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

SUMMARY: The Architectural and Transportation Barriers Compliance Board

(Access Board) is issuing final guidelines to provide additional

guidance to the Department of Justice and the Department of

Transportation in establishing accessibility standards for new

construction and alterations of State and local government facilities

covered by title II of the Americans with Disabilities Act (ADA) of

1990. The guidelines will ensure that newly constructed and altered

State and local government facilities are readily accessible to and

usable by individuals with disabilities in terms of architecture,

design, and communication. The standards established by the Department

of Justice and the Department of Transportation must be consistent with

the guidelines.

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

Access Board has also made some editorial changes to the Americans with

Disabilities Act Accessibility Guidelines. These editorial changes are

not substantive.

DATES: Effective date: April 13, 1998.

FOR FURTHER INFORMATION CONTACT: David Yanchulis, Office of Technical

and Information Services, Architectural and Transportation Barriers

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

1111; telephone (202) 272-5434, ext. 27 or (800) 872-2253 ext. 27

(voice), and (202) 272-5449 (TTY) or (800) 993-2822 (TTY).

SUPPLEMENTARY INFORMATION:

Availability of Copies and Electronic Access

Single copies of this publication may be obtained at no cost by

calling the Access Board's automated publications order line (202) 272-

5434 or (800) 872-2253, by pressing 1 on the telephone keypad, then 1

again and requesting the State and Local Government Facilities Final

Rule. Persons using a TTY should call (202) 272-5449 or (800) 993-2822.

Please record a name, address, telephone number and request this

publication. Persons who want a copy in an alternate format should

specify the type of format (audio cassette tape, Braille, large print,

or computer disk). This rule is available on electronic bulletin Board

at (202) 272-5448. This rule is also available on the Board's Internet

site (http://www.access-board.gov/rules/title2.htm).

Statutory Background

The Americans with Disabilities Act of 1990 (ADA) (42 U.S.C. 12101

et seq.) extends to individuals with disabilities comprehensive civil

rights protections similar to those provided to persons on the basis of

race, sex, national origin, and religion under the Civil Rights Act of

1964. Title II of the ADA, which became effective on January 26, 1992,

prohibits discrimination on the basis of disability in services,

programs and activities provided by State and local government

entities, and the National Railroad Passenger Corporation (Amtrak).

Section 202 of the ADA extends the nondiscrimination policy of section

504 of the Rehabilitation Act of 1973, as amended, (29 U.S.C. 794)

which prohibits discrimination on the basis of disability in federally

assisted programs and activities to all State and local governmental

entities whether or not such entities receive Federal funds. Most

programs and activities of State and local governments are recipients

of financial assistance from one or more Federal agencies and are

already covered by section 504 of the Rehabilitation Act of 1973.

Title III of the ADA, which also became effective on January 26,

1992, prohibits discrimination on the basis of disability by private

entities who own, lease, lease to, or operate a place of public

accommodation. Title III establishes accessibility requirements for new

construction and alterations in places of public accommodation and

commercial facilities.

Section 504 of the ADA requires that the Access Board issue minimum

guidelines to assist the Department of Justice and the Department of

Transportation in establishing accessibility standards under titles II

and III. Under sections 204(a) and 306(b) of the ADA, the Department of

Justice is responsible for issuing final regulations, consistent with

the guidelines issued by the Access Board, to implement titles II and

III (except for transportation vehicles and facilities). Sections 229

and 306(a) of the ADA provide that the Department of Transportation is

responsible for issuing regulations to implement the transportation

provisions of titles II and III of the ADA. Those regulations must also

be consistent with the Access Board's guidelines.

Rulemaking History

On July 26, 1991, the Access Board published the Americans with

Disabilities Act Accessibility Guidelines (ADAAG) to assist the

Department of Justice in establishing accessibility standards for new

construction and alterations in places of public accommodation and

commercial facilities. See 56 FR 35408, as corrected at 56 FR 38174

(August 12, 1991) and 57 FR 1393 (January 14, 1992), 36 CFR part 1191.

ADAAG contains scoping provisions and technical specifications

generally applicable to buildings and facilities (sections 1 through 4)

and additional requirements specifically applicable to certain types of

buildings and facilities covered by title III of the ADA: restaurants

and cafeterias (section 5); medical care facilities (section 6);

mercantile and business facilities (section 7); libraries (section 8);

and transient lodging (section 9).\1\

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\1\ On September 6, 1991, the Access Board amended ADAAG to

include additional requirements specifically applicable to

transportation facilities (section 10). See 56 FR 45500, 36 CFR

1191.1. On that same date, the Access Board also published separate

final guidelines to assist the Department of Transportation in

establishing accessibility standards for transportation vehicles.

See 56 FR 45530, 36 CFR part 1192. The Department of Transportation

has incorporated ADAAG and the Access Board's guidelines for

transportation vehicles and facilities in its final regulations. See

56 FR 45584 (September 6, 1991), 49 CFR parts 37 and 38.

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On July 26, 1991, the Department of Justice published its final

regulations implementing title III of the ADA which incorporated ADAAG

as the accessibility standards for newly constructed and altered places

of public accommodation and commercial facilities covered by title III.

See 56 FR 35544, 28 CFR part 36. On that same date, the Department of

Justice published its final regulations implementing title II of the

ADA. See 56 FR 35694, 28 CFR part 35. The Department of Justice's title

II regulations give State and local governments the option of choosing

between designing, constructing or altering their facilities in

conformance with the Uniform Federal Accessibility Standards (UFAS) \2\

(Appendix A to 41

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CFR part 101-19, subpart 101-19.6) or with ADAAG (Appendix A to 28 CFR

part 36), except that if ADAAG is chosen, the elevator exemption

contained in title III of the ADA does not apply.\3\ See 28 CFR 35.151.

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\2\ UFAS was developed by the General Services Administration,

Department of Defense, Department of Housing and Urban Development,

and the United States Postal Service to implement the Architectural

Barriers Act of 1968 (42 U.S.C. 4151 et seq.) which requires certain

federally financed buildings to be accessible. Most Federal agencies

reference UFAS as the accessibility standard for buildings and

facilities constructed or altered by recipients of Federal financial

assistance for purposes of section 504 of the Rehabilitation Act of

1973, as amended.

\3\ In new construction and alterations, title III of the ADA

does not require elevators if a facility is less than three stories

or has less than 3,000 square feet per story, unless the facility is

a shopping center or mall; a professional office of a health care

provider; or a terminal, depot or other station used for specified

public transportation or an airport passenger terminal. See 28 CFR

36.401(d) and 36.404.

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When the Department of Justice published its title II regulations,

it noted that the Access Board would be supplementing ADAAG in the

future to include additional guidelines for State and local government

facilities. The Department of Justice further stated that it

anticipated that it would amend its title II regulations to adopt ADAAG

as the accessibility standards for State and local government

facilities after the Access Board supplemented ADAAG. 56 FR 35694,

35711 (July 26, 1991). Adopting essentially the same accessibility

standards for titles II and III of the ADA will help ensure consistency

and uniformity of design in the public and private sectors throughout

the country.

Proposed Guidelines

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

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

add four special application sections to ADAAG specifically applicable

to certain types of buildings and facilities covered by title II of the

ADA. Those special application sections include:

11. Judicial, Legislative, and Regulatory Facilities.

12. Detention and Correctional Facilities.

13. Accessible Residential Housing.

14. Public Rights-of-Way.

The NPRM also proposed requirements and asked questions regarding

the addition of miscellaneous provisions specifically applicable to

State and local government facilities, including swimming pools, text

telephones (TTYs), automatic doors, airport security systems,

entrances, elevator exemptions, building signage, assistive listening

systems, and sales and service counters. 57 FR 60612 (December 21,

1992).

Following the publication of the NPRM, the Access Board held five

public hearings in various locations between February 22, 1993 and

March 15, 1993. A total of 148 people presented testimony on the

proposed guidelines at the hearings. In addition, 447 written comments

were submitted to the Access Board by the end of the comment period on

March 22, 1993. Another 127 comments were received after March 22,

1993. Although those comments were not timely, the Access Board

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

received nearly 7,000 pages of comments and testimony on the proposed

guidelines.

Interim Rule

On June 20, 1994, the Access Board published an interim rule

(hereinafter referred to as the interim rule) in the Federal Register

which added sections 11 through 14 and miscellaneous provisions to

ADAAG. 59 FR 31676 (June 20, 1994) as corrected at 59 FR 32751 (June

24, 1994). Many of the comments received by the Access Board in

response to the December 21, 1992 NPRM and the public hearings, as well

as modifications made to the NPRM based on the comments, were discussed

in the June 20, 1994 interim rule.

On that same date, the Department of Justice and the Department of

Transportation published notices of proposed rulemakings to adopt as

standards sections 11 through 14 and the miscellaneous provisions of

the Access Board's interim rule. See 59 FR 31808; June 20, 1994,

Department of Justice; 59 FR 31818; June 20, 1994, Department of

Transportation. Both the Access Board's interim rule and the notices of

proposed rulemaking published by the Departments of Justice and

Transportation sought comment on sections 11 through 14 and the

miscellaneous provisions, as published in the Federal Register on June

20, 1994.

Final Rule

As discussed above, the Access Board's guidelines provide guidance

to the departments of Justice and Transportation in establishing

accessibility standards for new construction and alterations of State

and local government facilities covered by title II of the ADA. The

standards ultimately established by those departments must be

consistent with and may incorporate the guidelines. It is important to

note that until such time as the Department of Justice or the

Department of Transportation adopt these guidelines as standards, the

guidelines are advisory only and are not to be construed as

requirements.

In finalizing the guidelines, the Access Board has considered all

comments previously received in response to the Access Board's NPRM for

State and local government facilities published on December 21, 1992,

as well as comments received in response to the Access Board's interim

rule and the Departments of Justice and Transportation's notices of

proposed rulemaking.

The Access Board and the departments received comments and

testimony from a broad range of interested individuals and groups,

including individuals who identified themselves as having a disability;

organizations representing persons with disabilities; State or local

code administrators; State, local and Federal government agencies;

manufacturers; design professionals; and national professional and

trade associations. In all, the Access Board and the Departments of

Justice and Transportation received 246 comments totaling over 1,200

pages on the interim rule.

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

large number of commenters expressed support for the guidelines. Some

comments requested changes and others requested clarifications. Due to

the large number of comments received, it is not possible for the

Access Board to respond to each comment in this preamble. Many of the

comments received in response to the initial NPRM were discussed in the

interim rule. A copy of that interim rule is available upon request.

(See: For Information Contact, above.) The Access Board has made every

effort to respond to significant comments in the general issues and

section-by-section analysis. As discussed under general issues and in

ADAAG 13 (Accessible Residential Housing) and 14 (Public Rights-of-

Way), the Access Board has reserved action in some areas pending

further analysis.

Editorial Amendments

Under section 502 of the Rehabilitation Act of 1973 (29 U.S.C.

