2. ADAAG Background

The scope of the regulatory analysis, applied to the proposed standards, can be viewed as consisting of several parts:

These different parts are now incorporated into 2004 ADAAG, with the application and scoping provisions for all parts in ADA Chapters 1 and 2, and the technical requirements for all parts in the remaining chapters of the document.

The 2004 ADAAG imposes requirements for different types of construction: new construction, alterations and architectural barrier removal. New construction and alterations apply to either new construction of buildings. Alterations involve major renovations at existing sites which are assumed to be undertaken on a regular basis to maintain building features to current levels of function, quality and style. Alterations differ from barrier removal in that barrier removal is assumed to be undertaken in response to a compliance measure and is smaller in scope.

2.1 Access Board Regulatory Assessment

In order to determine which of the requirements in the 2004 ADAAG would, if adopted as proposed standards, represent a substantive change from the 1991 Standards, the Department relied primarily on the Access Boardís final regulatory assessment for the 2004 ADAAG, which was published in July 2004. [4] The Department also consulted the Boardís earlier regulatory assessments for its supplemental guidelines for play areas (2000) and recreation facilities (2002).[5] Because the costs of these supplemental guidelines had already been adopted into ADAAG, they served as part of the Boardís baseline, and were not included in its 2004 regulatory assessment.

One difference between the Boardís regulatory assessments and the Departmentís assessment is that the Board compared the provisions in 2004 ADAAG to those in the 1991 ADAAG (as amended through 2002). The Department however must compare the provisions in the 2004 ADAAG (as proposed ADA Standards) to currently enforceable law, represented primarily by the 1991 Standards (adopted in 1991 and amended in 1994). Although the 1991 Standards are consistent with the 1991 ADAAG, the two documents are not identical -- there are some slight differences, both in the text of the requirements and as they have been interpreted and enforced by the Department. Because the purpose of the Departmentís assessment is to determine how its adoption of the proposed standards would change the status quo, where a provision in the 2004 ADAAG was identified by the Board as a substantive change but is nonetheless consistent with the Departmentís interpretation of the 1991 Standards and its enforcement practice, the Departmentís adoption of that provision in the proposed standards represents not a substantive change but merely a codification of current law.[6]

In its regulatory assessment for the 2004 ADAAG, the Board has identified 68 requirements that represented a substantive change relative to the 1991 ADAAG (as amended through 2002) for purposes of newly constructed or altered facilities.[7] These changes were divided into three categories -- "reduced cost" requirements, "no or minimal cost" requirements, and "increased cost" requirements. "Reduced cost" requirements include those for which the scoping or technical specifications for newly constructed or altered facilities have been made less stringent, or where new exceptions have been provided. "No or minimal cost" requirements include those that the Board determined would neither add new features or space nor present new design challenges when applied to newly constructed or altered facilities. Finally, the "increased cost" requirements include those that the Board determined would increase the cost of compliance for newly constructed or altered facilities, either by increasing the scoping requirement, making the technical specifications more stringent, or eliminating exceptions.

The Board then assessed the unit cost (the direct, one-time capital cost of making a given element or space compliant with a particular requirement) of each of the 14 requirements it had determined would impose an "increased cost" relative to the 1991 ADAAG (as amended through 2002), and, of those, selected 10 requirements that it determined were likely to have the greatest cost impact on newly constructed and altered facilities in four facility groups (office buildings, hotels, hospitals and long-term care facilities, and public housing). The Board selected these facility types based on its determination that half (or 7) of the 14 "increased cost" requirements would primarily affect these facilities, so that it could be assumed that these facilities were likely to experience relatively higher costs than other types of facilities. The Board aggregated the unit costs for these requirements on an annual basis as applied to all newly constructed and altered facilities in these four facility groups, and then extrapolated the results to all newly constructed and altered facilities generally.

In the ANPRM, the Department stated that it expected to "adopt" the Access Boardís final regulatory assessment for the 2004 ADAAG as its assessment of the cost impact that the proposed standards would have on newly constructed and altered facilities. At the same time, however, the Department recognized that its assessment of the costs for newly constructed and altered facilities would have to be broader than that of the Board. First, the Departmentís assessment would have to include the costs associated with the supplemental guidelines, which, because they had been adopted by the Board in earlier rulemaking initiatives, had been considered part of the Boardís baseline. In addition, as the Department noted in the Regulatory Framework to the ANPRM, the unit costs estimated by the Board, though they could serve as a starting point, would have to be adjusted for inflation, supplemented with indirect costs, balanced with reduced costs, and then spread out over the 40-year lifecycle of the regulation. Finally, because the Department was undertaking a comprehensive benefit-cost analysis, the adjusted, supplemented and annualized costs of each requirement would have to be paired with an assessment of the corresponding benefits.

