The Role of Procedural Justice and Legitimacy in Shaping Public Support for Policing

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Abstract

This study explores two issues about police legitimacy. The first issue is the relative importance of police legitimacy in shaping public support of the police and policing activities, compared to the importance of instrumental judgments about (1) the risk that people will be caught and sanctioned for wrongdoing, (2) the performance of the police in fighting crime, and/or (3) the fairness of the distribution of police services. Three aspects of public support for the police are examined: public compliance with the law, public cooperation with the police, and public willingness to support policies that empower the police. The second issue is which judgments about police activity determine people’s views about the legitimacy of the police. This study compares the influence of people’s judgments about the procedural justice of the manner in which the police exercise their authority to the influence of three instrumental judgments: risk, performance, and distributive fairness. Findings of two surveys of New Yorkers show that, first, legitimacy has a strong influence on the public’s reactions to the police, and second, the key antecedent of legitimacy is the fairness of the procedures used by the police. This model applies to both white and minority group residents.

Journal Information

Founded in 1966, Law & Society Review is regarded by sociolegal scholars worldwide as a leading journal in the field. The Review is a peer-reviewed publication for scholarship bearing on the relationship between society and the legal process, including articles or notes of interest to the research community in general, new theoretical developments, results of empirical studies, and reviews and comments on the field or its methods of inquiry. Broadly interdisciplinary, the Review welcomes work from any tradition of scholarship concerned with the cultural, economic, political, psychological, or social aspects of law and legal systems.

Publisher Information

Cambridge University Press (www.cambridge.org) is the publishing division of the University of Cambridge, one of the world’s leading research institutions and winner of 81 Nobel Prizes. Cambridge University Press is committed by its charter to disseminate knowledge as widely as possible across the globe. It publishes over 2,500 books a year for distribution in more than 200 countries. Cambridge Journals publishes over 250 peer-reviewed academic journals across a wide range of subject areas, in print and online. Many of these journals are the leading academic publications in their fields and together they form one of the most valuable and comprehensive bodies of research available today. For more information, visit http://journals.cambridge.org.

Americans with Disabilities Act Title III Regulations

March 08, 2012

 Law, Regulations, & Standards

Read this document to understand your legal rights or responsibilities under the ADA.

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• For more detailed information on a topic, view Guidance & Resource materials

Title III Regulations Supplementary Information

DEPARTMENT OF JUSTICE

28 CFR Part 36

[CRT Docket No. 106; AG Order No. 3181-2010]

RIN 1190–AA44 Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities

AGENCY: Department of Justice, Civil Rights Division.

ACTION: Final rule.

SUMMARY: This final rule revises the Department of Justice (Department) regulation that implements title III of the Americans with Disabilities Act (ADA), relating to nondiscrimination on the basis of disability by public accommodations and in commercial facilities. The Department is issuing this final rule in order to adopt enforceable accessibility standards under the Americans with Disabilities Act of 1990 (ADA) that are consistent with the minimum guidelines and requirements issued by the Architectural and Transportation Barriers Compliance Board, and to update or amend certain provisions of the title III regulation so that they comport with the Department’s legal and practical experiences in enforcing the ADA since 1991. Concurrently with the publication of the final rule for title III, the Department is publishing a final rule amending its ADA title II regulation, which covers nondiscrimination on the basis of disability in State and local government services.

DATES: Effective Date: March 15, 2011.

FOR FURTHER INFORMATION

CONTACT:

Janet L. Blizard, Deputy Chief, or Christina Galindo-Walsh, Attorney Advisor, Disability Rights Section, Civil Rights Division, U.S. Department of Justice, at (202) 307–0663 (voice or TTY). This is not a toll-free number. Information may also be obtained from the Department’s toll-free ADA Information Line at (800) 514–0301 (voice) or (800) 514–0383 (TTY).

This rule is also available in an accessible format on the ADA Home Page at https://www.ada.gov.

You may obtain copies of this rule in large print or on computer disk by calling the ADA Information Line listed above.

SUPPLEMENTARY INFORMATION

The Roles of the Access Board and the Department of Justice

The Access Board was established by section 502 of the Rehabilitation Act of 1973. 29 U.S.C. 792. The Board consists of 13 public members appointed by the President, the majority of whom must be individuals with disabilities, and the heads of 12 Federal departments and agencies specified by statute, including the heads of the Department of Justice and the Department of Transportation (DOT). Originally, the Access Board was established to develop and maintain accessibility guidelines for facilities designed, constructed, altered, or leased with Federal dollars under the Architectural Barriers Act of 1968 (ABA). 42 U.S.C. 4151 et seq The passage of the ADA expanded the Access Board’s responsibilities.