792), the Access Board is responsible for establishing guidelines for

accessibility standards issued by other Federal agencies pursuant to

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

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

ADAAG as the basis for accessibility guidelines for federally financed

facilities covered by the Architectural Barriers Act of 1968 since the

Federal government owns or operates many of the same types of

facilities as State and local governments which are addressed

[[Page 2002]]

in this final rule. In the near future, the Access Board anticipates

revising its current guidelines for federally financed facilities to be

more consistent with ADAAG. As a result, the Access Board has made a

number of editorial revisions to accommodate the use of ADAAG as the

basis for revising the guidelines covering Federal facilities.

The editorial changes made to facilitate the application of the

provisions of ADAAG to Federal facilities in future rulemaking and any

other clarifying editorial changes are addressed in the section-by-

section analysis that follows. None of the editorial changes made in

this final rule are substantive and therefore do not require the

issuance of an additional proposed rule.

General Issues

Unisex Toilet and Bathing Facilities

The Access Board received a number of comments concerning the need

for unisex toilet and bathing facilities to accommodate people with

personal attendants of the opposite sex. In the interim rule, the

Access Board noted that it would examine appropriate means of

addressing this issue. In May 1994, the Access Board held an

informational workshop to discuss the issue of scoping requirements for

unisex toilet and bathing facilities. Subsequently, at the Access

Board's request, the Board for the Coordination of Model Codes (BCMC)

developed scoping provisions for unisex toilet and bathing facilities.

BCMC recommended single-user toilet and bathing facilities in assembly

and mercantile occupancies where an aggregate of six or more fixtures

(e.g., toilets for either men or women) are provided. Assembly

occupancies include, but are not limited to, theaters, museums,

nightclubs, stadiums, amusement parks, restaurants, health clubs and

transportation facilities. Mercantile occupancies include public

accommodations for display and sales purposes, such as stores and

shopping malls. The BCMC report has been incorporated, with minor

modification, into the Uniform Building Code (UBC), the Standard

Building Code (SBC) and the National Building Code (BOCA). The Access

Board will continue to participate in the advancement of the

recommendations of the BCMC report. The Access Board anticipates that

the provisions concerning unisex toilet and bathing facilities will be

included in the International Building Code as it is developed for

publication in the year 2000.

Swimming Pools

The interim rule contained a requirement that at least one means of

access be provided into swimming pools covered by title II if the pool

was intended for recreational purposes and not intended solely for

diving or wading. Technical specifications for pool access were not

provided. This requirement has been removed in the final rule.

Comment. While many commenters supported a requirement for pool

access, concern was also expressed over the absence of any technical

guidance on meeting the requirement. Commenters noted that the ADAAG

specifications for ramps in 4.8.5 require handrails which, if applied

to swimming pool access, may pose a hazard below the water level to

swimmers and that devices, such as sling-type lifts, were not

independently operable. Commenters varied greatly on what means of

access into swimming pools should be required. The suitability of the

available design solutions depended on the needs and preferences of

individual users. It was recommended that any requirement for pool

access include technical specifications to prevent confusion and for

safety reasons. Commenters also considered pool access equally

important for facilities covered by title III of the ADA.

Response. The Access Board established a Recreation Access Advisory

Committee to provide recommendations for the development of

accessibility guidelines for swimming pools, other recreational

facilities, and outdoor developed areas. This advisory committee

identified important considerations in providing access into swimming

pools that merit further study. As a result, the Access Board sponsored

research on these issues to obtain information necessary for the

development of possible future technical specifications. The

requirement for access into pools has been removed. The Access Board

will consider the results of the study, as well as the advisory

committee's recommendations, when it conducts a separate rulemaking in

the future to address recreational facilities. These future guidelines

will apply to entities covered by both titles II and III of the ADA.

Other Issues

Several comments addressed other issues raised in the NPRM and

discussed in the interim rule, such as assembly areas, and voting

booths. Many of these comments supported rulemaking in these areas.

While the Access Board may address these issues in future rulemaking,

it is not prepared to do so as part of this final rule.

Section-by-Section Analysis

This section of the preamble contains a summary of the significant

comments received on the interim rule, and the departments of Justice

and Transportation's NPRMs, the Access Board's response to those

comments, and any changes made to the guidelines.

1. Purpose

In section 1 (Purpose) and throughout ADAAG, the reference to

sections 4.1 through 4.35 has been deleted and replaced with a general

reference to section 4. Additionally, the reference to ``guidelines''

has been replaced with ``scoping and technical requirements''. These

are editorial amendments and are not substantive changes. No other

changes have been made to this section.

3. Miscellaneous Instructions and Definitions

3.5 Definitions

Alteration. The definition for ``alteration'' in the interim rule

included references to pedestrian facilities in the public right-of-

way. This language has been removed. For further discussion, see ADAAG

14 below.

The interim rule also added a specific reference to ``resurfacing''

in the definition for ``alterations''. The addition of the term

``resurfacing'' was not intended as a new interpretation of what

constitutes an alteration, but rather to reinforce the original intent

that the resurfacing of streets, sidewalks, parking lots, and other

outdoor surfaces is considered an alteration. The term ``resurfacing''

has been retained in the final rule, however, the application of the

term has been clarified.

Comment. A few commenters were concerned that the inclusion of the

term ``resurfacing'' would broaden the scope of compliance to minor

street repair.

Response. The term ``resurfacing'' does not include minor repair

work to parking lots and paved surfaces, such as repainting existing

striping or repair of potholes. By definition, ``alteration'' excludes

normal maintenance that does not affect the usability of a facility.

Repairing potholes would be an example of normal maintenance. Other

relatively minor tasks, such as restriping of a parking lot, may

constitute alterations because they affect the usability of the

facility by creating an opportunity to increase accessibility. However,

the obligation triggered by such an alteration is limited by the scope

of the planned alteration. In the

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case of restriping, the obligation would be to make the altered element

itself (e.g., the striping) conform to the provisions of these

guidelines.

Assembly Area. ADAAG provides requirements for wheelchair seating

and assistive listening systems in certain ``assembly areas.'' See

ADAAG 4.1.3(19). These requirements are intended to apply to judicial,

legislative, and regulatory facilities which are addressed in section

11. ``Assembly Area'' is defined, in part, as ``a room or space

accommodating a group of individuals for recreation, educational,

political, social or amusement purposes.'' For clarity, a reference to

``civic'' purposes has been added.

Continuous Passage. The definition for ``continuous passage'' in

the interim rule referenced ADAAG 14 (Public Rights-of-Way). This

definition has been removed. For further discussion, see ADAAG 14

below.

Curb Ramp. The definition for ``curb ramp'' in the interim rule

included a reference to ADAAG 14 (Public Rights-of-Way). This language

has been removed. For further discussion, see ADAAG 14 below.

Dwelling Unit. The definition for ``dwelling unit'' in the interim

rule included a reference to ADAAG 13 (Accessible Residential Housing).

This language has been removed. For further discussion, see ADAAG 13

below.

Private Facility and Public Facility. The final rule includes

definitions for ``private facility'' and for ``public facility.''

``Private facility'' is defined as a public accommodation or a

commercial facility subject to title III of the ADA and the Department

of Justice implementing regulation (28 CFR part 36) or a transportation

facility subject to title III of the ADA and the Department of

Transportation's ADA regulation covering facilities constructed or

altered by private entities (49 CFR 37.45). ``Public facility'' is

defined as those facilities or portions thereof that are constructed

by, on behalf of, or for the use of a public entity subject to title II

of the ADA and the Department of Justice implementing regulation (28

CFR part 35) or a transportation facility subject to title II of the

ADA and the Department of Transportation's regulations implementing the

ADA as it applies to facilities constructed or altered by public

entities (49 CFR 37.41 and 49 CFR 37.43). These terms are included in

the final rule to distinguish certain requirements in the rule that

apply only to facilities subject to title II or to facilities subject

to title III, but not both. The terms replace references to ``places of

public accommodation and commercial facilities'' and to references in

the interim final rule to ``facilities subject to title II of the

ADA.''

Public Rights-of-Way. The definition for ``public rights-of-way''

in the interim rule referenced ADAAG 14 (Public Rights-of-Way). This

definition has been removed. For further discussion, see ADAAG 14

below.

Public Sidewalk. The definition for ``public sidewalk'' in the

interim rule referenced ADAAG 14 (Public Rights-of-Way). This

definition has been removed. For further discussion, see ADAAG 14

below.

Public Sidewalk Curb Ramp. The definition for ``public sidewalk

curb ramp'' in the interim rule referenced ADAAG 14 (Public Rights-of-

Way). This definition has been removed. For further discussion, see

ADAAG 14 below.

Site Infeasibility. The definition for ``site infeasibility'' in

the interim rule referenced ADAAG 14 (Public Rights-of-Way). This

definition has been removed. For further discussion, see ADAAG 14

below.

TTY, TDD, and Text Telephone. The interim rule included editorial

revisions concerning the use of the terms ``text telephone'' and

``TTY''. Both terms are synonymous and refer to devices that make

telephones accessible to people who are deaf or hard of hearing or who

have speech impairments via typed messages through the standard

telephone network. The interim rule replaced the term ``text

telephone'' with ``TTY'' in this section and throughout ADAAG. The

final rule amends ADAAG 3.5 (Definitions), 4.1.3(17), 4.30.7, and

4.31.9 to include a reference to both ``text telephone'' and ``TTY''

for clarity. In addition, ``TDD,'' another synonymous term which is

used on the international symbol for these devices and in other

regulations, has been added to ADAAG 3.5 (Definitions).

Comment. Organizations representing people who are deaf or hard of

hearing preferred the original use of the term text telephone as it is

more descriptive than abbreviated terms such as TTY. Other commenters

recommended that both text telephone and TTY be used in ADAAG as the

abbreviation TTY is more commonly used.

Response. The definition of TTY in the interim rule has been

amended to reference the definition of text telephone. A reference to

TTYs has been added to the definition of text telephone. ADAAG has been

modified to include both text telephone and TTY when referencing

devices that make telephones accessible to people who are deaf or hard

of hearing or who have speech impairments.

Technically Infeasible. This term and a reference to its definition

in alterations (4.1.6(1)(j)) was added in the interim rule for

clarification. No substantive comments were received and no changes

have been made to this definition.

Transient Lodging. The interim rule modified the definition of

``transient lodging'' to clarify that a transient lodging facility is

not considered a residential facility. An appendix note was added

referencing the Department of Justice's policy and rules regarding

transient lodging. No substantive comments were received regarding this

definition or the appendix note and no changes have been made to this

provision or the appendix note.

4. Accessible Elements and Spaces: Scope and Technical Requirements

4.1 Minimum Requirement

4.1.1 Application. 4.1.1(1) General. 4.1.1(2) Application Based

on Building Use. ADAAG 4.1.1(1) (General) and 4.1.1(2) (Application

Based on Building Use) were editorially revised in the interim rule for

clarity. Few comments were received regarding these sections and no

substantive changes have been made in the final rule.

4.1.1(5) General Exceptions. As revised in the interim rule, ADAAG

4.1.1(5)(b) exempts from the requirements for accessibility, prison

guard towers, fire towers, fixed life guard towers, and other areas

raised for purposes of security or life or fire safety; non-occupiable

spaces accessed only by tunnels and frequented only by personnel for

maintenance or occasional monitoring of equipment; and single occupant

structures accessed only by passageways above or below grade. A

reference to ``lookout galleries'' has been added to the final rule for

clarification. No substantive changes have been made to this provision

in the final rule.