2.2 Requirements

Based upon its review of the Boardís final regulatory assessment for the 2004 ADAAG, the Department has determined the proposed standards would affect over one hundred substantive changes to the 1991 Standards (Table 1 and Appendix 2). These changes are represented by two kinds of requirements -- "supplemental" (or "new") and "revised" requirements. The supplemental requirements are those that have no counterpart in the 1991 Standards and were initially adopted into ADAAG in the form of "supplemental guidelines" providing scoping and technical provisions for judicial, detention and correctional facilities (1998), play areas (2000), and recreation facilities (2002). While the supplemental requirements have been a part of ADAAG since they were adopted, the Department is now proposing to adopt them into the ADA Standards for the first time. These requirements apply to elements and spaces that are typically found only in certain facility types, such as courthouses, jails, prisons, exercise facilities, sports and recreation facilities, recreational boating and fishing facilities, golf courses, miniature golf courses, amusement rides and playgrounds. (Some supplemental requirements, such as those relating to exercise facilities, swimming pools, and play areas, will apply to a broader range of facility types.) The Department has identified approximately 30 individual requirements from the supplemental guidelines that will represent substantive changes to the ADA Standards and are not currently being enforced.[8]

Revised requirements apply to elements or spaces that are currently either subject to (or specifically exempted from) a scoping or technical requirement in the 1991 Standards, and apply to the types of elements and spaces that are typically found in a wide range of commonly used facility types, such as restaurants, retail stores, schools, hospitals, and office buildings. Also the revised requirement apply to common building elements (such as windows) and commonly used facility types (such as residential dwelling units) that have long been subject to specific accessibility requirements, either through UFAS, another Federal accessibility standard (for example, under the Fair Housing Act or Section 504 of the Rehabilitation Act) or the International Building Code (IBC). All of the revised requirements were adopted by the Board in 2004 -- rather than through earlier supplemental rulemaking -- and all were described in the Boardís final regulatory assessment for the 2004 ADAAG.

This assessment defines revised requirements relative to the 1991 Standards as either "more stringent" or "less stringent". Generally speaking, more stringent requirements are those that have been revised to require more accessibility than the current requirements, potentially conferring a greater benefit at a higher cost, while less stringent requirements are those that have been relaxed relative to the current requirement, potentially conferring a lesser benefit at a lower cost. For the most part, these categories correspond to the Boardís categories "no or minimal cost" and "increased cost," on the one hand, and "reduced cost," on the other. The difference in terminology is attributable to the difference between the two assessments: with respect to each requirement, the Boardís assessment measured only the costs, while the Departmentís assessment has measured both the benefits and the costs.

The Departmentís categories, however, do not track perfectly with those of the Board. Because the Board was assessing the cost impact of each requirement, first, against a baseline of 1991 ADAAG (as amended through 2002), and secondly, as applied only to a select range of newly constructed and altered facility types, in cases where the 1991 Standards as interpreted and enforced by the Department requires more than 1991 ADAAG (as amended through 2002), or where the nature of the revision has different cost implications for different types or sizes of facilities across the spectrum of facility types to which the requirement will apply, the Department has categorized the requirement differently. For example, the Department has determined that the revised requirements relating to public entrances (section 206.4.1 of the 2004 ADAAG), which the Board had determined would likely effect no change, may effect a change for certain very large facilities (not addressed in the Boardís assessment) for which the revised requirement may be less stringent than the current requirement. Likewise, the requirement relating to dwelling units with communication features (sections 809.5 and 708.4), which the Board had categorized as a more stringent requirement when costed against a baseline of UFAS, is being costed in this assessment against both UFAS (with respect to which it is more stringent) and an alternate baseline of the transient lodging provisions of the 1991 Standards, compared to which it is less stringent.[9]

Similarly, the revised requirement exempting parking spaces designated for the exclusive use of buses, delivery vehicles, law enforcement vehicles and the like (section 208.1, Exception), which the Board had identified as a "reduced cost" requirement, represents no change from the Departmentís current interpretation of the 1991 Standards. However, because in revising the requirement the Board added a provision requiring parking lots containing such spaces, if they are accessed by the public, to provide an accessible loading zone, this requirement has been categorized as a "more stringent" requirement for purposes of this assessment. Similarly, due to differences between the Boardís interpretation of the 1991 ADAAG and the Departmentís interpretation and enforcement of the 1991 Standards, other revised requirements that the Board had identified as imposing a "reduced cost" -- including the revised scoping requirements for self-service storage facility spaces and washing machines and clothes dryers -- have been categorized as "more stringent" requirements in this assessment.

