000, Washington, DC 20004-1111. Where

possible, the comments should reference specific section in the interim

final guidelines. Comments which are six (6) pages or less may be faxed

to (202) 272-5447. Comments will be available for inspection at this

address from 9 a.m. to 5:30 p.m. on regular business days.

FOR FURTHER INFORMATION CONTACT: Elizabeth A. Stewart, Office of the

General Counsel, Architectural and Transportation Barriers Compliance

Board, 1331 F Street NW, suite 1000, Washington, DC 20004-1111.

Telephone (202) 272-5434 ext. 52 (Voice) or (202) 272-5449 (TTY). This

is not a toll-free number. This document is available in accessible

formats (cassette tape, braille, large print, or computer disc) upon

request.

SUPPLEMENTARY INFORMATION:

Comments

Comments received in response to the Notice of Proposed Rulemaking

for State and Local Government Facilities published on December 21,

1992 (57 FR 60612) will be considered along with new comments received

in response to this Interim final rule. It is not necessary therefore

to resubmit comments which were forwarded in response to the previous

notice of rulemaking.

Statutory Background

The Americans with Disabilities Act (ADA) of 1990 (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 regardless of whether 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 Architectural and

Transportation Barriers Compliance Board (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 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 Board's guidelines.

Rulemaking History

On July 26, 1991, the 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

4.35) 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 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 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 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 CFR 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 in the accessibility standards 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. (29 U.S.C. 794).

\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 3000 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 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 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 ensure consistency and uniformity of

design in the public and private sectors throughout the country.

To further the goal of uniform standards, the Board intends to use

ADAAG as the accessibility guidelines for Federally financed facilities

covered by the Architectural Barriers Act of 1968 (42 U.S.C. 4151 et

seq.) since the Federal government owns or operates many of the same

type of facilities as State and local governments which are addressed

in this interim final rule. Under section 502 of the Rehabilitation Act

of 1973 (29 U.S.C. 792), the Board is responsible for establishing

guidelines for accessibility standards issued by other Federal agencies

pursuant to the Architectural Barriers Act of 1968. See note 2 supra.

The Board anticipates initiating action to adopt ADAAG with special

provisions as appropriate for Federal buildings (e.g., post offices,

military facilities) in place of its current guidelines for Federally

financed facilities. Standards issued by other Federal agencies

pursuant to the Architectural Barriers Act must be consistent with the

Board's guidelines. Those Federal agencies responsible for issuing

accessibility standards under the Architectural Barriers Act will

initiate separate rulemaking to adopt standards consistent with ADAAG

as supplemented in place of UFAS. Commenters, including Federal

agencies, were encouraged to comment on the notice of proposed

rulemaking for State and local government facilities in the context of

how the proposed guidelines will also affect Federal facilities and to

specify any particular Federal building types which would require

special provisions. A number of the comments received in response to

the NPRM supported having a single standard for all facilities,

including State, local and Federal.

Proposed Guidelines

On December 21, 1992, the Board published a notice of proposed

rulemaking (NPRM) in the Federal Register which proposed to add four

special application sections to the Americans with Disabilities Act

Accessibility Guidelines specifically applicable to certain types of

buildings and facilities covered by title II of the ADA:

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, automatic doors, airport security systems, entrances,

elevator exemptions, building signage, assistive listening systems, and

sales and service counters.

Public Hearings and Comments

The 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 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 Board

considered them to the extent practicable. In all, the Board received

nearly 7000 pages of comments and testimony on the proposed guidelines.

The Board 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.

The comments and testimony were sorted by section and analyzed. A

large number of commenters expressed support for the guidelines as

proposed. Some comments requested changes and others requested

clarifications. As a result of the comments, a number of provisions

were revised. In particular, ADAAG 14 (Public Rights-of-Way) was

extensively reorganized. With respect to those commenters who

recommended changes, a few submitted data or studies in support of

their recommendations. Some commenters asked questions regarding the

application of the guidelines to specific situations. The application

of those provisions is discussed in the section-by-section analysis

which follows.

Due to the large number of comments received, it is not possible

for the Board to respond to each comment in this preamble. The 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 14 (Public Rights of Way), the Board has reserved

action in some areas pending further study or research. The Board has

an on-going research and technical assistance program and plans to

periodically review and up-date the guidelines to ensure that they

remain consistent with technological developments and changes in model

codes and national standards, and meet the needs of individuals with

disabilities.

Interim Final Rule

As discussed above, the Board's guidelines 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 Americans with Disabilities Act (ADA) of 1990. The standards

established by the Department of Justice and the Department of

Transportation must be consistent with and may incorporate the

guidelines. The Department of Justice and the Department of

Transportation are each publishing notices of proposed rulemaking to

incorporate the Board's guidelines as the standards for State and local

government facilities in this issue of the Federal Register. The

notices published by the Department of Justice and the Department of

Transportation seek comment from the public on its proposal to

incorporate the Board's guidelines. Consistent with the requests by the

Department of Justice and the Department of Transportation for comment

on its proposed actions, the Board has chosen to issue these guidelines

as an interim final rule and is also soliciting comment. All three

agencies have requested in their notices that comments on the

amendments to ADAAG be forwarded to the Board for consideration. The

simultaneous publication of rules and the coordination of the review

process between the three agencies is expected to both facilitate and

expedite the review process.

In finalizing the guidelines, the Board, the Department of Justice

and the Department of Transportation will consider all comments

previously received in response to the Board's Notice of Proposed

Rulemaking for State and local government facilities published on

December 21, 1992, as well as comments received on this interim final

rule. Accordingly, those commenters who have previously responded to

the Board's Notice of Proposed Rulemaking need only submit new comments

on the interim final rule.

Editorial Amendments

In order to further clarify the guidelines, the Board has made a

number of editorial revisions to ADAAG. The editorial changes are not

substantive and therefore do not require the issuance of an additional

proposed rule.

General Issues

Chemical and Environmental Sensitivities

The Board received a number of comments relating to chemical and

environmental sensitivities. The Board is studying this issue and will

be issuing a report before undertaking the next major rulemaking on

ADAAG Buildings and Facilities.

Unisex Toilet and Bathing Facilities

The Board received several comments regarding the need to include

requirements for unisex toilet and bathing facilities to accommodate

people using personal assistants of the opposite sex. The Board and the

Department of Justice will be examining the issue of unisex facilities

in the near future.

Automatic Door Openers

The NPRM asked whether automatic or power assisted doors should be

required at entrances to State and local government facilities and if

so, whether this provision should be limited to specific types of State

or local government facilities. The NPRM also asked for information

regarding alternative methods of providing accessibility at exterior

doors; power assisted door activating mechanisms; automatic doors and

maneuvering clearances during power failures; and maximum opening

forces.

Comment. The majority of commenters supported a requirement for

automatic or power assisted doors at entrances. Several commenters

including the National Park Service, the National Conference of State

Historic Preservation Officers, and the New York State Office of Parks,

Recreation, and Historic Preservation supported a requirement for

automatic or power assisted doors as a means for making historic

buildings with heavy doors more accessible. Responses varied on whether

the requirement should apply to one primary entrance, or to all doors

in State or local government buildings and facilities.

Many commenters stated that, rather than requiring automatic or

power assisted doors, the Board should establish technical provisions

for acceptable door opening pressure and allow State and local

government entities flexibility in meeting the provision. Commenters

suggested that allowing entities the flexibility to choose the means by

which they achieve this door pressure may lead to the development and

application of new technology and prevent reliance on electronic

devices. Commenters' views on the location and type of operating

mechanisms to be used varied greatly. Other commenters indicated that

there may be security problems with requiring automatic or power

assisted doors for detention and correctional facilities.

Response. Recently, the Board sponsored a research project to

provide recommended scoping and technical provisions for automatic or

power assisted doors applicable to both State and local government

facilities and private entities. The Board has decided not to consider

issuing guidelines in this area until the results of the study have

been analyzed. The final report is available from the Board. Currently,

State and local government facilities and private entities are

encouraged to exercise the option, consistent with ADAAG 4.13.12

(Automatic Doors and Power Assisted Doors), to use automatic or power

assisted doors to increase accessibility.

Alterations

Based on comments received in response to the initial rulemaking

for ADAAG, the NPRM proposed that ADAAG 4.1.6(2) apply to facilities

subject to title II of the ADA. (See 56 FR 2319, January 22, 1991).

ADAAG 4.1.6(2) requires that where alterations affect or could affect

the usability of or access to an area containing a primary function,

the entity shall make the alteration in such a manner that, to the

maximum extent feasible, the path of travel to the altered area and the

restrooms, telephones, and drinking fountains serving the altered area

are accessible to the extent that the costs of these accessibility

features are not disproportionate to the overall alterations in terms

of cost and scope as determined under criteria established by the

Attorney General.

Comment. The Disability Rights Education and Defense Fund and a few

other commenters requested a change to the path of travel requirement

that would combine the requirements of ADAAG and UFAS. The commenters

noted that UFAS 4.1.6(3) contains minimum accessibility requirements

for a building or facility that is substantially altered, regardless of

disproportionate costs. These commenters also noted that the Department

of Justice title III regulations provide a list of priorities that

should be followed when choosing which accessible elements to provide

in the event of disproportionality. Since the Department of Justice

title II regulations do not contain such a priority list for providing

accessible elements, the commenters requested that the title III

priority list be incorporated into ADAAG so that the priorities would

apply to State and local government entities.

Response. ADAAG 4.1.6(2), by itself, yields a substantial level of

accessibility. The addition of the UFAS provision to the requirements

of ADAAG 4.1.6(2), will not, in most cases, result in greater

accessibility than that currently required by the Department of

Justice's title III regulations. Further, incorporating the UFAS

provision into ADAAG 4.1.6(2) would result in a requirement for State

and local government entities which is different from the ADAAG

requirements for private entities. The requirements for public and

private entities should be uniform unless there is a compelling reason

for them to be different. With regard to setting priorities for

accessible elements in the event of disproportionality, the Department

of Justice has proposed to amend its title II regulations to address

this and other issues. See 28 CFR Part 35. Based on these reasons, no

changes to the requirements of ADAAG 4.1.6(2) have been made.

Polling Places, Voting Booths, and Equipment

The NPRM asked whether polling places operated by State or local

governments utilize fixed voting booths and equipment and how these

fixed voting booths and devices currently meet the accessibility needs

of persons with visual impairments, reach range limitations, and

limitations in manipulating or operating controls. In addition, the

NPRM requested information regarding existing and new technologies

which would enable people with disabilities to use voting equipment and

booths without assistance. The NPRM also requested comment on the cost

information of such technologies.

Comment. A large number of commenters recommended various means

which may be used to make voting booths and equipment accessible. These

include such auxiliary aids as computers, touch tone phone systems,

touch screen technology with voice output through earphones, tactile

markings, voting equipment with audio capabilities, and the use of

push-button controls instead of levers. Other suggestions for providing

access to the voting process include the use of taped, brailled, or

large print ballots. None of the comments indicated that technology is

currently in use to provide independent access for individuals who are

blind. No information was provided regarding the costs associated with

the recommended technology.

Some commenters noted that access to the voting process could be

achieved through absentee balloting procedures. A large number of

commenters pointed out that existing Federal and many State laws allow

people who are blind or visually impaired who need assistance to choose

their own personal assistants to help them in the voting process.

Several commenters stressed the importance of an accessible area which

surrounds the voting equipment and an accessible route to the polling

place. Only one commenter knew of a jurisdiction which had fixed voting

booths.

Response. To the degree fixed voting booths are constructed and

altered, they are subject to ADAAG requirements. In addition, as

buildings and facilities covered by ADAAG are newly constructed or

altered, accessibility will be required in these buildings and

facilities, thereby improving access to polling places which may occupy

these buildings or facilities.

Although portable booths and equipment would not be covered by the

construction and alteration requirements contained in ADAAG, such

portable items and the voting process is subject to the Department of

Justice regulations implementing title II of the ADA. These regulations

require program accessibility and auxiliary aids and services (see 28

CFR 35.149 and 35.160).

Assembly Areas

The NPRM sought comment on the design issues associated with

providing integrated and dispersed accessible seating locations in

arenas, stadiums or other sports facilities. In September 1992 the

Board initiated a research project on assembly area accessibility.

Through post-occupancy evaluations of sports and performing arts

facilities, the Board is examining numerous issues related to current

ADAAG provisions. The Board intends to address issues associated with

assembly areas in a separate rulemaking once this research is

completed.

Comment. One commenter requested that the Board clarify whether the

required number of wheelchair locations in the chart at ADAAG

4.1.3(19)(a) refers to one or two wheelchair spaces.

Response. The chart at ADAAG 4.1.3(19)(a) refers to the required

number of single wheelchair spaces. ADAAG 4.33.2 (Size of Wheelchair

Locations) references Figure 46 (Space Requirements for Wheelchair

Seating Spaces in Series) which illustrates two wheelchair spaces and

specifies the clear floor space required depending on whether a side,

rear, or forward approach is provided. Figure 46 is only illustrative

of wheelchair seating spaces in a series and does not require that all

wheelchair locations provide two wheelchair spaces. No changes were

made to this provision.

Audible Announcements and Effective Communication for Persons With

Hearing Impairments

ADAAG 10.3.1(14) and 10.4.1(6) (Transit Facilities) require that

when transportation facilities provide information through a public

address system, equivalent information be provided to persons who are

deaf or hearing impaired. In the NPRM, a similar requirement was

considered for State and local government facilities which also provide

audible announcements to the public. The NPRM sought information on

what types of State and local government facilities typically provide

audible announcements to the public and what alternative means are

available for providing this information to persons who are deaf or

hearing impaired. Information on the costs of audible systems and

alternatives was also sought.

Comment. Commenters indicated that a broad range of facilities such

as public schools, welfare and motor vehicle departments, correctional

and medical facilities, and convention centers often use audible

announcements. Commenters from State and local governments indicated

that the use of a system of audible announcements depends on the

programs and services provided, the nature of the information, and the

number of people served by the facility.

