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  Access Today, Fall 2004 - Special Volume, Issue 15

Opportunity Knocking:
Public Input Can Affect Revision to ADA Design Standards

by Jennifer K. Skulski, National Center on Accessibility

Editor's note: On January 19, 2005, the U.S. Department of Justice extended the period of public comment on the proposed revision of the current ADA design standards to May 31, 2005. Commenters now have through May 2005 to submit input to DOJ on the Advance Notice of Proposed Rulemaking.

It isn’t often that the federal government asks for your opinion or actively seeks your input. But along comes a chance every once in a while for your input to make a difference. Through January 28, 2005, people with disabilities and practitioners affected by the Americans with Disabilities Act can provide input to the U.S. Department of Justice on the proposed revision of the current ADA design standards. For park and recreation professionals this is another opportunity to comment on design standards and policy issues related to accessing recreation facilities like swimming pools, golf courses, playgrounds, amusement rides, fitness facilities and sports complexes.

On September 30, 2004, the U.S. Department of Justice, the federal agency with enforcement authority over Title II and Title III of the ADA, issued an Advance Notice of Proposed Rulemaking (ANPRM) to begin the process of revising the ADA Accessibility Guidelines (ADAAG). The ANPRM requested public comment on specific questions for revising the current ADAAG and comes as a result of rulemaking from the U.S. Access Board. Earlier in the summer, on July 23, 2004, the U.S. Access Board issued a final rule on new accessibility guidelines for the Americans with Disabilities Act and the Architectural Barriers Act. The Access Board’s new guidelines are a culmination of several years of work to update the accessibility guidelines and harmonize them with other model building codes. In order for the newly revised accessibility guidelines to be enforceable under the ADA, the Department of Justice must issue the guidelines as a federal rule, but first must embark on a similar rulemaking process which includes participation by the public. The period of public comment is open through the end of January 2005. The complete text of the ANPRM is available on the DOJ web site and through the Federal Register.

Advanced Notice of Proposed Rulemaking to amend 28 CFR Part 35: Nondiscrimination on the Basis of Disability in State and Local Government Services and 28 CFR Part 36: Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities

According to DOJ, “The ANPRM is the first of three steps in the regulatory process. The ANPRM will be followed by notice of proposed rulemaking (NPRM) and a final rule. The Department published the ANPRM to solicit public comment on several issues relating to the potential application of the revised guidelines and to obtain background information needed for the regulatory impact analysis ( a report analyzing the economic costs and benefits of a regulatory action) that will accompany the proposed and final rules.”

To review the Access Board’s final rule, http://www.access-board.gov/ada-aba.htm

Public Comment

More than 2,500 comments were received when the U.S. Access Board requested public comment through its Notice of Proposed Rulemaking (NPRM) on the revision of the ADA and ABA accessibility guidelines in November 1999. But participation during rulemaking specific to recreation facilities has been significantly less. Only 300 comments were received during the Access Board’s NPRM on recreation facilities. And only 100 comments were received on the NPRM for play areas. As few as one or two comments, if presented appropriately and argued clearly, can sway the outcome of the rule in one direction or the other. While several dozen or hundreds of comments on one particular issue can force the agency to review the provision and look to a more effective solution. For example, note how the issue of allowing a platform lift in team or player seating areas evolved during the Access Board’s rulemaking process for recreation facilities as explained in the final rule for ADA Accessibility Guidelines for Buildings and Facilities--Recreation Facilities (September 2002):

    4.1.3(5) Exception 4 (f) Platform Lifts for Team or Player Seating Areas

    An exception is added to this section permitting the use of a platform lift in new construction as a means of providing access to team or player seating areas serving areas of sport activity.

    Comment. The proposed rule did not include an option to use a platform lift in new construction to provide access to team or player seating areas. The AIA and several architects representing a firm that specializes in sports facilities commented that platform lifts should be an option. They were particularly concerned about providing access to dugouts and other recessed team player seating areas in major league stadiums. They believed that providing a ramp parallel to the playing field presents a dangerous tripping and falling hazard for players attempting to field foul balls. Other groups representing persons with disabilities commended the Board for not allowing platform lifts in this environment in new construction. Among other issues, they cited the problems associated with relying on a mechanical device to provide access in newly constructed buildings and facilities.