Comment. One disability group opposed the exceptions for fire

towers and prison guard towers. Both the Eastern Paralyzed Veterans

Association (EPVA) and the Paralyzed Veterans of America opposed

exceptions for toll booths. These commenters pointed to the employment

opportunities available to persons with disabilities at such

facilities. In addition, EPVA provided information regarding a newly

built facility where elevator access has been provided to toll booths

accessed from tunnels below. One commenter expressed support for the

exception for non-occupiable spaces.

Response. Originally, ADAAG 4.1.1(5)(b) provided that accessibility

was not required to ``(i) observation galleries which were used

primarily for security purposes; or (ii) non-occupiable

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spaces which were accessed only by ladders, catwalks, crawl spaces,

very narrow passageways, or freight (non-passenger) elevators, and

frequented only by service personnel for repair purposes'' (e.g.,

elevator pits, elevator penthouses, piping or equipment catwalks). The

interim rule amended the language of 4.1.1(5)(b)(i) by providing that

accessibility was not required to ``raised areas used primarily for

purposes of security or life or fire safety'' (e.g., observation

galleries, prison guard towers, fire towers or fixed life guard

stands). Section 4.1.1(5)(b)(ii), as amended in this final rule,

includes a reference to areas ``frequented only by service personnel

for maintenance, repairs, or occasional monitoring of equipment'' in

lieu of areas ``frequented only by service personnel for repair

purposes''. The interim rule provided several examples of such areas,

including water or sewage treatment pump rooms and stations, electric

substations and transformer vaults, and highway and tunnel utility

facilities. The final amendment to this provision includes the addition

of a third paragraph referencing single occupant structures accessed

only by passageways below grade or elevated above grade, including, but

not limited to, toll booths that are required to be accessed from

underground tunnels. This provision was not intended to exempt

structures accessed by passageways merely elevated by a curb and has

been clarified in the final rule as applying to single occupant

structures that are accessed by passageways elevated above standard

curb height.

The additions made to 4.1.1(5)(b) in the interim rule were not

intended to broaden the basis of exempt areas, but to address

structures specific to the public sector that are similar to those

areas which were exempt under the earlier version of this provision

because of design constraints. The examples specifically referenced in

the interim rule as exempt areas, such as prison guard, fire, and fixed

life guard towers are subject to design constraints which are similar

to, if not greater than, those relevant to observation galleries raised

for security purposes. Since these facilities are typically for limited

use and not open to the public, the Access Board sought to provide

accessibility requirements for State and local government facilities

consistent with the level of access required for the private sector.

With respect to toll booths, elevator or lift access may provide

access to booths accessed from tunnels below or passageways above.

However, providing elevators or lifts in full compliance with ADAAG

will significantly impact the design and cost of such structures. The

exception applies only to toll booths accessed from below or above

grade, not to those that can be accessed at grade.

Comment. A correctional entity recommended that prison boot camps,

national guard facilities, and firing ranges be exempt since such

facilities are typically not intended to serve persons with

disabilities.

Response. As discussed in the interim rule, the Access Board has

not provided any exceptions based on the presumed physical abilities of

the occupants of the facilities. Instead, exceptions in 4.1.1(5)(b) are

based primarily on the structural and cost impacts of access to certain

limited use structures.

Comment. One commenter recommended an exemption for elevated

control rooms such as those found in correctional facilities.

Response. Such facilities, depending on their design and use, may

be exempt under the exception for ``raised areas used primarily for

purposes of security.''

4.1.3(5) Elevators. The interim rule added several exceptions to

the requirement for elevator access for State and local government

facilities.

Exception 1(a) of ADAAG 4.1.3(5) contains an exception based on the

number of stories or square footage per floor specific to private

facilities, which are defined in 3.5 as those facilities subject to

title III of the ADA.

Exception 1(b) of ADAAG 4.1.3(5) provides that elevators are not

required in drawbridge towers and boat traffic towers, lock and dam

control stations, train dispatching towers and similar structures

subject to title II of the ADA as a public facility that are less than

three stories and not open to the public, where the story above or

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

is less than 500 square feet. This provision has been editorially

revised for clarity.

Comment. One commenter opposed this exception because it may deny

persons with disabilities certain job opportunities. Another commenter

recommended that the language of the exception, including the reference

to ``similar structures,'' be more specific.

Response. Exception 1(b) is based on the design and cost impact of

providing elevator access in small limited use structures and applies

only to those facilities that are less than three stories, are not open

to the public, and where the story above or below the accessible ground

floor has a maximum occupancy of five and is less than 500 square feet.

Each of these conditions must be met for the exemption to apply.

Specific facilities such as drawbridge and boat traffic towers, lock

and dam control stations, and train dispatching towers are referenced

to illustrate the type of structures the exception may cover.

Exception 4 (Platform Lifts). The interim rule also recognized

additional situations in which a platform lift can be used to provide

vertical access. Exception 4(e) to ADAAG 4.1.3 permits lift access to

judges' benches, clerks' stations, raised speakers' platforms, jury

boxes and witness stands. It is possible that some designs may include

areas that are lower than the floor of a courtroom, such as the well of

the court, instead of raised spaces such as jury boxes. For clarity and

consistency, a reference has been added to ``depressed areas'' in

addition to the raised spaces originally listed. Exception 4(f) which

applied specifically to dwelling units has been deleted in the final

rule. For further discussion regarding the application of accessibility

requirements for dwelling units, see ADAAG 13 (Accessible Residential

Housing) below.

Exception 5 (Air Traffic Control Towers). Exception 5 exempts air

traffic control towers from the requirement that an elevator serve each

level of a facility. Under this exception, elevator access is not

required to the cab or to the floor immediately below the cab since an

elevator serving such levels would obstruct the 360-degree clear view

necessary in an air traffic control tower. No changes have been made to

this provision in the final rule.

Comment. A few comments opposed the exception for air traffic

control towers since possible design alternatives currently under

review, (e.g., the use of glass observation elevators), may provide

feasible solutions to the problem of providing an unobstructed 360-

degree clear view.

Response. As discussed in the interim rule, the exception for air

traffic control towers is based on the impact of providing vertical

access to the cab level. While solutions for this access may exist,

their impact on design is significant according to information from the

Federal Aviation Administration. It is for these reasons that an

exception for vertical access to the cab and the level immediately

below the cab has been provided.

4.1.3(8) Entrances. ADAAG 4.1.3(8)(a) requires that, at a minimum,

50 percent of all public entrances be accessible. It also requires

accessible entrances to be provided in a number at least equivalent to

the number of exits required by the applicable building or fire code.

However, this is required only to the extent that the number of

entrances planned for a facility is equal to or

[[Page 2005]]

greater than the number of exits required; if the number of exits

exceeds the number of planned entrances, all planned entrances are

required to be accessible. Additional entrances are not required.

Paragraph (a) also states that, ``where feasible, accessible entrances

shall be those used by the majority of the people visiting or working

in the building.'' The interim rule added an additional requirement

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

``principal public entrances'' when meeting this requirement. These

entrances were defined as those entrances designed and constructed to

accommodate a substantial flow of pedestrian traffic to a major

function in a facility subject to title II. Appendix material provided

examples to clarify the application of this requirement. This

requirement, definition, and appendix note for principal public

entrances has been removed in the final rule. Since ADAAG requires

access to entrances used by the majority of visitors or employees where

feasible, the Board considered the requirement for principal public

entrances in the interim final rule as a possible source of confusion.

Further, the Board is concerned that designers might have difficulty

determining which entrances constituted a ``principal public

entrance.'' In addition, editorial revisions have been made to this

section for clarity and consistency.

ADAAG 12 (Detention and Correctional Facilities) requires that

public entrances, including entrances that are secured, shall be

accessible as required by 4.1.3(8). This requirement does not increase

the number of entrances required to be accessible by 4.1.3(8) and

provides an exception from certain ADAAG specifications for doors and

doorways. This exception applies to doors or doorways operated only by

security personnel or where security requirements prohibit full

compliance with the guidelines. See ADAAG 12.2.1. A cross reference to

this section has been added to 4.1.3(8)(a) in the final rule.

ADAAG 4.1.3(8)(b) requires that, where provided, one direct

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

tunnel or elevated walkway must be accessible in addition to those

entrances required to be accessible by 4.1.3(8)(a). ADAAG 11 contains

additional requirements for access to restricted and secured entrances

in judicial, legislative, and regulatory facilities. A cross reference

to these requirements has been added to 4.1.3(8)(b) in the final rule.

4.1.3(17)(c) Text Telephones (TTYs). ADAAG 4.1.3(17)(c)(i)

provides that if an interior public pay telephone is provided in a

public use area of a building that is part of a public facility, then

at least one interior public text telephone (TTY) shall be provided in

the building in a public use area. This requirement, which was located

at 4.1.3(17)(c)(iv) in the interim rule, has been revised to cover

``buildings'' instead of ``facilities'' for clarity. The existing

requirement for a public text telephone where four or more public pay

telephones are provided on a site and at least one is in an interior

location has been clarified as applying to private facilities subject

to title III of the ADA.

ADAAG 4.1.3(17)(c)(ii) requires that in public facilities that are

stadiums, arenas and convention centers, at least one public text

telephone (TTY) shall be provided on each floor level having a public

pay telephone. ADAAG 4.1.3(17)(c)(iv) requires that if an interior

public pay telephone is provided in a secured area of a detention or

correctional facility, then at least one public text telephone (TTY)

shall be provided in at least one secured area. ADAAG 4.1.3(17)(d)

provides that, where a bank of telephones in the interior of a building

consists of three or more public pay telephones, at least one public

pay telephone in each such bank shall be equipped with a shelf and

outlet in compliance with ADAAG 4.31.9(2). This provision contains an

exception for the secured areas of detention or correctional facilities

where outlets are prohibited for purposes of security or safety. No

substantive changes have been made to these sections.

Comment. Several commenters supported this provision. Other

commenters supported an increase in the number of text telephones

(TTYs) required and offered various recommendations. The American

Public Communications Council, a trade association comprised of

suppliers of public pay telephones and other services, was concerned

that the requirement could have the unintended result of decreasing the

number of public pay telephones available to all members of the public.

They stated that the business of providing public pay telephones

operates on a very thin margin and the increased investment cost of an

additional $1000 or more may mean that neither independent public pay

telephone providers nor local exchange carriers will be able or willing

to provide a public pay telephone in a low-traffic facility. The

commenter submitted documentation detailing a few instances where

telephone companies have removed public pay telephones because the pay

telephones were deemed not to be profitable.

Response. It is the covered entity that has the responsibility to

ensure that the public pay telephone service is accessible to persons

with disabilities and to select from the various options available on

how to provide that service. In developing the interim rule, the Access

Board considered the options currently available. The cost for text

telephones (TTYs) generally ranges from $230 to $300 for portable

devices and $700 to $1200 for those permanently installed. In addition,

text telephones (TTYs) may be leased for approximately $30 a month

under programs that include long-term maintenance and technology

upgrade services. ADAAG 4.31.9(3) includes a provision for equivalent

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

permanently installed public text telephones (TTYs), if the portable

device is equally available during the same hours as the public pay

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

greater flexibility in selecting a secure and cost effective method of

providing access. For example, an administrative office in a town hall

may provide a portable text telephone (TTY) for use in the office or at

public telephones as long as the office is open to the public the same

hours that the public telephone is available for use by the public.