Self Help for Hard of Hearing People (SHHH), which represents

persons with hearing impairments, noted that in order to determine

which announcement system best serves the public, the information being

provided must be evaluated and the methods of communication selected

accordingly. Another commenter indicated that it may be necessary to

provide a number of methods to ensure effective communication. Some

commenters suggested providing video monitors, electronic message

boards, or tactile pagers as a means of providing equivalent

information to persons with hearing impairments. Commenters suggested

that if a provision requiring equivalent information is added to ADAAG,

the requirement should be flexible enough to facilitate compliance with

the Department of Justice regulations requiring effective communication

and program access. Little cost data on audible announcement systems

and other alternatives was received.

Response. The comments suggested that the nature of the information

provided in State and local government facilities differs from the

information provided in transit facilities. In the view of commenters

representing State and local governments, the information provided by

the audible announcements in State and local government facilities

varies depending on the programs and services provided and may be

primarily directed to the employees, not to the public. On the other

hand, the information provided through the public address system in

transit facilities is integral to the use of the transit system.

Audible announcements in transit facilities provide critical

information on arrivals, departures, boarding, destinations, and delays

or cancellations. Although commenters recommended various methods for

providing equivalent information to persons with hearing impairments

when audible announcements are used, there was no consensus as to the

most effective means of providing such information to the public.

Therefore, no ADAAG provision has been included.

The Department of Justice regulations implementing title II of the

ADA, however, does require State and local government entities to

ensure that communications with applicants, participants, and members

of the public with disabilities are as effective as communications with

others, unless the public entity can demonstrate that action would

result in a fundamental alteration in the nature of a service, program,

or activity or in undue financial and administrative burdens. See 28

CFR 35.160(a) and 35.164.

Assistive Listening Systems

ADAAG 4.1.3(19)(b) requires permanently installed assistive

listening systems to be provided where audible communications are

integral to the use of an assembly area, if the assembly area

accommodates at least 50 people or has an audio-amplification system,

and has fixed seating. ADAAG 11.9 requires that permanently installed

assistive listening systems be provided in certain rooms in judicial,

legislative and regulatory facilities, regardless of the number of

persons accommodated or whether there is an amplification system and

fixed seating is provided. The NPRM asked whether there are additional

types of State and local government facilities where requirements for

permanently installed assistive listening systems should be based on

the type of room rather than the criteria in ADAAG 4.1.3(19)(b).

Comment. Commenters responded that assistive listening systems

should be provided in educational facilities, large public waiting

rooms, job-applicant testing and professional-licensing testing

facilities, gymnasiums and emergency shelters. Many other commenters

recommended that assistive listening systems be provided in all

facilities available to the general public for meetings, hearings and

other facilities available for public use. In addition, a few

commenters requested that ADAAG 11.9(2) be clarified so that rooms used

for public policy hearings are considered legislative or regulatory

facilities.

A number of commenters stated that the criteria of ADAAG

4.1.3(19)(b) should be applied and that no additional requirements for

assistive listening systems are necessary. However, other commenters

recommended a change to ADAAG 4.1.3(19)(b) so that assistive listening

systems are provided in rooms without fixed seating.

Many commenters recommended that portable devices be permitted to

allow for more flexibility, less cost and retrofitting. No supporting

documentation on portable systems or cost information was provided.

Response. Certain rooms and spaces recommended by commenters such

as job applicant testing sites and gymnasiums are already required to

provide assistive listening systems if they meet the criteria in ADAAG

4.1.3(19)(b). As commenters pointed out, facilities that do not have

fixed seating do not meet these criteria. However, those facilities

listed in ADAAG 11.9 are required to provide permanently installed

assistive listening systems even if they do not have fixed seating.

Some of those areas recommended by commenters in judicial, legislative

and regulatory facilities are addressed in ADAAG 11.9. For example, one

of each type of hearing room is required to be equipped with an

assistive listening system. Rooms in other types of facilities are not

required to provide assistive listening systems based on the occupancy

or type of room. However, all State and local government entities are

subject to the Department of Justice's title II regulations requiring

that programs and services provide effective communications, including

auxiliary aids unless it can be demonstrated that such action would

result in a fundamental alteration in the nature of a service, program,

or activity or in undue financial and administrative burdens. See 28

CFR 35.160(a) and 28 CFR 35.164. To facilitate the use of portable

systems, ADAAG 11.8 requires electrical outlets, wiring, and conduit

for communications systems in judicial, legislative and regulatory

facilities. No changes were made to ADAAG 4.1.3(19)(b).

Comment. The NPRM asked questions regarding areas or spaces in

State or local government facilities which require protection from

electronic eavesdropping. The NPRM also sought technical options for

solving security-related problems and asked whether one type of system

is more secure than another. Commenters were requested to provide cost

information for providing a secure assistive listening system. Finally,

the NPRM asked whether any areas should be exempt from the requirement

of an assistive listening system due to risks associated with

electronic eavesdropping.

Many commenters expressed general concern about assistive listening

systems in areas where sensitive communications require strict

security. The commenters provided programmatic and technical solutions

including training people to turn assistive listening systems on or

off, installing hard-wired communications systems, constructing

soundproof areas that require security and confidentiality and using

computer aided transcription or real-time captioning. The installation

of an infrared listening system which cannot penetrate the confines of

a room was a highly recommended solution. Some commenters noted that

since infrared signals can travel through windows, solid window

coverings would be necessary for total confidentiality.

Very little cost information was provided. A few commenters stated

that the cost of a secure assistive listening system would vary due to

the type of areas or space and the number of transmitters required to

serve the space.

In the view of many commenters, certain spaces such as control

centers, armories, legal visiting areas, pharmacies and medical service

areas should be exempt from the assistive listening system requirement

due to the risk of electronic eavesdropping. An equal number of

commenters stated that no areas should be exempt because technology is

available that satisfies the accessibility requirement and provides

protection from electronic eavesdropping. Several commenters noted that

legislatures and similar types of facilities employ safeguards such as

monitoring hallways and establishing procedures for checking out

receiver units to ensure that electronic eavesdropping does not take

place. One commenter pointed out that equipment unrelated to assistive

listening devices is readily available to persons wishing to eavesdrop.

Response. Based on the comments received, sensitive communications

can be protected from electronic eavesdropping through existing

technology, careful design of the facility, and operational policies.

No provisions or exemptions were added.

Section by Section Analysis

This section of the preamble contains a concise summary of the

significant comments received on the NPRM, the Board's response to

those comments, and any changes made to the guidelines.

1. Purpose

This section was amended to delete the reference to specific

special application sections currently in ADAAG and replace it with a

general reference to special application sections.

3. Miscellaneous Instructions and Definitions

3.5 Definitions

Alterations

The proposed reference to a State or local government entity, as

well as the existing reference to a place of public accommodation or

commercial facility, has been deleted from the definition of an

alteration. This definition now applies to any facility covered by

ADAAG. An alteration is defined as a change to a building or facility

that affects or could affect its usability. Normal maintenance,

cosmetic changes, or changes to mechanical systems are not alterations

unless they affect the usability of the building or facility. New

language has been added to the definition to clarify that alterations

include changes to pedestrian facilities within the public right-of-

way. Such changes may include, but are not limited to, the alteration

or reconstruction of pedestrian routes, or the addition of street

furniture, landscaping, or other fixed elements along a pedestrian

route. These changes were added to be consistent with the addition of

ADAAG 14 (Public Rights-of-Way).

The original preamble to ADAAG stated: ``If a parking lot is

resurfaced and does not have the number of accessible parking spaces

required by 4.1.2(5) or the parking spaces do not comply with 4.6.3,

those requirements must be met with unless it is technically

infeasible.'' See 56 FR 144 at 35427. The addition of the word

resurfacing to this definition is 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.

Although commenters generally supported the application of the

alteration definition to State and local government entities, several

commenters requested that language be added in ADAAG ``stating that

usability is to be interpreted broadly''. The preamble to the

Department of Justice's title III regulation states that: ``The

Department remains convinced that the Act requires the concept of

`usability' to be read broadly to include any change that affects the

usability of the facility, not simply changes that relate directly to

access by individuals with disabilities.'' 56 FR 144 at 35581.

Continuous Passage

This definition remains in ADAAG 14.1.1. See the discussion of this

definition and appendix material at ADAAG 14.1.1 (Definitions).

Curb Ramp

A reference to ADAAG 14.1.1 (Public Sidewalk Curb Ramps) has been

added to the definition for the convenience of the reader.

Dwelling Unit

This term is defined in ADAAG 13.1(1). See the discussion of this

term and appendix material at ADAAG 13.1 (General.)

Principal Public Entrance

A new definition for principal public entrances has been added to

ADAAG 3.5 (Definitions). See the discussion of this new definition at

ADAAG 4.1.3(8) (Entrances).

Public Right-of-Way

A reference to this new definition has been added to ADAAG 3.5

(Definitions). See the discussion of this new definition at ADAAG

14.1.1 (Definitions).

Public Sidewalk

The word ``public'' has been added to this definition for

clarification. The definition remains in ADAAG 14.1.1. See the

discussion of this definition and appendix material at ADAAG 14.1.1

(Definitions).

Public Sidewalk Curb Ramp

A reference to this new definition has been added to ADAAG 3.5

(Definitions). The definition remains in ADAAG 14.1.1. See the

discussion of this definition at ADAAG 14.1.1 (Definitions).

Site Infeasibility

This definition remains in ADAAG 14.1.1. See the discussion of this

definition at ADAAG 14.1.1 (Definitions).

Technically Infeasible

A reference to the definition of ``technically infeasible'' in

ADAAG 4.1.6(1)(j) has been added here for the convenience of the

reader.

Transient Lodging

Comment. In the NPRM, the words ``one or more dwelling units'' were

deleted from the ADAAG definition for transient lodging because

``dwelling unit'' only refers to residential facilities covered in

ADAAG 13. Transient lodging includes facilities used on a transient

basis and excludes residential facilities or medical care facilities.

Resorts, hotels, motels, and dormitories used on a transient basis are

examples of transient lodging. Some commenters requested that the

guidelines distinguish between the terms transient lodging and dwelling

unit.

Response. The definition of dwelling unit in ADAAG 3.5 has been

deleted to reduce confusion and a new definition of dwelling unit has

been added at ADAAG 13.1(1). For clarification of the term dwelling

unit, see ADAAG 13.1. As proposed in the NPRM, the definition of

transient lodging has been changed to clarify that a transient lodging

facility is not considered a residential facility. With respect to the

operation of certain types of facilities, either ADAAG 9 (Accessible

Transient Lodging) or ADAAG 13 (Accessible Residential Housing), or

both, may be applicable. An appendix note has been added to clarify

that the Department of Justice's policy and rules will further define

what is covered as transient lodging.

4. Accessible Elements and Spaces: Scope and Technical Requirements

4.1 Minimum Requirements.

4.1.1 Application.

4.1.1(1) General.

4.1.1(2) Application Based on Building Use.

As proposed in the NPRM, specific references in ADAAG 4.1.1(1) to

the scoping requirements for accessible sites and exterior facilities

(4.1.2), newly constructed buildings (4.1.3), and alterations (4.1.6)

have been deleted. ADAAG 4.1.1(2) has been amended to delete the

reference to specific special applications sections currently in ADAAG.

These modifications do not change the substance of this provision but

merely remove unnecessary references for clarity.

4.1.1(5) General Exceptions

ADAAG 4.1.1(5)(b), as revised, 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

by service personnel for maintenance or occasional monitoring of

equipment; and single-occupancy structures accessed by passageways

above or below grade.

Comment. The NPRM asked for comment on the basis or rationale for

any recommended exception. There was no clear consensus among

commenters responding to this question. Recommendations were made for

exceptions based on the nature, use, or size of the facility, the cost

of providing accessibility, occupancy load, and the safety and security

of occupants. Some commenters, including several disability

organizations, noted that certain facilities may merit exemption. For

example, the Disability Rights and Education Defense Fund, stated that

``very small occupancy facilities * * * which house only one or two

persons could be treated differently (possibly exempted).'' Several

commenters, however, cautioned that any exception should be carefully

and specifically written so as not to be interpreted more broadly than

was intended. A few comments suggested that exceptions list specific

facilities and structures while others recommended exceptions that

would allow facilities to be considered for exception on a case-by-case

basis. Some comments urged that no further exception be provided.

Response. Exceptions that list specific facilities are more easily

interpreted than exceptions stated in general terms. However,

exceptions based on specific facilities may exclude other facilities of

a more unique nature that were not noted in comments or considered

during rulemaking. Consequently, exceptions have been provided in ADAAG

4.1.1(5) (General Exceptions) according to the structural limitations

that make accessibility infeasible. These exceptions contain examples

of specific facilities.

Comment. Prison operators and corrections officials recommended

that prison guard towers and other raised security posts be exempt. In

addition, it was recommended that access not be required to upper level

prison cells where multi-tier housing is provided since elevator and

other confined spaces present security risks.

Response. Prison guard towers and other elevated security areas are

similar in nature and use to ``observation galleries used primarily for

security purposes'' currently exempt in ADAAG 4.1.1(5)(b)(i) and have

been incorporated into this exception. With respect to upper level

prison cells, ADAAG 12 (Detention and Correctional Facilities) requires

that only a percentage of prison cells be accessible. An accessible

route is not required to all cells, including those that may be located

on upper tiers accessed only by stairs. See ADAAG 12.

Comment. The NPRM asked whether design solutions are available for

making certain structures accessible such as fire towers and fixed life

guard stands. These facilities are typically not considered to be

``multi-story'' according to building codes or the definition of

``story'' in ADAAG 3.5 (Definitions) and thus are not subject to the

requirement in ADAAG 4.1.3(5) for a passenger elevator. However, such

facilities are otherwise subject to the requirements for accessibility,

including the requirement for an accessible route in ADAAG 4.1.3(1).

Ramps and, in some cases platform lifts, may be part of an accessible

route. A majority of commenters recommended that fire towers and life

guard stands be exempt due to the lack of design solutions to provide

access.

