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.

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.

ENDNOTES

(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.

(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.