In addition to the supplemental and revised requirements, the Department is preparing several regulatory proposals. The regulatory proposals can be grouped into five different categories: 1) those modifying 2004 ADAAG requirements for barrier removal in an effort to decrease the burden on businesses, 2) additional requirements similar to the 2004 ADAAG for certain equipment or facilities, 3) new proposals regarding effective communications, 4) codifications of existing law, and 5) proposals expected to have no cost impact. Regulatory proposals in the first three categories have been incorporated into the benefit-cost model and calculations for the revised 2004 ADAAG. The codifications of existing law and the proposals expected to have no cost impact have not been analyzed.

Table 1 lists requirements relevant to this analysis. A summary of the requirements is provided in Appendix 2, which references this list, numbered 1-112. Most requirements are assumed to apply to one or more facility groups. Allocation of requirements into facilities is discussed in Chapter 3.

Table 1: List of Requirements

ID

Requirement

1

Public Entrances

2

Maneuvering Clearance or Standby Power for Automatic Doors

3

Automatic Door Break-Out Openings

4

Thresholds at Doorways

5

Door and Gate Surfaces

6

Location of Accessible Routes

7

Common Use Circulation Paths in Employee Work Areas

8

Accessible Means of Egress

9

Stairs (NC)

10

Stairs (ALT/BR)

11

Handrails Along Walkways

12

Handrails

13

Accessible Routes from Site Arrival Points and Within Sites

14

Standby Power for Platform Lifts

15

Power-Operated Doors for Platform Lifts

16

Alterations to Existing Elevators

17

Platform Lifts in Hotel Guest Rooms and Dwelling Units

18

“LULA” and Private Residence Elevators

19

Van Accessible Parking Spaces

20

Valet Parking Garages

21

Mechanical Access Parking Garages

22

Direct Access Entrances from Parking Structures

23

Passenger Loading Zones

24

Parking Spaces

25

Parking Spaces (Signs)

26

Passenger Loading Zones at Medical Care and Long-Term Care Facilities

27

Ambulatory Accessible Toilet Compartments

28

Water Closet Clearance in Single-User Toilet Rooms with Out-Swinging Doors

29

Shower Spray Controls

30

Urinals

31

Multiple Single-User Toilet Rooms

32

Water Closet Clearance in Single-User Toilet Rooms with In-Swinging Doors

33

Water Closet Location and Rear Grab Bar

34

Patient Toilet Rooms

35

Drinking Fountains

36

Sinks

37

Side Reach

38

Sales and Service Counters (NC)

39

Sales and Service Counters (ALT)

40

Washing Machines and Clothes Dryers (technical)

41

Washing Machines and Clothes Dryers (scoping)

42

Self-Service Storage Facility Spaces

43

Limited Access Spaces and Machinery Spaces

44

Operable Parts

45

Transient lodging Guest Room Vanities

46

Operable Windows

47

Dwelling Units with Communication Features (1991)

48

Dwelling Units with Communication Features (UFAS)

49

Galley Kitchen Clearances

50

Shower Compartments with Mobility Features

51

Location of Accessible Route to Stages

52

Wheelchair Space Overlap in Assembly Areas

53

Lawn Seating in Assembly Areas

54

Handrails on Aisle Ramps in Assembly Areas

55

Wheelchair Spaces in Assembly Areas

56

Accessible Route to Tiered Dining Areas in Sports Facilities (NC)

57

Accessible Route to Press Boxes

58

Public TTYS

59

Public Telephone Volume Controls

60

Two-Way Communication Systems at entrances

61

ATMs and Fare Machines

62

Assistive Listening Systems (technical)

63

Visible Alarms in Alterations to Existing Facilities

64

Detectable Warnings (scoping)

65

Detectable Warnings (technical)

66

Assistive Listening Systems (scoping)

67

Accessible Courtroom Stations

68

Accessible Attorney Areas and Witness Stands

69

Raised Courtroom Stations Not for Members of the Public

70

Accessible Route to Exercise Machines and Equipment

71

Accessible Machines and Equipment

72

Accessible Saunas and Steam Rooms (NC)

73

Accessible Lockers

74

Accessible Dressing Rooms, Fitting Rooms, or Locker Rooms

75

Wheelchair Spaces in Team or Player Seating Areas

76

Accessible Route in Court Sport Facilities

77

Accessible Route to Bowling Lanes

78

Shooting Facilities with Firing Positions

79

Accessible Means of Entry to Pools (NC/ALT)

80

Accessible Means of Entry to Wading Pools

81

Accessible Means of Entry to Spas

82

Accessible Route to Boating Facilities

83

Accessible Boarding Piers (NC)

84

Accessible Boarding Piers (ALT/BR)

85

Accessible Boat Slips (NC)

86

Accessible Boat Slips (ALT/BR)

87

Accessible Route to Fishing piers

88

Accessible Fishing Piers and Platforms

89

Accessible Route to Golf Courses

90

Accessible Teeing Grounds, Putting Greens, and Weather Shelters (NC)