    Response. The final rule includes an option to use a platform lift as part of an accessible route connecting team or player seating areas. While the Board includes this as an option in new construction, it is recommended that where possible, ramps be utilized. This will reduce reliance for persons with disabilities on a mechanical device when providing access. Several minor league stadiums have incorporated a ramp into their design in recent years. It is the Board’s understanding that there have been no reported incidents of accidents related to the ramps. Information on major league stadiums is not available since ramps have not been incorporated into their designs.

General Questions for Public Comment

Approximately 54 questions are put to the public in the DOJ ANPRM. DOJ has requested input on several issues in terms of the application of the revised ADA design standards. For example:

Question 3: Should the Department provide any type of safe harbor so that elements of facilities already in compliance with the current ADA Standards need not comply with the revised ADA Standards?

Question 4: Should the Department adopt an option for reduced scoping for specified requirements?

The example DOJ gives in Question 4 cites the current ADAAG requirement for swimming pools over 300 feet in perimeter to have two accessible means of entry into the pool. In the DOJ ANPRM, DOJ suggests that “the Department is considering whether it might be appropriate to state that providing only one accessible means of entry to an existing pool satisfies the obligation for readily achievable barrier removal.”

These types of questions and the issue of minimizing access for people with disabilities or improving access to promote full inclusion of people with disabilities is a reoccurring theme throughout the ANPRM. Public comment will eventually determine if greater or lesser access to public spaces is provided for people with disabilities. In terms of the question of reducing access at swimming pools, it should be noted that the National Center on Accessibility conducted the research and provided recommendations for accessibility guidelines to swimming pools for the U.S. Access Board. NCA found that the majority of swimming pool standards and codes required two means of entry into the pool for all pool users. If DOJ reduces the requirement for existing pools as it has suggested in the ANPRM, it will disproportionately reduce access for people with disabilities, while access for people without disabilities will go unchanged. This is an ironic position for DOJ to take considering the current ADAAG states that “No alteration shall be undertaken which decreases or has the effect of decreasing accessibility or usability of a building or facility below the requirements for new construction at the time of alteration (ADAAG 4.1.6(1)(a).”

Recreation Issues

DOJ has requested input on several recreation related issues in the ANPRM. Public comment to DOJ can provide further explanation on some of the design, policy and procedure issues and evoke further guidance from DOJ on issues that most challenge park and recreation professionals in the provision of accessible facilities, programs, services and activities.

Assembly Areas

In large assembly areas with seats for more than 500 patrons, the new design guidelines will reduce the number of wheelchair spaces and companion seats. There is question as to whether existing facilities should follow the new design guidelines or the current ADAAG in regards to this requirement. Access to assembly areas is a good example of a facility where both the design standard and the policy and procedure issues need to be considered simultaneously and complimentary so as to promote full access for people with disabilities. Unfortunately in the areas of sports arenas and performing arts venues there are several policy and procedure issues that do not have clear guidance from the Department of Justice, namely the issue of hold and release of wheelchair accessible seating. Can a venue release the wheelchair accessible seating for sale to the general public two weeks prior to the event? Two days? Two hours? For example, the new Gillette Stadium, home of the Super Bowl champion New England Patriots sells season tickets and individual games prior to the start of the football season. The wheelchair accessible seating locations are on platforms that stand on top of the general seats and can be removed for conversion to general seating, but require two days of labor and at least four staff to remove them. According to the accessibility coordinator for the venue, based on the demand for tickets, 1-2 months prior to the start of the football season, the sale of wheelchair accessible seats and companion seats are evaluated. If there are sections of wheelchair accessible seats that have gone unsold, then the seats are converted to general seats and released for sale to the general public. An unspecified number of wheelchair seats and companion seats are reserved throughout the season for last minute sales to patrons that require wheelchair accessible seating. While Gillette Stadium has a clear procedure and policy in place for the release of wheelchair seats for general sale, other venues are not as clear in their policy. The reduction of wheelchair seating in the new design standards coupled with a lack of DOJ guidance on ticket release policies has the potential of eliminating access to sporting events and entertainment venues for large numbers of people who use wheelchairs.