The ADA requires the Access Board to “issue minimum guidelines that shall supplement the existing Minimum Guidelines and Requirements for Accessible Design for purposes of subchapters II and III of this chapter*** to ensure that buildings, facilities, rail passenger cars, and vehicles are accessible, in terms of architecture and design, transportation, and communication, to individuals with disabilities.” 42 U.S.C. 12204. The ADA requires the Department to issue regulations that include enforceable accessibility standards applicable to facilities subject to title II or title III that are consistent with the “minimum guidelines” issued by the Access Board, 42 U.S.C. 12134(c), 12186(c), but vests in the Attorney General sole responsibility for the promulgation of those standards that fall within the Department’s jurisdiction and enforcement of the regulations.

The ADA also requires the Department to develop regulations with respect to existing facilities subject to title II (Subtitle A) and title III. How and to what extent the Access Board’s guidelines are used with respect to the barrier removal requirement applicable to existing facilities under title III of the ADA and to the provision of program accessibility under title II of the ADA are solely within the discretion of the Department.

Enactment of the ADA and Issuance of the 1991 Regulations

On July 26, 1990, President George H.W. Bush signed into law the ADA, a comprehensive civil rights law prohibiting discrimination on the basis of disability¹. The ADA broadly protects the rights of individuals with disabilities in employment, access to State and local government services, places of public accommodation, transportation, and other important areas of American life. The ADA also requires newly designed and constructed or altered State and local government facilities, public accommodations, and commercial facilities to be readily accessible to and usable by individuals with disabilities. 42 U.S.C. 12101 et seq. Section 306(a) of the ADA directs the Secretary of Transportation to issue regulations for demand responsive or fixed route systems operated by private entities not primarily engaged in the business of transporting people (sections 302(b)(2)(B) and (C)) and for private entities that are primarily engaged in the business of transporting people (section 304). See 42 U.S.C. 12182(b), 12184, 12186(a). Section 306(b) directs the Attorney General to promulgate regulations to carry out the provisions of the rest of title III. 42 U.S.C. 12186(b).

Title II applies to State and local government entities, and, in Subtitle A, protects qualified individuals with disabilities from discrimination on the basis of disability in services, programs, and activities provided by State and local government entities. Title II extends the prohibition on discrimination established by section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794 (section 504), to all activities of State and local governments regardless of whether these entities receive Federal financial assistance. 42 U.S.C. 12131–65.

Title III, which this rule addresses, prohibits discrimination on the basis of disability in the activities of places of public accommodation (businesses that are generally open to the public and that fall into one of 12 categories listed in the ADA, such as restaurants, movie theaters, schools, day care facilities, recreation facilities, and doctors’ offices) and requires newly constructed or altered places of public accommodation—as well as commercial facilities (privately owned, nonresidential facilities such as factories, warehouses, or office buildings)—to comply with the ADA Standards. 42 U.S.C. 12181–89.

On July 26, 1991, the Department issued rules implementing title II and title III, which are codified at 28 CFR part 35 (title II) and part 36 (title III). Appendix A of the 1991 title III regulation, which is republished as Appendix D to 28 CFR part 36, contains the ADA Standards for Accessible Design (1991 Standards), which were based upon the version of the Americans with Disabilities Act Accessibility Guidelines (1991 ADAAG) published by the Access Board on the same date. Under the Department’s 1991 title III regulation, places of public accommodation and commercial facilities currently are required to comply with the 1991 Standards with respect to newly constructed or altered facilities.

The Access Board’s publication of the 2004 ADA/ABA Guidelines was the culmination of a long-term effort to facilitate ADA compliance by eliminating, to the extent possible, inconsistencies among Federal accessibility requirements and between Federal accessibility requirements and State and local building codes. In support of this effort, the Department is amending its regulation implementing title III and adopting standards consistent with ADA Chapter 1, ADA Chapter 2, and Chapters 3 through 10 of the 2004 ADA/ABA Guidelines. The Department is also amending its title II regulation, which prohibits discrimination on the basis of disability in State and local government services, concurrently with the publication of this rule in this issue of the Federal Register.