91

Accessible Teeing Grounds, Putting Greens, and Weather Shelters (ALT/BR)

92

Accessible Practice Putting Greens, Practice Teeing Grounds, and Teeing Stations at Driving Ranges

93

Accessible Route to Holes (mini golf)

94

Accessible Holes (mini golf)

95

Accessible Route to amusement rides

96

Wheelchair Space or Transfer Seat or Transfer Device

97

Maneuvering Space in Load and Unload Area

98

Signs at amusement park rides

99

Accessible Route to Play Components (BR)

100

Accessible Play Components (BR)

101

Accessible Route to Play Components (ALT)

102

Accessible Play Components (ALT)

103

Accessible Route to Play Components (NC)

104

Accessible Play Components (NC)

105

Open Captioning in Sports Stadium

106

Post Secondary School Multi-Story Dorm Facility

107

Mobility Accessible Prison Cell

108

Communication Accessible Prison Cell

109

Social Service Establishment (UFAS)

110

Social Service Establishment (ADAAG)

111

Accessible Saunas and Steam Rooms (ALT/BR)

112

Accessible Means of Entry to Pools (BR)

 

2.3 Facilities

The 2004 ADAAG and the proposed standards apply to new construction and alterations for both Title II and Title III entities. Types of facilities include single purpose facilities such as hotels and classes of facilities such as retail stores (e.g. bakeries, etc.) or service establishments (e.g. banks, dry cleaners, etc.). In some cases, facility groupings are defined based on the size of the facility (e.g. auditoriums and convention centers). Groups are also distinguished by economic characteristics, especially the responsiveness of average customers to changes in prices at facilities. For example, consumers would have less price responsiveness in buying gasoline than going to a restaurant because of the general necessity for many people in driving a car and because people can always cook at home. Finally, it must be noted that some facilities, such as play areas and pools may be elements in larger facilities, such as hotels. Benefits from using such elements are assumed to be conditional on facility use.

Table 2: List of Facilities

IDFacility

A

Inns

B

Hotels

C

Motels

D

Restaurants

E

Motion Picture House

F

Theatre / Concert Hall

G

Stadiums

H

Auditoriums

I

Convention centers

J

Single level stores

K

Shopping malls

L

Indoor Service Establishments

M

Offices of health care providers

N

Hospitals

O

Nursing homes

P

Terminal (private airports)

Q

Depots

R

Museums, historical sites & libraries

S

Parks or zoos

T

Amusement parks

U

Nursery schools - Daycare

V

Elementary private schools

W

Secondary Private Schools

X

Undergraduate and postgraduate private schools

Y

Ski facilities

Z

Homeless Shelter

AA

Food banks

AB

Social service establishments

AC

Exercise facilities

AD

Aquatic centers / swimming pools

AE

Bowling alleys

AF

Golf courses (private with public access)

AG

Golf courses (private only)

AH

Miniature golf courses

AI

Recreational boating facilities

AJ

Fishing piers and platforms

AK

Shooting facilities

AM

Office buildings

AN

Elementary public schools

AO

Secondary public schools

AP

Undergraduate, postgraduate public schools

AQ

Public housing

AR

State and local judicial facilities (courthouses)

AS

State and local detention facilities (jails)

AT

State and local correctional facilities (prisons)

AU

Parking garages

AV

Self service storage facilities

AW

Theatre / Concert Halls (public)

AX

Stadiums (public)

AY

Auditoriums (public)

AZ

Convention centers (public)

BB

Hospitals (public)

BC

Nursing homes (public)

BD

Museums, historical sites & libraries (public)

BE

Parks or zoos (public)

BF

Homeless Shelter (public)

BG

Exercise facilities (public)

BH

Social service establishments (public)

BI

Aquatic centers / swimming pools (public)

BJ

Miniature golf courses (public)

BK

Recreational boating facilities (public)

BL

Fishing piers and platforms (public)

BM

Office buildings (public)

BN

Parking garages (public)

BO

Golf courses (public)

BP

Restaurants (public)

BQ

Amusement parks (public)


2.4 Structure of Analysis and Scenarios

2.4.1 Barrier Removal and Safe Harbor

One of the methods the Department is considering to minimize the financial burden upon existing private (Title III) facilities, while still maintaining high levels of accessibility for persons with disabilities, is to establish a safe harbor (SH) policy. Under SH, the Department would deem compliance with scoping and technical requirements in the 1991 Standards to constitute compliance with the ADA for purposes of meeting BR obligations on a requirement-by-requirement basis. In other words, only elements in a covered facility which are in compliance with the applicable scoping and technical requirements of the 1991 Standards would be eligible for SH.