Free Standing Equipment and Non-fixed Elements

Over the years, the U.S. Access Board has made it clear that it does not have jurisdiction over the development of accessibility standards for free standing equipment or non-fixed elements. The illustration that is used is one in which you would figuratively take a building, turn it upside down, shake it, and turn it back right side up. All of the elements that fell out of the building would not be covered by the Access Board’s design guidelines. All of the elements that remain in tack to the building would be covered under the design guidelines. For example, under the Access Board’s rulemaking, fixed (secured) elements like tables and benches would be covered if they were secured to the floor or the building in some manner. However, if a cafeteria table is not fixed, then it would not be covered under the Access Board’s rule. While this approach has been clear cut for the Access Board’s domain, it still leaves the accessibility requirement for free standing equipment and non-fixed elements open for interpretation. Should non-fixed benches and other free standing elements be accessible? Does DOJ need to provide clarification on this requirement as it relates to Title II and Title III? DOJ asks for public comment on this issue in Question 7.

Swimming Pools

As stated previously, DOJ is seeking input on whether or not the number of accessible means of pool entry should be reduced from two to one in pools over 300 linear feet in Question 45. This is yet another example of where the design requirement and procedure need to be considered at the same time. If one of the means of access is a swimming pool lift, should the lift be permanently installed or can it be temporarily installed? NCA has received numerous anecdotal accounts of instances where temporary pool lifts are not available to people with disabilities because the lifts are not installed or there are not experienced staff available to install the lift upon request. As a result, swimmers with disabilities requiring pool lifts for access are not able to easily enter and exit the pool without the device installed. Additional input from people with disabilities and pool operators to DOJ on this issue can urge the Department to provide additional guidance on the issue of temporary vs. permanent installation. And if temporary installation is permissible, how much advance notice should be requested so that the pool lift can be installed and operable in time for use by a pool user with a disability?


Interestingly enough, while DOJ has not addressed policy and procedure issues in swimming pools and large assembly areas, it has taken on the issue for golf courses. Under Title III, “A public accommodation is required to provide auxiliary aids and services that are necessary to ensure equal access to the goods, services, facilities, privileges, or accommodations that it offers, unless an undue burden or a fundamental alteration would result (TAM-III).” Is an accessible golf car an auxiliary aid? Should all public golf courses be required to have accessible golf cars? Or can golf courses require advance reservation for accessible golf cars and draw from a pool of accessible golf cars available in the area? DOJ has asked for public comment on the issue:

Question 6. To what extent should golf courses be required to make accessible golf cars available to people with disabilities? Please provide as much detail as possible in support of your view. The Department also requests specific information concerning the extent to which the one-person machines on the market are, in fact, stable, lightweight, and moderately priced. The Department also requests information about whether golf cars are being manufactured that are readily adaptable for the addition of hand controls and swivel seats and whether such cars are otherwise suitable for driving on fairways and greens.

Input from golfers with disabilities who use accessible golf cars, golf course operators, and other interested organizations and individuals will assist DOJ to develop further guidance in this area. Additionally, DOJ has requested comment on the provision of an accessible route for the golf course.

Question 44. An exception to the new requirement at ADAAG 206.2.15 permits the accessible route requirements (which must connect all greens, weather shelters, rental areas, and the like) for golf courses to be satisfied by golf car passages, defined at ADAAG 1006.3 as a 48-inch wide passage, providing 60-inch wide openings in curbs or other constructed barriers every 75 yards. The Department wishes to collect data about the effect of this requirement if it is applied to existing golf courses under the readily achievable barrier removal requirement of Title III. What would you have to do to your existing golf course to make it comply with the requirements for golf car passages?

Play Areas

During the U.S. Access Board’s regulatory negotiation on play areas, the reg neg committee agreed to change the number of elevated play components triggering ramp access to elevated structures from 12 to 20 activities as suggested in the ANPRM. The change in the triggering number was not based on any statistical data on the average size of playgrounds, but instead based on negotiation between the committee members representing the playground equipment manufacturers and disability advocacy organizations. As a concession, committee members agreed that where ramp access was not available to elevated play activities additional accessible ground level activities should be provided. In Question 39, DOJ seeks information on the new requirement for ground level play components on playgrounds and the effect of the new requirement on playgrounds.