Development of the 2004 ADA/ABA Guidelines

In 1994, the Access Board began the process of updating the 1991 ADAAG by establishing an advisory committee composed of members of the design and construction industry, the building code community, and State and local government entities, as well as individuals with disabilities. In 1998, the Access Board added specific guidelines on State and local government facilities, 63 FR 2000 (Jan. 13, 1998), and building elements designed for use by children, 63 FR 2060 (Jan. 13, 1998). In 1999, based largely on the report and recommendations of the advisory committee, the Access Board issued a notice of proposed rulemaking (NPRM) to update and revise its ADA and ABA Accessibility Guidelines. See 64 FR 62248 (Nov. 16, 1999). In 2000, the Access Board added specific guidelines on play areas. See 65 FR 62498 (Oct. 18, 2000). The Access Board released an interim draft of its guidelines to the public on April 2, 2002, 67 FR 15509, in order to provide an opportunity for entities with model codes to consider amendments that would promote further harmonization. In September of 2002, the Access Board set forth specific guidelines on recreation facilities. 67 FR 56352 (Sept. 3, 2002).

By the date of its final publication on July 23, 2004, the 2004 ADA/ABA Guidelines had been the subject of extraordinary review and public participation. The Access Board received more than 2,500 comments from individuals with disabilities, affected industries, State and local governments, and others. The Access Board provided further opportunity for participation by holding public hearings.

The Department was involved extensively in the development of the 2004 ADA/ABA Guidelines. As a Federal member of the Access Board, the Attorney General’s representative voted to approve the revised guidelines. ADA Chapter 1 and ADA Chapter 2 of the 2004 ADA/ABA Guidelines provide scoping requirements for facilities subject to the ADA; ‘scoping” is a term used in the 2004 ADA/ABA Guidelines to describe requirements that prescribe which elements and spaces—and, in some cases, how many—must comply with the technical specifications. ABA Chapter 1 and ABA Chapter 2 provide scoping requirements for facilities subject to the ABA (i.e., facilities designed, built, altered, or leased with Federal funds). Chapters 3 through 10 of the 2004 ADA/ABA Guidelines provide uniform technical specifications for facilities subject to either the ADA or the ABA. This revised format is designed to eliminate unintended conflicts between the two sets of Federal accessibility standards and to minimize conflicts between the Federal regulations and the model codes that form the basis of many State and local building codes. For the purposes of this final rule, the Department will refer to ADA Chapter 1, ADA Chapter 2, and Chapters 3 through 10 of the 2004 ADA/ABA Guidelines as the 2004 ADAAG.

These amendments to the 1991 ADAAG have not been adopted previously by the Department as ADA Standards. Through this rule, the Department is adopting revised ADA Standards consistent with the 2004 ADAAG, including all of the amendments to the 1991 ADAAG since 1998. For the purposes of this part, the Department’s revised standards are entitled “The 2010 Standards for Accessible Design” and consist of the 2004 ADAAG and the requirements contained in subpart D of 28 CFR part 36. Because the Department has adopted the 2004 ADAAG as part of its title II and title III regulations, once the Department’s final rules become effective, the 2004 ADAAG will have legal effect with respect to the Department’s title II and title III regulations and will cease to be mere guidance for those areas regulated by the Department. In 2006, DOT adopted the 2004 ADAAG. With respect to those areas regulated by DOT, these guidelines, as adopted by DOT, have had legal effect since 2006.

Under this regulation, the Department of Justice covers passenger vessels operated by private entities not primarily engaged in the business of transporting people with respect to the provision of goods and services of a public accommodation on the vessel. For example, a vessel operator whose vessel departs from Point A, takes passengers on a recreational trip, and returns passengers to Point A without ever providing for disembarkation at a Point B (e.g., a dinner or harbor cruise, a fishing charter) is a public accommodation operated by a private entity not primarily engaged in the business of transporting people. This regulation covers those aspects of the vessel’s operation relating to the use and enjoyment of the public accommodation, including, for example, the boarding process, safety policies, accessible routes on the vessel, and the provision of effective communication. Persons with complaints or concerns about discrimination on the basis of disability by vessel operators who are private entities not primarily engaged in the business of transporting people, or questions about how this regulation applies to such operators and vessels, should contact the Department of Justice.

Vessels operated by private entities primarily engaged in the business of transporting people and that provide the goods and services of a public accommodation are covered by this regulation and the Department of Transportation’s passenger vessel rule, 49 CFR part 39. A vessel operator whose vessel takes passengers from Point A to Point B (e.g., a cruise ship that sails from Miami to one or more Caribbean islands, a private ferry boat between two points on either side of a river or bay, a water taxi between two points in an urban area) is most likely a private entity primarily engaged in the business of transporting people. Persons with questions about how this regulation applies to such operators and vessels may contact the Department of Justice or the Department of Transportation for guidance or further information. However, the Department of Justice has enforcement authority for all private entities under title III of the ADA, so individuals with complaints about noncompliance with part 39 should provide those complaints to the Department of Justice.

