Regulatory Assessment

CHAPTER 1:  BACKGROUND

1.0  Introduction

 

Executive Order 12866 requires Federal agencies to submit certain regulatory actions to the Office of Management and Budget for review.  The agency must provide the Office of Management and Budget the text of the regulatory action, together with an assessment of the impacts of the regulatory action.  The assessment must describe the need for the regulatory action and how the regulatory action will meet that need.  The assessment must also explain how the regulatory action is consistent with statutory mandates, promotes the President’s priorities, and avoids undue interference with State, local, and tribal governments in the exercise of their governmental functions.   The Access Board prepared this assessment of the final revised accessibility guidelines for the Americans with Disabilities Act and Architectural Barriers Act to meet the requirements of Executive Order 12866.

1.1  Statutory Authority

 

The Access Board is required by statute to establish and maintain minimum guidelines to ensure that facilities covered by the Americans with Disabilities Act and Architectural Barriers Act are accessible, in terms of architecture and design and communication, to individuals with disabilities.[1]  These guidelines serve as the basis for enforceable standards issued by other agencies under the Americans with Disabilities Act and Architectural Barriers Act.  The requirements of the Americans with Disabilities Act and Architectural Barriers Act with respect to facilities are explained below.

 

Americans with Disabilities Act

 

The Americans with Disabilities Act was enacted in 1990 based upon the Congress finding that:

 

“individuals with disabilities continually encounter various forms of discrimination, including . . . the discriminatory effects of architectural, transportation, and communication barriers.”[2] 

 

The purpose of the Americans with Disabilities Act is:

 

“to provide clear, strong, consistent, and enforceable standards addressing

discrimination against individuals with disabilities [and] to ensure that the

Federal government plays a central role in enforcing the standards.”[3] 

 

The Americans with Disabilities Act requires newly constructed State and local government facilities, places of public accommodation, and commercial facilities to be accessible to individuals with disabilities.[4]  The Americans with Disabilities Act also requires parts of existing facilities that are altered to be accessible.[5] 

 

Two agencies are responsible for issuing enforceable standards for facilities covered by the Americans with Disabilities Act. 

 

  • The Department of Transportation issues enforceable standards for public transportation facilities owned or operated by State and local governments, and the National Railroad Passenger Corporation.[6] 

 

  • The Department of Justice issues enforceable standards for all other types of facilities.[7]

 

Architectural Barriers Act

 

The Architectural Barriers Act was enacted in 1968 to provide individuals with disabilities access to facilities financed by the Federal government.  The Architectural Barriers Act covers facilities constructed, altered, or leased by the Federal government.[8]  The Architectural Barriers Act also covers facilities constructed or altered with a Federal grant or loan, where the law authorizing the grant or loan authorizes the administering agency to issue design or construction standards; and facilities constructed by the Washington Metropolitan Area Transit Authority.[9] 

 

Four agencies are responsible for issuing enforceable standards for facilities covered by the Architectural Barriers Act. 

 

  • The Department of Housing and Urban Development issues enforceable standards for federally financed residential facilities.[10] 

  • The Department of Defense issues enforceable standards for military facilities.[11] 

  • The United States Postal Service issues enforceable standards for postal facilities.[12]

  • The General Services Administration issues enforceable standards for all other federally financed facilities.[13]

 

1.2  Current Guidelines and Standards

 

MGRAD and UFAS

 

In 1982, the Access Board issued the Minimum Guidelines and Requirements for Accessible Design (MGRAD) to assist the Department of Housing and Urban Development, Department of Defense, United States Postal Service, and General Services Administration in establishing a consistent set of enforceable standards.[14]  These four agencies in turn issued the Uniform Federal Accessibility Standards (UFAS) in 1984 as the enforceable standards for facilities covered by the Architectural Barriers Act.[15] 

 

ADAAG

 

