Final Revised Justice Standard Expected To
Emerge In 2006 Or Later
Access Board Votes To Send
Revised ADAAG To OMB For Review
by Steven John Fellman
NATO Washington Counsel
The Access Board, a federal agency devoted to accessibility
for people with disabilities, voted on Jan. 14 to send
a revised version of the American With Disabilities Act
Accessibility Guidelines (ADAAG), the federal regulations
governing ADA compliance, to the Office of Management Budget
(OMB) for a mandatory review. OMB has 90 days to review
the proposal and either approve it or send it back to the
Access Board with recommendations for changes. The history
of the revised ADAAG is a perfect example of the inherent
inefficiency in the federal rulemaking system. Congress
passed the ADA in 1990. The act required that the Access
Board issue specific regulations, similar to a building
code, that would enable the motion picture theatre industry
and other operators of public facilities to fully understand
what their responsibilities were under this new law. NATO
and NATO members supported the ADA based on the concept
that the regulations would have detailed standards that
would explain to NATO members how to build theatres in
compliance with the law. In July 1991, one year after the
ADA was signed into law, the Access Board published the
ADAAG. The ADAAG had specific standards that were of benefit
to theatre owners. NATO met with the Access Board staff
and the Department of Justice staff and raised certain
issues with regard to ADAAG interpretations and sloped-floor
theatres. Basically these questions were answered and NATO
members had the information they needed to comply with
the law.
Will NATO members
know what their
responsibilities are under
the revised
law which
covers new
construction? The answer is
emphatically “No.” For once the Access
Board publishes its revised ADAAG, the Department
of Justice will have to review the proposal. |
In 1994, the Access Board considered
amending the ADAAG. The regulations had been in force
for approximately three
years and new information was available that suggested
that a revised ADAAG would be of benefit to both persons
with disabilities and operators of public facilities.
The board therefore created a Public Advisory Committee
and
charged the committee with the responsibility of reviewing
the ADAAG in its entirety and of making recommendations
to the Access Board on how to improve the ADAAGs format
and usability. The Advisory Committee started working
in 1994 and in 1996 issued a report entitled “Recommendations
for a New ADAAG.” For more than three years,
the Access Board considered the recommendations of
the Advisory
Committee and finally, in November 1999, the Access
Board published a proposed rule to jointly update and
revise
the ADAAG. The proposed rule was made available for
public comment for 6 months. During the comment period,
which
ended in May 2000, the Access Board held public hearings
in Los Angeles and Washington, D.C. Approximately 140
persons testified at these hearings and more than 2,500
comments
on the proposed rules were submitted to the board by
mail, e-mail or fax. In April 2002 the Access Board
published a draft final revised ADAAG. Ultimately,
the Access Board
sent its proposed revised ADAAG to OMB, which in turn
sent
the document back to the Access Board and informed
the Access Board that it had not done an appropriate
economic
assessment on the effects that the proposed changes
would have on operators of public facilities. The Access
Board
went back to the drawing boards, revised its economic
impact statement and in January 2004 sent the proposed
revised
ADAAG back to OMB. Assuming that OMB approves the draft
revised ADAAG, we could see a final revised ADAAG published
in late spring or early summer 2004.
But will NATO members then know what
their responsibilities are under the revised law which
covers new construction?
The answer is emphatically “No.” For once the
Access Board publishes its revised ADAAG, the Department
of Justice (DOJ) will have to review the proposal. The
DOJ is the agency that issues the actual standards with
which business must comply. The Access Board proposals
are minimum standards and the Department of Justice has
the authority under the law to issue more stringent standards.
We anticipate that it will be at least two years after
the Access Board publishes a final ADAAG before the Justice
Department goes through the “notice and comment rulemaking” and
publishes its own revised standards. Optimistically,
we will see a final revised DOJ standard in 2006. This
is
12 years after the ADAAG Advisory Committee began working.
Since the new regulations will be based on the recommendations
of the proposed advisory committee, the new regulations
will be based on a set of conditions that are more
than 12 years old.
If a business were to operate based
on data 12 years old, it would not stay in business very
long. The Access
Board/DOJ
ADA regulatory process is broken. Some way should
be established to fix the process for the benefit of
persons
with disabilities
and operators of public facilities. 