The provisions of this rule and 49 CFR part 39 are intended to be substantively consistent with one another. Consequently, in interpreting the application of this rule to vessel operators who are private entities not primarily engaged in the business of transporting people, the Department of Justice views the obligations of those vessel operators as being similar to those of private entities primarily engaged in the business of transporting people under the provisions of 49 CFR part 39.

The Department’s Rulemaking History

The Department published an advance notice of proposed rulemaking (ANPRM) on September 30, 2004, 69 FR 58768 for two reasons: (1) To begin the process of adopting the 2004 ADAAG by soliciting public input on issues relating to the potential application of the Access Board’s revisions once the Department adopts them as revised standards; and (2) to request background information that would assist the Department in preparing a regulatory analysis under the guidance provided in Office of Management and Budget (OMB) Circular A–4 sections D (Analytical Approaches) and E (Identifying and Measuring Benefits and Costs) (Sept. 17, 2003), available at http://www.whitehouse.gov/OMB/circulars/a004/a-4.pdf (last visited June 24, 2010). While underscoring that the Department, as a member of the Access Board, already had reviewed comments provided to the Access Board during its development of the 2004 ADAAG, the Department specifically requested public comment on the potential application of the 2004 ADAAG to existing facilities. The extent to which the 2004 ADAAG is used with respect to the barrier removal requirement applicable to existing facilities under title III (as well as with respect to the program access requirement in title II) is within the sole discretion of the Department. The ANPRM dealt with the Department’s responsibilities under both title II and title III.

The public response to the ANPRM was substantial. The Department extended the comment deadline by four months at the public’s request. 70 FR 2992 (Jan. 19, 2005). By the end of the extended comment period, the Department had received more than 900 comments covering a broad range of issues. Many of the commenters responded to questions posed specifically by the Department, including questions regarding the Department’s application of the 2004 ADAAG once adopted by the Department and the Department’s regulatory assessment of the costs and benefits of particular elements. Many other commenters addressed areas of desired regulation or of particular concern.

To enhance accessibility strides made since the enactment of the ADA, commenters asked the Department to focus on previously unregulated areas, such as ticketing in assembly areas; reservations for hotel rooms, rental cars, and boat slips; and captioning. They also asked for clarification on some issues in the 1991 regulations, such as the requirements regarding service animals. Other commenters dealt with specific requirements in the 2004 ADAAG or responded to questions regarding elements scoped for the first time in the 2004 ADAAG, including recreation facilities and play areas. Commenters also provided some information on how to assess the cost of elements in small facilities, office buildings, hotels and motels, assembly areas, hospitals and long-term care facilities, residential units, recreation facilities, and play areas. Still other commenters addressed the effective date of the proposed standards, the triggering event by which the effective date is calculated for new construction, and variations on a safe harbor that would excuse elements built in compliance with the 1991 Standards from compliance with the proposed standards.

After careful consideration of the public comments in response to the ANPRM, on June 17, 2008, the Department published an NPRM covering title III. 73 FR 34508. The Department also published an NPRM on that day covering title II. 73 FR 34466. The NPRMs addressed the issues raised in the public’s comments to the ANPRM and sought additional comment, generally and in specific areas, such as the Department’s adoption of the 2004 ADAAG, the Department’s regulatory assessment of the costs and benefits of the rule, its updates and amendments of certain provisions of the existing title II and III regulations, and areas that were in need of additional clarification or specificity.

A public hearing was held on July 15, 2008, in Washington, DC. Forty-five individuals testified in person or by phone. The hearing was streamed live over the Internet. By the end of the 60-day comment period, the Department had received 4,435 comments addressing a broad range of issues, many of which were common to the title II and title III NPRMs, from representatives of businesses and industries, State and local government agencies, disability advocacy organizations, and private individuals.

The Department notes that this rulemaking was unusual in that much of the proposed regulatory text and many of the questions asked across titles II and III were the same. Consequently, many of the commenters did not provide separate sets of documents for the proposed title II and title III rules, and in many instances, the commenters did not specify which title was being commented upon. As a result, where comments could be read to apply to both titles II and III, the Department included them in the comments and responses for each final rule.

