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U.S. Architectural and Transportation Barriers Compliance Board on Accessibility Guidelines for Buildings and Facilities under the Americans with Disabilities Act I. Preliminary Notes II. General Comments III. Comments on NPRM Sections IV. Responses to Questions Posed by the Access Board |
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I. Preliminary Notes
The following comments, questions, and objections pertain to the proposed new version of Appendix A to Part 1191 of Title 36, Code of Federal Regulations. This Appendix is commonly referred to as the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities (ADAAG). Unless otherwise noted, the section references below are to the section numbering in the Access Board explanatory text preceding the proposed new Appendix A as set forth in the Notice of Proposed Rulemaking (NPRM) pertaining thereto. That explanatory text is found at pages 62248 - 62284 of the NPRM. Where references are made to particular sections of the current ADAAG, those references will be shown as “current Section *** “ The question references below are to the specific questions posed by the Access Board in the NPRM. General Issues The last paragraph under the heading General Issues on page 62250 of the NPRM states that the Access Board has included scoping and technical requirements for accessible residential facilities. While it is assumed that those scoping and technical requirements are applicable only to private single and multi-family dwelling units, the American Hotel and Motel Association (AH&MA) is concerned that they might be interpreted to include hotels, motels, inns, and similar transient lodging establishments. This situation will be particularly troublesome as pertains to condominium units, timeshare units, and vacation home rental units when they are used for transient lodging purposes. Without clarification, these provisions would almost certainly create a substantial amount of confusion and conflict in the new ADAAG. For this reason, AH&MA submits that the Access Board should add to the proposed new ADAAG a definition of residential facilities to make it clear that the term does not refer to or include any public accommodation when used for purposes of transient lodging. The Access Board (“Board”) should publish a separate and distinct Notice of Proposed Rule Making (“NPRM”) for each and every response to the 47 questions incorporated in the 36 CFR Parts 1190 and 1191, NPRM of Tuesday, November 16, 1999 Proposed Rules. To fail to do so denies those impacted by such undisclosed requirements fundamental due process of notice and comment required by the Administrative Procedures Act (“APA”). Further, depending on the responses to each question, certain other federal requirements may be triggered, e.g., Small Business Regulatory Enforcement Fairness Act (SBREFA), Executive Order 12866 (“12866”) and the Congressional Review Act (“CRA”). 2. Accessible Communication Features It must be noted that the Board’s proposal to eliminate portable alternatives for rooms with accessible communication features is unsubstantiated and appears to be based on “anecdotal evidence [that] … portable devices … are unreliable and ineffective.” As is readily apparent from the proliferation of any number of wireless communication devices, from Palm Pilots to pocket PCs to cellular phones, there is a real possibility that wireless devices may become an inexpensive and readily available alternative for rooms with accessible communications features. Rather than adopt specifications which preclude the use of portable and wireless devices, it makes much more sense to adopt a performance based standard. Additionally, the Board’s contention that technical standards for visual alarms in section 702.3 preclude the use of portable visual alarm devices, ignores the fact that exceptions have already been made, and specific criteria developed, for appliances in guest rooms. Such criteria should permit the use of portable devices. If the Board is to eliminate this alternative, in favor of costly hard wiring, it must provide more than “anecdotal evidence” to support its position. The decision to increase scoping for rooms with accessible communication features from the present 1-4% up to 50%, represents a startling departure from both existing ADAAG as well as the recommendation of the Advisory Committee. The increase is 12 to 50 times the present standard, and up to ten times the Advisory Committee’s recommendation. The proffered justification that the step will afford “increased flexibility” in guest room assignments is a slender reed upon which to base such a radical step. There are an estimated 22.4 million people in the United States with hearing impairments, approximately 8% of the population. Of these, between 12 and 17 percent wear a hearing aid, a mitigating measure which may sufficiently ameliorate their hearing loss so that they are not considered individuals with disabilities under the Americans with Disabilities Act. See Sutton v. United Air Lines, Inc., 119 S. Ct. 2139. Thus, the Access Board is proposing to designate 50% of transient lodging rooms for the 6-7 percent of the population with hearing disabilities. These figures simply do not add up. Not only is there absolutely no data to indicate that the 6-7% of individuals with hearing disabilities are inadequately served, the proposed solution ignores a much simpler and less costly alternative. By continuing to permit portable devices, any room may be converted into an accessible one for individuals with hearing disabilities. This is a far more effective means of addressing the Board’s intent to provide “greater flexibility in the guest room assignment of people who are deaf or hard of hearing.” 64 Fed. Reg. 62258. In conclusion, AH&MA strongly urges that the Board reconsider its drastic increase in rooms accessible for individuals with hearing impairments, and instead retain the present scoping standard as well as permit lodging facilities to employ portable devices for rooms with accessible communication features. 3. AH&MA Study Finds Underutilization Of Accessible Guest Rooms AH&MA submits that expansion of accessibility requirements applicable to the lodging industry is unwarranted, particularly given the absence of any data indicating otherwise. Moreover, a June 1999 study for AH&MA by TriData Corporation over a three-year period involving 1800 properties, indicates that even the present number of accessible rooms exceeds demand. Specifically, while the general occupancy rate for the lodging industry in 1997 was 67.6%, the occupancy rate for accessible rooms that year was 17.8%. Moreover, the true extent of the underutilization of accessible rooms is even more dramatic, since these figures include accessible room usage by travelers with no disability (e.g., when accessible rooms are held for last release in the event the property is sold out). In contrast to wholesale expansion of present scoping requirements, what a companion study conducted for travelers with disabilities indicated was that fine tuning of certain specifications was more appreciated by individuals with disabilities. For example, locating visible alarms away from sunlight, so that individuals with partial sight impairments or hearing impaired persons would be better able to distinguish them. Also, certain aspects of employee training need to be enhanced. These types of issues should be the focus of the Access Board (and the Department of Justice), rather than a numerical expansion of scoping for which there is no empirical justification. 4.Individual Work Stations The proposal to require access to individual work stations represents an unwarranted extension of Title III requirements over an issue which is already addressed through application of the reasonable accommodation requirements of Title I. Once again, no data has been cited by the Board in support of this major extension of ADAAG. Inasmuch as current building code requirements cover only fire egress routes from habitable spaces and not access aisles to each and every work station, some demonstration of the need for accessible routes to work stations should be required before imposition of such a costly extension of accessible route requirements. This is particularly true where, as here, Title I procedures already provide exactly such an accommodation wherever necessary. Additionally, contrary to the Access Board’s financial impact assessment, a blanket accessible route standard will cost all hotels, including those operated by small businesses, a substantial sum in construction, alteration and modification costs. Restaurants, gift shops and back of the house work stations (e.g., laundry rooms, etc.) will require substantial modification, and may lead in some situations to a decrease or elimination of the service. Analogous costs will assuredly be imposed on any number of other industries as well. Therefore, if the Board determines to expand the accessible route requirement in this manner, it will be incumbent upon it to undertake a regulatory flexibility analysis, to confirm that no less onerous means of achieving its goals is available. 5. Grandfather Existing ADAAG Compliance It must be made clear, by the Access Board and the Department of Justice, that the revised ADAAG guidelines are applicable to new construction only, i.e., construction/alterations begun after adoption of the revised ADAAG and not as criteria to be achieved in readily achievable continuing obligations.. Unless this formula applies to the revised ADAAG, then public accommodations that were constructed or altered specifically to conform to existing ADAAG, would be subject to a new set of readily achievable accessibility criteria and forced to comply once again to any new requirements. Hotel facilities have expended significant sums to conform to existing requirements. Unless such efforts, where they conform to ADAAG guidelines, are grandfathered or deemed equivalent to the revised standards, lodging facilities would be placed in double jeopardy with regard to many elements which would have to be re-modified to conform to the revised ADAAG. Everything from curb ramps to windows, would be affected, particularly if the Board, unwisely, chooses to lower the accessible reach range. If the Board does not deem compliance with existing ADAAG to be sufficient, it will be effectively imposing upon hotels and other public accommodations a moving regulatory target necessitating the (re)expenditure of significant funds. In addition to the essential unfairness of such a requirement, it would particularly impact small businesses, including a large percentage of hotels and motels, and would unquestionably require a regulatory flexibility analysis (see Section VI, below). AH&MA submits that, for these reasons, a grandfather provision applicable to features conforming with existing ADAAG is a necessity. 