Directional signage must be provided at the public pay telephones

indicating the location of the text telephone (TTY).

Comment. One commenter requested clarification of the term ``public

use area''.

Response. ADAAG 3.5 (Definitions) defines ``public use'' as the

interior or exterior rooms or spaces that are made available to the

general public. Some entities covered under title II of the ADA may not

have a public use area.

4.1.6 Accessible Buildings: Alterations. 4.1.6(1)(k) Elevator

Exception. This provision states that the exception to the requirement

for an elevator in ADAAG 4.1.3(5) for newly constructed facilities also

applies to altered facilities. This exception was editorially revised

in the interim rule consistent with the revision of ADAAG 4.1.3(5). No

changes have been made to this provision in the final rule.

4.1.7 Accessible Buildings: Historic Preservation. 4.1.7(1)(a)

Exception. This section addresses the requirements for access in

alterations to qualified historic facilities. The interim rule

contained an exception referencing provisions for program access in the

Department of Justice's title II and III regulations where compliance

with

[[Page 2006]]

ADAAG would threaten or destroy the historic significance of a

facility. See 28 CFR 35.151(d)(2) and 28 CFR 36.405(b). This provision

has been relocated to the appendix as it did not function as an

``exception'' to ADAAG but as an advisory note.

4.33 Assembly Areas

4.33.7 Types of Listening Systems. Information was submitted which

addressed the incompatibility of some receivers with hearing aids.

People who wear hearing aids often need them while using an assistive

listening system. A requirement for hearing-aid compatibility was not

included in the proposed or interim final rules. The Access Board

intends to consider this issue in future rulemaking which would address

assembly areas in general. However, the Department of Justice's

regulations implementing titles II and III of the ADA require public

entities and public accommodations to provide appropriate auxiliary

aids and services where necessary to ensure effective communication.

Where assistive listening systems are used to provide effective

communication, the Department of Justice considers it essential that a

portion of receivers be compatible with hearing aids. This information

has been added to an appendix note to section 4.33.7.

Special Occupancy Sections: 5. Restaurants and Cafeterias through

10. Transportation Facilities. General provisions in each of these

sections have been editorially revised to refer to ``section 4'' of

ADAAG instead of section ``4.1. to 4.35'' to facilitate future revision

of the guidelines.

7. Business, Mercantile and Civic

This section addresses business, mercantile, and civic occupancies.

In the final rule, a reference to ``civic'' has been added to clarify

the applicability of this section to state and local government

facilities.

7.2 Sales and Service Counters, Teller Windows, Information Counters.

ADAAG 7.2(1) and (2) require access at sales and service counters,

teller windows, and information counters in State and local government

facilities where goods and services are available to the public. Both

provisions are existing requirements which have been editorially

revised to include their application to State and local government

facilities as well. Section 7.2(3) of the interim rule contained the

requirements for State and local governments. These requirements are no

longer necessary with the editorial revisions to 7.2(1) and (2). ADAAG

7.2(3) requires access to facilitate voice communication at counters

and teller windows with solid partitions or security glazing provided

in public facilities. This provision also requires that, where

provided, telecommunication devices shall be equipped with volume

controls complying with ADAAG 4.31.5. In the final rule, this

requirement has been editorially revised and has been clarified as

applying to the telecommunication devices provided on the public side

of counters or teller windows.

Comment. Several commenters supported this section, while several

other commenters recommended modifications. For example, one commenter

recommended that knee and toe clearances be specified beneath counters.

Another commenter recommended that information display screens at

counters should be mounted at 43 to 51 inches from the floor.

Response. Since the counters addressed by this section are

typically used for brief periods of time in the conduct of business

transactions, knee and toe clearance underneath counters is not

required as it is for fixed seating and tables covered by ADAAG 4.32.

Requirements for the mounting heights for equipment have not been

included in the absence of supporting technical data.

10. Transportation Facilities

10.4 Airports

10.4.1 New Construction. 10.4.1(8) Security Systems. This

provision requires an accessible route complying with ADAAG 4.3 to be

provided at each single security barrier or group of security barriers

in airports covered by title II of the ADA as public facilities.

Comment. One commenter was concerned that the exemption for doors,

doorways and gates to be operated only by security personnel would

limit job opportunities for persons with disabilities.

Response. This provision applies to security gates at airport

security checkpoints. Such gates are designed to prevent air carrier

passengers from entering secured areas until they have been cleared.

Normally, such gates are adjacent to unobstructed routes allowing

exiting passengers to leave the secured area. Airport employees are

typically allowed free access through such routes and, therefore,

employees with disabilities would not need to use the security gate. A

reference in this exception to ADAAG 4.13.6, which specifies

maneuvering clearances at doors, including latch-side clearance, has

been removed. This reference had been included in the interim rule for

doors operated by security personnel since such operation precludes the

need for clearance at the latch side of doors. However, since ADAAG

4.13.6 also contains specifications for maneuvering space, which is

essential for passage through doors, including those operated by

security personnel, it has been applied to these doors and gates. A

reference to ``path of travel'' in this exception has been changed to

``circulation path'' to avoid confusion with the use of the term ``path

of travel'' as it relates to alterations to primary function areas in

ADAAG 4.1.6(2).

11. Judicial, Legislative and Regulatory Facilities

This section addresses those facilities where judicial,

legislative, and regulatory functions occur. Judicial facilities

consist of courthouses. Legislative facilities include town halls, city

council chambers, city or county commissioners' meeting rooms, and

State capitols. Regulatory facilities are those which house State and

local entities whose functions include regulating, governing, or

licensing activities. For example, this section would address those

rooms where school Board meetings, housing authority meetings, zoning

appeals, and adjudicatory hearings (e.g., drivers license suspensions)

are held.

Comment. Two commenters requested clarification of section 11 as it

applies to legislative and regulatory facilities. The commenters felt

that section 11 is so courtroom specific that it was difficult to

extrapolate the applicable requirements of seating for legislators,

Board, council and commission members.

Response. Section 11 has been reorganized to clarify the

application of requirements to judicial facilities (11.2) and to

legislative and regulatory facilities (11.3). Provisions applicable to

all facilities covered by section 11 have been relocated to 11.1. An

appendix note to 11.3 provides examples of legislative and regulatory

facilities to further clarify the application of this section.

[[Page 2007]]

11.1 General

11.1.1 Entrances. This provision requires that, where provided, at

least one restricted and at least one secured entrance be accessible.

Restricted entrances differ from public entrances in that they are used

only by judges, public officials, facility personnel and other

authorized parties, such as jurors on a controlled basis. Secured

entrances are used only by detainees and detention officers. The

interim rule exempted secured entrances operated only by security

personnel from ADAAG 4.13.6. However, since ADAAG 4.13.6 also contains

specifications for maneuvering space, which is essential for passage

through doors, including those operated by security personnel, the

exemption from 4.13.6 has been removed. The requirements in ADAAG 4.13

are not known to pose any conflict with security requirements for

doors. References in the interim rule to accessible routes have been

removed as section 4 of ADAAG requires that accessible entrances be

connected to an accessible route. Similarly, a requirement in the

interim rule for passenger loading zones provided for detainees has

been removed as accessible passenger loading zones are addressed in

4.1.2(5).

11.1.2 Security Systems. This provision requires an accessible

route complying with ADAAG 4.3 (Accessible Route) to be provided

through fixed security barriers at required accessible entrances. Where

security barriers incorporate equipment such as metal detectors,

fluoroscopes, or other similar devices which cannot be made accessible,

an accessible route is required adjacent to such security screening

devices to facilitate an equivalent circulation path. This provision

has been editorially revised to reference a circulation path in lieu of

a path of travel. No substantive changes have been made to this

provision.

11.1.3 Two-way Communication Systems. This provision requires that

where a two-way communication system is provided to gain admittance to

a facility or to restricted areas within the facility, the system shall

provide both visual and audible signals and shall comply with 4.27

(Controls and Operating Mechanisms). No changes have been made to this

provision.

11.2 Judicial Facilities

11.2.1 Courtrooms. ADAAG 11.2.1 applies to courtrooms in judicial

facilities and requires access to spectator seating and press areas,

jury boxes, witness stands, judges' benches, and other courtroom

stations. Areas that are raised, such as witness stands, or depressed

and accessed by ramps or platform lifts with entry ramps must provide a

turning space complying with 4.2.3 so that the space can be entered and

exited in a forward direction safely. A reference to ``depressed

areas'' has been added to raised spaces and elements consistent with

the provision allowing use of platform lifts in 4.1.3(5), Exception 4.

Requirements in the interim rule for accessible routes, doors and

gates, clear floor space, and controls and operating mechanisms have

been removed from the final rule as they are addressed in ADAAG section

4.

Comment. Several commenters stated that a turning space is not

necessarily required within witness stands accessed by platform lifts.

Commenters provided examples of customized designs that incorporate

lifts which serve as the floor of the witness stand. This should

obviate the necessity for an entry ramp into the lift since the surface

of the lift is level with the adjacent floor.

Response. The requirement for unobstructed turning space has been

revised to apply only to raised or depressed areas accessed by ramps or

platform lifts with entry ramps. Enclosures and gates cannot restrict

required maneuvering spaces.

Comment. One commenter questioned whether doors to jury boxes must

be automatically operable.

Response. Where provided, doors and gates must comply with ADAAG

4.13 (Doors) which does not require automated doors, but does contain

other technical requirements.

Comment. In the interim rule, sections 11.2.1(2) (Jury Boxes and

Witness Stands), 11.2.1(4) (Fixed Judges' Benches, and Clerks'

Stations), 11.2.1(5) (Fixed Bailiffs' Stations, Court Reporters'

Stations, Litigants' and Counsel Stations), and 11.2.1(6) (Fixed

Lecterns) required that the maximum height of controls and operating

mechanisms be 48 inches. One commenter questioned why control and

operating mechanisms were restricted to a maximum height of 48 inches

when ADAAG allows up to 54 inches where a side approach is provided.

Response. The interim rule provided that the maximum height for

controls and operating mechanisms was 48 inches. This limitation has

been removed in the final rule to allow a 54 inch side reach.

Comment. The interim final rule contained a requirement for access

to fixed lecterns which required knee space at least 27 inches high, 30

inches wide, and 19 inches deep. Several commenters considered this

requirement excessive in view of standard lectern dimensions.

Information was received indicating that lecterns are typically not

fixed in judicial facilities.

Response. This requirement has been removed in the final rule.

11.2.1(1)(a) Spectator, Press and Other Areas with Fixed Seats.

This provision specifies the number of wheelchair spaces required where

spectator, press, or other areas with fixed seats are provided

according to ADAAG 4.1.3(19)(a). This requirement has been clarified in

the final rule as applying to each type of area with fixed seats.

Comment. The interim rule required that where spectator seating

capacity exceeds 50 and is located on one level that is not sloped or

tiered, accessible spaces must be provided in more than one seating

row. One commenter considered this requirement excessive and

inconsistent with current ADAAG requirements in 4.1.3(19)(a).