Most of the commenters responded to questions posed specifically by the Department, including what were the most appropriate definitions for terms such as “wheelchair,” “mobility device,” and ‘service animal”; how to quantify various benefits that are difficult to monetize; what requirements to adopt for ticketing and assembly areas; whether to adopt safe harbors for small businesses; and how best to regulate captioning. Some comments addressed specific requirements in the 2004 ADAAG or responded to questions regarding elements scoped for the first time in the 2004 ADAAG, including recreation facilities and play areas. Other comments responded to questions posed by the Department concerning certain specific requirements in the 2004 ADAAG.

Relationship to Other Laws

The Department of Justice regulation implementing title III, 28 CFR 36.103, provides the following:

(a) Rule of interpretation. Except as otherwise provided in this part, this part shall not be construed to apply a lesser standard than the standards applied under title V of the Rehabilitation Act of 1973 (29 U.S.C. 791) or the regulations issued by Federal agencies pursuant to that title. (b) Section 504. This part does not affect the obligations of a recipient of Federal financial assistance to comply with the requirements of section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) and regulations issued by Federal agencies implementing section 504. (c) Other laws. This part does not invalidate or limit the remedies, rights, and procedures of any other Federal, State, or local laws (including State common law) that provide greater or equal protection for the rights of individuals with disabilities or individuals associated with them.

These provisions remain unchanged by the final rule. The Department recognizes that public accommodations subject to title III of the ADA may also be subject to title I of the ADA, which prohibits discrimination on the basis of disability in employment; section 504 of the Rehabilitation Act of 1973 and other Federal statutes that prohibit discrimination on the basis of disability in the programs and activities of recipients of Federal financial assistance; and other Federal statutes such as the Air Carrier Access Act (ACAA), 49 U.S.C. 41705 et seq, and the Fair Housing Act (FHAct), 42 U.S.C. 3601 et seq. Compliance with the Department’s title II and title III regulations does not ensure compliance with other Federal statutes.

Public accommodations that are subject to the ADA as well as other Federal disability discrimination laws must be aware of the requirements of all applicable laws and must comply with these laws and their implementing regulations. Although in many cases similar provisions of different statutes are interpreted to impose similar requirements, there are circumstances in which similar provisions are applied differently because of the nature of the covered entity or activity, or because of distinctions between the statutes. For example, emotional support animals that do not qualify as service animals under the Department’s title III regulations may nevertheless qualify as permitted reasonable accommodations for persons with disabilities under the FHAct and the ACAA. See, e.g., Overlook Mutual Homes, Inc. v. Spencer, 666 F. Supp. 2d 850 (S.D. Ohio 2009). Public accommodations that operate housing facilities must ensure that they apply the reasonable accommodation requirements of the FHAct in determining whether to allow a particular animal needed by a person with a disability into housing and may not use the ADA definition as a justification for reducing their FHAct obligations. In addition, nothing in the ADA prevents a public accommodation subject to one statute from modifying its policies and providing greater access in order to assist individuals with disabilities in achieving access to entities subject to other Federal statutes. For example, a quick service restaurant at an airport is, as a public accommodation, subject to the title III requirements, not to the ACAA requirements. Conversely, an air carrier that flies in and out of the same airport is required to comply with the ACAA, but is not covered by title III of the ADA. If a particular animal is a service animal for purposes of the ACAA and is thus allowed on an airplane, but is not a service animal for purposes of the ADA, nothing in the ADA prohibits an airport restaurant from allowing a ticketed passenger with a disability who is traveling with a service animal that meets the ACAA’s definition of a service animal to bring that animal into the facility even though under the ADA’s definition of service animal the animal lawfully could be excluded.

Organization of This Rule

Throughout this rule, the original ADA Standards, which are republished as Appendix D to 28 CFR part 36, will be referred to as the “1991 Standards.” The original title III regulation, codified at 28 CFR part 36 (2009), will be referred to as the “1991 regulation” or the “1991 title III regulation.” ADA Chapter 1, ADA Chapter 2, and Chapters 3 through 10 of the 2004 ADA/ABA Guidelines, 36 CFR part 1191, app. B and D (2009), will be referred to as the “2004 ADAAG.” The Department’s Notice of Proposed Rulemaking, 73 FR 34508 (June 17, 2008), will be referred to as the “NPRM.” As noted above, the 2004 ADAAG, taken together with the requirements contained in subpart D of 28 CFR part 36 (New Construction and Alterations) of the final rule, will be referred to as the “2010 Standards.” The amendments made to the 1991 title III regulation and the adoption of the 2004 ADAAG, taken together, will be referred to as the “final rule.”