6. Assistive Listening Systems / Fixed Seating Section 4.1.3(19)(b) of present ADAAG requires provision of assistive listening systems only where audible communications are integral to the use of space and where there is fixed seating for 50 or more persons. The latter criteria (fixed seating of 50 or more) are absent in proposed Section 219. As a result, wherever there is any audio amplification provided in the context of any kind of gathering, the ALS requirement will be activated. For example, if five people meet in a small hotel conference room and employ a speakerphone with amplification features, two ALSs would arguably have to be provided. The intention of the original standard was to apply to larger assembly areas, typically those with fixed seating, where the provision of an ALS was necessary to facilitate communication. By deleting the reference to fixed seating and the limitation to assembly areas of 50 or more, the standard will now apply nearly universally, contrary to the original intent. In order to avoid such an outcome, a number of changes should be made. First, the reference to fixed seating should be restored. Second, the scoping should be limited to assembly areas of 50 or more. Third, some kind of definition of audio amplification system should be included, in order to exclude conference calls. Finally, as the demand for ALSs is a function of the total number of attendees at a particular hotel, the scoping provisions of Table 219.3 should be applied to hotels in a manner which permits the aggregation of its various assembly areas. The whole principle of requiring fewer receivers for larger assembly areas is based on a regression to the mean, in other words, the decreasing probability that the total required will be exceeded as the sample size increases. This is why the percentage of systems required for assembly areas over 2000, is less than that for those between 51 and 200. The salient figure for these purposes, however, is the total number of individuals who may require an ALS and the resources available to meet that potential demand. Therefore, a single facility, such as a hotel, which contains a number of discrete assembly areas, must be able to combine the total of its assembly areas, for purposes of determining its ALS obligation. 7. Failure To Provide Congressionally Mandated Economic Impact Studies The Access Board asserts that its proposed rule “will have an economic impact, but not a significant economic impact, on small entities and therefore a regulatory flexibility analysis has not been prepared.” 64 Fed. Reg. at 62284. Given the panoply of regulatory changes, from drinking fountains to visual alarm systems to assistive listening devices, which will apply to small businesses from restaurants to small hotel franchisees, retail stores and innumerable other small businesses, the Board’s assertion that no significant economic impact will result lacks credibility. Moreover, its assertion that small businesses are already covered by ANSI A117.1 in conjunction with local building codes, and therefore will not incur additional costs, fails to account for the following: 1) the ANSI standard is voluntary, and may be adopted, rejected or modified by state or local jurisdictions; 2) local building code enforcement agencies have authority to issue variances, which are unavailable under ADAAG; 3) ANSI A117.1 contains no scoping provisions; 4) the ANSI A117 committee agreed to compromises that dramatically increased the complexity and restrictions of the Standard, because Access Board staff proposed a “harmonized” ADAAG that would reduce confusion of accessibility standards, and 5) most importantly, the 1998 version of ANSI A117.1 has yet to be adopted by a substantial majority of states. Therefore, the claim that ADAAG imposes no costs because 1998 ANSI A117.1 already applies, is incorrect and fails to address the significant increase in accessibility-related costs on business in general, and small business in particular. Finally, the impact of the proposal on small business in the lodging industry in particular is readily apparent. According to data available prepared for the U.S. Small Business Administration’s Office of Size Standards, and included in the 1992 Industrial Census, approximately 94.9% of firms in the lodging industry have annual sales of $5,000,000 or less, and therefore meet SBA criteria for a small business. Further, smaller motels and hotels are likely to account for a larger percentage share of rooms (compared to their share of industry receipts) because most smaller motels and hotels generally charge less per room than larger hotels and motels. ADA scoping requirements are therefore likely to have a proportionally larger effect on small motel and hotel owner/operators than on larger motel and hotel operators because proportionately more rooms would be affected relative to total receipts. This would impose a significant burden on small hotel and motel owners. Finally, none of the cost impact addressed by the Board takes into account the significant expenditures which will be incurred by existing facilities, unless the Board grandfathers in facilities that already comply with existing ADAAG. In the real world, because the courts, the U.S. Department of Justice and individual plaintiffs employ ADAAG as the standard for barrier removal for existing facilities, there will be substantial sums expended by such facilities, in addition to costs imposed on newly constructed facilities. To fail to account for such costs, constitutes an egregious omission in the Board’s calculations. In sum, based on the issues cited above, there has been a failure of the Board to conduct the required studies under both the Small Business Regulatory Enforcement Fairness Act of 1996, P.L. 104-121, and the Regulatory Flexibility Act, P.L. 96-354. These statutes, which reflect the intent of Congress that federal regulations be reviewed to consider less costly alternatives where a substantial impact on small business will occur, require that the Board do considerably more than it has to effectuate that intent. 8. Maximum 54 Inch Reach Range The elimination of the 54 inch high reach range for unobstructed parallel approach is proposed by the Little People of America (LPA), based entirely upon the results of one study, Anthropometric National Survey of Adult Dwarfs, July 1995. The study, based upon a sample of 163 adult dwarfs (i.e., individuals whose short stature is caused by a medical condition), found that the mean vertical reach of dwarfs born in the United States is 54 inches with a standard deviation of 6.8 inches. Thus, the present side reach standard is within the reach of the average adult dwarf. Moreover, according the study, even if the 54 inch side reach is eliminated, fully 19% of adult dwarfs will still lack the ability to access a 48 inch reach . Thus, the present standard already meets the needs of a significant percentage of the population represented by the LPA, and the revised standard would remain inadequate to meet the needs of a significant portion of the remaining individuals. Additionally, since the study employed only 163 observations, presumably future studies may recommend an entirely different revision of federal reach range guidelines, which would necessitate further modifications by affected entities. The reach range requirement is a fundamental building block of federal accessibility regulations, impacting everything from paper towel dispensers to light switches. AH&MA strongly believes it is premature to consider revising such a vital and universally applicable standard based on limited data, and in a manner which benefits only a portion of the individuals at issue. 9. Equivalent Facilitation Contrary to the wording of Section 103: Equivalent Facilitation, Advisory 103 firmly discourages alternative design. We would strongly support strengthening and expanding the provisions for equivalent facilitation, and for providing a mechanism to “certify” or “approve” alternative designs. As there is no mechanism in place for such certification, the Board has effectively barred the design community from even considering new technologies or innovative design approaches. In fact, the Access Board has effectively eliminated it’s own ability to obtain, receive or even conceive alternate ways to overcome access barriers. 10. Portable Equipment We request that the board reconsider the position taken in the proposed regulations regarding use of portable devices to meet the needs of persons with disabilities. Soundly installed but removable (“fixed” rather than “permanently installed”) equipment and fixtures allow a maximum of flexibility. There are numerous portable devices that are invaluable to persons with
various types of
1. Section 104 Conventions The Board’s proposed “clarification” that fractions of the number of accessible elements are to be rounded up, is presented without foundation, empirical use/demand studies or any other factual basis. The cost impact of such increases for existing facilities undergoing renovations or alterations, when taken as a whole within the U.S., are staggering. The Board is not proposing a clarification and should not conceal its true intent, which is to impose further substantive requirements. Without any factual basis to support its position, the Board should reverse this requirement to indicate that such numbers are not to be rounded up. 2. Section 202 Existing Buildings and Facilities With respect to alterations within existing facilities the Board provides an exemption from the compliance with requirements for new construction only when such compliance would be “technically infeasible” or “disproportionate”, the latter applying only to path of travel accessibility improvements. For the hotel industry the cost, for example, of converting a standard hotel guestroom to an accessible hotel guest room in existing hotels ranges from $20,000 to $40,000 per room depending on a wide range of factors. The costs to build such rooms in newly constructed hotels however are much less. Thus the marginal investment in providing accessibility in new construction for an entirely new hotel versus an existing hotel of the same size is extraordinary. The resulting financial burden is discriminatory for existing hotels. The Board should amend its requirements for those issues within ADAAG that are quantity specific, for example the number of accessible guest rooms in a hotel or the number of existing public restrooms in any facility, to reflect the financial burden. Those numbers should be less in existing buildings than that required of newly constructed buildings. 3. Section 203.3 B Employee Work Areas A. General: The scoping provisions of both the current ADAAG and the proposed new ADAAG are premised on the proposition that all portions of sites and facilities are subject to the ADAAG unless a specific exemption is provided. Section 203 sets forth the general exceptions applicable to that overall philosophy. For example, both the current ADAAG and the proposed changes to ADAAG contain exemptions for such things as raised areas, limited access spaces, equipment spaces, and single occupant structures. Current Section 4.1.1(3) requires that access be provided to employee work areas, but expressly states that access does not need to be provided fully within employee work areas. The Access Board notes that this exception exists in part because title I of the ADA generally treats access for employees with disabilities as an individual accommodation @ (NPRM page 62251.) B Relationship to Pending Ergonomics Standards Although the Access Board does not identify this as an issue with respect to the possible requirement to provide access to individual work stations, AH&MA submits that this entire topic could be impacted significantly by the proposed rule issued by the Occupational Safety and Health Administration (OSHA) pertaining to ergonomics-related workplace injuries (i.e., repetitive motion injuries, repetitive stress injuries). The interplay between these two separate regulatory concepts is extremely troublesome and should be addressed by the Access Board In California, for example, where Cal/OSHA has already adopted an ergonomics
standard, there is a requirement that modifications to the employees work
station be made in specified situations. The NPRM does not address what
impact such a requirement might have on a requirement to make an individual
employees work station accessible for purposes of the ADA.