Response. This requirement has been removed in the final rule.

11.2.1(1)(b) Jury Boxes and Witness Stands. This provision

requires at least one accessible wheelchair space within jury boxes and

witness stands. An exception allows that, in alterations, a wheelchair

space may be located outside the jury boxes or witness stands where

providing ramp or lift access poses a hazard by restricting or

projecting into a means of egress required by the appropriate local

authority. A requirement in the interim rule requiring counters in

witness stands to comply with ADAAG 4.32 has been removed since this

provision which may be excessive for counters provided in witness

stands.

Comment. The interim rule recognized the use of portable lifts in

alterations where provision of a permanent platform lift is technically

infeasible. One commenter requested clarification regarding securement

of portable lifts. Concern was raised that portable lifts are subject

to tipping if they are not secured to the floor. Concern was also

expressed over a potential hazard where a ramp or platform lift would

project into the circulation paths in the well of a courtroom.

Response. The reference to portable lifts has been removed in the

final rule as it is not clear that all portable lifts meet the safety

standard referenced in ADAAG 4.11.2. This modification does not

preclude the use of portable platform lifts provided they fully comply

with ADAAG 4.11.2. In addition, the exception to this provision has

been modified to allow placement of a wheelchair accessible space

outside

[[Page 2008]]

raised witness stands and jury boxes in alterations where a ramp or

platform lift poses a hazard by restricting or projecting into

necessary circulation paths. The reference to technical infeasibility

has been removed as that exception is already provided in ADAAG

4.1.6(j).

11.2.1(1)(c) Judges' Benches and Courtroom Stations. This

provision requires that judges' benches, clerks' stations, bailiffs'

stations, deputy clerks' stations, court reporters' stations, and

litigants' and counsel stations comply with ADAAG 4.32 (Fixed or Built-

in Seating and Tables). An exception permits designs that allow later

installation of a means of vertical access without substantial

reconstruction of the space. This exception has been clarified in the

final rule.

Comment. A few commenters recommended that only a percentage of

raised judges' benches and clerks' stations be adaptable or accessible.

Response. Due to the complexity of courtroom design and the

difficulty of accommodating subsequent alterations, the Access Board

believes that requiring either accessible or adaptable judges' benches

and clerks' stations will significantly facilitate a reasonable

accommodation for an employee in the future.

11.2.1(2) Assistive Listening Systems. This section requires each

courtroom in a judicial facility to have a permanently installed

assistive listening system complying with 4.33. This provision

specifies the minimum number of receivers for assistive listening

systems. This number must be equal or greater than four percent of the

room occupant load, but in no case less than two. This requirement is

consistent with ADAAG requirements for assembly areas in 4.1.3(19).

Comment. The interim rule provided that a permanently installed

assistive listening system was required in only 50 percent of certain

areas in judicial, legislative and regulatory facilities. Several

commenters recommended a requirement for 100 percent permanently

installed assistive listening systems in State and local government

facilities. These commenters cited operational problems such as

scheduling and the inability of staff to locate and set up portable

systems. Other commenters preferred portable systems because they

believe them to be more flexible, cost effective and easier to replace

as technology evolves. Two commenters requested that smaller hearing

rooms be allowed to provide portable systems. The commenters stated

that the majority of hearing rooms are not utilized exclusively for

adjudicatory proceedings but for other purposes a disproportionate

percentage of the time.

Response. The Access Board has revised the final rule to require a

permanently installed assistive listening system in each courtroom. A

requirement in the interim rule requiring permanently installed

assistive listening systems in 50 percent of hearing rooms, jury

deliberation rooms, and jury orientation rooms has been removed as

these areas are addressed in ADAAG 4.1.3(19)(b). The definition of

``assembly area'' in ADAAG 3.5 has been clarified as applying to those

rooms or spaces accommodating a group of individuals for ``civic''

purposes.

Comment. Information was submitted which addressed the

incompatibility of some receivers with hearing aids. People who wear

hearing aids often need them while using an assistive listening system.

Ear buds require removal of hearing aids. Headsets that cover the ear

can produce disruptive interference due to hearing aid T-coils. It was

recommended that neckloops and headsets that can be worn as neckloops

be specified over other receiver types since they are compatible with

hearing aids.

Response. The compatibility of hearing aids and assistive listening

receivers is an issue that pertains not only to facilities covered in

section 11 but to other assembly areas as well. The Access Board

intends to consider this issue in future rulemaking which would address

assembly areas in general. An appendix note has been added to the final

rule recommending receivers that are compatible with hearing aids.

Section 11.8 of the interim rule required electrical outlets and

appropriate wiring, conduit, or raceways in various areas, including

courtrooms, to support communication equipment for persons with

disabilities. This requirement has been removed as it may be too vague

for purposes of design without further specification on the type of

equipment to be supported. Such equipment often is portable and not

appropriately addressed by ADAAG.

11.2.2 Jury Assembly Areas and Jury Deliberation Areas. This

provision requires that where provided, refreshment areas and drinking

fountains in jury assembly areas and jury deliberation rooms must be

accessible. References in the interim rule to fixed seating and tables

and vending machines have been removed as ADAAG sections 4.1.3(18) and

5.8 address access to these elements. In addition, the requirement for

access to drinking fountains for people who may have difficulty bending

or stooping has been removed. The final rule requires that where

drinking fountains are provided, at least one comply with ADAAG 4.15.

11.2.3 Courthouse Holding Facilities. Section 11.2.3(1) applies a

scoping requirement to courthouse holding facilities including central

holding cells and court-floor holding cells serving courtrooms. Where

provided, at least one adult male, juvenile male, adult female, and

juvenile female central holding cell must comply with the requirements

in this section. Central holding facilities are typically designed with

sight and sound separation between men, women and juveniles. Where such

cell separation is provided, the guidelines require at least one of

each type of cell to be accessible. While there may be additional

``types'' of cells (i.e., isolation, group or individual cells) the

definition of ``type'' is limited to adult male, juvenile male, adult

female, and juvenile female holding facilities. Court-floor holding

cells, however, are not necessarily designed with sight and sound

separation between adult males, juvenile males, adult females, and

juvenile females. For example, some courthouses have numerous

courtrooms with two court-floor holding cells provided between every

two courtrooms. Detainees are escorted through a secured route directly

from the central holding cell to the court-floor holding cell. In such

instances, this provision would require only one accessible court-floor

holding cell. Such a cell may serve more than one courtroom. A

clarification has been added that cells may serve more than one

courtroom. No other changes have been made to this provision.

Section 11.2.3(2) contains the minimum requirements for accessible

cells. In the interim rule, 11.2.3(2)(a) (Doors and Doorways) exempted

doors and doorways operated only by security personnel from ADAAG

4.13.6. However, since ADAAG 4.13.6 also contains specifications for

maneuvering space, which is essential for passage through doors,

including those operated by security personnel, the exemption from

4.13.6 has been removed. The requirements in ADAAG 4.13 are not known

to pose any conflict with security requirements for doors. This

provision has also been modified to require fixed benches to provide

back support (e.g., attachment to the wall).

Comment. One commenter requested that the term ``maximum extent

feasible'' be applied to situations where altering the facility would

require substantial demolition of the existing

[[Page 2009]]

components of the facility in order to come into compliance.

Response. If compliance with alterations requirements is

technically infeasible, ADAAG 4.1.6(1)(j) requires that the alteration

provide accessibility to the maximum extent feasible. Technically

infeasible means, with respect to an alteration of a building or a

facility, that it has little likelihood of being accomplished because

existing structural conditions would require removing or altering a

load-bearing member which is an essential part of the structural frame;

or because other existing physical or site constraints prohibit

modification or addition of elements, spaces, or features which are in

full and strict compliance with the minimum requirements for new

construction and which are necessary to provide accessibility. Any

elements or features of the building or facility that are being altered

and can be made accessible are required to be made accessible within

the scope of the alteration.

Comment. Several combination stainless steel water closet and

lavatory units are available that cannot incorporate a 36 inch grab bar

behind the water closet. One manufacturer of combination fixtures

stated that the two main reasons such units are specified is to reduce

costs and minimize vandalism. Combination units reduce the square

footage needed in cell design and reduce costs by only requiring one

wall opening for plumbing connections, rather than two wall openings if

separate fixtures are provided. The commenter further stated that there

is a reduction in vandalism by having one large fixture mounted to the

wall which makes it much more difficult to remove or destroy than a

single lavatory or toilet. The commenter stated that major retooling

and redesign of the units would defeat the reasons why the units are

currently preferred and proposed that a 24 inch grab bar behind the

water closet be allowed instead of a 36 inch grab bar.

Response. Although the use of combination units are preferred for

space efficiency and security, they are generally not mandatory. An

exception for the length of the rear grab bar on combination units has

not been provided since separate, accessible lavatories and toilets are

readily available.

Section 11.2.3(3) requires that where fixed cubicles are provided,

at least five percent, but not less than one, must have the maximum

counter height and knee clearance underneath as required by ADAAG 4.32

(Fixed or Built-in Seating or Tables) on both the public and detainee

sides. It also requires a method to facilitate voice communication if

solid partitions or security glazing separates visitors from detainees.

No changes have been made to this provision.

11.3 Legislative and Regulatory Facilities

This section contains requirements for legislative and regulatory

facilities. Legislative facilities include town halls, city council

chambers, city or county commissioners' meeting rooms, and State

capitols. Regulatory facilities are those which house State and local

entities whose functions include regulating, governing, or licensing

activities. This section has been clarified in the final rule as

applying to public meeting rooms, hearing rooms, and chambers. An

appendix note provides examples of the facilities and spaces covered by

this section.

Section 11.3.1 requires access to raised speakers' platforms,

spectator seating and press areas. Areas that are raised such as

speakers' platforms, or depressed and accessed by ramps or platform

lifts with entry ramps must provide a turning space complying with

4.2.3 so that the space can be entered and exited in a forward

direction safely. For clarity, those requirements in the interim rule

applicable to hearing rooms and chambers are provided in this section

separately from those in 11.2 for courtrooms.

Section 11.3.1(1) requires access to at least one of each type of

raised speakers' platform. This provision has been revised for clarity

and a reference to ADAAG 4.32 has been removed since it may be

excessive and not all speakers' platforms contain counters. Section

11.3.1(2) addresses spectator, press, and other areas. This provision

has been revised consistent with a similar requirement for courtrooms

in 11.2. See 11.2.1(1)(a) above.

Most city council chambers and legislative chambers contain a

public address system and multiple microphones for numerous speakers.

In such facilities, it is more efficient to supplement an audio-

amplification system with a permanently installed assistive listening

system to enable people who are deaf or hard of hearing to participate

in the proceedings. Section 11.3.2 requires a permanently installed

assistive listening system in each assembly area equipped with an

audio-amplification system. The interim rule required a permanently

installed assistive listening system in 50 percent of all hearing

rooms, meeting rooms, and chambers designated for public use. As

revised in the final rule, this provision is more consistent with

existing ADAAG requirements in 4.1.3(19)(b). This provision differs

from 4.1.3(19)(b) in that it applies without respect to occupancy load

or the provision of fixed seating.