Safe harbor would not, however, apply to certain requirements or facilities. First, safe harbor does not apply to supplemental requirements -- such as the requirements covering play areas and recreational facilities -- since such requirements necessarily have no counterpart in the 1991 Standards. Second, existing public (Title II) facilities operated by state and local governments are not covered by this particular safe harbor provision because barrier removal obligations only arise under Title III. (Existing Title II-covered facilities are instead subject to program access requirements for which the Department is proposing a separate safe harbor provision.)[10]

As the Department pointed out in the Advance Notice of Proposed Rulemaking (ANPRM), published on September 30, 2004:[11]

Several considerations support this approach. To the extent places of public accommodation have complied with the specific scoping and technical requirements of the current ADA Standards, it would be an inefficient use of resources to require them to retrofit simply to comply with the revised ADA Standards if the change provides only a minimal improvement in accessibility. In addition, covered entities would have a strong disincentive to comply voluntarily with the readily achievable barrier removal requirement if, every time the ADA Standards are revised, they are required once again to retrofit elements just to keep pace with the current standards.

Arguments against implementing SH include the possibility that some up-to-date technologies would not be implemented for barrier removal purposes. This could prevent critical access for persons with disabilities. Although the reduced improvements compared to new facilities may be minor, some people may lose significant benefits by establishing SH. Given this tradeoff, the Department has tasked this analysis to assess the difference in costs and benefits of the proposed standards both with and without SH.[12]

2.4.2 Classification of Requirements

The framework for determining the impact of the proposed standards on the elements is illustrated in Figure 1. The framework focuses on elements, not facilities, because it is elements that are evaluated for compliance. Viewed another way, facilities are entirely composed of elements, some of which are subject to requirements. Facilities and elements both originate from the date the building is completed. They age however at different rates because each time an alteration is undertaken, elements are renewed. This framework classifies elements with respect to when they were built, the likelihood that a requirement would be readily achievable, and whether or not SH is adopted. This framework also defines the differences in how revised and new requirements are modeled.

The number of existing elements that are subject to the 1991 Standards is divided into several groups to estimate the current level of compliance. Altered and newly constructed buildings are assumed to be fully compliant with the 1991 standards. That is, if it was readily achievable, the element is assumed to be compliant with the 1991 Standards; and, if it was not readily achievable, the element is assumed to be non-compliant. Compliance with the 1991 Standards is assumed for existing elements: built after 1993; altered after 1992; or having readily achievable barrier removal after 1992. Non-compliant elements are assumed not to have been readily achievable. Classification of elements is as follows:

The first division classifies elements as being designed and constructed for first occupancy before or after 1993.[13] These buildings would be "new" compared to the 1991 Standards. Figure 1 labels these conditions as "Built before 1993" and "Built after 1993", respectively. The number of existing buildings constructed before 1993 is represented as the proportion (c).[14]

Elements constructed before 1993 are then sub-divided into whether they have or have not been altered between 1992 and 2009.[15] The proportion of facilities altered is represented by the proportion (b).

The third classification divides unaltered facilities into whether barrier removal was or was not readily achievable. It is assumed that if barrier removal is readily achievable, then it has been undertaken. This sub-classification applies to unaltered elements because if they had been altered, they are assumed to have been compliant with the 1991 Standards. If barrier removal is not readily achievable, it is not compliant. Proportions of elements assumed to be readily achievable to comply with the proposed new standards is (a).

With respect to the revised, more stringent requirements in the proposed standards, existing elements comply by undertaking either barrier removal or through an alteration. In all cases, if barrier removal is not readily achievable, alterations are undertaken. Only compliant elements subject to more stringent requirements are considered for barrier removal and of these, only elements that are readily achievable. If barrier removal is not readily achievable relative to the proposed standards, it is not undertaken. Barrier removal of currently noncompliant elements due to more stringent requirements cannot logically be readily achievable because they are currently noncompliant and more stringent requirements only increase the level of (and cost of) compliance. Finally, elements subject to less stringent requirements (whether currently compliant or not) do not undertake barrier removal simply because barrier removal only applies to increased standards.[16]

Elements subject to less stringent proposed requirements are assumed to be compliant and to have no legal obligations under the proposed standards. Although, when the elements subject to less stringent requirements are altered, which is assumed to eventually occur in the 40 year lifecycle of a building, it will undertake the alteration cost of compliance.

SH policy, as applied to this classification, determines which elements benefit from avoided barrier removal. In particular, with SH, currently compliant elements do not need to undertake barrier removal and would only incur costs during an alteration. Without SH, all currently compliant elements subject to more stringent requirements undertake barrier removal ahead of the alteration schedule if it is readily achievable. Implications of different SH policy are shown in Figure 1 in the columns W/ SH and W/O SH (with and without SH, respectively). Either BR (barrier removal) or Alt (alterations) are indicated and represent the type of cost and schedule necessary for compliance.