Amusement Rides

The Access Board’s rulemaking on recreation facilities generated the most public comment in the area of amusement rides. The majority of comments were from the amusement ride industry. Note the Access Board’s commentary in the preamble of the final rule on recreation facilities (September 2002):

Significant comment on amusement ride accessibility was received on the proposed rule. The proposed rule would have required that one wheelchair space and one transfer seat be provided for each 100 seats on new amusement rides and proposed technical provisions for the wheelchair spaces and transfer seats. The majority of comments were from amusement park operators, and amusement ride manufacturers and designers. The Board also received comments from groups representing persons with disabilities. Overall, commenters did not support the provisions in the proposed rule for access to amusement rides. The commenters stated that the proposed rule lacked flexibility, making it impossible for most rides to comply with the guidelines given the uniqueness of this industry. They also raised concern about the lack of available manufactured rides that would meet the proposed provisions. Most rides are manufactured outside the United States where there is an absence of accessibility requirements. The ride manufacturers in the United States indicated significant hardship on their businesses to retool to meet some of the proposed technical provisions. Amusement park operators interpreted the proposed rule to require operators to modify manufactured rides. Most indicated that they were either unwilling or unable to modify a ride in a way that would differ from the manufacturer’s specifications because they were not willing to accept the liability associated with modifying the ride or did not have sufficient engineering expertise to do so. Additionally, several groups representing persons with disabilities expressed concern that some rides, such as walk through attractions and fun houses, would be exempt along with rides in traveling carnivals. They wanted the accessibility guidelines to encourage ride manufacturers to make all rides accessible. The Eastern Paralyzed Veterans Association (EPVA) wanted the number of accessible amusement rides to be doubled from the proposed rule.

As a result of the large number of comments from the industry, and some argue, pressure from the industry, the accessibility requirements for amusement rides were minimized. However, the Access Board defends its decision in the preamble stating, “Since this is the first time national accessibility guidelines have been established for amusement rides, the Board intends to monitor the implementation of these guidelines. As with other accessibility guidelines developed by the Board, future updates and revisions are planned to ensure that the guidelines reflect new designs and technology.”
In Question 42, DOJ seeks information on the use of transfer devices for amusement rides.

Boating Facilities

In Question 43, DOJ seeks information on the effect of requiring accessible boat slips that are 60 inches wide.

Technical Assistance & Deadline to Comment

Public input from people with disabilities, facility managers, operators and practitioners and other interested organizations and individuals on the proposed ADA design standards will provide the Department of Justice with further guidance on the major issues affecting these facilities. The National Center on Accessibility professional staff are available to provide technical assistance on the ANPRM and the major issues related to accessing recreation facilities to individuals and organizations preparing public comment.

Technical Assistance
National Center on Accessibility
(812) 856-4422 (voice)
(812) 856-4421 (tty)

NCA encourages all parties affected by the developing regulations to participate in the rulemaking process. The deadline to submit public comment to DOJ is January 28, 2005.

Mail comments to:
U.S. Department of Justice
Comments on ANPRM for Revised ADA Design Standards
P.O. Box 1032
Merrifield, VA 22116-1032

Or submit comments may be submitted electronically online to:
www.adaanprm.org or www.regulations.gov

All comments will be available to the public online at www.adaanprm.org and, by appointment, at the offices of the Disability Rights Section.


About this Monograph

These materials were developed by the National Center on Accessibility for the National Center on Physical Activity and Disability under sponsorship of the Centers for Disease Control and Prevention.


About the Author

Jennifer K. Skulski is the Director of Marketing and Special Projects for the National Center on Accessibility. She has more than 13 years experience in the application of the ADA to park and recreation facilities.


U.S. Access Board. (September 3, 2002). Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities: Recreation Facilities. Washington, DC: U.S. Access Board. Retrieved from http://www.access-board.gov/recreation/final.htm

U.S. Department of Justice. (October 1, 2004). Proposal to issue revised ADA design standards. Washington, DC: U.S. Department of Justice. Retrieved from http://www.ada.gov/proposal.htm.


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