Response. The standard design and elevation of fire towers

typically prohibit installation of a ramp or elevator in accordance

with appropriate local or State building codes. Similarly, fixed life

guard stands by their design and construction cannot easily sustain

platform lifts or ramps. The exception in ADAAG 4.1.1(5)(b)(i) which

addresses ``raised areas used primarily for purposes of security'' has

been revised to cover those areas that are raised for purposes of life

or fire safety, such as fire towers and fixed life guard towers which

are listed in this provision as examples.

Comment. ADAAG 4.1.1(5)(b)(ii) exempted ``non-occupiable spaces

accessed only by ladders, catwalks crawl spaces, very narrow

passageways, or freight (non-passenger) elevators, and frequented only

by service personnel for repair purposes.'' Commenters recommended that

this exception be revised to address certain limited use utility

facilities often found in the public sector. Such facilities include

water and sewage treatment pump rooms and stations, electric

substations, transformer vaults, and highway and tunnel utility

facilities. These facilities do not qualify for the existing exception

because they may be frequented not only for repair purposes but for

maintenance and monitoring of equipment as well. Further, some of these

facilities may be accessed by tunnels instead of ladders, catwalks,

crawl spaces, very narrow passageways, or freight elevators.

Response. The existing exception has been revised to include non-

occupiable spaces accessed by tunnels. In addition, the phrase

``frequented only for repair purposes'' has been modified to include

``maintenance'' and ``occasional monitoring of equipment.'' Water and

sewage treatment pump rooms and stations, electric substations,

transformer vaults, and highway and tunnel utility facilities are

listed as examples of the exception.

Comment. The NPRM asked whether design solutions exist for

providing access to toll booths. The response to this question was

mixed. Several commenters indicated that toll booths are currently

required to be accessible in the State of California. In addition, the

Institutional and Municipal Parking Congress noted that cashier booths,

such as those found in large parking facilities, are ``virtually

indistinguishable'' from toll booths, and have been made accessible

according to ADAAG. However, other commenters noted that some toll

booths are accessed from below through underground tunnels so that toll

booth operators need not cross vehicular traffic. While access is

considered feasible from grade level, access from tunnels or

passageways below grade would be difficult according to existing toll

booth design. Some State transportation departments noted that

requiring grade-level access would compromise employee safety.

Response. An exception has been provided in ADAAG 4.1.1(5)(b)(iii)

for single occupant structures accessed only by passageways above or

below grade, such as toll booths that are required to be accessed from

tunnels below grade. This exception does not apply to toll booths

accessed at grade level.

Comment. Other facilities recommended by commenters for exception

include: cashier booths, border station inspection booths, guard

booths, and portable classroom structures.

Response. These recommendations did not point to specific

structural conditions that would make access infeasible. Consequently,

such facilities would not be exempt unless the conditions listed in

ADAAG 4.1.1(5) (General Exceptions) are met.

Comment. A few comments recommended exceptions for remote outdoor

structures such as research stations and observation posts used by

naturalists, hikers, and researchers.

Response. The Board is addressing various outdoor recreational

facilities in separate rulemaking. However, raised observation posts

may qualify for exception under ADAAG 4.1.1(5)(b)(i) only if their

primary use is for purposes of security or life or fire safety.

4.1.3(5) Elevators

ADAAG 4.1.3(5) contains exceptions from the requirement for a

passenger elevator in certain facilities and circumstances. Exception 1

has been modified to address State and local government facilities that

are less than three stories and not open to the public where the floor

above the accessible ground floor houses no more than five persons and

is less than 500 square feet. In addition, an exception to the

requirement that elevators serve each level of multi-story buildings is

provided for at air traffic control towers. Under Exception 5, elevator

access is not required to serve the cab and the floor immediately below

the cab since an elevator serving such levels would obstruct the

required 360 degree clear view. While commenters noted that lifts may

provide a feasible alternative means of access to these levels, the

Board wishes to further assess the impact a requirement for vertical

access, such as a platform lift complying with ADAAG 4.11 (Platform

Lifts), would have on these facilities. Under NFPA 1010--1991 Life

Safety Code section 30-2.4.1, air traffic control towers are required

to provide only one means of egress. According to the Federal Aviation

Administration (FAA), a vertical means of access to the cab will

require the provision of a second means of egress from the cab to the

ground level of the tower. Since air traffic control towers are

typically built or operated by the FAA, a Federal entity, the Board

plans to further consider this issue during adoption of ADAAG as the

accessibility guideline for Federally financed facilities covered by

the Architectural Barriers Act of 1968 (42 U.S.C. 4151 et seq.)

Title III of the ADA states that elevators are not required in

facilities that are less than three stories or that have less than 3000

square feet per story unless the building is a shopping center or mall,

the professional office of a health care provider, or another type of

facility as determined by the Attorney General. Title II of the ADA

does not specify a similar exception for State and local government

facilities. The NPRM asked whether an exemption from the requirement

for an elevator based on the presumed physical abilities of occupants

is justified for certain State and local government facilities, such as

firehouses with upper floors that are used only by firefighters.

Comment. A majority of commenters opposed an elevator exception

based on the presumed physical capabilities of employees or other

occupants of the facility. Most of these commenters argued that such an

exception would limit the employment opportunities of persons with

disabilities. The Equal Employment Opportunity Commission (EEOC), which

enforces title I of the ADA, stated that:

Title I of the ADA stresses a case-by-case determination of

whether an individual with a disability can perform the essential

functions of the job. Myths, fears, and stereotypes about disability

are irrelevant to this determination. Consistent with this premise,

blanket exclusions of individuals based on disability will be

closely scrutinized under Title I of the ADA and in most cases, will

probably be struck down as discriminatory * * * As a practical

matter, a case-by-case determination of whether an individual with a

disability can perform the essential functions of a job with

reasonable accommodation will be moot if the employer can show that

providing the reasonable accommodation will impose an undue

hardship. While it will always depend on the particulars of the

case, where certain levels of accessibility are not built in at the

design stage of new construction, an employer is more likely to be

able to prove an undue hardship defense based upon the need to make

significant structural changes to the relevant work area.

Some commenters also noted that exemptions based on physical

qualifications of facility occupants or employees can be confusing or

difficult to interpret. Several commenters argued against such an

exception because the occupancy of a facility may change or because

access may be needed by other persons, such as supervisory personnel.

Response. Exceptions based on essential job requirements may not

only be inconsistent with the ADA, as noted by the EEOC, but are also

inconsistent with existing ADAAG provisions applicable to public

accommodations and commercial facilities in the private sector. While

full accessibility is not required in employee work areas, ADAAG 4.1.3

does require in section 4.1.1(3) access so that persons with

disabilities can ``approach, enter, and exit'' such areas. Neither this

provision nor existing ADAAG exceptions exempt accessibility based on

the physical capabilities of employees or occupants. Exceptions based

on structural factors or limitations are more consistent with ADAAG and

the ADA. Thus, the NPRM asked whether design solutions exist for

providing access to certain multi-story facilities where installation

of an elevator may be infeasible or impractical. Examples include

drawbridge and boat traffic towers, lock and dam control stations, and

air traffic control towers, which require a clear 360 degree view that

cannot be obstructed by an elevator shaft.

Comment. Most commenters identified lifts, including vertical and

incline lifts, as feasible alternatives to elevators, particularly with

respect to air traffic control towers. The response concerning

drawbridge and boat traffic towers and lock and dam control stations

was less conclusive, although a slight majority recommended that such

facilities not be exempt. Several other comments noted that limited use

or limited access elevators may provide a solution since they require

less space than do passenger elevators meeting the requirements of

ADAAG 4.10 (Elevators). Other comments considered available solutions

as cost prohibitive or impractical and recommended further study.

Response. Existing exceptions in ADAAG 4.1.3(5) allow the use of

platform lifts complying with ADAAG 4.11 (Platform Lifts) in lieu of an

elevator in limited circumstances, such as ``incidental spaces and

rooms which are not open to the general public and which house no more

than five persons'' or ``where existing site constraints or other

constraints make use of a ramp or elevator infeasible.'' (See Exception

4(c) and (d)). While platform lifts may be an effective solution in

addressing changes in level of a certain distance, their use in

providing access between floors may not always be feasible. For

example, platform lifts complying with ADAAG 4.11 (Platform Lifts) must

meet the ASME A17.1 Safety Code for Elevators and Escalators, Section

XX, 1990, which prohibits vertical wheelchair lifts from traveling more

than twelve feet or from penetrating floors (Rule 2000.7a).

The existing exception for facilities subject to title III of the

ADA that are less than three stories or that have less than 3000 square

feet per story is contained in ADAAG 4.1.3(5) Exception 1. As noted in

the NPRM, the applicability of this exception to places of public

accommodation and commercial facilities was clarified. In addition, as

part of this rulemaking, this provision has been lettered (a). An

exception has been added in Exception 1, paragraph (b) for facilities

subject to title II of the ADA. This exemption is narrower in scope

than the existing exception for title III facilities in paragraph (a)

and applies only to facilities that are less than three stories and not

open to the general public where the floor above the accessible ground

floor houses no more than five persons and is less than 500 square

feet. Examples include drawbridge towers, boat traffic towers, lock and

dam control stations, and train dispatching towers. The maximum

occupancy of five persons is derived from ADAAG 4.1.3(5) Exception 4(c)

which allows the use of a platform lift instead of an elevator in

providing access to incidental occupiable spaces. Since a platform lift

may not always be a feasible alternative to an elevator in providing

access between floors, Exception 1(b) does not contain a requirement

for platform lifts in exempting elevator access. The 500 square foot

maximum is based on a floor area allowance of 100 square feet per

occupant, which is consistent with model building code requirements for

business and industrial occupancies used in determining the occupant

load for purposes of egress.

In addition, an exemption is provided for air traffic control

towers in Exception 5. Under this exception, elevator access is not

required to serve the cab of air traffic control towers since an

elevator serving the cab would obstruct the necessary 360 degree clear

view. This exception also applies to the floor immediately below the

cab since the machinery above the elevator may obstruct the 360 degree

clear view required in the cab. However, with respect to the floor

immediately below the cab, this exception applies only where

maintenance of the 360 degree clear view is not feasible. For example,

a hydraulic elevator, which may be used in air traffic control towers

up to a certain height, will enable an elevator car to serve the floor

immediately below the cab without obstructing the 360 degree clear view

in the cab. Thus, the exemption from elevator access to the floor

immediately below the cab applies only to those air traffic control

towers that cannot accommodate a hydraulic elevator. While relieved of

the requirement for elevator access to the cab and possibly the floor

immediately below the cab, air traffic control towers must be designed

to be adaptable under this exception so that an accessible vertical

means of access, such as a platform lift complying with ADAAG 11

(Platform Lifts), can be installed after construction as an adaptable

feature when needed by a person with a disability to serve the cab and,

where necessary, the floor immediately below the cab.

4.1.3(5) Exception 4 (Platform Lifts)

This exception permits the use of platform lifts or wheelchair

lifts complying with 4.11 and applicable State or local codes in new

construction specific conditions. As further discussed in ADAAG 11

(Judicial, Legislative and Regulatory Facilities) and ADAAG 13

(Accessible Residential Housing), this exception has been revised to

allow platform lifts or wheelchair lifts to provide access to raised

judges' benches, clerks' stations, speakers' rostrums, and raised

daises, jury boxes and witness stands and to connect levels within an

individual dwelling unit.

4.1.3(8) Entrances

ADAAG 4.1.3(8) requires that, at a minimum, 50 percent of all

public entrances be accessible. In addition, where provided, one direct

entrance to an enclosed parking garage and one entrance to a pedestrian

tunnel or elevated walkway, must be accessible. The provision also

states that, ``where feasible, accessible entrances shall be those used

by the majority of the people visiting or working in the building''

(i.e., a principal entrance). The interim final guidelines provide that

facilities subject to title II of the ADA must include all principal

public entrances when meeting this requirement. This provision does not

require that the number of accessible entrances exceed 50 percent of

all public entrances or require an increase in the total number of

principal public entrances planned for a facility. ADAAG 3.5

(Definitions) defines principal public entrances as any public entrance

to a building or facility which is designed and constructed to

accommodate a substantial flow of pedestrian traffic to a major

function in the facility. For example, entrances of facilities subject

to title II of the ADA which are designed to be heavily used by the

public and connect exterior facilities with interior amenities and

services must be included in the calculation of accessible entrances.

This definition includes criteria to consider when determining which

entrances are principal public entrances.

Comment. A few commenters stated that a clear definition of

``principal entrance'' should accompany the requirement if one were

adopted.

Response. The guidelines define a ``principal public entrance'' as

any public entrance to a building or facility which is designed and

constructed to accommodate a substantial flow of pedestrian traffic to

a major function of the facility. For example, an entrance with

multiple doorways is generally intended to accommodate a greater flow

of pedestrian traffic. The definition also provides criteria for

distinguishing principal public entrances from other entrances (e.g.,

the embellishment of an entryway, the size of the doorway or any other

design strategy which would make one entrance stand out prominently

from another entrance).

Comment. The NPRM presented eight options for requiring accessible

entrances in facilities which are subject to title II of the ADA. The

options ranged from no additional requirements to the existing ADAAG to

requiring all entrances to be accessible. The NPRM sought comment on

these options and asked that commenters state their preference and

justification for a particular option.

The majority of comments favored some modification of ADAAG for

State and local governments. State and local government agencies and

code officials favored options one and two, which are described below.

Organizations representing persons with disabilities and State and

local government agencies representing persons with disabilities

favored options six and eight, which are described below. Design

professionals and national professional organizations were divided

between these two groups of options.

Option one was to retain the requirements of ADAAG 4.1.3(8) as

written without any additional requirements for principal entrances.

Commenters supporting option one were concerned that providing

additional accessible principal entrances would result in problems with

site constraints (e.g. sloping streets in urban areas) and increase

construction costs.

Option two required that at least one principal entrance must be

among those entrances required to be accessible by ADAAG 4.1.3(8).

Commenters supporting this option acknowledged the importance of at

least one accessible principal entrance. These commenters favored this

option because it also allowed for greater design flexibility.