4. Section 204 B Protruding Objects While AH&MA does not have any objection to Section 204 as such, it is important to note that the requirement in the Access Board’s pending Recreational Accessibility standards would require in some cases that handrails be provided to assist people into and out of swimming pools. As the Recreational standards are currently worded, this handrail requirement will create a prohibited protruding object for purposes of Section 204 of the new ADAAG and thereby constitute a considerable risk. Therefore, unless the recreational standards are changed, it is imperative that the Access Board exempt swimming pools from the prohibitions in Section 204. It is quite possible that other provisions of the Recreational standards will create conflicts with Section 204, and AH&MA urges that the two rulemaking proceedings be combined and coordinated so that all such circumstances can be identified. 5. Section 206 Accessible Routes The AHMA is concerned that, although the proposed changes continue to require that at least one accessible route shall connect accessible buildings within a site, the limited number of exceptions (i.e. “qualified historic buildings or facilities” and where a “vehicular way is the only means of access between” buildings) leaves many existing hotel sites in a dilemma. Specifically, many older hotel sites, especially in resort locations, are constructed in hilly, varied terrain with vehicular access between accessible buildings. However, although pedestrian access may exist in the form of trails, bike/jogging paths, or sidewalks, that access may not meet the definition of “accessible” due to the terrain and age of the facility. By providing only limited exemptions “within a site” where pedestrian travel is available, the board ignores a hotel built on a site that may cover several hundred acres in which facilities have sufficient accessible parking and accessible buildings, but are unable to meet the requirement for “at least one accessible route connecting all the elements and facilities within that site”. 6. Section 207 Accessible Means of Egress These proposed requirements, if adopted, could have massive restrictive impacts on the design of and result in substantial added costs for multi-story buildings unless it is certain that exit stairways are retained in Section 409.1 as an accessible means of egress. Current ADAAG requirements only address actual at-grade exits and other levels are exempted if the building is sprinklered or has an area of rescue assistance. If more than one means of egress were required from any accessible space and exit stairways were not counted as an accessible means of egress, it would require multiple accessible elevators (or multiple areas of refuge if that were an option) in a multi-story building. A cross-shaped multi-story building would, for example, require an accessible means of egress at each end of each leg of the cross, regardless of whether or not the building was sprinklered. Requiring elevators at multiple locations would be extremely burdensome to nearly all high-rise buildings and providing standby power at elevators would be burdensome to smaller buildings which traditionally do not have such capabilities nor full-time on-site licensed engineers who are responsible for the operation of such devices in larger buildings. 7.Section 207 Accessible Means of Egress The AHMA is concerned that the proposed changes to the rule impose significant additional cost on new construction by, in effect, requiring a “Fireman’s Service Elevator” in new construction hotels that are four or more stories. This very expensive type of elevator requires specific isolated power supplies and is not unusual as a code requirement in “high rise” construction. The AHMA believes that a federal definition and requirement for the addition of this type of elevator is not necessary for access purposes and is beyond the tasking of the Access Board. Rather, this is not a federal issue and existing fire codes and building requirements at the state and local level are sufficient. 8. Section 208 Parking Spaces The AHMA is concerned about the provisions of the rule related to valet parking. In general, there are two types of valet parking facilities:
7.Section 209 Passenger Loading Zones This change only differs from ADAAG in adding that long entry areas must have a accessible loading area every 100 feet rather than one per site. The AHMA questions the need for a change. The accessible loading zone signage requirements alone would be counter productive to the effort of having the accessible drop off as close as possible to the entry, if not dangerous. Loading and unloading areas falling within the rule at hotels are normally staffed with Bellstaff, Doormen, and Valet Parkers. From a safety standpoint, hotels routinely discourage dropoff and unloading except in the designated areas, although the site may have a “passenger loading zone” that extends for several hundreds of feet in the form of a drive or lane. The Access Board presents no empirical data suggesting the current requirement is not sufficient. 10. Section 212 Sinks, Kitchens, Kitchenettes and Wet Bars AH&MA agrees that the provisions of 212.1 Exception 2, exempting transient lodging facilities guestrooms except for accessible guestrooms is proper. The AH&MA is concerned that in other serving areas of the hotel facility requiring one sink at each Wet Bar location to be accessible is burdensome. Sinks in kitchens and other specialty rooms for meeting are there primarily for hotel staff use and are located at a height that provides the majority of workers to perform their task related to those facilities without stooping or bending so as to cause employment related injury. Any requirement that in effect lowers all sinks and work areas to a certain reach range should only be enacted after comment and input from OSHA and state employment related agencies. 11. Section 213 B Toilet and Bathing Facilities AH&MA fully supports the action of the Access Board to clarify that access is not required for toilet or bathing facilities in other than accessible hotel/motel guest rooms (except for the clearance of the guestroom entry and bathroom entry doors). There has been a great deal of confusion on this topic, and the proposed clarification will remedy this situation. 12. Section 214 B Laundry Equipment The language in the Access Boards explanatory text for this section (i.e., on page 62255 of the NPRM) is very confusing. Specifically, AH&MA understands the fact that if a hotel or motel provides laundry equipment for its guests in a laundry room setting, they must be accessible as required in Section 214. However, the Board’s text also states that Section 214 also addresses the need for accessible laundry facilities in, or serving accessible dwelling units and is necessary since the revised guidelines address residential facilities. The quoted text implies that if a condominium, timeshare, or vacation home rental unit is used for transient lodging purposes, then the laundry equipment therein must be accessible even though the unit is not covered by the Fair Housing Act Amendments. It is for this additional reason that the Access Board must provide a clear demarcation between facilities used for transient lodging purposes and dwelling units used for other purposes. (See item I, above.) 13. Section 215 Emergency Alarms Systems AH&MA objects to scoping and regulatory specifications of visual
and audible alarms without data from the NFPA and other fire protection
professionals. There is industry concern that the
14. Section 216 Signs This impact of this section is significant only in reference to the impact of Section 703: Signs, i.e. the required sign locations have not materially changed, nor has the type of sign required (visual, tactile, Braille). Unfortunately very few currently existent signs will pass review for compliance with NPRM Section 703. The requisite letter/symbol, style, configuration and size are both different from and exclusive of the style, configuration and/or size previously permitted or required by ADAAG. See Section 703: Signs below)This is especially problematic if a grandfathering clause is not adopted, in that the Department of Justice has already identified signage replacement in it’s list of readily achievable modifications. 15. Section 217 Telephones The Board has failed to demonstrate through any actual studies of use or demand any need for an increase or to substantiate current requirements, for public accommodations to provide TTYs. The Board has failed to substantiate a lower requirement for “public” (government) buildings while requiring more for private commercial buildings. The Board has also failed to take into consideration new technology including laptop computers, wireless personal access devices (PADs) and similar technology as well as the propensity of many hearing impaired persons to carry their own TTY devices, not unlike hearing persons carrying their own cell phones. Without some empirical evidence to suggest a need to increase the member of TTYs, this change is unwarranted, arbitrary and capricious. 16. Section 222 Dressing, Fitting, and Locker Rooms Dressing and locker rooms at Recreational Facilities have recently been addressed in the Proposed Rules for such areas. Because the newly proposed rules are not included nor referenced in this scoping requirement, the AH&MA is unable to determine whether conflicts exist between the new scoping, the existing ADAAG and the Proposed Rules for Recreation Facilities. 17. Section 224 Transient Lodging Guest Rooms See Appendix A entitled: Report of the Survey of Accessible Hotel Guestroom Usage By Travelers with Disabilities Incorporated herein by this reference. 18. Section 226 Dining Surfaces and Work Surfaces The AHMA is concerned with the use of the undefined term “work surfaces” in this section. The present provisions regarding “Restaurants and Cafeterias” do not address “work surfaces” and the intent of the Access Board is unclear in adding this provision. Title III of the ADA addresses public accommodations not employee areas and to the extent the use of “work surfaces” attempts to expand the provisions of Title III into areas under Title I, the AHMA objects. Provisions under this section should be limited to areas and surfaces where the public are consuming or being served food. 19. Section 227 Sales and Service Counters For purposes of clarity, the AH&MA suggests the insertion of the word “different” as the second word in the second sentence of Section 227.2. That sentence would then read: “Where different check-out aisles serve different functions, at least one accessible check-out aisle shall be provided for each function.” The rationale for this change is to clarify that where a single check-out aisle serves different functions, additional check-out aisles are not required to distribute those functions. Also, the AH&MA believes the signage requirement at Section 227.2.1 that each accessible check-out aisle “in the facility” be identified is not warranted. For example, many hotels have multiple restaurants, with each having only one check-out aisle. While the term “in the facility” would require each such check-out aisle to be signed as accessible, the reality is that with only one check-out aisle serving each restaurant, each of those check-out aisles would have to be accessible; accordingly, the signage should not be necessary. 20. Section 228 Storage The proposed Section 228.1 would have a significantly adverse and confusing impact on hotels and a dramatic increase in scope from previous ADAAG, particularly if applied to spaces such as work areas. A scope clarification or exceptions are needed to avoid misapplication of the requirement. 21. Section 229 Depositories, Vending Machines Change Machines, and Mail Boxes The proposed Section 229.1 greatly expands the existing ADAAG from simply providing accessible space at restaurant and cafeteria vending machines and other equipment (ADAAG 5.8), to making the operable parts of depositories, vending machines, change machines, and mail boxes fully accessible. AH&MA members are uncertain as to what types of vending machines are available that would meet this requirement. For example, AH&MA members are not aware of any vending machines that do not require a tight grasping or pinching action to insert paper money or change. AH&MA members believe that they should not be burdened by such a requirement unless the Board can demonstrate how the requirement can reasonably be met. The burden should be placed on equipment and machine manufacturers, not end users such as public accommodations. 22. Section 230 Windows The portion specifying that where windows “are provided in accessible rooms or spaces for operation by the occupants” is unclear and unenforceable. For example, a hotel may be required to provide operable windows pursuant to a local or state building or indoor air quality requirement but have no intention of the occupants opening the windows because of the actual effect such operation would place on the hotel’s HVAC system. The hotel cannot control what its guests do in the privacy of their rooms. Accordingly, the AH&MA believes that there should be no requirement to provide operable windows complying with Section 309. 23. Section 234 B Accessible Residential Facilities See item I, above. 24. Section 302 Floor or Ground Surfaces The AH&MA suggests deleting Advisory 302.1 without substitution. We believe that these definitions are not substantially different from the normal understanding of the terms used and their inclusion could only serve to cause confusion. For example, “contaminants” do not change the stability of a walking surface, but could change its slip resistance. We also believe that the portion of Advisory 302.2 suggesting that carpet pad should not be used be deleted. Section 302.2 clearly allows carpet pad and requires the pad to be firm. The only other option is to have no pad; the advisory is unnecessary and verges on scoping. Lastly, at 302.3 Openings we suggest deleting “except as allowed in 407.4.7, 408, and 1103” because the referenced sections do not address floor openings, rather, they address the gap between an elevator car platform sill and the hoistway landing, wheelchair platform lifts and the gap between the platform and the car for some railway systems. 25. Section 304 Wheelchair Turning Space The proposed Section 304.2 is inconsistent with the ANSI Standard and
does not follow the recommendations of the Advisory Committee. Hotels need
to be able to use beveled thresholds within the wheelchair turning space
allowing some of the space in roll-in showers to be used as the turning
area within a guest room bath while protecting the adjacent area from water
overflows, which create a hazardous condition for guests with disabilities.
