Regulatory Process Matters

Regulatory Assessment

These guidelines are issued to provide guidance to the Department of Justice and the Department of Transportation in establishing alternate specifications for new construction and alteration of building elements designed for use by children in facilities covered by titles II and III 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's 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. As discussed in more detail in General Issues and the Section-by-Section analysis above, the final rule addresses elements used primarily by children and is limited to water closets, toilet stalls, lavatories and mirrors, toilet rooms, sinks and seating and tables. Elements covered by this rule are already subject to the scoping and technical provisions of ADAAG. The scoping and technical requirements for these elements in the final rule are addressed as alternatives to existing requirements which are based on adult specifications. These alternative specifications for elements used primarily by children are permitted as an exception to the adult specifications. As such, the application of the specifications for elements used primarily by children is discretionary, not mandatory. 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. The Board distributed the proposed rule to state departments of education and education associations, the state building code authorities, and other responsible agencies of the 50 states to seek their review and comment. Those comments were carefully analyzed and the major issues discussed in the Section-by-Section analysis above.

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 Assessment

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 General Issues and the Section-by-Section analysis above, the final rule addresses certain elements used primarily by children. These alternative specifications for elements used primarily by children are permitted as an exception to the adult specifications. The application of the specifications for elements used primarily by children is discretionary, not mandatory and the Board has determined that this final rule will not have a substantial direct effect on States, the relationship between the national government and the States or on the distribution of power and responsibilities among the various levels of government. Accordingly, the preparation of a Federalism Assessment is unnecessary for purposes of this rule under Executive Order 12612.

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 July 22, 1996, the Access Board published a NPRM in the Federal Register which proposed to amend ADAAG (36 CFR part 1191) by adding a special occupancy section to ADAAG entitled "15. Children's Facilities." 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 distributed the proposed rule to state departments of education and education associations, the state building code authorities, and other responsible agencies of the 50 states to seek their input and comment. Over 80 responses to the NPRM were received, including comments from government entities, such as state departments of education and commissions on disability, local school districts, and several Federal agencies. A summary of comments received may be found in General Issues, the Section-by-Section Analysis, and in Other Issues.

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 July 9, 1997.

Patrick D. Cannon,
Chairperson, Architectural and Transportation Barriers Compliance Board.

Endnotes

(1) Print or computer disk copies of these recommendations are available from the Access Board.

(2) "A Review of Technical Requirements for Ramps," 1996 is available from the Board in hard copy and on computer disk.

NOTICE

These guidelines have not been incorporated in the Department of Justice accessibility standards and are, therefore, not enforceable.