In 1991, the Access Board issued the Americans with Disabilities Act Accessibility Guidelines (ADAAG) to assist the Department of Justice and Department of Transportation in establishing a consistent set of enforceable standards.[16]  ADAAG is modeled on UFAS.  ADAAG includes provisions for features and facilities that are not addressed in UFAS.  For example, ADAAG has provisions for van accessible parking spaces, public TTYs, automated teller machines, and transportation facilities.  UFAS does not address these features or facilities.  The Access Board prepared a regulatory assessment for ADAAG when the guidelines were initially issued.[17]  The Department of Justice and Department of Transportation adopted ADAAG in 1991 as the enforceable standards for facilities covered by the Americans with Disabilities Act.[18]  The General Services Administration requires Federal agencies to use ADAAG for facilities covered by the Architectural Barriers Act when it provides a greater level of access compared to UFAS.[19] 
 

Children’s Facilities Guidelines

 

In 1998, the Access Board amended ADAAG by adding guidelines for children’s facilities.[20]  These guidelines add child-sized alternatives to the existing adult dimensions that can be used when designing building elements for children.  The Access Board did not prepare a regulatory assessment for the children’s facilities guidelines because they do not establish any new requirements.  The children’s facilities guidelines have not been adopted by the Department of Justice or Department of Transportation. 

 

State and Local Government Facilities Guidelines

 

In 1998, the Access Board also amended ADAAG by adding guidelines for judicial facilities, and detention and correctional facilities.[21]  These guidelines address certain areas within court rooms such as raised judges’ benches, and within jails and prisons such as the number of cells required to provide mobility features.[22]  The Access Board did not prepare a regulatory assessment for the State and local government facilities guidelines because they do not impose any significant impacts on State and local government facilities.[23]  The State and local government facilities guidelines have not been adopted by the Department of Justice or Department of Transportation. 

 

Play Areas Guidelines

 

In 2000, the Access Board amended ADAAG by adding guidelines for play areas used by children.[24]  These guidelines address access to ground level and elevated play components, and ground surfaces.  The Access Board prepared a regulatory assessment for the play areas guidelines.[25]  The play areas guidelines have not been adopted by the Department of Justice or Department of Transportation. 

 

Recreation Facilities Guidelines

 

In 2002, the Access Board amended ADAAG by adding guidelines for recreation facilities.[26]  These guidelines address access to amusement rides, boating and fishing facilities, golf courses, miniature golf courses, exercise equipment, bowling lanes, shooting facilities, and swimming pools and spas.  The Access Board prepared a regulatory assessment for the recreation facilities guidelines.[27]  The recreation facilities guidelines have not been adopted by the Department of Justice or Department of Transportation. 

 

The guidelines for play areas and recreation facilities were developed through separate rulemaking processes that involved advisory committees and regulatory negotiation, and were not part of the present rulemaking to revise the guidelines.  The guidelines for play areas and recreation facilities are incorporated in the final revised guidelines without any substantive changes.

1.3  Need to Revise Guidelines

 

Since the enactment of the Americans with Disabilities Act, accessibility requirements have been increasingly incorporated into the model codes.  State and local governments adopt the model codes to regulate building construction.  The model codes are revised every three years.  The model codes reference the ICC/ANSI A117.1 Standard on Accessible and Usable Buildings and Facilities for technical requirements.  The ICC/ANSI A117.1 standard is revised every five years.

 

Federal accessibility requirements need to keep pace with the model codes and standards as they are revised.  The Access Board has revised the guidelines for the Americans with Disabilities Act and Architectural Barriers Act to harmonize the guidelines with the model codes and standards in order to achieve greater consistency and uniformity in accessibility requirements at the Federal, State, and local government levels.  The Access Board has also revised the guidelines to ensure that Federal facilities provide the same level of accessibility as State and local government facilities, and private facilities.