In performing the required periodic review of its existing regulation, the Department has reviewed the title III regulation section by section, and, as a result, has made several clarifications and amendments in this rule. Appendix A of the final rule, “Guidance on Revisions to ADA Regulation on Nondiscrimination on the Basis of Disability by Public Accommodations and Commercial Facilities,” codified as Appendix A to 28 CFR part 36, provides the Department’s response to comments and its explanations of the changes to the regulation. The section entitled ‘section-by-Section Analysis and Response to Comments” in provides a detailed discussion of the changes to the title III regulation. The Section-by-Section Analysis follows the order of the 1991 title III regulation, except that regulatory sections that remain unchanged are not referenced. The discussion within each section explains the changes and the reasoning behind them, as well as the Department’s response to related public comments. Subject areas that deal with more than one section of the regulation include references to the related sections, where appropriate. The Section-by-Section Analysis also discusses many of the questions asked by the Department for specific public response. The section of entitled “Other Issues” discusses public comment on several issues of concern to the Department that were the subject of questions that are not specifically addressed in the Section-by-Section Analysis.

The Department’s description of the 2010 Standards, as well as a discussion of the public comments on specific sections of the 2004 ADAAG, is found in Appendix B of this final rule, “Analysis and Commentary on the 2010 ADA Standards for Accessible Design,” codified as Appendix B to 28 CFR part 36.

The provisions of this rule generally take effect six months from its publication in the Federal Register. The Department has determined, however, that compliance with the requirements related to new construction and alterations and reservations at a place of lodging shall not be required until 18 months from the publication date of this rule. These exceptions are set forth in §§ 36.406(a) and 36.302(e)(3), respectively, and are discussed in greater detail in Appendix A. See discussions in Appendix A entitled ‘section 36.406 Standards for New Construction and Alterations” and ‘section 36.302(e) Hotel Reservations.”

This final rule only addresses issues that were identified in the NPRM as subjects the Department intended to regulate through this rulemaking proceeding. Because the Department indicated in the NPRM that it did not intend to regulate certain areas, including equipment and furniture, accessible golf cars, and movie captioning and video description, as part of this rulemaking proceeding, the Department believes it would be appropriate to solicit more public comment about these areas prior to making them the subject of a rulemaking. The Department intends to engage in additional rulemaking in the near future addressing accessibility in these areas and others, including next generation 9–1–1 and accessibility of Web sites operated by covered public entities and public accommodations.

ADDITIONAL INFORMATION: Regulatory Process Matters (SBREFA, Regulatory Flexibility Act, and Executive Orders)

The Department must provide two types of assessments as part of its final rule: An analysis of the costs and benefits of adopting the changes contained in this rule, and a periodic review of its existing regulations to consider their impact on small entities, including small businesses, small nonprofit organizations, and small governmental jurisdictions. See E.O. 12866, 58 FR 51735, 3 CFR, 1994 Comp., p. 638, as amended; Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601 et seq, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 610(a); OMB Circular A–4, available at http://www.whitehouse.gov/OMB/circulars/a004/a-4.pdf (last visited June 24, 2010); E.O. 13272, 67 FR 53461, 3 CFR, 2003 Comp., p. 247.

In the NPRM, the Department kept open the possibility that, if warranted by public comments received on an issue raised by the 2004 ADAAG or by the results of the Department’s Initial Regulatory Impact Analysis (Initial RIA), available at http://archive.ada.gov/NPRM2008/ria.htm, showing that the likely costs of making a particular feature or facility accessible were disproportionate to the benefits (including both monetized and nonmonetized benefits) to persons with disabilities, the Attorney General, as a member of the Access Board, could return the issue to the Access Board for further consideration. After careful consideration, the Department has determined that it is unnecessary to return any issues to the Access Board for additional consideration.

Executive Order 12866

This rule has been reviewed by the Office of Management and Budget (OMB) under Executive Order 12866. The Department has evaluated its existing regulations for title II and title III section by section, and many of the provisions in the final rule for both titles reflect its efforts to mitigate any negative effects on small entities. A Final Regulatory Impact Analysis (Final RIA or RIA) was prepared by the Department’s contractor, HDR HLB Decision Economics, Inc. (HDR). In accordance with Executive Order 12866, as amended, and OMB Circular A–4, the Department has reviewed and considered the Final RIA and has accepted the results of this analysis as its assessment of the benefits and costs of the final rules.