Considering that slopes of 1:48 are allowed and the distances between front/back
and side/side wheels on a wheelchair are approximately 24”, the tilt of
a wheelchair would be approximately the same with one wheel on an off-set
as if it where at an exterior entry door with a 1:48 sloped sidewalk and
a ½”h beveled threshold. Hotel guestroom roll-in shower baths have
been constructed in this fashion and AH&MA members are not aware of
any complaints based on the design.
26. Section 305 Clear Floor or Ground Space Proposed Figure 305.6 does not seem to clearly convey the written text for the proposed Section 305.6. The phrase “Complying with 305” should be deleted from the proposed Section 305.7. In proposed Section 305.7.1, The 36” width requirement should be reduced to 32”w which is allowed for a 24” length. It is the large wheels of a wheelchair which are about 24” in diameter that need the 32” width. Therefore, the alcove should be allowed to be 32”w if it is not greater than 48”d. 27. Section 306 Knee and Toe Clearance The word “included” should be changed to “allowed” in the proposed Section 306.1. “Shall” should be changed to “may” in the proposed Section 306.2.2. In proposed Section 306.2.4, 9” in the second line should be changed to “not more than 9”’ and that the transition space between knee and toe clearance is not clearly explained in written format. In proposed Section 306.2.5, Toe clearance width could be reduced to approximately 24” maximum centered on the wheelchair space for the first 12” of depth. In Section 306.3.2, The use of the term “knee clearance” in explaining toe clearance is very confusing. In Section 306.3.3, Allowances for items such as lavatory bowl overflows need to be included. 28. Section 308 Reach Ranges We concur with the Board’s rejection of their Advisory Committee’s recommendation to lower the side reach range to 48”. Tens of thousands of public accommodations, in response to requirements for “readily achievable barrier removal”, have lowered such devices as fire alarm stations, light switches and thermostats from traditional heights of 60” aff to the 54” height in response to the original ADAAG provisions. To require a subsequent and retroactive change (made so by either alterations or the continuing obligation for readily achievable barrier removal) would make all such improvements moot, wasteful and would delay other barrier removal efforts. 29. Section 308 Reach Ranges At Section 308.3.2 the maximum depth of an obstruction should be 25” and not 24”. The reason is that standard cabinets have a depth of 24” with the countertops having a 1” overhang. Accordingly, the obstruction depth should be 25” and not 24” which would allow hotels to purchase standard cabinets and countertops rather than having to have them custom made. 30. Section 403 Walking Surfaces The change in slope from an allowable 1/50 to a maximum of 1/48 is negligible in terms of function as well as impact on construction complexity, as long as this is not a retrofit requirement for walk surfaces currently constructed at 1/50 slope. The cost of modifying existing walking surfaces to comply with this revised rule would be enormous and unwarranted for the miniscule benefit provided. For new construction the impact on complexity of design or construction cost should be negligible. The stipulation of a minimum linear separation of 48” between reductions in the required 36” clear width of an accessible route is a reasonable clarification of the existing rules. It may be structurally impossible to alter existing conditions but for new construction the impact on complexity of design or construction cost should be negligible. The clarification allowing a 36” walk where turns are designed at 60” permits greater flexibility in design. There is no cost impact on existing compliant facilities or new construction. 31. Section 405 Ramps The only substantial change in this section is the increase of required ramp curb or barrier height to 4” AFF for a 4” sphere in lieu of the 2” curb height (no sphere size) previously called for. This change, although readily achievable in new construction, would add substantial cost, doubling the size of a curb barrier or significantly decreasing picket spacing in a fence type barrier and increasing the cost of either by as much as 30%. Additionally, drawing 405.9b on page 32 of the NPRN accessibility guideline section is not consistent with the words in 405.9.2 on page 33. The condition in the drawing would only comply if X < 4”, AND X + the bottom rail dimension >/= 4”, thus precluding the passage of “any portion of a 4” sphere within 4” of the floor”. 32. Section 406 Curb Ramps In Section 406.1, AH&MA members are uncertain as to why there is no reference to 405.3 (cross slope) or 405.7 (landings) requirements and presume that they must not apply. In Section 406.3, The term “ramp” in the third line should be changed to “curb ramp” and the last word in the last sentence, “ramp” should be changed to “sides of the ramp”. In Section 406.6, it is unclear why 48” clear floor space is required rather than 36” or 32” allowed for path of travel. Also, Figure 406.6 is confusing as it does not clearly identify elements such as the streets or the buildings. In Section 406.7, the statements regarding the orientation of the 36” x 48” spaces are confusing. 33. Section 407 Elevators In general, the elevator sections are very complex and difficult or impossible for an average building owner or operation to adequately comprehend. It would be preferable to AH&MA members to have requirements removed from the proposed ADAAG which can be addressed in referenced standards such as ASME/ANSI A17.1. Height restrictions such as required by 407.2.2, 407.3.1, and 407.5.1 for hall buttons should be changed to reference the maximum reach ranges in 308. AH&MA members believe that Section 407.2.4/Fig 407.2.4 and Section 407.3.5/Fig 407.3.5 too restrictive and should be changed to allow any portion of the sign to be at 60”h. In addition, AH&MA members believe that two separate signs with the same character height as required by 407.3.5/Fig 407.3.5 will likely lead to confusion for hotel guests. The 5 footcandle minimum illumination level required by 407.2.10 and 407.4.8 should be limited to the car control panel. It is unclear why the elevator car emergency communications instructions should be required to be tactile when other types of information are not. The new size limitation requirements in Section 407.4.6 and 407.5.4 for existing elevator cabs are unduly burdensome. The minimum size depth should be set at 48” and width at 36” with a 32”w door. 34. Section 408 Wheelchair (Platform) Lifts In Section 408.2, The Exception allowing manual doors or gates should also apply to lifts with a platform size which is sufficient for wheelchair turn around. 35. Section 409 Accessible Means of Egress In Section 409.2, Exceptions should also include open air portions of facilities such as amphitheaters, courtyards, gardens, pool decks, etc. Please see the comments made in response to Section 207. 36. 37.Section 410 Areas of Refuge The dramatic changes in the Areas of Refuge appear without comment by the NFPA and other fire protection industry groups and with no cost analysis or impact comments. Moreover, they mandate design criteria requiring every area of refuge to be located with direct access to an exit stair or elevator, ignoring the possibility that construction or terrain might allow an exit ramp or passage other than a stair or elevator. The AHMA objects to this change in that there is no evidence showing that current state regulation in the area of fire protection is inadequate so as to require federal regulation, nor that the changes prohibit discriminatory practices. 37. Section 503 Parking Spaces (Now found at Sec. 208 of the proposed ADAAG) The Board has not addressed the issue of the impact of providing accessible parking spaces and their access aisles in existing parking facilities such that the size of these required accessible spaces would reduce the total number of parking spaces below that required by various other regulations including zoning codes. The Board should further amend these regulations such that additional accessible parking spaces and their access aisles are not required for existing parking facilities if the additional accessible spaces would result in the facility violating other regulations including zoning ordinances which specify the minimum of total parking spaces for the facility. The Board has already established a similar precedent when the number of accessible toilet stalls would result in a violation of plumbing codes, see ADAAG 4.1.6(3). The same analogy and relief should apply to parking spaces. 39. Section 604 Water Closets and Toilet Compartments The AH&MA supports the Board’s proposal to expand the centerline dimension to 16-18” from an absolute 18” from the adjacent wall. All absolute dimensions should be relaxed to allow for minor tolerances or differences especially in existing buildings where other constraints may pose herculean obstacles to conformance with these regulations. For Section 604.3 AH&MA opposes the change for existing buildings as proposed by the Board to preclude an overlap of the lavatory into the space required for the water closet as presently allowed in ADAAG as depicted in current ADAAG Fig. 28. To do so would defeat alterations for accessibility already made in good faith as compliance would be required in the future based on the DOJ’s “barrier removal” continuing responsibility requirement and alteration obligations. For complying small businesses, such burden would be truly egregious. The AH&MA supports the other changes in Sec. 604.3 proposed by the Board. 40. Section 604.8 Water Closets and Toilet Compartments AH&MA strenuously disagrees with the Board’s ex post facto attempt to modify accessibility improvement made in good faith with respect to the use of the “alternate stall” currently allowed under ADAAG. The current language in Sec. 4.1.6(3) takes into consideration the legal obligation of public accommodations to maintain a specified number of toilet stalls pursuant to zoning and/or plumbing codes while improving accessibility. The Board’s attempt to nullify such good faith efforts already undertaken by owners and operators of existing buildings is both arbitrary and capricious. In addition the same arguments above apply to the issue of a lavatory required (by some state codes or accessibility regulations) within an accessible water closet compartment. To modify this requirement for existing buildings is without foundation, arbitrary, capricious and an unwarranted financial burden especially on those small business owners and operators who, in good faith, have made such accessibility improvements. 41. Section 607 Bathtubs AH&MA objects to the change for existing buildings to the provision adding additional clear space for tubs with seats at the end. Expensive modifications in response to current ADAAG requirements have been made by building operators and owners in a good faith effort to improve accessibility. Such efforts should now NOT be subject to an ex post facto determination by this Board that such actions are no longer acceptable. This change, especially for small business, is arbitrary, capricious and egregious. 42. Section 608 Shower Compartments AH&MA objects to the removal of the exception for a 48” maximum height for a fixed shower head in lieu of a hand held shower head in facilities that are subject to vandalism. Unmonitored facilities at hotels including, but not limited to, beachfront showers and locker room showers at pools and health clubs are routinely subject to vandalism. The destruction of such items as hand held showers are repetitive and thus this exception should be retained. As in much of this rulemaking, the Board has presented no empirical evidence in support of its proposal to modify existing rules and, therefore, its actions are arbitrary and capricious. 43. Section 611 Laundry Equipment ADAAG should not impose any requirements on laundry equipment that could be imposed on existing equipment. Unless the equipment manufacturers have been consulted as to the technical feasibility of such requirements, this proposal should be deleted. 44. Section 702 Fire Alarm Systems The proposed regulations should be consistent with NFPA 72. See amplifying comments on Section 215, incorporated herein by reference. 45. Section 705 Detectable Warnings AH&MA members are not aware of any methods to measure the difference in resiliency or sound on cane contact required by Section 705.2.3 and requests that the Board either provide a measurable standard or delete the requirement. 46. Section 707 B Automatic Teller Machines and Fare Machines A. General:
First, there are a great many such devices found in lodging establishments. For example, ATM and fare machines are found in some hotels and motels; many lodging facilities have devices which dispense tickets, stamps, newspapers, pre-paid phone cards, food, beverages, snacks, flowers, and other products; lodging properties have devices which permit guests to obtain information; some have devices which people can use to access the Internet. In addition, a number of hotels and motels are installing kiosks in their lobbies at which guests can register and check and, as well as check out. That being the case, it is important for the Access Board to identify exactly which types of devices are to be covered under its accessibility pronouncements in the new ADAAG. Is it intended to cover traditional vending machines, for example? What about newspaper racks? All of these could be deemed to be a point of sale device. Second, it is often the case that such point of sale devices are provided by third parties in hotels and motels, and the question arises as to who should be responsible for insuring their accessibility. For example, if a company rents an ATM machine to a hotel for installation in the lobby, who bears the responsibility for complying with the ADAAG—the manufacturer? The distributor? The innkeeper? AH&MA suggests that this issue needs to be coordinated with DOJ and the two agencies need to present a coordinated approach so that there will be no confusion in this regard. AH&MA submits in this regard that there are really two separate and distinct areas of accessibility obligation. First, it is important that people with disabilities be able to get to such devices—that is, the location and situation of the devices need to be such as to permit a disabled individual to reach the device in such a way that he/she is close enough to it to use it (AH&MA refers to this as A locational accessibility); second, it is important that the devices themselves be designed and constructed so that disabled individuals who get to the machines can in fact use them (AH&MA refers to this as functional accessibility, and it deals with such issues as the height of the controls, the colors used, the time span within which the transaction must be completed, and similar considerations.) AH&MA submits that the responsibility for providing functional accessibility must rest solely with those who manufacture, sell, and/or distribute the devices, and not with the owner or operator of the facility. In contrast, the responsibility for providing locational accessibility should rest primarily with the facility owner/operator. Thus, AH&MA submits that the provisions of Section 707.2 of the proposed new ADAAG involves locational accessibility, whereas all of the other specific requirements in Section 707 involve functional accessibility. In any event, it is obviously essential that the Access Board and the DOJ coordinate their efforts so that there is no confusion in this regard. Third, AH&MA wishes to point out that most, if not all, of the questions related to Section 707 are particularly within the field of expertise of the manufacturers of such devices. Therefore, any and all question as to insuring that such devices are constructed in a manner that makes them accessible to and usable by individuals with disability will most appropriately be responded to by the manufacturers. Fourth, what has been said in other parts of this document bears reiteration at this point: The Access Board must bear in mind that whatever requirements it imposes in this regard will apply to existing public accommodations, and not merely to new facilities. 47. Section 708 B Two-Way Communication Systems Public accommodations such as hotels, motels, and inns are already required by DOJ regulation to provide assistive listening devices and other auxiliary aids and services in places where public address systems are provided. AH&MA does not believe that any additional requirements in this regard should be imposed in that there is no information of which AH&MA is aware that the current requirements are inadequate. Additionally, the type of captioning used in transportation facilities is inappropriate to hotel/motel meeting rooms and similar venues. 48. Section 803 Dressing, Fitting and Locker Rooms The recently published Proposed Rules for Recreation Facilities differ somewhat in language. Section 803 requires benches in dressing and locker rooms that comply with Section 903. There are several ambiguities in comparison of the wording at section 4.37 and the proposed rules in 903 as they relate to benches. Specifically, 903 contains an advisory comment and where the Recreation Facilities states that the bench “shall be fixed” section 903 states the bench “shall be installed”. It is important that if the Board is going to propose rules that the rules be consistent. 49. Section 804 Sinks, Kitchens, Kitchenettes and Wet Bars Many wet bars in hotels are not used the same as in other applications. For instance, in hospitality suites and in many meeting and conference rooms, the wet bars are serviced by hotel staff who generally are responsible for monitoring and utilizing the functional elements of the wet bars (i.e., the sinks, the cabinets, etc.). Hotel guests do not generally spend time at the wet bars; rather they only access them intermittently for refreshments. Typically, the counters serve to support trays of prepared food and drinks, both of which can easily be accessed by a side approach. Additionally, the sinks at these locations are generally used only to pour out unwanted drinks and ice and are not used for washing hands, etc. Because these wet bar sinks are used for such a limited purpose, a parallel approach should be allowed. Lastly, hotels have no control over the design and/or manufacturing process for appliances and should not be held accountable for whether any of them have accessible operable parts or not. Therefore, the AHMA suggests that hotels be exempted from the regulation except to the extent that Kitchens and Kitchenettes are available in accessible guest rooms. 50. Section 806 Transient Lodging Guest Rooms See appendix A entitled Report of the Survey
of Accessible Hotel Guestroom Usage By Travelers with Disabilities
attached hereto and made a part thereof by this reference.
The requirement for accessible windows (reserved in the current ADAAG) is also without any empirical evidence or study to indicate that existing conditions have proven problematic within existing facilities. Sec. 309 is devoid of specific criteria as to what typical window hardware would or would not be acceptable. This provision should be removed from this rulemaking until such time as the Board undertakes specific research on this subject and develops clear and workable hardware criteria which can be specified for newly constructed buildings only. 51. Sections 1003.2.8 Facilities and Station and 1004.3 Airports Public accommodations such as hotels, motels, and inns are already required by the DOJ’s regulations to provide assistive listening devices and other auxiliary aids and services in places where public address systems are provided. AH&MA does not believe that any additional requirements in this regard should be imposed in that there is no information of which AH&MA is aware that the current requirements are inadequate. Additionally, the type of captioning used in transportation facilities is inappropriate to hotel/motel meeting rooms and similar venues. IV. Responses to Questions Posed by the Access Board In developing the proposed new ADAAG, the Access Board has posed questions as to whether, and to what extent, this exception should perhaps be modified. In addition, the Access Board is proposing to change the ADAAG in various respects. The specifics of the questions posed and the changes proposed by the Access Board are discussed below. Access Board Question 1 ADAAG requires that an accessible route be provided to employee work areas, but not to individual workstations. What obstacles have people with disabilities encountered as a result of this provision? AH&MA Response to Question 1 As noted above, the Board should publish a separate and distinct NPRM to this question and depending upon the response, the Board may also have other federal requirements under SBREFA, E.O 12866 and the CRA. For the reasons set forth below, the AH&MA respectfully submits that the issue of whether people with disabilities have encountered obstacles in getting to individual workstations is irrelevant in the context of this rulemaking proceeding. While this question is, in and of itself, a very important one, the answer to it cannot be taken in a vacuum. That is, the question must be analyzed in view of the fact that Title I of the ADA deals expressly with the entire issue of the nature and extent of the accessibility that must be provided to individuals with physical and mental disabilities who, with accommodation, are qualified, i.e., they can perform the essential functions of the job in question. Looked at in this way, there are a number of issues that pertain to the basic assumptions on which Question 1 is based. First, by merely posing the question whether people with disabilities have difficulties in getting to individual work stations in the context of the NPRM relating to a proposed new ADAAG, the Access Board implies that it feels that it might well be appropriate for the new ADAAG to impose some sort of requirement that all individual work stations be made accessible to at least some extent. (See, for example, Question 4: If a requirement for work stations is included in [the scoping provisions of] the final [revised ADAAG]. . . @ (NPRM page 62252, emphasis added.) The AH&MA respectfully submits that any such provision would be
contrary to the intent of the ADA generally as pertains to accommodating
disabled employees, and would conflict with the provisions of Title I of
the ADA with respect to the nature and extent of the accommodation which
employers must provide such individuals. More specifically, the legislative
process which led to the ultimate enactment of the ADA dealt extensively
with the need to provide accessibility to disabled workers, and, if it
had been concluded that it was feasible to provide a one size fits all
approach to accommodating disabled employees, there would have been no
need for there to be a Title I at all. The ADAAG provisions relating
to providing accessibility in buildings and facilities would have sufficed
for patrons and the general public, as well as for both able-bodied and
disabled employees. But the fact of the matter is that the nature
and extent of the physical and mental disabilities which various employees
could have and the tremendous variety of work-station situations which
could be encountered made such an approach impractical.