Option six required all principal entrances to be accessible and

allowed those principal entrances to be counted toward satisfying the

requirements of ADAAG 4.1.3(8). Commenters supporting this option

stated that relegating persons with disabilities to the ``side'',

``back'', or even basement entries does not afford them the same choice

in accessing a building as other individuals, and that the use of these

other entrances might force them to use a long and isolated route to

gain entry to a building.

Option eight required that all entrances be accessible. Commenters

supporting this option considered it to be the best option to satisfy

the intent of the legislation to stop discrimination against persons

with disabilities while at the same time improving emergency egress.

However, other commenters stated that this option would create

difficult design problems when constructing new facilities on existing

sites with steep terrain or restricted boundaries. Additionally,

commenters pointed out that to require more public entrances to be

accessible would decrease the design flexibility in constructing a

facility.

Response. The Board has adopted option six which requires

facilities subject to title II of the ADA to include all principal

public entrances when meeting the 50% requirement for accessible

entrances in ADAAG 4.1.3(8)(a)(i). This option provides greater

assurance that persons with disabilities will have access to the

``front'' entrance and may prevent excessive travel distances along

isolated routes. The provision does not require an increase in the

number of entrances planned for a facility. The number of planned

entrances will be determined by the design of the facility. For

example, if a new facility is planned with four principal public

entrances, then ADAAG 4.1.3(8)(a)(i) would require only two of the four

principal public entrances to be accessible.

It would be unreasonable to require all entrances to be accessible

in cases where new construction, within existing urban areas, had to

contend with existing slopes and other site considerations, such as

existing sidewalks and nearby property lines. 56 FR 35419. The

legislative history makes clear that not every feature of every

building needs to be accessible but rather a high level of convenient

access is contemplated. H. Rept. 101-485, pt.2, at 118. ADAAG

Sec. 4.1.1(5)(a) describes the conditions when structural

impracticability due to terrain would prevent full compliance with

requirements for accessibility. Structural impracticability is a very

narrow exception and, as explained in the legislative history, does not

apply to situations where a building is constructed on ``hilly''

terrain or on a plot of land with steep slopes. H. Rept. 101-485, pt.2,

at 120. This provision will provide a greater level of convenient

access as contemplated in the legislative history.

Comment. Several commenters thought these options would require

expensive remodeling or destruction of historically significant

elements of existing buildings and facilities. Other commenters wanted

clarification that the existing sections of ADAAG covering alterations

and historic preservation would prevail over these options with regard

to existing buildings.

Response. The requirements of ADAAG 4.1.3(8) apply only to new

construction. Alterations to existing buildings are covered by ADAAG

4.1.6 (Alterations) and alterations to qualified historic structures

are covered by ADAAG 4.1.7 (Accessible Buildings: Historic

Preservation). No changes have been made to either section.

Comment. The NPRM proposed guidelines for restricted and secured

entrances in judicial, legislative, and regulatory facilities, and in

detention and correctional facilities. The NPRM asked whether there

were other types of State and local government facilities which have

restricted and secured entrances, and if so, whether the guidelines

should require that one or more of the restricted or secured entrances

in those facilities be accessible. The NPRM also requested information

on the cost impact of such a requirement. Commenters recommended

several facilities where restricted and secured entrances should be

accessible such as colleges, universities, museums, libraries,

performing areas in auditoriums, laboratories in research facilities,

police stations, social service offices, and National Guard weapons

storage areas.

Response. The restricted and secured entrances of the facilities

recommended by the commenters generally are public entrances already

covered by ADAAG 4.1.3(8) (Entrances) and are addressed by existing

requirements for accessibility. Additionally, some of the commenters

were referring to interior doors and accessible routes, not exterior

entrances covered by this section. The interim final rule contains

appendix language recommending that accessible entrances be distributed

among all types of entrances. Additional appendix material has been

included to clarify some of the different types of entrances that

should be considered. Specific requirements for restricted and secured

entrances are addressed in ADAAG 11.5 (Restricted and Secured

Entrances).

Comment. The NPRM asked whether the guidelines should include a

distribution requirement for accessible entrances and, if so, should

such a provision require that an accessible entrance be located on each

side of the building where entrances are provided. The NPRM suggested a

requirement based on criteria such as proximity to elevators,

information centers or public streets, and asked whether a distribution

requirement should apply only to buildings above a certain size.

Finally, the NPRM asked whether such a distribution provision should

apply to all types of State and local government facilities and what

additional cost, if any, would be associated with such a requirement.

Commenters were divided on the question of whether a distribution

requirement should be added to the guidelines. Several of the

commenters favoring a distribution provision stated that accessible

entrances should be provided on each side of a building where entrances

are provided. Some commenters stated that accessible entrances should

be provided close to exterior facilities and building amenities and

services. Other commenters stated that the function and occupancy of a

building should be the determining factors in the location of

accessible entrances, and that architectural programming should be used

to determine those locations. The majority of commenters stated that

size should not be a determining factor for such a requirement and that

any requirement for distribution should apply to all State and local

government facilities. Very few commenters offered specific criteria

for determining the minimum size of a building to be included in such a

provision.

Response. ADAAG 4.3.2 (Accessible Route: Location) currently

requires that an accessible route connect public transportation stops,

parking, passenger loading zones, public streets and public sidewalks

to an accessible entrance and accessible spaces within a building.

ADAAG 4.6.2 (Parking and Passenger Loading Zones: Location) requires

that parking spaces be located closest to an accessible entrance.

Numerous variables must be considered when establishing a

distribution requirement. These variables include: the size of the

building, planned entrances on more than one side of the building, the

distance between accessible entrances, the distance from entrances to

exterior facilities, and the distance from entrances to interior

amenities and services. The provision for principal public entrances

may achieve distribution of accessible entrances around large buildings

with multiple entrances. Appendix language has been added recommending

that accessible entrances be included on each side of a facility where

entrances are planned.

4.1.3(16) Building Signage

Comment. The NPRM asked whether State and local government

facilities should be required to provide tactile or audible

directories, audible signs, or other wayfinding devices for persons

with vision impairments. Comment was sought on the types of facilities

that should provide such directories and signs. Additionally, cost

information and information about the reliability of currently

available technologies was sought. The majority of commenters supported

providing equal access to information about the accessible services,

activities and facilities for persons with vision impairments. However,

there was no clear consensus on the best means of achieving access.

Numerous commenters, including individuals with vision impairments and

sign manufacturers, considered tactile directories impractical.

Commenters noted that although audible directories and audible signs

for wayfinding may be viable options, there may be capital and

maintenance costs associated with this technology. Commenters raised

concerns regarding vandalism, maintenance, and updating temporary

information, as well as the time required to read tactile directories.

Very little cost data was received. Some manufacturers and researchers

responded that the technology for providing effective communication is

available and it has many applications such as listing stations in new

transportation facilities.

A majority of commenters suggested that alternatives to requiring

audible or tactile directories such as providing a fully staffed

information or security desk, a telephone in lieu of an accessible

directory, and a hand-held Braille directory should be included in the

guidelines. Commenters representing State and local governments, local

organizations representing people with disabilities, and design

professionals suggested that establishing a performance standard for

providing effective communication would provide greater flexibility. In

their view, a performance standard would permit a number of options to

be considered depending on the type, level of public access to, and use

of buildings and facilities.

Finally, a number of groups representing persons with vision

impairments suggested that no further requirements should be added.

They commented that merely asking directions was the most efficient and

convenient means of obtaining needed information for both blind and

sighted individuals.

Response. Although commenters favored various options which may

have the potential for providing effective communication, no provisions

for audible directories, audible signs or other wayfinding devices are

included at this time. The Department of Justice regulations

implementing title II of the ADA require State and local governments to

ensure that persons with vision impairments can obtain information

about the existence and location of accessible services, activities,

and facilities unless it can be demonstrated that such action would

result in a fundamental alteration in the nature of a service, program,

or activity or in undue financial and administrative burdens. See 28

CFR 35.163(a) and 28 CFR 35.164.

Comment. The NPRM asked about individuals' experiences with raised

and incised characters on tactile signs. An overwhelming majority of

commenters, including signage manufacturers, stated that raised

characters are more readable than incised characters and the guidelines

should not be revised to include a provision permitting incised

characters. Persons with vision impairments stated that incised

characters are very difficult to read.

The American Foundation for the Blind was concerned that changes to

the technical requirements for tactile signage were being contemplated

solely on the basis that raised characters, as opposed to incised, may

be more costly. In the view of designers, certain manufacturers, State

and local governments, and persons with vision impairments, the

technical requirements for tactile signage should be based on the

readability of signs. A commenter representing the engraving industry

encouraged the Board to sponsor further research to evaluate

appropriate technical specifications for incised characters.

The NPRM also asked questions regarding the impact of current ADAAG

requirements on engraving businesses that primarily manufacture

building signage. Comments from industry representatives indicated that

the technologies for producing tactile signs are readily available and

that the acquisition costs are not prohibitive, even for small to

medium-sized business. A number of manufacturers pointed out that they

could supplement or modify existing equipment to produce tactile signs

for $50 to $2000, and that minimal training was required. With respect

to the signs, one commenter estimated that the costs of certain custom

tactile signs with raised characters could equal or double the cost of

the same sign with incised characters. Building owners and design

professionals commented that signs with incised characters are more

difficult to maintain than signs with raised characters.

Response. Comments received confirm that incised characters are not

generally readable and therefore do not provide an acceptable level of

accessibility. Additionally, sign manufacturers indicated that they

incurred little financial hardship in retrofitting equipment to produce

raised rather than incised character signs. Although certain custom

signs may cost more, the cost of most signs with raised characters is

sufficiently comparable to the cost of signs with incised characters.

No change to the technical provisions for tactile signage have been

made.

Comment. The Department of Justice issued technical assistance

letters stating that the only signs subject to the tactile sign

requirements of ADAAG 4.1.3(16)(a) are room numbers, exit signs, and

signs designating men's and women's rooms and locker rooms containing

men's and women's rooms. In light of this interpretation, the NPRM

asked whether State and local government facilities should be required

to provide tactile signs when signs are provided which give information

about the function or use of a room or space. A few commenters

suggested that all building signs should be tactile to ensure

unassisted access to buildings and facilities. Many commenters

requested that a sign such as ``Courtroom'' also be required to be

tactile even when it does not include a room number. The Awards and

Recognition Association, which represents members of the engraving

industry, commented that a tactile room number, alone, is of little use

unless one has prior knowledge of the room's function. A number of

commenters stated that they interpreted ADAAG 4.1.3(16)(a) to require

that signs be tactile even if only a name or single character, such as

``A'', is the designation of a permanent room or space. In their view,

permanent rooms and spaces often are designated by names, in which

case, these signs are required to be tactile.

Other commenters urged that the scope of the tactile provisions not

be expanded to cover signs, or portions of signs, which provide

information about a room's function. They responded that information

about room function is ancillary to room designation, and therefore

should not be required to be tactile.

Comments from design professionals, trade associations, sign

manufacturers, and organizations representing persons with vision

impairments strongly urged that the signage requirements covering title

II and title III entities be the same.

Response. Commenters interpreted ADAAG to require tactile signs

even where permanent signs use only characters (names or letters) to

designate a permanent room or space. The current scoping language in

ADAAG 4.1.2(7) and 4.1.3(16)(a) require that those permanent rooms or

spaces that are designated by permanent signs comply with the technical

provisions in ADAAG 4.30.1 and 4.30.4 through 4.30.6 for raised and

Brailled characters, finish and contrast, and mounting height and

location. No changes have been made to the scoping requirements in this

section of ADAAG.

In response to the comments received in this rulemaking, the

Department of Justice has reconsidered its policy regarding tactile

signs, particularly whether to include room names in addition to room

numbers, exit signs, and signs designating men's and women's rooms and

locker rooms containing men's and women's rooms. Because the NPRM

addressed entities covered by title II, the Department of Justice plans

to include room names for title II facilities. The Department of

Justice will consider amending its title III policy to apply the

broader interpretation to title III facilities in the future.

4.1.3(17)(c) TTYs

ADAAG 4.1.3(17)(c) (ii) requires that in stadiums, arenas and

convention centers subject to title II of the ADA, at least one public

TTY shall be provided on each floor level having a public pay

telephone. ADAAG 4.1.3(17)(c)(iv) provides that if an interior public

pay telephone is provided in a public use area of a facility covered by

title II of the ADA, then at least one interior public TTY shall be

provided in at least one public use area. ADAAG 4.1.3(17)(c)(v)

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 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.

Comment. The NPRM proposed that at least one interior public TTY be

provided in the public areas of judicial, legislative and regulatory

facilities, and in detention and correctional facilities, if one

interior public pay telephone is available. The NPRM asked whether

these provisions were adequate to address the need for public TTYs in

these facilities. Information on the cost impact of these requirements

was also requested. A large number of commenters supported the proposed

provisions for TTYs in judicial, legislative and regulatory facilities

and in detention and correctional facilities. Several commenters

requested that each level of security in correctional and detention

facilities having a pay telephone, be equipped with a TTY. A few

commenters regarded the proposed provisions as too restrictive and

inflexible, citing high costs and problems such as TTY equipment being

used as weapons in secured areas. Numerous commenters stated that

portable TTYs should be permitted. Commenters noted that permanent pay

TTYs are now accessible, secure, and vandal resistant. Commenters

reported that the cost for portable and permanently installed pay TTYs

ranges from $239 to $995.

Several comments were received regarding ADAAG 4.1.3(17)(d) which

was referenced in the NPRM. ADAAG 4.1.3(17)(d) requires that interior

phone banks with three or more public pay telephones must have at least

one phone that is equipped with a shelf and outlet for use of a

portable TTY. The NPRM proposed to exempt secured areas in detention

and correctional facilities from the requirement for outlets and

shelves due to security reasons. A few commenters asked that the

exemption be limited to outlets but not to shelves, and two other

commenters requested that both an outlet and shelf be required to

accommodate portable TTYs.