12. Detention and Correctional Facilities

This section addresses detention and correctional facilities where

occupants are under some degree of restraint or restriction for

security reasons and provides scoping and technical requirements for

accessible cells or rooms.

12.1 General

This provision identifies the types of facilities covered by

Section 12, including jails, prisons, reformatories, and juvenile

detention centers. All public areas and those common use areas serving

accessible cells are subject to existing ADAAG except the requirements

for areas of rescue assistance and signage. In response to inquiries

concerning the need for elevator access or complying stairs to the

upper tiers of housing facilities where there are no accessible cells,

an exception has been added in the final rule. Under this exception, an

elevator complying with 4.10 or stairs complying with 4.9 are not

required in multi-story housing facilities where accessible cells or

rooms and all common use areas serving them, as well as all public use

areas, are on an accessible route.

12.2 Entrances and Security Systems

This section covers entrances and security screening devices.

Section 12.2.1 requires that public entrances, including those that are

secured, be accessible as required by ADAAG 4.1.3(8). Entrance doors

that are operated by security personnel are exempt from the

requirements in ADAAG 4.13 (Doors) for door hardware, opening forces,

and automatic doors. Doors subject to security requirements prohibiting

full compliance with the provisions of ADAAG 4.13 are similarly exempt.

The exception in 12.2.1 may apply to doors used by persons other than

inmates and facility staff, such as counselors and instructors. It is

important that evacuation planning address egress for all persons who

may access secured areas since a person with a disability might not be

able to independently operate doors meeting this exception. This

consideration has been included in an appendix note. Section 12.2.2

requires that an accessible route be provided through or around

security screening devices located at accessible entrances. Section

12.2.2 has been editorially revised to

[[Page 2010]]

reference a circulation path in lieu of a path of travel.

Section 12.2.2 of the interim rule contained requirements for

entrances and passenger loading zones used only by inmates or detainees

and security personnel. These requirements have been removed in the

final rule as ADAAG 4.1.3(8) addresses all types of entrances except

service entrances and ADAAG 4.1.2(5) addresses passenger loading zones.

Comment. In the interim rule, the exception in 12.2.1 for doors

subject to security requirements required compliance to the ``maximum

extent feasible.'' One comment from a State agency recommended that

this term be removed because it complicates enforcement.

Response. The term ``maximum extent feasible'' has been removed

from the exception in 12.2.1 and the exception has been further

modified for clarity. In addition, a reference in this exception to

ADAAG 4.13.6, which specifies maneuvering clearances at doors,

including latch-side clearance, has been removed. This reference had

been included in the interim rule for doors operated by security

personnel since such operation precludes the need for clearance at the

latch side of doors. However, since ADAAG 4.13.6 also contains

specifications for maneuvering space, which is essential for passage

through doors, including those operated by security personnel, the

exemption from 4.13.6 has been removed. The requirements in ADAAG

4.13.6 are not known to pose any conflict with security requirements

for doors. An identical exception in 12.5.2(1) for doors and doorways

serving holding or housing cells has been similarly modified.

12.3 Visiting Areas

This section addresses non-contact visiting areas. At least five

percent of fixed cubicles on both the public and secured side must be

accessible under 12.3(1). Accessible cubicles for inmates or detainees

are required only in those visiting areas serving accessible housing or

holding cells. Section 12.3(2) requires cubicles separated by solid

partitions to be equipped with devices to facilitate voice

communication. These requirements are consistent with those for

visiting areas covered by section 11.4.3 (Courthouse Holding

Facilities). Few comments were received and only editorial changes have

been made to this provision.

12.4 Holding and Housing Cells or Rooms: Minimum Number

12.4.1 Holding Cells and General Housing Cells or Rooms. Minimum

Number. This section requires that a minimum of two percent, but not

less than one, of the total number of holding or general housing cells

or rooms provided in a facility be accessible in new construction.

The interim rule provided that at least three percent, but not less

than one, of the total number of housing or holding cells or rooms

provided in a facility shall be accessible.

Comment. Most comments from detention and correctional authorities

considered the three percent minimum specified in the interim rule

excessive in view of the demonstrated need. Several State correctional

agencies recommended one percent. The Illinois Department of

Corrections and 33 concurring State correctional agencies urged that

the minimum not exceed two percent. One disability organization

supported the three percent requirement. With respect to detention

facilities, one county government recommended one percent for holding

cells.

Most of the recommendations for a lower percentage were based on

survey data submitted in response to the NPRM. As noted in the interim

rule, among various responding States, the percentage of inmates with

mobility impairments ranged from .12 to 1.35 percent and the average

was .46 percent. A survey conducted by the Association of State

Correctional Administrators (ASCA) provided a significantly higher

average of 3.39 percent, suggesting that a wider range of disabilities,

not just mobility impairments, was included. In response to the interim

rule, the California Department of Corrections compiled additional

survey data from States, the ASCA, and the Federal Bureau of Prisons.

The results of that survey indicated that the average percentage of

inmates with some type of disability is 1.56 percent.

Few comments provided survey data on city or county facilities. In

response to the NPRM, several State entities that oversee such

facilities submitted survey results. The percentage of inmates with

disabilities housed in jails in Nebraska and Texas was .07 percent and

.48 percent, respectively. New York City previously indicated that .25

percent of its inmate population used wheelchairs. Other estimates for

local facilities ranged from less than one percent to two percent.

The three percent minimum specified in the interim rule was based

in part on the aging of the prison population, a consideration several

commenters raised, and existing data demonstrating that the prevalence

of disability increases with age. However, comments from State

correctional agencies to the interim rule indicated that the perceived

aging of the prison population is not supported by current demographic

data. The California Department of Corrections indicated that

nationally the average age of inmates is 29.8 years and inmates aged 60

years or older comprise less than one percent of the total population

based on its survey of States. The Illinois Department of Corrections

documented among various States that the number of inmates over 50

years old has remained constant or increased only slightly. The highest

increase reported by any State was 1.2 percent over a six year period.

One comment from a county authority also considered increases in this

population to be negligible.

Response. Consistent with a large majority of commenters, as well

as the survey data provided, the minimum number of holding or general

housing cells or rooms required to be accessible in new construction

has been reduced to two percent.

Dispersion. The interim rule provided that accessible cells shall

be dispersed among all categories and types of general housing and

holding areas. The final rule does not contain a requirement for

dispersion of accessible cells.

Comment. Many comments from State and local corrections officials

reiterated arguments made in response to the NPRM that accessible cells

should be required on a system-wide basis instead of for each newly

built or altered facility. This would provide a level of administrative

discretion operators consider essential in determining which facilities

of a system are appropriate for housing inmates with disabilities.

According to the commenters, the availability of certain programs,

services, and staff, not just architectural accessibility, are

important criteria in making this determination and that freedom of

choice, a fundamental consideration in ensuring access to public

housing and transient lodging, is not pertinent to the assignment of

housing among inmates. The California Department of Corrections stated:

[T]he primary service of correctional facilities is to help

maintain public safety through incarceration of offenders.

Classification to determine placement within the system is based on

many factors such as security requirements, medical needs, and other

administrative determinates. Accessibility is another one of these

factors

[[Page 2011]]

in the classification process. Given the mission of detention and

correctional facilities, it is appropriate to provide equal

accessibility to programs, service, and activities in an integrated

environment in the most economic manner possible which includes

mitigating staffing costs, making use of community resources and

grouping inmates with disabilities to provide specialized services

or training. The Access Board's concept that assignment polices may

change and that construction opportunities applied piecemeal will

eventually lead to full accessibility is clearly based on

assumptions of accessibility applied to most government services and

public accommodations. In a custodial setting, accessibility is only

one placement consideration which applies to an extremely slight

population number. . . . Accessibility can be optimally provided in

a limited number of facilities much more thoroughly and

economically, and with a comparable quality of providing inmate

services, programs, and activities.

Similar arguments were made by the Illinois Department of

Corrections in comments supported by 33 other State correctional

entities. Commenters emphasized these concerns in the context of

alterations where requirements for accessible cells may be triggered in

existing facilities that cannot support inmates with disabilities

either architecturally or programmatically. According to the

commenters, provision of accessible cells in an alteration will by no

means ensure that the necessary level of access to programs, services,

common use areas and other amenities available to inmates will be

achieved. According to commenters, providing access in some existing

facilities will waste limited resources and lead to a greater number of

accessible cells available only to inmates without disabilities where

misuse of elements, such as grab bars, is more likely to occur. Thus,

correctional authorities recommended that a percentage of accessible

cells be required for the entire system instead of at each newly

constructed or altered facility.

Response. New construction presents the greatest opportunity for

access. Why this would not hold true for detention and correctional

facilities was not clearly indicated in comments. Rather, the concerns

expressed in this area are relevant primarily to the requirement for

access in alterations in 12.4.5 (Alterations to Cells or Rooms). In the

interim rule, this provision applied the minimum scoping percentage of

new construction to the total number of cells or rooms altered in a

facility. Alterations provide important opportunities for access as

recognized by the ADA; however, corrections authorities make a

compelling case for allowing discretion in detention and correctional

facilities. Concerns of practicality, and those of feasibility raised

in the NPRM, and various operational factors indicate that in many

instances the cost of achieving access at many existing facilities will

greatly outweigh the benefits. For these reasons, section 12.4.5 and

the requirement for alterations have been reserved, thus limiting to

new construction the two percent scoping requirement. This requirement

has been reserved, rather than permanently removed, since it may be

revisited in the future. Further, there will be instances when the

opportunities for access in alterations should be considered,

particularly where a system has few, if any, accessible cells. In

certain cases, complying with the requirements of section 12 may be

practical, technically feasible, and facilitate compliance with other

ADA requirements, including those for program access. While reserving

this requirement may pose confusion over the minimum level of access

required in alterations, the obligation correctional entities have in

providing program access may effectively and practically determine the

degree of access that should be provided in an alteration. The

Department of Justice's title II regulation states that public entities

must operate each service, program, or activity so that the service,

program, or activity, when viewed in its entirety, is readily

accessible to and useable by individuals with disabilities. Thus, the

lack of a specific requirement for accessible prison alterations does

not excuse a public entity from providing access to all of the prison's

programs and services, when viewed in their entirety.

Comment. The interim rule contained a requirement that accessible

cells be dispersed among each type or category of housing or holding

cells. A few commenters recommended that prison operators have greater

discretion in locating cells on a site. The Bureau of Prisons noted

that according to its records inmates with disabilities are rarely

housed in maximum security facilities and recommended that accessible

cells not be required in this category of housing.

Response. The requirement for dispersion of accessible cells in

each category or type of housing or holding cell has been removed.

Thus, at sites where different categories of housing or levels of

security are provided, operators need not locate accessible cells in

each category or security level. A recommendation that accessible cells

be dispersed among different types of holding cells and different

categories and security levels of housing has been added to an appendix

note.

Comment. Several commenters requested clarification that the

minimum percentage applies to a facility generally and that accessible

cells are not required in each building of a facility.