Evaluating supplemental requirements is straightforward. New requirements affect elements not subject to 1991 Standards. All new requirements which are readily achievable must undertake barrier removal. If barrier removal is not readily achievable, then it is not undertaken. Supplemental requirements appear in Figure 1 as subject to requirements after 2010, when the proposed rule is expected to be adopted. With or without a SH policy, elements subject to supplemental requirements are noncompliant, and must comply if it is readily achievable. This assumption may overestimate benefits and costs for these elements, as facilities may have attempted to make these elements accessible even in the absence of specific scoping and technical requirements in the 1991 Standards (by, for example, relying on accessibility standards provided in state or local building codes, or on the 2004 ADAAG guidelines published by the Board).

Figure 1 illustrates the conditions under which an element may become compliant and the associated cost. Boxes represent different conditions and arrows represent different pathways to these conditions. All arrows, except those dividing elements into new (supplemental), more and less stringent groups, correspond to proportions (or probabilities) of elements that fall under one of the conditions. The product of these probabilities represents the distinct likelihood that such condition would occur. For example, an element existing before 1993, altered after 1992, subject to a more stringent requirement and is readily achievable has a probability of occurring equal to: (c•ba1). The sum of all products of probabilities associated with more (or less) stringent requirements is the total proportion of elements that apply to a particular cost schedule W/ SH or W/O SH. These two cost schedules differ with respect to the unit costs necessary to bring an element into compliance. For example, as stated above, more stringent requirements that are readily achievable would incur alterations costs under a SH scenario; the costs would be barrier removal if SH was not adopted.

The percentage of elements that are readily achievable (a1) for the revised standards may be equal or proportional to a facilities original readily achievable status (a). This proportion is not known for facilities nor elements. Accordingly, the actual level of readily achievable is modeled as a specific level in several scenarios. Differences in results between these levels are compared to illustrate the range of potential impacts depending on the actual state of compliance and ability to readily achieve barrier removal.

Figure 1: Diagram of Conditions Corresponding to Compliance of Elements

Figure 1: Diagram of Conditions Corresponding to Compliance of Elements

2.4.3 Alternative Baselines

The 1991 Standards are the primary baseline for this assessment because they are the only uniform set of accessibility standards that apply to every place of public accommodation, commercial facility and State or local government facility in the country.[17] While many State and local governments have enacted building codes that include standards relating to accessibility, many of which are based on model codes such as the IBC, there is wide variation with respect to which standards have been adopted. Because the model codes are voluntary, public entities often modify or carve out particular standards when adopting them into their laws, and even when the standards are the same, local officials often interpret them differently. Across 90,000 towns, cities and counties, the result is a patchwork of different accessibility requirements providing varying levels of access. By contrast, because the ADA is a mandatory Federal law, it applies the same standards to every facility in the country, ensuring a uniform level of accessibility nationwide.

Although the 1991 Standards serve as the primary baseline for the regulatory assessment, the analysis recognizes the influence of State and local law on the accessibility requirements that would apply to facilities even if the Department were to elect not to adopt the proposed standards. A version of the IBC -- IBC 2000, IBC 2003 or IBC 2006 -- has been adopted at the state or local level (by some or all jurisdictions) in all 50 states and the District of Columbia.[18] The IBC standards apply to requirements that are similar to and often equivalent to the proposed standards.[19] After the effective date of the proposed standards, facilities that are currently subject to an IBC standard would experience less impact from the Departmentís adoption of the proposed standards than other facilities.

In its regulatory assessment for the 2004 ADAAG, the Board presented its cost results as a range encompassing three baselines -- current ADAAG, IBC 2000 and IBC 2003 -- and discussed the extent to which State and local governments have adopted the model codes. As the Board observed, however, some jurisdictions that adopt the IBC either amend it or adopt separate accessibility codes. Several states that have adopted the IBC have either carved out Chapter 11 (which provides the scoping requirements for accessible facilities), have not adopted the referenced American National Standards Institute (ANSI) requirements (which provide the technical standards for accessible facilities), or, even where they have adopted ANSI, specifically permit facilities to comply with either ANSI or ADAAG.[20] It is also not clear how many of the jurisdictions that have adopted a version of the IBC have also adopted the supplemental accessibility provisions provided in Appendix E, which must be affirmatively adopted to be effective. Therefore, the mere fact that a State or local government has adopted a version of the IBC does not necessarily mean that facilities within that jurisdiction are legally subject to its accessibility provisions.