Response. ADAAG 4.1.3(17)(c)(iv) requires that at least one public

TTY be provided in facilities subject to title II of the ADA where a

public pay telephone is provided in a public use area. The requirement

that at least one public TTY be provided in at least one secured area

in a detention or correctional facility has been retained.

ADAAG 4.31.9(3) includes a provision for equivalent facilitation

which permits the use of portable devices, in lieu of permanently

installed public TTYs, if the portable device is readily available to

users. This provision ensures equal access, and allows the entity

greater flexibility in selecting a secure and cost effective method of

providing access. The exemption for secured areas from the requirement

of shelves and outlets has been retained since a detached shelf and an

electrical outlet may be security hazards in detention and correctional

facilities.

Comment. The NPRM asked whether the existing scoping requirements

for TTYs in ADAAG 4.1.3(17)(c)(ii) which covers stadiums, arenas,

convention centers, hotels with a convention center and covered malls,

and ADAAG 4.1.3(17)(c)(iii) which covers emergency, recovery and

waiting rooms in hospitals, are sufficient with respect to TTYs in

State and local government facilities. Commenters generally supported

the existing ADAAG requirements for State and local government

facilities. Other commenters stated that the requirement would be

sufficient if a TTY is also required on each floor level that has

public pay telephones. A few commenters stated that ADAAG 4.1.3(17)(c)

(ii) and (iii) are too restrictive for State and local government

facilities. Commenters did not suggest any alternative scoping

requirements or provide justification data for alternative scoping. A

few commenters asked that the rule clarify whether stadiums, arenas,

convention centers, hotels with a convention center, covered malls,

areas serving a hospital emergency room, a hospital recovery room or a

hospital waiting room which are owned or operated by State or local

government entities are subject to the same requirements as the

facilities of private entities.

Response. ADAAG 4.1.3(17)(c)(ii) provides that stadiums, arenas,

convention centers, covered malls and hotels with a convention center

subject to title III of the ADA shall provide at least one public TTY

in the facility if a public pay telephone is provided. Where stadiums,

arenas, and convention centers are subject to title II of the ADA, at

least one public TTY on each floor level having a public pay telephone

shall be provided. ADAAG 4.1.3(17)(c)(iii) requires that if a public

pay telephone is provided at areas serving hospital emergency, recovery

or waiting rooms, then at least one public TTY shall be provided at

each such location. This requirement includes those facilities which

are subject to titles II or III of the ADA.

Comment. The NPRM asked whether there are other specific State and

local government buildings which should be required to have a public

TTY. The NPRM also asked whether all State and local government

facilities should be required to provide a public TTY if an interior

public pay telephone is available. Over half of the commenters

requested that public facilities be equipped with a public TTY whenever

a public pay telephone is available. Several commenters recommended

that each floor and/or pay phone location be equipped with a public

TTY. A few commenters requested that a public TTY be required in

schools, dormitories, student unions, libraries and State archives.

Many of these commenters expressed concern that there is a greater need

for telecommunication access in the public sector than in the private

sector because public entities are frequented on a daily basis by the

general public. Some of the commenters noted that public TTY technology

has recently improved and is now available at a much lower cost.

Commenters reported similar improvements for portable TTYs.

Response. Over half of the commenters requested that public TTYs be

provided in all State and local government facilities. Without a public

TTY, an individual with a hearing impairment or speech impairment,

would not be able to make the important calls others make from public

telephones in State and local government facilities. The intent of the

Americans with Disabilities Act is to provide the accessibility

necessary to enable every individual to be independent. For these

reasons, a requirement has been added to ADAAG at 4.1.3(17)(c)(iv) that

at least one interior public TTY be provided in a public use area of a

State or local government facility when an interior public telephone is

provided in a public use area of that facility.

Comment. The NPRM asked whether the scoping for public TTYs should

take into account the size of buildings or facilities. Some commenters

suggested that scoping be based on the size of the facility, but others

stated that scoping should take building occupancy, quantity and

dispersion of public telephones, or program accessibility into account.

The various suggestions included providing public TTYs at a ratio of 1

per 4 telephones, or one per each 1,000 building occupants, whichever

is greater; providing public TTYs at a ratio of 1 per 3 telephones; and

requiring at least 10 percent of all public telephones, but not less

than one to be equipped with a TTY. A number of commenters requested

that directional signage for public TTYs be required.

Response. Commenters' recommendations varied as to which factors

should be taken into account to determine scoping. Therefore, no

provisions based on building or facility size have been included.

Directional signage is required by ADAAG 4.30.7(3). Although commenters

recommended that scoping provisions be based on program access, the

guidelines do not address program access, but only new construction and

alterations of buildings and facilities.

4.1.3(22) Swimming Pools

This provision requires at least one means of access into the water

in swimming pools covered by title II of the ADA if such swimming pools

are intended for recreational purposes and are not intended solely for

diving or wading.

Comment. The NPRM asked whether guidelines should require access

into swimming pools subject to title II of the ADA. Also, the NPRM

asked whether there is a single means of access into swimming pools

that would be usable by a range of individuals with disabilities. If

such a single means does not exist, the NPRM asked whether more than

one means of access should be required.

A majority of the commenters stated that ADAAG should require

access into swimming pools subject to title II of the ADA. Local

jurisdictions and several States (Oregon, California, New Jersey, and

Massachusetts) indicated that they require access into swimming pools.

Other commenters supporting such a provision noted that the technology

for providing access into swimming pools is currently available and is

being used by individuals with disabilities.

Commenters varied greatly on what means of access into swimming

pools should be required. Most maintained that there is no single means

of access that meets the needs of a range of individuals with

disabilities. Some commenters recommended that swimming pools have

permanently-installed manual lifts, wide stairs, low risers, and

handrails. Other commenters recommended pool ramps and pool lifts,

stairs with raised transfer platforms, broad-stepped areas, zero-grade

entry, moveable floors, and raised pool copings with grab bars. While

some commenters favored requiring more than one means of access into a

swimming pool, others favored a provision requiring a single means of

access, but allowing for flexibility in determining the specific means.

Commenters from State and local governments along with groups

representing individuals with disabilities expressed the need to ensure

``independent'' access when requiring a means of access into the water.

Response. The majority of commenters supported the need to require

access into swimming pools. A provision has been added which requires

that a means of access be provided for those swimming pools subject to

title II of the ADA. This provision applies to pools which are intended

for recreational purposes and not designed solely for diving or wading.

This application is consistent with certain definitions contained in

ANSI-NSPI-1 1991 (American National Standard for Public Swimming Pools)

and therefore does not include diving and wading pools, spas, and

therapy tanks. These and other types of facilities will be considered

in future rulemaking.

While commenters addressed the need to ensure ``independent''

access into the water, this has not been included in the provision

since many of the currently available means of access cannot be used

independently by all persons with disabilities. For example, some pool

lifts must be operated by an attendant due to the location of controls

or because the lift is not permanently installed.

Specific technical provisions regarding the means of access are not

included. This will allow covered entities flexibility to determine

which means is most appropriate based on the specific design and use of

the swimming pool. Additionally, the Board has established a Recreation

Access Advisory Committee which will provide recommendations for the

development of accessibility guidelines for swimming pools, other

recreational facilities, and outdoor developed areas. The advisory

committee is evaluating various means of access into the different

types of swimming pools and aquatic facilities.

The Board will consider 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 and may specify a

particular means of access for each application. At this time, ADAAG

does not include a specific requirement for access into swimming pools

for entities covered under title III of the ADA. Entities covered by

title III, however, have an obligation to ensure ``equal opportunity''

for individuals with disabilities to participate in and benefit from

the services offered by places of public accommodation such as places

of recreation. With respect to newly constructed facilities, both the

ADA and the Department of Justice title III regulation require that

newly constructed facilities be ``readily accessible to and usable by

individuals with disabilities.'' That phrase means that a facility or a

portion of a facility must be constructed so that ``it can be

approached, entered, and used by individuals with disabilities . . .

easily and conveniently.'' When a particular type of facility is not

specifically addressed by the guidelines, the preamble to Department of

Justice title III regulation states that the language of section 36.401

(a) (i.e., ``readily accessible to and useable by individuals with

disabilities'') ``is the safest guide.'' (56 FR 35576, July 26, 1991).

The Department of Justice has taken the position that, in cases where

ADAAG does not contain requirements for a particular type of

facilities, ADAAG or other appropriate technical standards should be

applied to the extent possible.

4.1.6 Accessible Buildings: Alterations

4.1.6(1)(k) Elevator Exception

This paragraph 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. The existing language has been clarified

by adding a reference to ADAAG 4.1.3(5).

4.1.7 Accessible Buildings: Historic Preservation

4.1.7(1)(a) Exception

Comment. During the initial rulemaking for ADAAG, the Board

received comments recommending that an exception be established in

ADAAG 4.1.7(1)(a) where compliance with the alternative minimum

requirements in ADAAG 4.1.7(3) would threaten or destroy the

characteristics that qualify the building as a historic property. In

response to these comments, the Board stated that it would consult with

the National Park Service and Advisory Council on Historic Preservation

on this issue and propose an exception in the next rulemaking.

Consequently, ADAAG 4.1.7(1)(a) was reserved for an exception. See 56

FR 35430 (July 26, 1991). However, the Department of Justice issued its

final regulations for titles II and III of the ADA which included

sections in each of those regulations on alterations to historic

properties. These regulations permitted alternative methods of access

to be provided where compliance with the alternative minimum

requirements in ADAAG 4.1.7(3) would threaten or destroy the historic

significance of a building or facility. See 28 CFR 35.151(d)(2) and 28

CFR 36.405(b). In effect, the Department of Justice regulations have

created exceptions. The NPRM proposed to incorporate these provisions

as an exception in ADAAG 4.1.7(1)(a).

Many commenters, including State historic preservation

organizations, supported this exception for certain historic properties

and its inclusion in ADAAG. Some commenters expressed concern that the

exception in proposed ADAAG 4.1.7(a) did not accurately reflect the

distinction between ``program access'' requirements for ``historic

programs'' in the Department of Justice title II regulations (see 28

CFR 35.150(b)(2)) and the alterations provisions for historic buildings

and facilities in ADAAG. In these commenters' view, the ``program

access'' requirements for ``historic programs'' in the Department of

Justice title II regulations is more stringent than the alteration

provisions for historic properties in ADAAG.

Response. The exception incorporated in ADAAG 4.1.7(1)(a) retains

the reference to the Department of Justice regulations but has been

clarified as applying to entities covered by title II and title III of

the ADA. The Department of Justice title II regulations also contain

requirements for ``program access'' to ``historic programs'' which are

in addition to ADAAG. No other change has been made to this provision.

7. Business, Mercantile and Civic

The word ``civic'' has been added to the title of this section to

clarify that this section applies to buildings and facilities or

portions thereof that are civic administration facilities such as

departments of motor vehicles, licensing bureaus, or social service

agencies. The Uniform Federal Accessibility Standards (UFAS), as well

as certain model building codes, include this term under business

occupancy classifications.

7.2 Sales and Service Counters, Teller Windows, Information Counters

ADAAG 7.2(3) provides for access at sales and service counters,

teller windows and information counters for State and local government

facilities where goods or services are sold or distributed to the

public.

Comment. There was general support from a majority of commenters

for providing access to such counters. The NPRM asked questions

regarding the appropriateness of applying the examples of equivalent

facilitation contained in ADAAG 7.2.(2)(iii) to State and local

facilities. Those examples included a folding shelf or space on the

side of a counter in lieu of a lowered counter. Commenters were divided

on this issue. The commenters who favored including the examples viewed

the examples as effective alternatives for access to sales and service

counters, teller windows, and information counters. Some commenters

stated that a great deal of writing may be required at counters in some

State and local government facilities. For example, testing, licensing

and, applications for building permits require completing forms and

other paperwork. In these instances, commenters viewed a folding shelf

and certain other alternative means as not constituting equivalent

facilitation. Many commenters opposed including the examples for new

construction. They recommended they be applied only where alterations

are made to existing counters.

Response. Many commenters did not support including specific

examples of equivalent facilitation and no such examples have been

included for sales and service counters, teller windows and information

counters in State and local government facilities. While counters in

State and local government facilities may physically resemble those in

places of public accommodation and in commercial facilities, specific

examples of equivalent facilitation in 7.2.(3)(iii) have not been

included because activities at counters covered in this section may

require more writing or face-to-face contact with personnel on the

opposite side of the counter. However, it should be noted that ADAAG

2.2 provides an option for equivalent facilitation which applies to all

technical and scoping provisions including those in this section. A

folding shelf, in certain circumstances, may provide equal or greater

access while it will not in others. The reference to ADAAG 7.2(2) was

removed from proposed ADAAG 7.2(3) and the text was rewritten so as not

to include examples of equivalent facilitation.

Comment. The NPRM also proposed that where counters or teller

windows have solid partitions, a method for facilitating voice

communication such as a grille, talk-through baffle, or an intercom be

provided. The majority of commenters supported the provision and

regarded it necessary to facilitate voice communication at counters or

windows with solid partitions. The NPRM asked whether there were other

design solutions that could facilitate voice communication. Commenters

offered a number of options including portable or hardwired assistive

listening systems and TTYs for meeting this requirement.

Response. No substantive changes were made to ADAAG 7.2(3)(iii).

Language has been added to the appendix to clarify that where counters

are used only by persons in a seated position a method to facilitate

communication for standing persons is not necessary.

Comment. The NPRM asked whether there should be specific

requirements for mounting equipment that displays information. It

further asked whether an eye level range of 43 inches to 51 inches

would be sufficient in providing access for persons using wheelchairs

or mobility aids. Few commenters provided specific information

regarding the effect of a requirement for mounting equipment.

Response. Requirements for the mounting height of 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 (i.e., two or more security barriers, adjacent to each other,

at a single location) in airports covered by title II of the ADA.

Comment. Commenters from national, State, and local organizations

representing persons with disabilities supported the provision as

written. Airport operators and State governmental agencies also

generally supported the provision. One designer suggested that

providing an accessible route could increase cost, but did not provide

any cost information. One comment recommended that the provision cover

non-fixed security systems.