If the Access Board requires that accessibility be provided to each work station within each work area, the entire scheme enshrined in Title I of the ADA will be turned upside down. More specifically, to require accessibility to each work station presumes that there is a way to do so which will meet the needs of all disabled workers, that will make each disabled worker qualified to perform the essential functions of the job, and that will not cause undue hardship to any employer. Conversely, it the Access Board requires that all work stations be made accessible, Title I of the ADA provides, in essence, an exception where the accessibility required does not cause the employee in question to become qualified. Further, Title I provides an additional exception if the accessibility required proves to cause an undue hardship on the particular employer. This presents merely a replication of what is already in Title I and the regulations and guidelines promulgated by the Equal Employment Opportunity Commission (EEOC). With all due respect, this will do nothing but complicate a situation which is still in the process of sorting itself out (e.g., it is only recently that the EEOC issued its guidelines relative to accommodating employees with mental disabilities). Second, if the Access Board requires that accessibility be provided
to individual work stations, who will enforce such a requirement? The Department
of Justice? Local building officials to the extent that those requirements
are included in local building codes? The EEOC? And at the local level,
will such provisions be within the province of local building officials
or state civil rights agencies such as, for example, the California Fair
Employment and Housing Commission?
Fourth, there is no guarantee that making all individual work stations accessible to disabled individuals will make them usable by those people in the performance of their job duties. Many of the accommodations which employers are required to make for disabled employees have to do with non-structural and non-barrier considerations. For example, many employees who have motion limitation with their hands and arms don’t need anything special in the way of access, and, instead, they need special work surfaces, tools, and similar accommodations. Similarly, people with certain mental disabilities (e.g., bipolar disorders) need special work schedules and similar accommodations in order to perform their jobs, and the issue of getting to their individual work stations never arises. If the Access Board decides that some sort of accessibility to individual work stations is in order, on what basis would the Access Board determine the nature and extent of the accessibility to be required? Mobility? Hearing? Sight? Other? On the other hand, if an employee has a disability which is in fact impacted by the need to provide accessibility to his or her individual work station, Title I of the ADA already provides the necessary scoping provisions in that it requires that the employer make whatever accommodation the employee needs if (1) it does not create an unreasonable hardship on the employer, and (2) the employee, with the accommodation, can perform the essential functions of the job. The drafters of the ADA wisely concluded that each disabled employee and his or her job and his or her employer will be sufficiently different, unique, and variable as to preclude the establishment of a fixed standard of any kind. Hence, it would be entirely inappropriate to impose any requirement in the new ADAAG for accessibility within any work area to individual work stations. Access Board Question 2 The Board is interested in learning what the impact might be if ADAAG requires access to “individual work stations” rather than to “employee work areas.” For example, how would a facility otherwise be designed and built in the absence of this revised requirement in ADAAG? Any comparative analysis should be based on a design that reflects compliance with contemporary codes, such as the model building codes, and typical design practice. In other words, aspects of an accessible route that would otherwise be provided as a typical design consideration or that would have to be provided in order to comply with a contemporary building code would not be sources of real impact. AH&MA Response to Question 2 As noted above, the Board should publish a separate and distinct NPRM to this question and depending upon the response, the Board may also have other federal requirements under SBREFA, 12866 and the CRA. More directly to the issue of the impact which such a requirement would cause, AH&MA is of the view that the impact would be tremendous and extremely onerous in many industries. This would be especially true in the lodging industry, because every room and space in a hotel, motel, or bed and breakfast inn is a work area and a work station for someone. Thus, for example, while the lobby of a hotel might be considered a work area, every inch of it is a work station for someone: an employee cleans the floors, an employee cleans the walls, an employee cleans the glass, an employee cleans each piece of furniture (e.g., sofas, chairs, lamps, tables,). Similarly, each and every guest room is an employee work area, but every place and every thing in each guest room is someone’s work station; this means that every guest room bathroom and its fixtures would have to be accessible for employees who could have a wide range of physical or mental disabilities. Clearly, this is not feasible. Additionally, accessibility would be required in every public toilet facility, for every public telephone, for every drinking fountain, in every outdoor area, and so on ad infinitum. Obviously, the impact would be so enormous as to defy quantification. As a corollary, the impact would be compounded by the fact that it would not be enough merely to make every individual workstation accessible; it would be necessary to make every individual work station accessible for every kind of physical or mental disability. The true consequence of such a proposal is that every space in a public accommodation would have to be fully accessible except for those few specific areas specified in Section 203, and the impact of this is truly incalculable. Moreover, it is critical to bear in mind that the Department of Justice (DOJ) regulations implementing the ADA require that all existing public accommodations be made as fully accessible as new public accommodations to the extent that this can be accomplished in a readily achievable manner. This means, in essence, that every space in every existing public accommodation will have to be made fully accessible, because it is a workstation for some employee. Simply put, this is not possible. Hence, the impact of requiring that access be provided to every individual workstation will make it impossible for the owners and operators of public accommodations to comply even minimally. Access Board Question 3 Are there specific types of individual work stations, not otherwise exempt from access by section 203, that could not be served by an accessible route? AH&MA Response to Question 3 As noted above, the Board should publish a separate and distinct NPRM to this question and depending upon the response, the Board may also have other federal requirements under SBREFA, 12866 and the CRA. This question also presupposes that it is appropriate to consider making individual public workstations accessible. As discussed above in connection with Question 2, this is an impossibility. Having said that, and assuming, solely for the sake of argument, that it might be appropriate and possible to require access to individual work stations, AH&MA submits that the following types of individual work stations should be expressly exempt:
The phrase “areas used only by employees as work areas” has been misinterpreted or considered unclear. If this requirement is retained in the final role, how should it be clarified to prevent misinterpretation? If a requirement for work stations is included in the final role, is the term “individual employee work stations” sufficiently specific or is further clarification, qualification, or definition needed? AH&MA Response to Question 4 As noted above, the Board should publish a separate and distinct NPRM to this question and depending upon the response, the Board may also have other federal requirements under SBREFA, 12866 and the CRA. Equipping All Employee Work Areas with Visual Alarms: On page 62252 of the NPRM, there are two paragraphs between Questions 4 and 5. Those paragraphs discuss the Access Boards intention to require all employee work areas to be equipped with visual alarms where audible alarms are provided. While the discussion in that text makes it clear that the Access Board is thinking primarily of work settings in office buildings, the impact of such a requirement reaches far beyond that type of work environment. Thus, a requirement that every employee work area in a hotel or motel be equipped with a visual alarm would mean that every single guest room would have to have such an alarm! This is because the vast majority of people in guest rooms can hear audible alarms outside of their rooms, and, therefore, each guest room would have to have a visual alarm due to the fact that hotel/motel employees work there as room cleaners, as security personnel, as room service attendants, and so on. Therefore, not only is such a requirement unwarranted, but the cost estimates provided in the NPRM by the Access Board are totally unrealistic and misleadingly low. In addition, it is important to note that the cost estimates provided by the Access Board are premised on the assumption that the requirement to equip all employee work areas with visual alarms applies only to new construction. Unfortunately, the reach of a requirement that all work areas be equipped with visual alarms goes to all existing buildings and facilities as well. Specifically, the DOJs ADA regulations cite the installing of flashing alarm lights as an example of steps to remove barriers under the “readily achievable” barrier removal requirement. The consequence of this is that a visual alarm will have to be installed in every existing hotel or motel guest room at some point in time. This involves some four million guest rooms in the U.S. Further in this regard, the cost of installing visual alarms in existing
structures is far more costly that such installation in new structures.
In many cases, the wiring and other electrical components in place in existing
structures will not be sufficient to handle such visual alarms. And such
a retrofitting will be sufficient in many jurisdictions to trigger other
retrofitting obligations, such as seismic retrofit requirements and other
fire and life-safety improvements.