The Department had considered following a state-by-state approach in which the relevant baseline for newly constructed and altered facilities would vary from state to state, depending on which version of the IBC the State had adopted, using the 1991 Standards as the default baseline for any State that had not yet adopted any version of the IBC. However, given the many variations among State laws with respect to whether they have adopted the accessibility provisions of the IBC, the Department has determined that it would be infeasible to conduct an accurate state-by-state assessment on a national basis. Therefore, the Department has presented the benefits and costs for newly constructed facilities, altered facilities and existing facilities nationwide as measured against four baselines -- the primary baseline of the 1991 Standards, and three alternate baselines: IBC 2000, IBC 2003 and IBC 2006 -- in each case assuming that the baseline applies to all facilities nationwide. With respect to each of the IBC baselines, it is assumed that all of the relevant provisions of ANSI, Chapter 11 and Appendix E also apply. This assumption is necessary because these are the sources of many of the accessibility standards that apply under the IBC. If none of these sources were assumed to apply, an entityís adoption of the IBC would afford an incomplete picture of the accessibility of its facilities, and if some but not all of them were assumed to apply, predicting which baselines would apply to which facilities would be impossible. While this approach does not break the results of the assessment down state-by-state, it does permit facilities in each State to see how the impact of the proposed standards will vary depending on which version of the IBC the State or local authority has adopted or might adopt in the future.

Additionally, to further assist stakeholders, the Department has conducted more limited analyses of four illustrative requirements using a requirement-specific alternative IBC/ANSI baseline in order to demonstrate the likely actual incremental impact of the proposed standards under current conditions nationwide. While time-consuming, it is possible through research to determine with relative certainty the extent to which state or local jurisdictions have adopted particular IBC provisions. However, there is no publicly available "facility census" to provide information concerning the location, age, and type of facilities nationwide. Thus, in order to assess the impact of a requirement-specific alternative IBC/ANSI baseline, it was necessary to construct a proxy with respect to the number and location of facilities in each facility group. For purposes of these analyses, it is assumed that the number of facilities respectively compliant with each of the four illustrative proposed requirements is equal to the percentage of the current United States population (based on statistics from the U.S. Census Bureau) residing in those states or local jurisdictions that have adopted IBC (or ANSI A117.1 through incorporation by reference in IBC Chapter 11). The results of these analyses using requirement-specific alternative IBC/ANSI baselines are presented in section 5.2.3.

Baselines are applied in the model on a per-requirement basis. As such, even within an alternate IBC baseline scenario, where the current requirement in the 1991 Standards is more stringent than the IBC provision, the current requirement trumps the IBC provision and continues to serve as the relevant baseline with respect to that requirement. The reason for this is that the 1991 Standards are Federal law, and under the Supremacy Clause of the U.S. Constitution, where a Federal standard conflicts with a State or local standard, the Federal standard prevails. The ADA permits State or local building codes to provide for greater accessibility than the ADA Standards, but not less. Therefore, in each of the three alternate baseline scenarios, with respect to each new or revised requirement, the IBC provision is only used as the baseline where it is more stringent than the current requirement in the ADA Standards. As a practical matter, this is more frequently the case with respect to the "more stringent" requirements, which were harmonized upward (that is, the requirement stated in the 1991 Standards is less stringent than the IBC provision, and has now been strengthened). By contrast, because most of the "less stringent" requirements are those where the current requirement has been harmonized downward (that is, the requirement stated in the 1991 Standards is more stringent standard than the IBC provision, and has now been relaxed), they have been assessed against the default baseline of the 1991 Standards.

2.4.4 Summary of Scenarios

Several dimensions of uncertainty in how the proposed rule applies to actual facilities are captured as independent scenarios.[21] These dimensions include: SH vs. No SH; readily achievable levels [0%, 50%, 100%]; and baselines [1991 ADA, IBC 2000, IBC 2003, IBC 2006]. These varying dimensions are shown in the results chapter.



[1] 63 FR 2000, Jan. 13, 1998.

[2] 65 FR 62497, Oct. 18, 2000.

[3]67 FR 56352, Sept. 3, 2002.

[4] The Boardís final assessment for the 2004 ADAAG is available on its web site at http://www.access-board.gov/ada-aba/reg-assess.htm.

[5]The Boardís final assessments for its supplemental guidelines for play areas and recreation facilities are available at http://www.access-board.gov/play/assess.htm and http://www.access-board.gov/recreation/reg-assessment.htm respectively. The Board had conducted an initial, but not a final, regulatory assessment for its supplemental guidelines for State and local government facilities issued in 1998.

[6]For example, the requirement that wheelchair spaces and lines of sight in assembly areas be dispersed (sections 221.2.3 and 802.2 of the 2004 ADAAG) represents no change from the Departmentís interpretation of the current standard, and therefore is not included in this assessment. Other examples of revisions identified by the Board that represent no change from the 1991 Standards include newly specified exceptions for shower and sauna doors in hotel guest rooms (sections 206.5.3 and 224.1.2) and signs required to have raised characters (section 216).

[7]According to the Boardís 2004 regulatory assessment: "This assessment focuses on revisions in the final revised guidelines that either add new features or space to facilities, or present design challenges."