The NPRM sought comment on the availability of any technologies

which would accommodate more persons with disabilities and limit the

need for individual security searches. Commenters who responded to the

question supported the use of metal detector ``wands'' and hand

searches but did not have any information on alternative technologies.

An airport operator pointed out that the screening devices are

specifically designed to react to metal, such as might be found in

braces and wheelchairs; and that, if devices did not so react, it would

not be long before a terrorist pretended to be a person with a

disability to circumvent security.

Response. ADAAG contains design and construction requirements for

accessibility and does not cover equipment. This does not mean,

however, that portable or non-fixed equipment is not covered by the

ADA. Equipment and operational issues are covered by the Department of

Justice regulations implementing titles II and III (28 CFR Parts 35 and

36) and by the Department of Transportation regulations implementing

the Air Carrier Access Act (14 CFR Part 382). No changes were made to

this provision.

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. Typically, a State capitol would contain Senate and

House chambers if bicameral, or one chamber if unicameral; and

committee rooms, public meeting rooms, and other assembly areas.

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, zoning appeals, and adjudicatory hearings (e.g., drivers

license suspensions) are held.

Comment. In the proposed rule, the Board discussed tradition and

the symbolic relationship of elements that pose unique design

challenges peculiar to courtrooms. In its comment, the Design Guide

Subcommittee of the U.S. Judicial Conference Committee on Space and

Facilities (Design Guide Subcommittee) added that there are other

factors involved, apart from symbolism, which give rise to the

requirements for the distinctive design features of courtrooms:

To understand properly courtroom design, and ultimately the

design of any structure devoted to court facilities, it is essential

to recognize that the judicial process in the United States courts

is purposefully adversarial and confrontational. * * *

It is the nature of controlled adversarial conduct used to find the

truth that dictates much of courtroom design. The judge's pre-eminent

physical position at trial, robed and on a raised bench in an imposing

high-ceilinged room, distanced from the other participants, is, indeed,

an aspect of symbolism. But these design features also are important

types of visual cues which significantly reinforce and enhance the

ability of the judge to deal effectively with the often emotional drama

played out in federal and State courts. Real life dramas involving the

lives, freedom, fortune, and fundamental rights of the litigants.

The practical need for the visual identification of the judge's

authority requires a deliberate use of space and scale for

psychological impact. This psychological element is extremely critical.

It is perhaps the major factor in aiding the judge to control the

activities of trial participants and spectators in the courtroom.

Response. The Board recognizes the symbolic and the psychological

elements in the courtroom as well as the fundamental right of all

citizens to participate equally in the legal process. The Board

believes that accessibility can be incorporated into the design of the

courtroom without adversely affecting the spatial, symbolic, or

psychological relationship between the participants.

Comment. Several organizations representing persons with vision

impairments requested that the Board develop guidelines for lighting

levels in public spaces. Other organizations representing persons with

hearing impairments requested that the Board develop guidelines for

acoustics.

Response. The Board acknowledges that lighting and acoustics are

important issues that affect the accessibility of all facilities, not

just those covered in this section, for persons with hearing and vision

impairments. Additional information is needed before the Board can

consider establishing guidelines in these areas.

11.1 Judicial, Legislative and Regulatory Facilities

This section is a scoping provision which applies all the

provisions of ADAAG 4 (Accessible Elements and Spaces: Scope and

Technical Requirements) for buildings and facilities to judicial,

legislative and regulatory facilities, in addition to the applicable

requirements of this section.

Comment. Few comments were received regarding this provision. One

commenter noted the lack of requirements in section 11 for visible

alarms. Another commenter noted the lack of requirements for counters

for the filing of deeds, wills or other public documents.

Response. This section is a scoping provision which applies all the

provisions of ADAAG 4 (Accessible Elements and Spaces: Scope and

Technical Requirements) for buildings and facilities to judicial,

legislative, and regulatory facilities, in addition to the applicable

requirements of this section. All public and common use areas would be

subject to the applicable requirements contained in section 4 and

examples of public and common use areas are given in appendix note

A11.1. Accordingly, the scoping provisions for visible alarms contained

in ADAAG 4.1.3(14) and the technical provisions contained in ADAAG 4.28

(Alarms) would apply. Likewise, the scoping and technical provisions

for counters referenced in ADAAG 7.2 (Sales and Service Counters,

Teller Windows, Information Counters) would apply.

11.2 Courtrooms, Hearing Rooms, and Chambers

ADAAG 11.2.1 requires that where doors or gates, jury boxes,

witness stands, fixed seating, speakers' rostrums, raised daises,

litigants', court reporters', and bailiffs' stations, and lecterns are

provided, each must be accessible and on an accessible route complying

with ADAAG 4.3 (Accessible Route). It allows judges' benches and

clerks' stations to be either accessible or adaptable. This provision

further requires that the accessible route to each element coincide

with the circulation path provided for all persons using the elements.

Comment. One commenter requested that the guidelines allow a

witness with a disability to enter the witness stand from a restricted

corridor outside the courtroom. Concern was raised that a jury,

watching a witness with a disability wheel up a ramp within the

courtroom, would not treat the witness in the same manner as a witness

without a disability.

Response. Since all witnesses enter the witness stand from the

courtroom, it would be inappropriate to require a witness with a

disability to access the witness stand from a restricted corridor. No

changes were made to this provision.

Comment. One commenter requested clarification on the requirement

that all elements except judges' benches and clerks' stations be on an

accessible route.

Response. As stated above, ADAAG 11.2.1 requires that where doors

or gates, jury boxes, witness stands, fixed seating, litigants', court

reporters', and bailiffs' stations, lecterns, speakers' rostrums and

raised daises are provided, each must be accessible and on an

accessible route complying with ADAAG 4.3 (Accessible Route). ADAAG

11.2.1(4) allows fixed judges' benches and clerks' stations to be

either accessible or adaptable. Language has been added at ADAAG 11.2.1

to clarify that fixed judges' benches, and clerks' stations are not

required to be on an accessible route if those elements are designed to

be adaptable. If those elements are designed to be adaptable, they are

not required to be on an accessible route until they are modified at a

later date. For example, in new construction, a judge's bench may be

designed with appropriate maneuvering clearances so that a ramp can

easily be provided at a later date. Therefore, the judge's bench is not

required to be on an accessible route until the ramp is installed.

11.2.1(1) Doors or Gates

This paragraph requires doors or gates designed to allow passage

into the well of the courtroom, the witness stand, the jury box, and

the speaker's rostrum and other areas to comply with ADAAG 4.13

(Doors). Few comments were received regarding this provision and no

changes were made to this section.

11.2.1(2) Jury Boxes and Witness Stands

This provision requires all jury boxes and witness stands to be

accessible and provide an unobstructed turning space complying with

ADAAG 4.2.3 (Wheelchair Turning Space). It further requires controls

and operating mechanisms where provided for use by the witness or juror

to be mounted at a maximum height of 48 inches and comply with 4.27.3

(Height) and 4.27.4 (Operation). It also contains an exception for

alterations where it is technically infeasible to provide a fixed means

of vertical access to the witness stand or jury box.

Comment. The NPRM sought comment on whether maneuvering space

should be required in the jury box, witness stand, judge's bench,

clerk's station, speaker's rostrum, raised dais, bailiff's station and

court reporter's station and the costs associated with such a

requirement. The majority of commenters supported a requirement for

maneuvering space in all areas. Included in these was the City of New

York who submitted architectural plans designed by the New York

Department of General Services showing how they have provided full

accessibility in new construction. A few commenters felt the

requirement for full maneuvering clearances was excessive. Other

commenters supported a requirement for maneuvering space only in public

areas (i.e., jury box, witness stand, litigant stations and spectator

area) and providing an exception for work stations which would be

covered under title I of the ADA. One architecture firm experienced in

designing judicial facilities, thought that requiring maneuvering space

would expand the well of the courtroom and result in reduced sight and

hearing intelligibility of the participants.

Response. As further discussed under 11.2.1(4), due to the

complexity of courtroom and legislative chamber design and the

difficulty of providing an accommodation which may require a structural

change, requiring maneuvering clearances will significantly increase

the accessibility and usability of the element and, in some cases,

facilitate a reasonable accommodation for an employee in the future.

The interim final rule contains a requirement for maneuvering

clearances complying with ADAAG 4.2.3. The provision requires that the

maneuvering space serve each area and allows either a 60 inch diameter

turning radius or a 60 inch by 60 inch T-shaped space for a pivoting

180-degree turn. For example, maneuvering space for the witness box may

be provided within the witness box or at a landing outside the witness

box.

Comment. The proposed rule required the wheelchair accessible space

in a jury box or witness stand comply with ADAAG 4.33.2 (Size of

Wheelchair Locations). One commenter questioned whether the 60 inch

depth illustrated for a side approach to a wheelchair accessible space

in an assembly area is appropriate to apply to the accessible space in

a jury box.

Response. ADAAG 4.33.2 references Figure 46 which illustrates

different clear floor space requirements depending on the direction of

approach to the wheelchair accessible space. If a forward or rear

approach is provided to the accessible space, the minimum depth of the

space is 48 inches. If a side approach is provided to the accessible

space, the minimum depth of the space is 60 inches. The extra depth for

a side approach is needed to accommodate the turn required to maneuver

into and out of the space. These clear floor space requirements apply

whether seating is in assembly areas, spectator seating in a courtroom,

a witness stand, jury box, or other similar areas.

Comment. One commenter suggested that portable lifts be included in

the exception.

Response. Language has been added in the exception to allow the use

of portable lifts complying with ADAAG 4.11 (Platform Lifts (Wheelchair

Lifts)) in alterations where it is technically infeasible to provide a

fixed means of vertical access. ADAAG 4.11 references ASME A17.1 Safety

Code for Elevators and Escalators, Part XX, 1990 to incorporate its

safety requirements for platform lifts (wheelchair lifts). The Board

recognizes that ASME A17.1 does not apply to portable equipment other

than portable escalators. However, in requiring portable lifts to

comply with this standard, a minimum level of safety will be ensured.

Furthermore, the applicable exception under 4.1.3(5) (Accessible

Buildings: New Construction) has been revised to permit the use of

platform lifts or wheelchair lifts to provide access to raised judges'

benches, clerks' stations, speakers' rostrums, raised daises, jury

boxes and witness stands.

Comment. The Design Guide Subcommittee recommended that the witness

box be exempt from the requirements for accessibility as accommodations

could be made on an as needed basis through such alternatives as a

portable witness box, portable lift or ramp. The commenter further

stated that, at the discretion of the presiding judge, any witness may

testify from the well of the courtroom as opposed to within the defined

area of the witness box. The commenter felt that an alternative

location does not inherently carry an implication of non-accommodation.

Response. A fixed means of vertical access to the witness stand via

ramp or lift can easily be provided in new construction without

adversely affecting the spatial or psychological relationship between

the participants. In alterations, the provision allows the use of a

portable ramp or portable lift where it is technically infeasible to

provide a fixed means of vertical access to the witness stand or jury

box as long as jurors or witnesses with disabilities are inside the

defined area of the jury box or witness stand. The provision does not

prohibit the use of portable witness boxes. However, if portable

witness boxes are used, they should be used by all witnesses, not just

those with disabilities.

Comment. With respect to the exception for alterations to jury

boxes and witness stands, one commenter questioned how clear floor

space can be provided in alterations for a portable ramp and yet be

technically infeasible to provide a permanently installed ramp. Other

commenters requested that the technical specifications for portable

ramps be clarified.

Response. In altering existing courtrooms it may be technically

infeasible to provide a fixed means of vertical access to the jury box

or witness stand. For example, if providing a permanent ramp to a

witness stand would result in reducing seating needed to meet the

minimum legal requirements for jurors in a criminal case, only clear

floor space to accommodate a portable ramp would be required. In the

above example, the clear floor space provided for the portable ramp may

result in the ramp projecting into the well of the courtroom. It may be

inconvenient and, in some cases, hazardous to have a permanently

installed ramp project into the well of the courtroom at all times. In

allowing the exemption in alterations, the interim final rule is

accommodating structural conditions while ensuring that accessibility

is provided. Portable ramps stored under the witness box is one

solution for alterations as long as such ramps meet all the technical

specifications in ADAAG 4.8 (Ramps).

All ramps, whether portable or permanently installed, are required

to meet the technical specifications in ADAAG 4.8 (Ramps). However, in

existing buildings or facilities where space limitations prohibit the

use of a 1:12 slope, ADAAG 4.1.6(2)(a) (Accessible Buildings:

Alterations) does allow a slope between 1:10 and 1:12 for a maximum

rise of 6 inches and a slope between 1:8 and 1:10 for a maximum rise of

3 inches. This provision has been clarified by referencing ADAAG 4.8

(Ramps).

Comment. One commenter stated that control of the microphone is

maintained by the judge or other court employees and that the reference

to ADAAG 4.27.3 (Height) and 4.27.4 (Operation) should be eliminated.

Response. The provision has been clarified to require controls and

operating mechanisms to comply with ADAAG 4.27.3 (Height) and 4.27.4

(Operation) where provided for use by the witness or juror.

11.2.1(3) 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.

Where spectator seating capacity exceeds 50 and is located on one level

that is not sloped or tiered, the accessible spaces must be provided in

more than one seating row.

Comment. A number of commenters from organizations representing

individuals with disabilities felt that spectator seating areas should

be required to have dispersed seats regardless of the number of seats.

Response. ADAAG 4.1.3(19)(a) (Assembly Areas) requires two

wheelchair spaces where the seating capacity is 26-50 but does not

require dispersal. The interim final rule does not require dispersal

where only two accessible spaces are provided to allow persons with

disabilities to sit next to each other. No changes were made to this

provision.

11.2.1(4) Fixed Judges' Benches, Clerks' Stations, Speakers' Rostrums,

and Raised Daises

This provision requires that fixed judges' benches, and clerks'

stations be either accessible or adaptable and clear floor space for a

forward position be provided at each space. As discussed in 11.2.1(2),

a requirement for maneuvering clearances has been added.