Access Board Question 5 This provision would be applicable to both newly constructed buildings and existing buildings when alarm systems are replaced or upgraded, and these alterations affect the usability of the building. The Board does not provide an aggregate cost estimate for existing buildings when alarm systems are altered. The Board recognizes that this cost may greatly exceed the cost for newly constructed buildings. In order to better assess the overall cost of this provision, the Board seeks data on how frequently alarm systems are replaced or upgraded such that they would amount to an alteration and be subject to this provision. The Board has been advised that alarm systems may be replaced as often as every ten years. The reason given is that building owners desire to reduce insurance liability, as well as to provide state-of-the-art protection for building occupants. Is it correct to assume that alarm systems are replaced every ten years? The Board seeks information from businesses that provide fire alarm systems regarding the additional cost of providing visual alarms in employee work areas when alarm systems are replaced or upgraded. Please provide cost data for alarm systems with visual alarm coverage in all employee work areas compared to alarm systems complying with the existing requirements. Lastly, while an average building size is used in developing the cost estimate for newly constructed buildings, the Board seeks comment on whether the provision would have a disproportionate economic impact on small buildings or businesses. AH&MA Response to Question 5 As noted above, the Board should publish a separate and distinct NPRM to this question and depending upon the response, the Board may also have other federal requirements under SBREFA, 12866 and the CRA. Alarm systems are only replaced when Code requires them to be replaced
during a renovation.
Access Board Question 6 Are there less costly alternatives to providing visual alarms in all employee work areas for employees who are deaf or are hard of hearing that provide a comparable level of life safety? AH&MA Response to Question 6 As noted above, the Board should publish a separate and distinct NPRM to this question and depending upon the response, the Board may also have other federal requirements under SBREFA, 12866 and the CRA. The question assumes that existing alarm systems required under the various fire codes (which vary depending upon design, age of building, type of construction, size of building, and locality) do not provide a comparable level of life safety for workers. No details are available from the Board’s rulemaking justifying the need for either the installation of visual alarms or the need for less costly alternatives. Access Board Question 7 Concerns have been raised about limiting the number of visual alarms for the benefit of people who are photosensitive, as further discussed below at section 702.3. In view of these various considerations, comment is sought on the appropriateness of this requirement, and information is requested on whether there are means available for deactivating individual visual appliances (which may be desired in accommodating employees who are photosensitive) without rendering the entire system ineffective. AH&MA Response to Question 7 As noted above, the Board should publish a separate and distinct NPRM to this question and depending upon the response, the Board may also have other federal requirements under SBREFA, 12866 and the CRA. The question assumes that an individual who is photosensitive should be able to partially deactivate an alarm system in a public or work area. Alarm systems, by their very nature, need to broadcast an alarm to everyone. Even assuming that an inexpensive, dependable method to partially deactivate is available, partial deactivation would send a confusing message to other members of the public (i.e. “The alarm isn’t for this area.”). This may create a false and potentially deadly sense of safety for building occupants in the area where the alarm is deactivated. Access Board Question 8 Consistent with the ADAAG, the revised guidelines provide an exception for private sector facilities based on the number of stories or the square foot per floor (206.2.3, exception 1). A much narrower exception is permitted for state and local government facilities 9206.2.3, exception 2). Are there situations where the use of LULAs should be permitted instead of a standard elevator in certain small State or local government facilities. AH&MA Response to Question 8 As noted above, the Board should publish a separate and distinct NPRM to this question and depending upon the response, the Board may also have other federal requirements under SBREFA, 12866 and the CRA. AH&MA suggests that the use of limited use/limited access should be permitted in small state/local government facilities as in private sector facilities when those government facilities are operated as a private sector public accommodation. For example, there are a number of small state/local government facilities which are leased to private sector entities, as concessionaires, to be operated as lodging facilities, food service establishments, and similar non-government establishments. In such cases, the private sector operator should have the same LULA exception regardless of the fact that a governmental entity owns the facility. Access Board Question 9 The Board seeks information on facility alarm systems (other than fire alarm systems) that do not instruct occupants to evacuate the facility but provide other warning information, such as those used for tornado warnings and other emergencies. Recommendations are requested on the technical criteria appropriate for the audible and visual signals for such alarm systems, particularly where differentiation from fire alarm system signals is important. AH&MA Response to Question 9 As noted above, the Board should publish a separate and distinct NPRM to this question and depending upon the response, the Board may also have other federal requirements under SBREFA, 12866 and the CRA. Some hotels have existing Public Address systems for other warnings, but, as fire alarm system voice address equipment may not be used for general announcements, these systems must be parallel but completely separate from the emergency warning systems. As this type of equipment is costly and rarely needed in hotels, it is rarely installed. Some phone systems have an inherent ability to alert all or some specific rooms in emergency situations. Access Board Question 14 Permanent installation of visual alarm appliances is considerably cheaper and easier to achieve as part of facility design and construction than as a retrofit. The Board requests information on the new construction cost difference between providing visual alarms and notification devices for incoming telephone calls and door knocks or bells according to the scoping in ADAAG 9.1.3 and the proposed 50% scoping requirement. Information is also sought on whether exceptions should be provided for altered facilities or additions. AH&MA Response to Question 14 As noted above, the Board should publish a separate and distinct NPRM to this question and depending upon the response, the Board may also have other federal requirements under SBREFA, 12866 and the CRA. The board’s question presupposes that justification exists for a 50% scoping requirement although no hard data is presented by the board to justify the change in scoping. That being said, the cost per room for visual alarms and notification devices is in the $500-$750 range. Based upon usage of existing kits for the hearing impaired at hotels, the present scoping under the ADAAG is more than sufficient to cover the needs of guests. Access Board Question 15 It is the Board’s understanding that some transient lodging facilities, particularly hotel chains, have adopted voluntary policies requiring permanently installed visual alarms in all or a majority of newly constructed guest rooms. Please provide information regarding those transient lodging facilities that have such a policy. Are there less costly alternatives to providing visual alarms in fifty percent of guest rooms that will provide guests who are deaf or are hard of hearing a comparable level of life safety? AH&MA Response to Question 15 As noted above, the Board should publish a separate and distinct NPRM to this question and depending upon the response, the Board may also have other federal requirements under SBREFA, 12866 and the CRA. The AH&MA was able to verify that no major hotel chain has adopted the policies referred to in this question. The AH&MA sees that, not only is there no data to support increasing the current level of rooms for guests who are hard of hearing or deaf, but that the present number of rooms required far exceeds demand. See Appendix A, attached hereto and incorporated herein by this reference. Further to this question, the only reliable, less costly alternative is the portable equipment currently used to augment permanent installations of visual notification devices. This equipment has proven both functional and reliable. Incidentally, such equipment currently in lodging properties is underutilized, further supporting the rejection of an accessible room requirement increase. Access Board Question 16 Should a maximum sill height for the glazed area of those windows required
to be accessible be specified in the final rule so that people who use
wheelchairs, located on any floor, can look through the window to view
ground level activities? If so, what should this height be? The Board also
seeks information on any design requirement, practices or considerations
that would specify installation above an accessible height in certain occupancies
for security or safety reasons, such as to guard against break-ins or to
prevent improper use by building occupants, including children. Information
is sought on any other design impacts, such as the use of the space or
cavity below windows for mechanical or other building systems.
As noted above, the Board should publish a separate and distinct NPRM to this question and depending upon the response, the Board may also have other federal requirements under SBREFA, 12866 and the CRA. The AH&MA does not believe there should be mandated maximum sill heights for glazed areas of windows required to be accessible under the final rule. There are too many non-accessibility related issues (i.e., safety, fire code, environmental, etc.) associated with window sill height to allow the final rule to set such a standard. Access Board Question 20 The revised guidelines, like the current ADAAG, provide technical criteria
for handrails along stairs and ramps. Section 505 of the revised
guidelines provide requirements for continuity, height, clearance, gripping
surface, cross section, fittings, and extensions. Handrails provided at
other locations, such as along corridors in medical care facilities and
airports, are not subject to these criteria except at stairs and ramps.
The Board seeks comment on whether handrails, where provided along the
circulation paths without a slope or steps, should be subject to the technical
requirements in 505. Such a requirement may be included in the final rule.
As noted above, the Board should publish a separate and distinct NPRM to this question and depending upon the response, the Board may also have other federal requirements under SBREFA, 12866 and the CRA. Typically, horizontal walks or balconies are equipped with guardrails when required by code to protect the public from some hazard. The construction requirements for handrails and guardrails are contradictory and while a guardrail may have a handrail mounted on it, a handrail, as defined by section ADAAG 505, will NOT function as a guardrail. A rule requiring all railings to fulfill the handrail requirements of 505 will result in the elimination of all “voluntary” railings and add irrelevant cost to required guardrails. Access Board Question 21 The Board is considering requiring a frequency band width of 300 to
3000 Hz for hall signals (407.3.2) in the final rule and seeks comment
on such a requirement as it would affect intelligibility for people who
are hard of hearing and others. Information on the availability of products
and costs of such a requirement is requested.