Executive Order 12866 refers explicitly not only to monetizable costs and benefits but also to “distributive impacts” and “equity,” See E.O. 12866, section 1(a), and it is important to recognize that the ADA is intended to provide important benefits that are distributional and equitable in character. The ADA states, “[i]t is the purpose of this [Act] (1) to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities; [and] (2) to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities[.]” 42 U.S.C. 12101(b). Many of the benefits of this rule stem from the provision of such standards, which will promote inclusion, reduce stigma and potential embarrassment, and combat isolation, segregation, and second-class citizenship of individuals with disabilities. Some of these benefits are, in the words of Executive Order 12866, “difficult to quantify, but nevertheless essential to consider.” E.O. 12866, section 1(a). The Department has considered such benefits here.

Final Regulatory Impact Analysis

The Final RIA embodies a comprehensive benefit-cost analysis of the final rules for both title II and title III and assesses the incremental benefits and costs of the 2010 Standards relative to a primary baseline scenario (1991 Standards). In addition, the Department conducted additional research and analyses for requirements having the highest negative net present values under the primary baseline scenario. This approach was taken because, while the 1991 Standards are the only uniform set of accessibility standards that apply to public accommodations, commercial facilities, and State and local government facilities nationwide, it is also understood that many State and local jurisdictions have already adopted IBC/ANSI model code provisions that mirror those in the 2004 ADAAG. The assessments based on this approach assume that covered entities currently implementing codes that mirror the 2004 ADAAG will not need to modify their code requirements once the rules are finalized. They also assume that, even without the final rules, the current level of compliance would be unchanged. The Final RIA contains specific information, including data in chart form, detailing which States have already adopted the accessibility standards for this subset of six requirements. The Department believes that the estimates resulting from this approach represent a reasonable upper and lower measure of the likely effects these requirements will have that the Department was able to quantify and monetize.

The Final RIA estimates the benefits and costs for all new (referred to as ‘supplemental”) requirements and revised requirements across all types of newly constructed and existing facilities. The Final RIA also incorporates a sophisticated risk analysis process that quantifies the inherent uncertainties in estimating costs and benefits and then assesses (through computer simulations) the relative impact of these factors when varied simultaneously. A copy of the Final RIA will be made available online for public review on the Department’s ADA Home Page

From an economic perspective (as specified in OMB Circular A–B4), the results of the Final RIA demonstrate that the Department’s final rules increase social resources and thus represent a public good because monetized benefits exceed monetized costs—that is, the regulations have a positive net present value (NPV). Indeed, under every scenario assessed in the Final RIA, the final rules have a positive NPV. The Final RIA’s first scenario examines the incremental impact of the final rules using the “main” set of assumptions (i.e., assuming a primary baseline (1991 Standards), that the safe harbor applies, and that for title III entities barrier removal is readily achievable for 50 percent of elements subject to supplemental requirements).

Under this set of assumptions, the final rules have an expected NPV of $9.3 billion (7 percent discount rate) and $40.4 billion (3 percent discount rate). See Final RIA, table ES–1 and figure ES–2.

Discount rate	Expected NPV	Total Expected PV (Benefits)	Total Expected PV (Costs)
3%	$40.4	$66.2	$25.8
7%	$9.3	$22.0	$12.8

Water Closet Clearances

The Department gave careful consideration to the costs and benefits of its adoption of the standards relating to water closet clearances in single-user toilet rooms. The primary effect of the Department’s proposed final rules governing water closet clearances in single-user toilet rooms with in-swinging and out-swinging doors is to allow sufficient room for ‘side” or “parallel” methods of transferring from a wheelchair to a toilet. Under the current 1991 Standards, the requisite clearance space in single-user toilet rooms between and around the toilet and the lavatory does not permit these methods of transfer. Side or parallel transfers are used by large numbers of persons who use wheelchairs and are regularly taught in rehabilitation and occupational therapy. Currently, persons who use side or parallel transfer methods from their wheelchairs are faced with a stark choice at establishments with single-user toilet rooms — i.e., patronize the establishment but run the risk of needing assistance when using the restroom, travel with someone who would be able to provide assistance in toileting, or forgo the visit entirely. The revised water closet clearance regulations would make single-user toilet rooms accessible to all persons who use wheelchairs, not just those with the physical strength, balance, and dexterity and the training to use a front-transfer method. Single-user toilet rooms are located in a wide variety of public and private facilities, including restaurants, fast-food establishments, schools, retail stores, parks, sports stadiums, and hospitals. Final promulgation of these requirements might thus, for example, enable a person who uses a side or parallel transfer method to use the restroom (or use the restroom independently) at his or her local coffee shop for the first time.