Comment. Several commenters were concerned about the feasibility of

providing a front approach to the judge's bench, and clerks' stations,

and requested clarification of the requirement.

Response. The circulation route to the judge's bench and clerks'

stations will either be from a restricted corridor behind the courtroom

or from the side of these work areas. The requirement for clear floor

space for a front approach does not refer to the circulation route to

these areas. However, clear floor space must be provided within each

work area to allow a person using a wheelchair to position themselves

at the work station in a forward position. The interim final rule

clarifies the location of the clear floor space requirement for a front

approach.

Comment. Several commenters requested clarification of whether all

or only a percentage of judges' benches are required to be adaptable.

Other commenters recommended a requirement for 100 percent accessible

judges' benches in new construction as required by the State of

California. Commenters stated that once a design is proposed for

providing adequate space for full accessibility, there is no reason to

require adaptability. Several commenters requested that the provision

should provide examples of adaptability and require the purchase of

lifts or ramps for future installation to ensure that it is not an

undue burden to make judges' benches fully accessible at a later date.

Response. The legislative history of the ADA states that areas used

only by employees as work areas are covered by the guidelines, but

individual work stations are not required to be constructed in a fully

accessible manner. H. Rept. 101-485, pt. 3, at 63. The requirement for

adaptability for judges' benches and other work areas is consistent

with the legislative history and ADAAG 4.1.1(3) (Areas Used Only by

Employees as Work Areas) which requires areas used only by employees as

work areas be designed and constructed so that individuals with

disabilities can approach, enter, and exit the area. This provision

requires all judges' benches and clerks' stations to be either

accessible or adaptable and describes how adaptability is applied to

these areas. Adaptability means that maneuvering clearances and other

features (e.g., fixed controls) shall be designed into the space so

that accessibility can easily be provided at a later date. For example,

an adaptable judge's bench which is designed for a future installation

of a ramp or lift would have the required maneuvering clearances to

approach, enter, and exit the ramp or lift, to maneuver at the bench

(e.g., knee clearance), and to reach any fixed controls (e.g., alarm

buttons) already designed into the space. If adaptability is provided,

the installation of a ramp or lift at a later date should not require

any additional structural modifications and therefore should not be an

undue burden. An appendix note further recommends that equipment such

as a ramp be available so that accessibility can be accomplished to at

least one judge's bench and clerk's station to accommodate court

proceedings. Unlike typical office work stations, judges' benches and

clerks' stations are typically elevated 6 inches to 21 inches. Due to

the complexity of courtroom and legislative chamber design and the

difficulty of accommodating subsequent physical change, the 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.

Comment. One commenter requested clarification that where doors or

gates are provided at a lift, maneuvering space is required by ADAAG

4.13 (Doors), and controls and operating mechanisms must comply with

the reach ranges in 4.2 (Space Allowance and Reach Ranges).

Response. As previously discussed, ADAAG 11.2.1(1) requires doors

or gates designed to allow passage into the well of the courtroom, the

witness stand, the jury box, and the speaker's rostrum and other areas

to comply with ADAAG 4.13 (Doors). Gates provided at lifts must also

comply with the applicable provisions of ADAAG 4.13 (Doors). Additional

maneuvering clearances may need to be provided to ensure that the lift

is accessible and usable by persons with disabilities. For example,

many persons using wheelchairs entering and exiting a platform lift in

one direction can be accommodated on a minimum 30 inch by 48 inch lift.

However, if a person is required to make a 90 degree turn either

entering or exiting the platform lift, additional maneuvering

clearances at the lift gate, and an increase in the platform size will

need to be provided. Applying the minimum maneuvering clearances at

doorways and gates illustrated in Figures 25 and 26 show that the

required clear floor space depends on whether the lift door can be

approached straight on or at right angles, and whether the door has

both a latch and a closer. For a direct approach, straight through the

lift, Figure 26 shows that a lift platform with a minimum clear space

of 48 inches in the direction of travel is required. If a right angle

turn must be made on the platform to exit, Figure 25(b) shows that a

minimum clear width of 54 inches perpendicular to the direction of

approach is needed to accommodate the turn. However, these minimum

clearances only illustrate the clearances needed to operate the gate

from a front approach, assuming the gate has an operating mechanism. A

front approach is preferred but would not necessarily be required at

lift doors that automatically unlatch, since they do not have operating

mechanisms. However, the referenced clearances above do not take into

account the difficulty of making a 90 degree turn while backing out of

the lift, a particularly difficult maneuver for a person who uses a

motorized wheelchair. Ideally, the platform lift should allow

sufficient space for a person to make a 360 degree turn in order to

approach the gate from a forward position. Widening the gates to

provide a 36 inch to 42 inch clear width will provide additional

maneuvering clearance.

Comment. One commenter thought that providing accessible judges'

benches might ``significantly alter the nature or design of the

facility'' and therefore should be exempt.

Response. Several commenters provided architectural plans

illustrating fully accessible courtrooms. Accessible judges' benches do

not significantly alter the nature or design of the facility. No

changes were made to this provision.

Comment. One commenter preferred the T-shaped space for 180 degree

turns rather than the 60 inch diameter turning radius.

Response. This provision references maneuvering clearances

complying with ADAAG 4.2.3 (Wheelchair Turning Space) which allows

either a 60 inch diameter turning radius or a 60 inch by 60 inch T-

shaped space for a pivoting 180-degree turn.

11.2.1(5) Fixed Bailiffs' Stations, Court Reporters' Stations,

Litigants' and Counsel Stations

This provision specifies the minimum clear floor space, table

height, and knee clearance requirements for fixed or built-in stations

including tables for bailiffs', court reporters', litigants' and

counsel stations.

Comment. One commenter questioned whether the requirement applied

to counsel tables.

Response. Counsel stations were included in the proposed rule by

use of the term litigants' stations. The provision has been clarified

to specifically reference counsel tables.

11.2.1(6) Fixed Lecterns

This provision requires fixed lecterns to provide adjustable

heights. At least one height shall be between 28 inches to 34 inches

above the floor and have knee clearance to accommodate litigants and

speakers who use wheelchairs.

Comment. One commenter requested clarification on whether portable

lecterns can be provided in addition to fixed lecterns in new

construction.

Response. The provision does not prohibit the use of portable

lecterns. However, if portable lecterns are used, they should be used

by all persons, not just those with disabilities. Therefore, there

would be no need for an additional fixed lectern. No changes were made

to this provision.

11.2.1(7) Fixed Speakers' Rostrums and Daises

This provision requires fixed speakers' rostrums and at least one

fixed dais to be accessible and comply with ADAAG 4.32 (Fixed or Built-

in Seating and Tables). An unobstructed turning radius and clear floor

space for a forward position must be provided serving each area.

Comment. The proposed rule required that fixed speakers' rostrums

and at least one dais be adaptable. One commenter questioned why

speaker's rostrums are not considered common use areas and required to

be fully accessible.

Response. Fixed daises and speakers' rostrums are commonly provided

in legislative meeting rooms in a State capitol building, city council

chambers and other city and county commission meeting rooms. Such

meeting rooms may be made available for use by the public or guests may

be invited to address the assembly. In such cases, the speaker's

rostrum or raised daises would not be an area used only by employees as

a work area. Consequently, the proposed requirement at 11.2.1(4) for

adaptable speakers' rostrums and raised daises was deleted and a new

provision has been added at ADAAG 11.2.1(7) requiring fixed daises and

speakers' rostrums to be accessible.

11.3 Jury Assembly Areas and Jury Deliberation Areas

This provision requires that all jury assembly areas and jury

deliberation rooms be accessible. No comments were received on this

provision and no changes were made.

11.4 Courthouse Holding Facilities

This section applies a scoping requirement to courthouse holding

facilities including central holding cells and court-floor holding

cells serving courtrooms. Language has been added to clarify that at

least one cell must be accessible where central-holding cells are not

separated by age or sex.

11.4.2 Requirements for Accessible Cells

This section contains the minimum requirements for accessible

cells.

11.4.2(1) Doors and Doorways

Paragraph (1) requires that doors to accessible spaces on an

accessible route comply with ADAAG 4.1.3(7) (Doors). However, doors to

accessible spaces and on an accessible route are exempt from the

requirements pertaining to 4.13.6 (Maneuvering Clearances), 4.13.9

(Door Hardware), 4.13.10 (Door Closers), 4.13.11 (Door Opening Force)

and 4.13.12 (Automatic Doors and Power-Assisted Doors).

Comment. Several correctional officials and design professionals

indicated that design requirements may necessitate use of 300 to 500

pound doors. Such doors cannot meet the specification for closing and

opening forces in ADAAG 4.13.10 (Door Closers) and 4.13.11 (Door

Opening Force) without, at a minimum, power-assist devices.

Response. In the interim final rule, a reference to the

specifications for door closers (ADAAG 4.13.10) has been added in the

exception at ADAAG 11.4.2(1) (Doors and Doorways).

11.4.2(2) Restrooms

Paragraph (2) requires toilet facilities to comply with ADAAG 4.22

(Toilet Rooms) and bathing facilities to comply with ADAAG 4.23

(Bathrooms, Bathing Facilities, and Shower Rooms).

Comment. The NPRM sought comment on grab bar design, security

concerns, and the potential for suicides in holding cells and detention

and correctional facilities. A majority of the commenters indicated

that grab bars in accessible cells do not pose any more of a suicide or

security risk than other cell features such as cell grills, bed frames

and air circulation vents. The Nebraska Commission on Law Enforcement

and Criminal Justice stated that:

Effective suicide prevention is not accomplished solely by

rendering a cell protrusion-free. A jail's physical plant cannot be

designed, constructed or altered to ensure it is ``suicide-proof''.

Effective suicide prevention is a function of screening at

admission, appropriate classification, adequate staff training and

vigilant staff supervision as well as physical plant design.

None of the commenters cited a specific case in which an inmate

used a grab bar to commit suicide. However, at least one commenter

stated that this could be a result of the under-reporting of jail

suicides throughout the country and the fact that grab bars are not yet

predominantly provided. Several commenters were less concerned about

persons with disabilities misusing the grab bars than other detainees

or inmates who, due to overcrowding, could be occupying the accessible

cells. Most commenters felt grab bars can be designed and installed in

new construction without posing a security risk. Commenters provided

several examples such as designing an infill welded plate to close the

gap between the grab bar and wall and using ``embeds with welded

connections or embeds with security screws.'' The latter method would

allow the removal of the grab bars when a person with a disability was

not using the cell. One commenter further suggested that where an

infill welded plate is used, the outside diameter should be enlarged to

two inches to compensate for the inability to totally wrap one's

fingers around the bar's surface. Several commenters added that

clustering the accessible cells would enhance the ability to

effectively monitor detainees and inmates and further minimize security

risks. Other suggestions included limiting the accessible cells only to

detainees or inmates with disabilities; locating the accessible cell in

the infirmary or other health care unit; or requiring grab bars only in

institutions with sentenced inmates where behavior is more predictable.

Response. Based on the responses to this provision, grab bars can

be properly designed and installed in new construction without posing a

security risk. No changes were made to this provision.

Comment. Several commenters suggested that an exemption be provided

for alterations. One commenter stated that the use of steel embeds is

structurally impracticable insofar as the installation of embeds would

require reconstruction of the entire wall into which the embed was

installed. The commenter further stated that a grab bar could be welded

to a steel plate bolted through an existing wall to another steel plate

on the back of the wall. However, several factors would determine the

feasibility of this solution including whether the back of the wall is

available to hold a steel plate as well as the type of existing wall

upon which the steel plate is installed.

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. There may be circumstances in an

alteration to holding cells where grab bars cannot be securely attached

to meet security requirements due to structural conditions in an

existing wall. In such cases, the installation of grab bars would not

be required because it would be technically infeasible.

Comment. Several combination stainless steel water closet and

lavatory units are available that cannot incorporate a 36 inch grab bar

behind the water closet. The NPRM asked whether standard combination

units are available which meet the requirements of the proposed

guidelines and whether combination units are required to the exclusion

of separate fixtures by any State, local or other codes. Manufacturers

acknowledged that the standard design of combination units, including

those otherwise considered accessible by the industry, do not fully

meet ADAAG specifications. One commenter stated that combination units

are preferred because only one wall opening is required for plumbing

connections, rather than two wall openings if separate fixtures are

provided. Another commenter added that a typical cell design provides a

single plumbing chase which will serve two cells. These chases are

built on an angle in order to maximize the space available and can

easily accommodate a combination unit. One manufacturer stated that

although the combination unit does not fully comply with the proposed

guidelines, the design of combination units provides maximum strength

and security within the practical limits of manufacturing. The

commenter was concerned that lengthening the combination unit to

accommodate a 36 inch long grab bar would make the unit less able to

withstand the stresses it may be subjected to through vandalism. The

commenter further noted that a shorter grab bar can be provided.

Several correctional agencies commented that combination units are used

primarily because they require less space than separate fixtures. The

only source identified as actually requiring combination units was

Virginia's ``Guide of Minimum Standards in Design and Construction of

Jail Facilities'' which requires such units in maximum security cells.

A few commenters took the position that if combination units are not

accessible, then separate fixtures should be required. A number of

commenters recommended that an exception be provided for a reduced grab

bar length in alterations to mitigate the structural and plumbing chase

modifications required in making the cell accessible.

Response. Comments indicated that although the use of combination

units are preferred for space efficiency and security and required by

at least one State's guidelines for jail facilities, they are not

mandatory. An exception for the length of the rear grab bar on

combination units has not been provided in new construction or

alterations since separate, accessible lavatories and toilets are

readily available.