1.4  Rulemaking History

 

The Access Board established the ADAAG Review Advisory Committee in 1994 to recommend revisions to the guidelines.  The advisory committee consisted of 22 organizations representing model codes and standards groups, State and local governments, the building and construction industry, and individuals with disabilities.[28]  The advisory committee issued its report, “Recommendations for a New ADAAG,” in 1996.  The Access Board used the advisory committee’s report to develop a proposed rule that was published in 1999.[29]  Public hearings were held on the proposed rule in Los Angeles and Washington, DC.  Information meetings were also held in Washington, D.C. to hear from industry and disability groups on issues regarding automated teller machines, reach ranges, and captioning equipment for movie theaters.  Throughout the rulemaking process, the Access Board worked collaboratively with the International Code Council and ANSI A117 Committee to harmonize the guidelines with the new International Building Code, which was first issued in 2000 and revised in 2003; and the ICC/ANSI A117.1 standard, which was revised in 1998 and 2003.  The Access Board released a draft of the final revised guidelines in April 2002 to further promote harmonization with the model codes and standards.[30]

1.5  Final Revised Guidelines   

 

The final revised guidelines consist of three parts which are published as separate appendices to 36 C.F.R. Part 1191.

 

  • Appendix B contains ADA Chapters 1 and 2 of the guidelines, which establish application and scoping requirements for facilities covered by the Americans with Disabilities Act.  The scoping requirements specify what features of a newly constructed or altered facility must be accessible.  Where multiple features that serve the same function are provided, such as parking spaces in a garage or seats in an assembly area, the scoping requirements specify how many of the features must be accessible.

 

  • Appendix C contains ABA Chapters 1 and 2 of the guidelines, which establish application and scoping requirements for facilities covered by the Architectural Barriers Act.  The scoping requirements in Appendix C are mostly the same as those in Appendix B.  A few requirements are different based on the Architectural Barriers Act.  Appendix C, for example, includes scoping requirements for facilities leased by Federal agencies.

 

  • Appendix D contains Chapters 3 through 10 of the guidelines, which establish common technical requirements for facilities covered by the Americans with Disabilities Act and Architectural Barriers Act.  The technical requirements provide dimensions and specifications for making the features of a facility accessible.

 

Appendix A contains the Table of Contents, and Appendix E contains the List of Figures and Index for the final revised guidelines.

1.6  President’s Priorities

 

On July 26, 2002, President George W. Bush issued a Proclamation on the twelfth anniversary of the Americans with Disabilities Act calling the statute “one of the most compassionate and successful civil rights laws in American history.”  The President committed his Administration to implementing the Americans with Disabilities Act and “removing the barriers that prevent people with disabilities from realizing their full potential and achieving their dreams.”  The final revised guidelines will promote the President’s priorities by improving implementation of the Americans with Disabilities Act’s accessibility requirements.

1.7  Federalism

 

The Americans with Disabilities Act was enacted “to provide clear, strong, consistent, and enforceable standards addressing discrimination against individuals with disabilities [and] to ensure that the Federal Government plays a central role in enforcing the standards.”[31]  The Architectural Barriers Act was enacted to provide individuals with disabilities access to federally financed facilities.  Ensuring the civil rights of groups who have experienced discrimination has long been recognized as a national issue and a proper function of the Federal government. 

The Americans with Disabilities Act recognizes the authority of State and local governments to enact and enforce laws that “provide greater or equal protection for the rights of individuals with disabilities than are afforded by this chapter.”[32] 

 

The final revised guidelines serve as the basis for enforceable standards issued by other Federal agencies under the Americans with Disabilities Act and Architectural Barriers Act. 

The final revised guidelines adhere to the fundamental federalism principles and policy making criteria in Executive Order 13132.  The Access Board consulted with State and local governments throughout the rulemaking process.  State and local governments were represented on the ADAAG Review Advisory Committee, participated in public hearings, and submitted comments on the proposed rule.  The final revised guidelines are harmonized with model codes that are adopted by State and local governments to regulate building construction.

 

Regulations that implement statutory rights that prohibit discrimination on the basis of disability are exempt from the Unfunded Mandates Reform Act, which requires agencies to assess the effects of regulatory actions on State and local governments.[33]