[8]Among the requirements that are already being enforced, and therefore do not represent a change and are not included in the assessment, are many of the otherwise new requirements applicable to State and local government judicial, detention and correctional facilities.

[9]The reason for this is that Title II entities that elected to comply with ADAAG rather than UFAS (an option they will no longer have under the proposed standards), due to the absence of specific technical and scoping requirements for residential dwelling units in ADAAG, have been obliged to meet the higher accessibility standards for transient lodging facilities.

[10]Generally speaking, program access considerations fall outside the scope of this regulatory analysis. However, this analysis does take program access into account when assessing the incremental impact of the Departmentís proposed Title II requirements for public play areas, swimming pools, and saunas and steam rooms. The impact of program access is included in the economic calculus in the limited context of these facilities both because the Departmentís Title II regulations propose several exemptions and exceptions uniquely applicable to these facilities, and because satisfying program access requirements with respect to these facilities would necessarily require some measure of physical accessibility that could not be solely addressed through programmatic changes. Program access for these facilities is incorporated into the model through adjustment of the likelihood that the respective elements comprising each of the three facilities types -- public play areas, swimming pools, and saunas -- would require change to bring them into compliance with Title II requirements. See Section 3.1 (discussing methodology used to calculate the number of elements per facility). For example, according to sources cited in the Access Boardís regulatory analysis for recreational facilities, a large majority of public swimming pools already provide at least one means of accessible entry. See Architectural and Transportation Barriers Compliance Board, Assessment of Benefits and Costs of Final Accessibility Guidelines for Recreation Facilities, section 10.4 (Sept. 2002). Given this high rate of accessibility in existing public pools, the likelihood that an existing public pool would need to add an accessible means of entry (by pool lift or sloped entry) in order to comply with the proposed Title II regulations was "scaled back" in the model to reflect existing accessibility levels. As a result, both the costs and benefits of the proposed requirements for public (Title II) swimming pools are lower than they otherwise would have been if existing levels of program accessibility had not been taken into account.

[11]Federal Register, Vol. 69, No. 189: 58768-58786.

[12]The Department has also requested public comments in the ANPRM (Federal Register, Vol. 69, No. 189: 58768-58786. By comparing the costs and benefits of each implementation scenario, as well as the comments from members of the public directly affected by the standards, the Department can make an informed decision regarding whether SH should be established.

[13]The actual date is January 26, 1993, but data is only available on an annual basis.

[14]Building construction date data is used to estimate c.

[15]January 26, 2009 is the earliest likely date for the proposed standards to become effective.

[16]Elements that are compliant with the current requirement are not required to be retrofitted to meet a less stringent requirement. Although the proposed Title III regulation will permit entities that had complied with the current requirement to voluntarily retrofit (or infill) to the proposed requirement should they wish to do so, whether or not to do so is entirely within the discretion of the entity.

[17]Two requirements relating to communications features in public housing units and clear floor space in sleeping rooms of social service establishments are measured against UFAS as their primary baseline, rather than the 1991 Standards. See App. 2, Req. ## 48 and 109 (summary of requirements); App. 8, Req. ## 48 and 109 (matrix of changes for new and revised requirements).

[18]According to statistics compiled by the International Code Council (which publishes the IBC), a version of the IBC -- either IBC 2000, IBC 2003, or IBC 2006 -- has been adopted on a statewide basis in 46 states and the District of Columbia. See International Codes -- Adoptions by States, http://www.iccsafe.org/government/stateadoptions.pdf (April 1, 2008). In the four remaining states (Colorado, Delaware, Illinois and Mississippi), adoption of IBC has been left to the discretion of local jurisdictions. IBC adoption by these local jurisdictions has been widespread. For example, all local jurisdictions in Delaware have adopted the IBC and, in Mississippi, all but one county have adopted the IBC.

[19] One of the Access Boardís goals in revising ADAAG was to harmonize the ADA guidelines with the model codes, such as the IBC, precisely because they form the basis of many State and local building codes.

[20] ANSI A117.1 (or a regulatory equivalent) has been adopted by 15 states on a statewide basis (Alabama, Alaska, Connecticut, Michigan, Minnesota, Montana, New Jersey, New Mexico, New York, Oklahoma, South Carolina, Utah, Virginia, Washington, West Virginia, and Wisconsin), as well as by the District of Columbia. In five other states (Colorado, Delaware, Idaho, Mississippi, and South Dakota), adoption of ANSI A117.1 (or a functionally equivalent regulatory standard) has either been left to the discretion of local jurisdictions or only applies to certain occupancies or types of facilities (i.e., buildings constructed with state or local governmental funds or educational facilities). No publicly available data was found concerning adoption of ANSI A117.1 at the local level.

[21]Scenarios were considered but not implemented for uncertainty related to issues concerning technical infeasibility and "path of travel".

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