As noted above, the Board should publish a separate and distinct NPRM to this question and depending upon the response, the Board may also have other federal requirements under SBREFA, 12866 and the CRA. The cost to modify elevators in any significant manor is typically astronomical. Frequencies and sound levels could be disruptive to guests in hotel guest rooms that are near elevators and we are of the opinion that 20 decibels should be the maximum required in public spaces and 10 decibels should be the maximum allowed in corridors serving sleeping units at lodging occupancies. Credible evidence should be required (none has been presented) to establish the need for any higher levels. Changes to existing facilities should not be required unless such evidence is indisputable and then only for alterations. Access Board Question 22 Section 407.2.13 addresses two-way emergency communication systems and
requires that emergency signaling devices not be limited to voice communication.
The Board seeks information and product literature on emergency communication
devices and communication technologies that provide two-way communication
in a manner accessible to people who are deaf and others who cannot use
voice communication. The Board will consider adding a requirement for more
interactive emergency communication devices that provide such access if
they are presently available and if the costs and benefits can be demonstrated.
As noted above, the Board should publish a separate and distinct NPRM to this question and depending upon the response, the Board may also have other federal requirements under SBREFA, 12866 and the CRA. Cost effectiveness is critical to the many hotels which are small businesses that may not be able to afford to implement new technologies simply because they are available. If required in new hotel construction, the type of two-way communication system described is warranted in elevators and areas of refuge and is not necessary in places such as guest rooms, because devices required for guests with hearing impairments are provided based on other provisions in ADAAG. Credible evidence should be required (none is provided) to establish any greater need in hotels. Changes to existing facilities should not be required unless such evidence is indisputable and then only for alterations. Access Board Question 23 Section 410.6 requires that emergency communication systems have visible signals in addition to audible signals so that limited communication access is provided for people who are deaf or hard of hearing. Use of two-way communication systems is recognized but not required. As with elevator communication systems, the Board seeks information and product literature on emergency communication devices and communication technologies that provide two-way communication in a manner accessible to people who are deaf and others who cannot use voice communication. The Board will consider adding a requirement for more interactive emergency communication devices that provide such access if they are presently available and if the costs and benefits can be demonstrated. AH&MA Response to Question 23 As noted above, the Board should publish a separate and distinct NPRM to this question and depending upon the response, the Board may also have other federal requirements under SBREFA, 12866 and the CRA. Requirements should be consistent with NFPA 72. See the AH&MA response to Question 22, above. Access Board Question 25 The revised guidelines more clearly permit a choice between rectangular
and L-shaped seats for transfer and roll-in shower stalls. Is one shape
more usable and accessible than the other?
As noted above, the Board should publish a separate and distinct NPRM to this question and depending upon the response, the Board may also have other federal requirements under SBREFA, 12866 and the CRA. A rectangular seat would be more universally usable and comfortable for hotel guests. An “L” shaped seat can be problematic for some users and, in some cases, they are incorrectly installed because of complexity of the criteria and/or lack of knowledge. Any change proposed should be prospective only and should specifically not require replacement of existing seats. Access Board Question 26 ADAAG does not address the frequency of audible alarms. The Board requests information on the optimal frequency range for people who are hard of hearing. Responses should include, where possible, supporting data indicating the benefit to people who are hard of hearing and others. AH&MA Response to Question 26 As noted above, the Board should publish a separate and distinct NPRM to this question and depending upon the response, the Board may also have other federal requirements under SBREFA, 12866 and the CRA. The AH&MA has no hard data on which to respond to this question. However, in polling current fire and life safety professionals within the industry, there is a concern about adding significant numbers of sound and visual alarms to both existing and new construction transient lodging facilities. Alarms and emergency paths of exit should be designed to alert and provide for an orderly exit. Adding alarms both visual and audible to the din and confusion that often accompanies an emergency situation inhibits the ability of personnel on site to direct an orderly exit from a building. Designated exits cannot always be used (for example, a burning vehicle may be blocking the designated exit). The ability of humans on site to direct and control the situation is of paramount importance during an emergency. Each system that requires a shut down or manual override to redirect emergency routes and instructions increases the chance that lives could be lost in an emergency situation. Access Board Question 31 While section 707 specifically addresses “automatic teller machines” and “fare vending machines,” the Board is considering covering all types of interactive transaction machines, such as point-of-sale machines and information kiosks, among others. Information is requested on any possible design conflicts between the requirements of this section and any specific types of interactive transaction machines. The final rule may be modified to specifically address unique characteristics of certain types of interactive transaction machines. AH&MA Response to Question 31 As noted above, the Board should publish a separate and distinct NPRM to this question and depending upon the response, the Board may also have other federal requirements under SBREFA, 12866 and the CRA. This question seeks to identify whether, and to what extent, the proposed ATM and fare machine requirements might conflict with design considerations. As note in the AH&MA response to section 707, the requirement set forth in Section 707.2 of the NPRN involves the facility owner/operator, whereas the other aspects of this question are particularly within the purview of the manufacturer of such devices. Access Board Question 32 The Board seeks comment on the appropriateness of these specified colors, particularly for people who are colorblind. AH&MA Response to Question 32 As noted above, the Board should publish a separate and distinct NPRM to this question and depending upon the response, the Board may also have other federal requirements under SBREFA, 12866 and the CRA. See the response to Question 31, above, and the related comments on Section 702. AH&MA would note, however, that it has been reported that 70% of men are red-green color blind to some extent, suggesting that color coding is of only marginal use. Access Board Question 33 ATMs often reject input when maximum time intervals are exceeded. Users are at risk of having the ATM card withheld and may encounter additional transaction charges due to repeated attempts to access the machine. Should the Board include a specific requirement that would allow users to extend the maximum time intervals between transactions beyond the amount of time typically allotted? Where possible, responses should include information on the availability of technology and on any impacts, including costs, in complying with such a requirement. The Board may consider including such a requirement in the final rule. AH&MA Response to Question 33 As noted above, the Board should publish a separate and distinct NPRM to this question and depending upon the response, the Board may also have other federal requirements under SBREFA, 12866 and the CRA. See the response to Question 31, above, and the related comments on Section 702. Access Board Question 34 The Board seeks comment on whether ATM manufacturers or banks intend
to provide customers who need audio output receivers for accessing audible
output. In addition, the Board seeks to know if customers would or currently
do carry receivers or if they view providing their own receivers as an
unreasonable expectation.
As noted above, the Board should publish a separate and distinct NPRM to this question and depending upon the response, the Board may also have other federal requirements under SBREFA, 12866 and the CRA. See the response to Question 31, above, and the related comments on Section 702. Access Board Question 35 The Board seeks information on the availability of ATMs that meet the output requirements of section 707.5 and the impact, including costs and technological difficulties, in developing new products that comply. Information is also sought on the practice of redeploying ATM equipment and the impact of the output requirements on this practice. Specifically, what is the average lifespan of an ATM and how often might a single ATM be redeployed? AH&MA Response to Question 35 As noted above, the Board should publish a separate and distinct NPRM to this question and depending upon the response, the Board may also have other federal requirements under SBREFA, 12866 and the CRA. See the response to Question 31, above, and the related comments on Section 702. Access Board Question 36 The Board is interested in more information about various types of captioning as it relates to the built environment. Building operators, managers, consumers, and manufacturers are requested to provide information about what technical provisions are necessary to include in ADAAG to facilitate or augment the use of auxiliary aids such as captioning and videotext displays. People who are deaf or hard of hearing are particularly invited to comment on the various options for providing captioning that would best facilitate effective communication. Where necessary, the Board may include provisions for conduit, electrical service, screen anchoring devices at seats, or other requirements that make providing accessible communication possible in the built environment. AH&MA Response to Question 36 As noted above, the Board should publish a separate and distinct NPRM to this question and depending upon the response, the Board may also have other federal requirements under SBREFA, 12866 and the CRA. Captioning has been required where “critical” information is provided. It has not been required where an additional process would be needed or where such an action constitutes a fundamental alteration. Publishers, for example, are not required to provide a Braille version of every book that is sold. AH&MA members believe that requirements of the type suggested may not reflect an appropriate understanding of existing technologies. For example, it is not unreasonable to anticipate that handheld portable devices which record verbal announcements and play them back via captioning could already exist and could be procured and tailored as a personal device as needed. But credible evidence should be required to establish the need for any type of built-in support system for unknown technologies or equipment. Changes to existing facilities should not be required unless such evidence is indisputable and then only for alterations. Access Board Question 46 What means are available for providing visual train announcements when audible announcements are provided? AH&MA Response to Question 46 As noted above, the Board should publish a separate and distinct NPRM to this question and depending upon the response, the Board may also have other federal requirements under SBREFA, 12866 and the CRA. Any requirement the Board considers in response to this question should be the subject of a separate and distinct NPRM, as to fail to do so denies those impacted by such requirement the fundamental due process of notice and comment. The means for alerting hearing-impaired patrons of approaching trains should parallel the notice given hearing patrons. If a simple audible signal (bell, chime, buzzer or the like) gives notice to hearing patrons, then a simple flashing light should suffice for hearing impaired patrons. If verbal announcements are made, then a simple signal board listing similar abbreviated information could be provided which in turn would flash. |
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American Hotel & Motel Association 1201 New York Avenue, N.W. Washington, D.C. 20005 http://www.ahma.com |
| Also See: | AH&MA Takes Strong Position That No Increase In Accessible Room Requirements Be Mandated / AHMA / June 2000 |
| A Healthy Attitude Toward Disabled Guests / Elizabeth Johnson / EI | |
| IThe Educational Institute of AH&MA / Main Index Page |