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

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## Record

- **Collection:** Federal Register
- **Document type:** Uncategorized Document
- **Published:** June 20, 1994

## Text

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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\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.
---------------------------------------------------------------------------

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
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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-14304. Public record. Not legal advice.