Response. The minimum scoping requirement of two percent is based

on the total number of housing or holding cells or rooms provided in a

``facility.'' As defined in ADAAG 3.5 (Definitions), the term

``facility'' includes the buildings and structures of a site. While the

percentage is based on the total number of cells or rooms that may be

provided at a site, the location of accessible cells or rooms in each

building is not required.

12.4.2 Special Holding and Housing Cells or Rooms. This section

requires that where holding or housing cells or rooms are provided for

special purposes, at least one of each type must be accessible. This

includes those used for purposes of protective custody, disciplinary

detention, detoxification, and medical isolation.

Comment. One correctional authority recommended that this

requirement reference other purposes, including disciplinary

segregation, administrative detention, and orientation.

Response. These special purposes have been added to the

requirement.

Comment. The interim rule noted that ``an accessible special

holding or housing cell or room may serve more than one purpose.'' One

disability organization indicated that this should only be permitted

where inaccessible cells also serve multiple purposes, otherwise

inmates with disabilities may not have access to the same level of

service provided. This comment also suggested that a recommendation be

included in the appendix for a greater number of accessible special

purpose cells at large facilities.

Response. The statement concerning accessible cells serving more

than one purpose has been removed to ensure equivalency in the

provision of access. Accessible special holding cells may serve more

than one purpose where other special holding cells serve more than one

purpose. Where special holding cells serve different purposes, then one

of each type must be accessible. This clarification has been included

as an appendix note to 12.4.2. Also added to this appendix note is a

recommendation that more than one of each type should be accessible in

large facilities where a number of cells of each type serve different

holding areas or housing units.

Comment. One correctional agency recommended that this section

should only apply to those medical isolation

[[Page 2012]]

cells that are specifically designed for that purpose and not general

housing cells or medical care rooms that may also be used to isolate

inmates for medical purposes.

Response. An appendix note in the interim rule that distinguished

between medical isolation cells covered by 12.4.2 and patient bedrooms

covered by 12.4.4 has been relocated to this section. Additional

clarification has been added to this appendix note indicating that

12.4.2 applies to cells specifically designed for purposes of medical

isolation.

Comment. One corrections agency recommended that cells or rooms

used to monitor inmates or detainees likely to attempt suicide be

exempt from the requirement for grab bars. Such cells or rooms are

typically designed without any protrusions.

Response. The NPRM asked questions concerning grab bars and the

risk of suicide. A majority of the responses did not generally regard

grab bars as posing a greater risk since effective suicide prevention

is based on a variety of measures, including evaluation,

classification, and surveillance of inmates, not just cell design.

However, the installation of grab bars may complicate the design of

facilities that are used for the purpose of suicide watch. An exception

to the requirement in ADAAG 4.16 (Water closets) for grab bars has been

added for cells or rooms specially designed to be used solely for the

purpose of suicide prevention.

12.4.3 Accessible Cells or Rooms for Persons with Hearing

Impairments. This section requires access for persons who are deaf or

hard of hearing in housing or holding cells or rooms equipped with

audible emergency warning systems or permanently installed telephones.

Comment. One State correctional authority recommended that the

scoping be reduced from three to one percent based on survey data

received in response to the NPRM.

Response. The data received in response to the NPRM indicated that

the population of inmates who are deaf or hard of hearing is only

slightly higher than the population of inmates with mobility

impairments. Consistent with the requirement for accessible cells in

section 12.4.1, the minimum scoping has been reduced from three to two

percent.

12.4.4 Medical Care Facilities. This section applies the

requirements of ADAAG 6 (Medical Care Facilities) to medical care

facilities in detention and correctional facilities. Few comments

addressed this provision and no changes have been made.

12.4.5 Alterations to Rooms or Cells. This section has been

reserved. See the discussion under 12.4.1 (Holding Cells and General

Housing Cells or Rooms), ``Dispersion''.

12.5 Requirements for Accessible Cells or Rooms

This section contains the minimum requirements for accessible cells

or rooms. These requirements, which are similar to those for holding

cells in judicial facilities in ADAAG 11.4 (Courthouse Holding

Facilities), are based primarily on existing ADAAG specifications,

including those for transient lodging in section 9 (Accessible

Transient Lodging). Requirements are provided for doors and doorways,

toilet and bathing facilities, beds, drinking fountains, fixed seating

and tables, benches, storage, controls, and accommodations for persons

with hearing impairments. The majority of the comments received in

response to this provision addressed restrooms, beds, and fixed seating

and tables.

Section 12.5.2 has been revised to address those situations where a

covered element or space serves an accessible cell or room but is

located outside the cell or room.

(1) Doors and Doorways. This section contains an exception for

doors that are operated only by security personnel or subject to

security requirements prohibiting full compliance from the requirements

in ADAAG 4.13 (Doors). This exception has been modified consistent with

12.2.1 and 12.2.2. (For further discussion of the modifications, see

12.2 (Entrances).

(2) Toilet and Bathing Facilities. Comment. Several commenters

recommended that a grab bar shorter than the required 36 inches be

permitted behind water closets so that combination lavatory and water

closet units may be used. Currently, such units are equipped with a

grab bar approximately 24 inches long. A manufacturer of such units

indicated that developing a fully compliant unit is cost-prohibitive.

Response. An exception for the length of the rear grab bar on

combination units has not been provided since separate, accessible

lavatories and toilets are readily available. For further discussion,

see 11.4.2 (Requirements for Accessible Cells).

Comment. One commenter recommended that floor-mounted grab bars be

permitted.

Response. ADAAG does not specifically address floor-mounted grab

bars. However, in some situations they may provide an effective

alternative to wall-mounted grab bars so long as the requirements of

ADAAG 4.26 (Handrails, Grab Bars, and Tub and Shower Seats), including

the specifications for structural strength, are met.

(3) Beds. Comment. Several comments addressed the requirements for

beds. One comment recommended that the minimum clear floor space

required along one side of beds be 5 feet long instead of the full

length of the bed. One comment from an inmate with a disability

recommended that headroom between bunkbeds be specified while another

commenter advised the height of beds should be 19 to 21 inches.

Response. Clear floor space 36 inches wide is required along side

of beds the full length. However, elements, such as writing counters,

may overlap this space so long as the required knee and toe clearance

is provided. An appendix note provides some guidance on headroom

between bunkbeds and recommends a height for beds of 17 to 19 inches

based on existing ADAAG requirements for water closets and benches. No

changes have been made to this provision.

Technical inquiries have been received concerning the number of

beds that should be accessible in large barracks-style rooms with many

beds. Since beds may not be fixed, a minimum number of accessible beds

is not specified in this section, consistent with existing ADAAG.

However, a recommendation has been added to the appendix that the

minimum scoping for cells or rooms (two percent) also be applied to the

number of beds in large cells or rooms with many beds.

(4) Drinking Fountains. (5) Fixed or Built-In Seating and Tables.

(6) Fixed Benches. One comment concerning fixed or built-in seating and

tables seemed to confuse the requirements of section 12.5.2 with those

for common use areas in 12.1. Section 12.5.2 applies only to elements

located within accessible cells or rooms. Those elements located

outside cells for common use by inmates, such as in dayrooms which

adjoin cells, are subject to 12.1 and its application of existing ADAAG

for common use areas serving accessible cells. An appendix note has

been added to 12.5.2 to clarify this. In addition, the requirements in

12.5.2 for drinking fountains, fixed or built-in seating and tables,

and fixed benches have been modified to more clearly apply to elements

located within housing or holding cells. Paragraph (4) has been

modified to require ``at least one'' wheelchair accessible drinking

fountain where provided within a holding or housing cell. Drinking

fountains located in common use areas

[[Page 2013]]

are subject to existing ADAAG and its requirement that drinking

fountains be accessible to both persons using wheelchairs and those who

may have difficulty bending or stooping. Paragraph (5), which covers

fixed or built-in seating and tables, and paragraph (6), which

addresses fixed benches, has been similarly modified. In addition,

paragraph (6) has been modified to require fixed benches to be mounted

to the wall or provide back support.

(7) Storage. (8) Controls. (9) Accommodations for Persons with

Hearing Impairments. Few comments addressed these sections and no

changes have been made to these provisions.

12.6 Visual Alarms and Telephones

This section contains technical requirements for cells that are

accessible to persons who are deaf or hard of hearing. Section 12.6

requires that where cells are equipped with audible emergency warning

systems, a visual alarm complying with ADAAG 4.28.4 (Auxiliary Alarms)

shall also be provided. This section also requires that permanently

installed telephones, if provided in cells, shall have volume controls

complying with ADAAG 4.31.5 (Hearing Aid Compatible and Volume Control

Telephones). An exception from the requirement for visual alarms is

provided where inmates or detainees are not allowed independent means

of egress. No substantive changes have been made to this provision.

The interim final rule clarified that portable devices may be used

in lieu of permanent devices if necessary wiring and outlets are

provided. This was noted as an example of ``equivalent facilitation,''

a provision in ADAAG 2.2 that permits alternative designs that provide

equal or greater access. Since equivalent facilitation pertains to all

ADAAG provisions, this specific example has been removed in the final

rule.

Comment. The Committee on Acoustics in Corrections recommended that

design guidelines on acoustics developed by the American Correctional

Association should be incorporated in section 12. These specifications

are particularly essential in the noisy environments of detention and

correctional facilities and may help prevent hearing loss caused by

constant exposure to loud noise.

Response. Guidelines for acoustics have not been incorporated into

this rule because none had been previously recommended or proposed and

made available for public comment. While acoustics in correctional

facilities is an important design consideration, it involves concerns

such as prevention of hearing loss, that lie beyond the scope of ADAAG

and its minimum criteria for access to the built environment. Some of

these issues may be more appropriately addressed by agencies that

oversee correctional systems or provide accreditation.

13. Accessible Residential Housing

In the interim rule, ADAAG 13 addressed accessibility requirements

for residential facilities. This section has been reserved in the final

rule.

Since the publication of the interim rule, the American National

Standards Institute (ANSI) A117 Committee has developed a draft

proposal to add new sections pertaining to accessible and adaptable

residential housing to the CABO/ANSI A117.1 standard. The CABO/ANSI

standard for Accessible and Usable Buildings and Facilities will be

revised in 1997 to incorporate these new technical and scoping

provisions.

The Access Board is committed to coordinating its guidelines with

private sector standards and model codes to the extent possible. The

development of accessibility standards for accessible residential

housing by the ANSI committee at the time the Access Board is

publishing guidelines in the same area, presents a unique opportunity

for the Access Board to promote greater uniformity in accessibility

standards. Accordingly, the Access Board is reserving ADAAG 13

(Accessible Residential Housing) until it has an opportunity to review

the final CABO/ANSI standard. Upon completion of its review, the Access

Board will issue guidelines for accessible residential housing.

14. Public Rights-of-Way

In the interim rule, ADAAG 14 included provisions for new

construction and alterations of pedestrian and related facilities in

the public rights-of-way. This section has been reserved in the final

rule.

Comment. The majority of the comments received in response to the

NPRM and the interim rule concerned ADAAG 14 (Public Rights-of-Way).

Commenters were particularly concerned with the application of the new

construction provisions of section 14 to existing facilities. Many of

these commenters, including public works agencies, transportation

departments, and traffic consultants, were concerned that ADAAG 14.1

would be applied to transition plan construction, and in particular,

the number, location, and design of curb ramps, in existing developed

rights-of-way.