In an alteration to toilet and lavatory fixtures, ADAAG 4.1.6(1)(b)

requires that accessible fixtures be provided in compliance with the

applicable provisions for new construction. However, as described

above, if compliance with the alteration requirements is technically

infeasible, ADAAG 4.1.6(1)(j) requires that the alteration provide

accessibility to the maximum extent feasible. For example, if providing

separate accessible fixtures would necessitate combining two cells to

create one accessible cell or where the existing plumbing chase

construction would preclude recessing connections for separate

fixtures, combination units may be utilized. ADAAG 4.1.6(1)(j) still

requires that the alteration provide accessibility to the maximum

extent feasible. Therefore, the combination unit that most closely

complies with the technical provisions for toilets and lavatories

should be provided.

11.4.2(3) Beds

11.4.2(4) Drinking Fountains and Water Coolers

11.4.2(5) Fixed or Built-in Seating and Tables

ADAAG 11.4.2(3) requires that accessible clear floor space be

provided on one side of beds. ADAAG 11.4.2(4) requires drinking

fountains and water coolers serving accessible cells to be accessible

to individuals who use wheelchairs and those who have difficulty

bending or stooping. ADAAG 11.4.2(5) requires fixed or built-in seating

to be accessible. No comments were received regarding these provisions

and no changes were made.

11.4.2(6) Fixed Benches

This provision requires that fixed benches be mounted between 17

inches and 19 inches above the finish floor and meet minimum structural

requirements.

Comment. The proposed rule required that fixed benches be a minimum

of 24 inches by 48 inches. One commenter noted that benches with

excessive depth force a slouched posture, and place an uncomfortable

pressure on the backs of the knees. The commenter further stated that

commercial benches are typically 18 to 21 inches deep.

Response. The Board agrees with the commenter and recognizes that

the proposed dimensions were derived from specifications for dressing

room benches in ADAAG 4.35 (Dressing and Fitting Rooms) which take into

account the use of benches for dressing and undressing. Since benches

in holding cells are not specifically intended for this purpose, the

proposed requirement for a minimum size has been deleted. The interim

final rule has retained the requirements for mounting height and

structural strength.

11.4.3 Visiting Areas

This section requires that where fixed cubicles are provided, at

least 5 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.

Comment. The NPRM asked whether at least one cubicle should be

accessible on both sides to accommodate those situations where both the

detainee and visitor require accessible features. The majority of

commenters supported a requirement that at least one cubicle be

accessible on both sides. Several commenters from organizations

representing persons with disabilities proposed that all cubicles be

accessible. One commenter felt accommodations should be mandated, but

discretion should be given to the facility to design the best remedy.

Response. The Board agrees with the majority of the commenters.

This provision has been changed to require that at least one cubicle be

accessible on both sides.

Comment. One commenter thought the scoping of 5 percent was

excessive considering most visiting areas use non-fixed tables and

chairs and that the percentage of the inmate population that have

disabilities is low.

Response. The scoping and technical specification is consistent

with ADAAG 4.1.3(18) (Fixed or Built-in Seating) which requires that 5

percent, but not less than one, of the built-in seating areas or tables

and counters in public and common use areas have a maximum height of 34

inches and knee clearance underneath. A visiting area would have to

have twenty built-in cubicles to trigger a second accessible cubicle.

No changes were made to this scoping provision.

Comment. One commenter recommended that the reference to ``safety

glass'' be substituted with ``safety glazing''.

Response. The interim final rule has been modified to reference

``security glazing''. The change in terminology is more inclusive and

includes, but is not limited to, glass, safety glass, and

polycarbonate.

Comment. The proposed rule required that the accessible cubicle be

identified on each side by the international symbol of accessibility.

Several commenters were concerned about vandalism and pointed out that

such signage was unnecessary as visitors and detainees are escorted to

the cubicle area.

Response. The Board agrees with the concern raised by the

commenters. The requirement for signage identifying the accessible

cubicle has been deleted in the interim final rule.

11.5 Restricted and Secured 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 by judges,

court personnel and other authorized parties, such as jurors, on a

controlled basis. Secured entrances are used by detainees and detention

officers.

Comment. The NPRM sought comment on the cost impact of requiring at

least one restricted entrance and at least one secured entrance to be

accessible. The majority of commenters considered the cost negligible.

One commenter stated that cost was not relevant as separate entrances

are a mandatory program requirement. Two commenters recommended that

all secured entrances be accessible. Several correctional officials and

design professionals indicated that design requirements may necessitate

use of 300 to 500 pound doors. Such doors cannot meet the specification

for closing and opening forces in ADAAG 4.13.10 (Door Closers) and

4.13.11 (Door Opening Force) without, at a minimum, power-assist

devices.

Response. The NPRM included an exception at 11.6 for doors on an

accessible route through fixed security barriers. Under this exception,

doors operated only by security personnel were exempt from the

requirements for maneuvering clearance at doors (4.13.6), accessible

door hardware (4.13.9), opening forces (4.13.11), and specifications

for automatic doors (4.13.12) if provided. This exception has been

moved to ADAAG 11.5 (Restricted and Secured Entrances) to apply to

secured entrances. In addition, a reference to the requirements for

door closers (4.13.10) has been added to the exception.

Comment. In the NPRM, at least one restricted and secured entrance

was required to be accessible according to ADAAG 4.14 (Entrances).

ADAAG 4.14.1 requires, in part, that accessible entrances ``shall be

connected by an accessible route to public transportation stops, to

accessible parking and passenger loading zones, and to public streets

or sidewalks if available * * *'' One comment indicated that entrances

used by inmates or detainees and not the public should not be required

to be connected by an accessible route to such elements since inmates

usually arrive from system-operated vehicles and not from public

transportation stops, parking spaces, or public streets and sidewalks.

Response. ADAAG 4.14 requires accessible entrances to be connected

by an accessible route to public transportation stops, accessible

parking, passenger loading zones and public streets or sidewalks if

available. The interim final rule contains an exemption at secured

entrances for a connecting accessible route to public transportation

stops, parking spaces, or public streets and sidewalks but not

passenger loading zones. An example of a passenger loading zone at a

secured entrance would be where detainees arrive or depart from a

system-operated vehicle. The provision clarifies that such passenger

loading zones, where provided, must comply with ADAAG 4.6.6 (Passenger

Loading Zones).

11.6 Security Systems

This provision requires an accessible route complying with 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 path of travel. Few comments were received regarding this

provision and no changes were made.

The interim final rule has been clarified to require an accessible

route through fixed security barriers at required accessible entrances.

Where additional accessible entrances with security systems are

provided, it is recommended that an accessible route be provided

through those security systems as well. As discussed under section 11.5

(Restricted and Secured Entrances) the exception for doors and doorways

has been moved to section 11.5.

11.7 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 visible and audible

signals and shall comply with 4.27 (Controls and Operating Mechanisms).

Few comments were received regarding this provision and no changes were

made.

11.8 Electrical Outlets, Wiring and Conduit

This provision requires that electrical outlets and appropriate

wiring, conduit, or raceways be provided in specific areas to support

communication equipment for persons with disabilities. State and local

codes may contain provisions for the number and general placement of

convenience outlets. This provision would require additional outlets to

accommodate specific use requirements for communication access.

Examples of current technology which assists persons with hearing

impairments include assistive listening systems, or computer assisted

real-time transcription. Examples of current technology which assists

persons with vision impairments includes computerized reading devices

with braille or magnification capability or closed circuit television

reading or viewing devices. Where State and local codes specifically

require outlets to support communication equipment, this provision

would be satisfied if such outlets are provided in the specific

locations required by this provision.

Comment. The NPRM sought comment on the cost of providing wiring,

conduit or raceways in new construction. Several commenters considered

the cost minimal in new construction. The majority of commenters

supported the provision. A few comments from individuals with

disabilities and their organizations recommended including spectator

areas, bailiffs' stations, speakers' rostrums, raised daises and all

meeting rooms, not just those designated for public use, to the

provision. Other commenters questioned the need for this provision as

future technology may utilize infrared/wireless or fiber optics.

Response. Language has been added to this provision to include

spectator areas. While technology such as infrared/wireless or fiber

optics is rapidly developing, it is not yet readily available. However,

this provision would not prohibit the use of technology utilizing

infrared, wireless or fiber optics when it is readily available.

Comment. One commenter requested clarification on whether the

recommendations for duplex outlets in the U.S. Courts Design Guide

satisfies the ADAAG requirements in section 11.8 (Electrical Outlets,

Wiring and Conduit).

Response. The U.S. Courts Design Guide recommends that adequate

power outlets be provided to support a wide variety of automated and

regular office equipment. This provision specifically requires

electrical outlets to support communication equipment for persons with

disabilities.

Comment. One commenter requested that persons with speech/language

disabilities be mentioned as benefiting from this provision as

augmentative or alternative communication devices may need recharging.

Response. The Board agrees with the commenter that persons other

than those with hearing and vision impairments will benefit from this

provision. The interim final rule deletes the specific reference to

persons with hearing and vision impairments.

11.9 Permanently Installed Assistive Listening Systems

This section requires certain areas in judicial, legislative and

regulatory facilities to have a permanently installed assistive

listening system.

Comment. The NPRM asked whether the proposed requirement for 50

percent permanently installed assistive listening systems met the needs

of persons with hearing impairments and on the costs associated with

providing permanently installed assistive listening systems. One

commenter requested clarification that the other 50 percent must be

accessible with portable assistive listening systems. Several

commenters recommended a requirement for 100 percent permanently

installed assistive listening systems. 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. Other commenters were

concerned that other methods to facilitate communication would not be

provided.

Response. The guidelines facilitate greater flexibility in the

types of assistive listening devices a facility may offer by requiring

50 percent permanently installed assistive listening systems and

requiring electrical outlets in 11.8 (Electrical Outlets, Wiring, and

Conduit for Communication Systems) and allowing the remaining 50

percent of the rooms to utilize portable devices. The provisions for

permanently installed assistive listening systems in this section and

for electrical outlets, wiring, and conduit in ADAAG 11.8 is intended

to enable a facility to maximize its choices in selecting the most

effective method of assistive communication equipment to accommodate

persons with disabilities. However, the requirement for 50 percent

permanently installed assistive listening systems should not be

interpreted as the only method of communication a facility is required

to provide. For example, computer-aided transcription might be a more

appropriate auxiliary aid for a person who is deaf or has a severe

hearing loss. The Department of Justice regulations implementing title

II of the ADA require public entities to take such steps as may be

necessary to ensure effective communication for individuals with

hearing impairments, unless it would result in a fundamental alteration

in the nature of a service, program, or activity or in undue financial

and administrative burdens. (28 CFR 35.160(a) and 28 CFR 35.164). No

changes were made in the interim final rule.

Comment. One commenter suggested that language be added to ensure

that 50 percent of each type of hearing room designated for public use

in regulatory facilities be required to have a permanently installed

assistive listening system. The commenter thought that different

departments such as zoning or motor vehicles may have their own hearing

room. One commenter suggested that mediation rooms be required to have

a permanently installed assistive listening system. Several commenters

recommended a requirement for assistive listening systems with two

channel receiver units to allow a second channel to be used for real

time video description for persons with vision impairments.

Response. Different departments in regulatory facilities may have

their own hearing rooms. If the interim final rule required 50 percent

of each type of hearing room designated for public use in regulatory

facilities to have a permanently installed assistive listening system,

it may result in 100 percent coverage. For reasons cited above, the

interim final rule allows some degree of flexibility in accommodating

persons with hearing impairments. Mediation rooms would be covered

under the requirement for hearing rooms. A hearing room or mediation

room is a room where deliberation occurs.

In most instances, court proceedings are primarily verbal. However,

in those instances where an accommodation needs to be provided to both

a person with a hearing impairment and a person with a vision

impairment, an additional portable system can be provided.

Comment. One commenter requested clarification on what type of

alteration in judicial facilities would trigger a permanently installed

assistive listening system.

Response. If existing elements, spaces, or common areas are

altered, ADAAG 4.1.6(b) requires that each such altered element, space,

feature, or area meet the new construction requirements. For example,

an alteration replacing the public announcement system in a courtroom

would require the installation of an assistive listening system. An

alteration limited to replacing the judge's bench would not trigger the

requirement for a permanently installed assistive listening system.

However, if alterations of single elements, when considered together,

amount to an alteration of a room or space in a building or facility,

ADAAG 4.1.6(c) requires that the entire space meet the new construction

requirements. Facilities are encouraged to consider each project as an

opportunity to further the accessibility of its facility and should not

unnecessarily restrict the scope of work so as to avoid the

requirements for new accessible elements or construction.

Comment. One commenter thought the language ``designated for public

use'' was confusing.

Response. As provided in the appendix note at A11.9(2), this

section does not require permanently installed assistive listening

systems in conference rooms restricted to use by employees, consultants

and other invited guests. Nor does this section require such systems in

a space which is only occasionally or sporadically used for legislative

or regulatory business such as a town meeting held in a high school

cafeteria. The term ``designated for public use'' refers only to those

areas of a facility in which public debate, discussion or regulation

takes place. Examples of hearing rooms or meeting rooms in regulatory

facilities would include rooms in which hearings are held on zoning

applications or waivers or where town council meetings or school board

meetings are conducted. On the State level, a hearing or meeting room

might be the committee room in a State legislative facility. In

judicial facilities, a hearing or meeting room might be the judge's

chambers or a mediation room. No changes were made to this provision.

Comment. Several comments were received regarding the number of

required receivers. Some commenters felt the required number of

receivers should not be tied to the occupant load of each covered room.

Other commenters were concerned that the proposed four percent may not

accurately reflect the size of the population that may use assistive

listening systems and cited a paper on ``Hearing Impairment and Elderly

People'' issued in 1986 by the Office of Technology Assessment.

Response. The four percent figure is based on a Bureau of the

Census estimate of the number of persons aged 15 and over who have

difficulty hearing what is said in a normal conversation with another

person, excluding those who cannot hear at all. See ``Bureau of Census,

Disability Functional Limitation and Insurance Coverage'' (1984-85).

However, it should be noted that the guidelines are minimum

requirements. If there is a greater demand for more receivers, the

Department of Justice regulations implementing title II of the ADA

requires public entities to take such steps as may be necessary to

ensure effective communication with individuals with hearing

impairments, unless it would result in a fundamental alteration in the

nature of a service, program, or activity or in undue financial and

adm

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