Background

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

On July 26, 1991, the Department of Justice published its final regulations implementing title III of the ADA which incorporated ADAAG as the accessibility standards for newly constructed and altered places of public accommodation and commercial facilities covered by title III. See 56 FR 35544, 28 CFR part 36. On that same date, the Department of Justice published its final regulations implementing title II of the ADA. See 56 FR 35694, 28 CFR part 35. The Department of Justice's title II regulations give State and local governments the option of choosing between designing, constructing or altering their facilities in conformance with the Uniform Federal Accessibility Standards (UFAS)2 (Appendix A to 41 CFR part 101-19, subpart 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.

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 7000 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 1200 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 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.