Response. Section 14 of the interim rule contained new construction

provisions which were not intended to apply to existing facilities in

the public right-of-way. With respect to alterations, section 14

contained less stringent scoping and technical provisions for

alterations to established rights-of-way where there is site

infeasibility. Few critical comments were directed to the accessibility

requirements for alterations. The response to both the NPRM and the

interim rule clearly indicated the need for substantial education and

outreach regarding the application of guidelines in this area.

Pedestrian facility design, and in particular, accessible

pedestrian design, is a new responsibility for many traffic engineers.

Within the highway industry, there is disparate understanding of

pedestrian accessibility criteria generally, and the application of the

ADAAG 14 provisions for new construction contained in the interim rule,

in particular. As a result, the Access Board has elected to reserve

ADAAG 14 (Public Rights-of-Way) in this final rule. The Access Board

has embarked upon an ambitious program of outreach to governmental and

private-sector organizations in the transportation industry to promote

the incorporation of pedestrian accessibility criteria into current and

proposed industry guidelines, standards, and recommended practices. The

guidelines contained in section 14 of the interim rule have been

adopted by the State of Alabama and are being used to guide policies on

pedestrian accessibility in the States of California, New Jersey and

Florida. Several cities, including Portland, Oregon and Seattle,

Washington have pedestrian planning requirements that are substantially

similar to those contained in the interim rule.

In a future rulemaking, the Access Board will review its education

and outreach program and the impact of the States' and localities'

regulatory efforts in this area, and will consider publication of

requirements for accessibility in the public right-of-way.

Technical Assistance

Under both the Architectural Barriers Act and the Americans with

Disabilities Act, the Access Board provides technical assistance and

training for entities covered under the acts. The Access Board's toll-

free number allows callers to receive technical assistance and to order

publications. The Access Board conducts in-depth training programs to

advise and educate the general public, as well as architects and other

professionals on the accessibility

[[Page 2014]]

guidelines and requirements. In addition, the Access Board is

developing a manual for use by both technical and general audiences.

The general manual on ADAAG requirements will be a useful tool in

understanding ADAAG whether for purposes of compliance or as a

reference for accessible design.

Regulatory Process Matters

Regulatory Assessment

These guidelines are issued to provide guidance to the Department

of Justice and the Department of Transportation in establishing

accessibility standards for new construction and alterations of State

and local government facilities covered by title II of the ADA. The

standards established by the Department of Justice and the Department

of Transportation must be consistent with these guidelines.

Under Executive Order 12866, the Board must determine whether these

guidelines are a significant regulatory action. The Executive Order

defines a ``significant regulatory action'' as one that is likely to

result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more or

adversely affect in a material way the economy, a sector of the

economy, productivity, competition, jobs, the environment, public

health or safety, or State, local, or tribal governments or

communities;

(2) Create a serous inconsistency or otherwise interfere with an

action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants,

user fees, or loan programs or the rights and obligations of recipients

thereof; or

(4) Raise novel legal or policy issues arising out of legal

mandates, the President' priorities, or the principles set forth in the

Executive Order.

For significant regulatory actions that are expected to have an

annual effect on the economy of $100 million or more or adversely

affect in a material way the economy, a sector of the economy,

productivity, competition, jobs, the environment, public health or

safety, or State, local or tribal governments or communities, a written

assessment must be prepared of the costs and benefits anticipated from

the regulatory action and any potentially effective and reasonably

feasible alternatives of the planned regulation. In both the proposed

and interim rules for accessibility guidelines for State and local

government buildings and facilities, the Board determined that those

rules met the criteria for a significant regulatory action in paragraph

(1) above under Executive Order 12866. As a result, a Preliminary

Regulatory Impact Analysis was prepared for the proposed rule and a

Regulatory Assessment was prepared for the interim final rule. In

addition to miscellaneous provisions, both the proposed rule and the

interim final rule addressed the addition of four new sections to the

Americans with Disabilities Accessibility Guidelines. Those sections

included judicial, legislative and regulatory facilities (section 11);

detention and correctional facilities (section 12); housing (section

13) and public rights-of-way (section 14).

As discussed in more detail in the Section-by-Section analysis

above, there have been three major revisions made in this final rule:

(1) the reserving of section 13 which previously addressed

accessibility requirements in housing; (2) the reserving of section 14

which addressed public rights-of-way; and (3) the reduction of the

scoping for accessible cells in detention facilities from three percent

to two percent. In addition, the final rule eliminates requirements for

(1) outlets, wiring and conduit for communications in judicial,

regulatory and legislative facilities; (2) areas of rescue assistance

in detention facilities; and reduces scoping requirements for visible

alarms from three percent to two percent in detention facilities. These

and other revisions have greatly reduced the economic impact previously

imposed by the interim rule for State and local government facilities.

The final rule has created a small increase in costs in only one

aspect: in Section 11.2.2, the scoping for permanent listening systems

has been increased from 50 percent of the courtrooms to 100 percent of

the courtrooms. Accordingly, because the overall effect of the final

rule reduces, rather than increases, the impact of the interim final

rule, the Board has determined that this final rule does not meet the

criteria for a significant rule under paragraph (1) above in that it

will not have an annual effect on the economy of $100 million or more

or adversely affect in a material way the economy, a sector of the

economy, productivity, competition, jobs, the environment, public

health or safety, or State, local, or tribal governments or

communities. Because the final rule does not meet the criteria under

paragraph (1) above, a regulatory assessment has not been prepared.

The Board and the Office of Management and Budget (OMB) have,

however, determined that this final rule meets the other criteria for a

significant regulatory action (i.e., the final rule raises novel, legal

or policy issues arising out of legal mandates), and OMB has reviewed

the final rule.

The guidelines adhere to the principles of the Executive Order.

Following the issuance of the proposed rule, the Board held five public

hearings in major cities across the country. Notices of the hearings

and invitations to attend were sent to major state and local government

entities in those areas. In addition, copies of the notice of proposed

rule and the interim final rule as well as the regulatory assessments

prepared in connection with those rules were mailed directly to major

associations of State and local governmental entities across the

country and various responsible agencies in individual states for their

review and comment. Those comments were carefully analyzed and the

major issues discussed in both the interim final rule and this final

rule.

Regulatory Flexibility Act Analysis

Under the Regulatory Flexibility Act, the publication of a rule

requires the preparation of a regulatory flexibility analysis if such

rule could have a significant economic impact on a substantial number

of small entities. For the reasons discussed above, the Board has

determined that these guidelines will not have such an impact and

accordingly, a regulatory flexibility act analysis has not been

prepared.

Federalism Statement

These guidelines will have limited Federalism impacts. The impacts

imposed upon State and local government entities are the necessary

result of the ADA itself. Every effort has been made by the Access

Board to lessen the impact of these guidelines on State and local

government entities. As discussed in more detail in the Section-by-

Section analysis above, the final rule has revised the ADA

Accessibility Guidelines for State and Local Government facilities and

has greatly reduced the economic impact of the interim guidelines.

The Preliminary Regulatory Impact Analysis (PRIA) prepared in

connection with the proposed rulemaking and the Regulatory Assessment

prepared for the interim final rule served as the Federalism Statements

for those rules under Executive Order 12612. Because the overall impact

of this final rule reduces rather than increases the impact of the

interim rule, an additional Federalism Statement is unnecessary for

purposes of this rule.

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Unfunded Mandates Reform Act

Under the Unfunded Mandates Reform Act, Federal agencies must

prepare a written assessment of the effects of any Federal mandate in a

final rule that may result in the expenditure by State, local, and

tribal governments, in the aggregate, or by the private sector, of $100

million or more in any one year. Excluded from the requirements of that

Act, are provisions which (1) enforce the constitutional rights of

individuals; or (2) establish or enforce a statutory right that

prohibits discrimination on the basis of race, color, religion, sex,

national origin, age, handicap or disability. Guidelines promulgated

pursuant to the Americans with Disabilities Act are therefore excluded

from the application of the Unfunded Mandates Reform Act and a written

assessment is not required for this final rule.

Enhancing the Intergovernmental Partnership

As discussed in the supplementary information above, on December

21, 1992, the Access Board published a NPRM in the Federal Register

which proposed to amend ADAAG (36 CFR part 1191) by adding four special

application sections and miscellaneous provisions specifically

applicable to buildings and facilities covered by title II of the ADA.

Executive Order 12875, Enhancing the Intergovernmental Partnership,

encourages Federal agencies to consult with State and local governments

affected by the implementation of legislation. Accordingly, following

the issuance of the NPRM, the Access Board held five public hearings in

major cities across the country. Notices of the hearings and

invitations to attend were sent to major State and local government

entities in those areas. In addition, copies of the NPRM were mailed

directly to major associations of State and local governmental entities

across the country and various responsible agencies in individual

States. In response to the NPRM and the public hearings, a total of 148

people presented testimony on the proposed guidelines, 447 written

comments were submitted to the Access Board by the end of the comment

period, and an additional 127 comments were received after the close of

the comment period. Although the latter comments were not timely, the

Access Board considered them to the extent practicable. Two hundred and

five of the comments and testimony received were from affected State

and local governments.

In addition, following the publication in the Federal Register of

the Access Board's interim rule on June 20, 1994, and the notices of

proposed rulemaking by the departments of Justice and Transportation,

copies of the Access Board's interim rule and the departments' NPRMs,

as well as the Regulatory Assessment prepared in connection with the

notices were forwarded to major State and local government associations

and agencies for their review and comment. The Access Board received

246 comments on the interim rule. Almost two thirds of the comments

received were from State and local governments. Many of those comments

were from public works agencies, transportation departments, and

traffic consultants.

The comments received in response to the NPRMs issued by the Access

Board, the Department of Justice and the Department of Transportation,

as well as the Access Board's interim rule were carefully analyzed and

the major issues are discussed in the Section-by-Section Analysis,

which also indicates the Access Board's position on each issue.

List of Subjects in 36 CFR Part 1191

Buildings and facilities, Civil rights, Individuals with

disabilities, Transportation.

Authorized by vote of the Access Board on May 14, 1997.

Patrick D. Cannon,

Chairperson, Architectural and Transportation Barriers Compliance

Board.

Editorial Note: This document was received at the Office of the

Federal Register on December 22, 1997.

For the reasons set forth in the preamble, part 1191 of title 36 of

the Code of Federal Regulations is amended as follows:

PART 1191--AMERICANS WITH DISABILITIES ACT (ADA) ACCESSIBILITY

GUIDELINES FOR BUILDINGS AND FACILITIES

1. The authority citation for 36 CFR part 1191 continues to read as

follows:

Authority: 42 U.S.C. 12204.

2. Appendix A to Part 1191 is amended by revising the title page,

pages i, ii, 1 through 14, 14A, 15, 54, 56, 59 through 63, 67, 71

through 76; and removing pages 61A and 77 through 92 as set forth

below.

3. In Part 1191, the appendix to appendix A is amended by revising

pages A1, A1A, A2, A15 through A21 and removing pages A22 through A30

as set forth below.

The revisions read as follows:

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[FR Doc. 98-615 Filed 1-12-98; 8:45 am]

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