Because of the complex nature of its cost-benefit analysis, the Department is providing “plain language” descriptions of the benefits calculations for the two revised requirements with the highest estimated total costs: Water closet clearance in single-user toilet rooms with out-swinging doors (RIA Req. #28) (section 604.3 of the 2010 Standards) and water closet clearance in single-user toilet rooms with in-swinging doors (RIA Req. #32) (sections 604.3 and 603.2.3 Exception 2 of the 2010 Standards). Since many of the concepts and calculations in the Final RIA are highly technical, it is hoped that, by providing “lay” descriptions of how benefits are monetized for an illustrative set of requirements, the Final RIA will be more transparent and afford readers a more complete understanding of the benefits model generally. Because of the widespread adoption of the water closet clearance standards in existing State and local building codes, the following calculations use the IBC/ANSI baseline.

General description of monetized benefits for water closet clearance in single-user toilet rooms—out-swinging doors (Req. #28). In order to assess monetized benefits for the requirement covering water closet clearances in single-user toilet rooms with out-swinging doors, a determination needed to be made concerning the population of users with disabilities who would likely benefit from this revised standard. Based on input received from a panel of experts jointly convened by HDR and the Department to discuss benefits-related estimates and assumptions used in the RIA model, it was assumed that accessibility changes brought about by this requirement would benefit persons with any type of ambulatory (i.e., mobility-related) disability, such as persons who use wheelchairs, walkers, or braces. Recent census figures estimate that about 11.9 percent of Americans ages 15 and older have an ambulatory disability, or about 35 million people. This expert panel also estimated that single-user toilet rooms with out-swinging doors would be used slightly less than once every other visit to a facility with such toilet rooms covered by the final rules (or, viewed another way, about once every two hours spent at a covered facility assumed to have one or more single-user toilet rooms with out-swinging doors) by an individual with an ambulatory disability. The expert panel further estimated that, for such individuals, the revised requirement would result in an average time savings of about five and a half minutes when using the restroom. This time savings is due to the revised water closet clearance standard, which permits, among other things, greater flexibility in terms of access to the toilet by parallel or side transfer, thereby perhaps reducing the wait for another person to assist with toileting and the need to twist or struggle to access the toilet independently. Based on average hourly wage rates compiled by the U.S. Department of Labor, the time savings for Req. #28 is valued at just under $10 per hour.

For public and private facilities covered by the final rules, it is estimated that there are currently about 11 million single-user toilet rooms with out-swinging doors. The majority of these types of single-user toilet rooms, nearly 7 million, are assumed to be located at “Indoor Service Establishments,” a broad facility group that encompasses various types of indoor retail stores such as bakeries, grocery stores, clothing stores, and hardware stores. Based on construction industry data, it was estimated that approximately 3 percent of existing single-user toilet rooms with out-swinging doors would be altered each year, and that the number of newly constructed facilities with these types of toilet rooms would increase at the rate of about 1 percent each year. However, due to the widespread adoption at the State and local level of model code provisions that mirror Req. #28, it is further understood that about half of all existing facilities assumed to have single-user toilet rooms with out-swinging doors already are covered by State or local building codes that require equivalent water closet clearances. Due to the general element-by-element safe harbor provision in the final rules, no unaltered single-user toilet rooms that comply with the current 1991 Standards will be required to retrofit to meet the revised clearance requirements in the final rules.

With respect to new construction, it is assumed that each single-user toilet room with an out-swinging door will last the life of the building, about 40 years. For alterations, the amount of time such a toilet room will be used depends upon the remaining life of the building (i.e. a period of time between 1 and 39 years).

Summing up monetized benefits to users with disabilities across all types of public and private facilities covered by the final rules, and assuming 46 percent of covered facilities nationwide are located in jurisdictions that have adopted the relevant equivalent IBC/ ANSI model code provisions, it is expected that the revised requirement for water closet clearance in single-user toilet rooms with out-swinging doors will result in net benefits of approximately $900 million over the life of these regulations.

General description of monetized benefits for water closet clearance in single-user toilet rooms—in-swinging doors (Req. # 32).For the water closet clearance in single-user toilet rooms with the in-swinging door requirement (Req. #32), the expert panel determined that the primary beneficiaries would be persons who use wheelchairs. As compared to single-user toilet rooms with out-swinging doors, those with in-swinging doors tend to be larger (in terms of square footage) in order to accommodate clearance for the in-swinging door and, thus, are already likely to have adequate clear floor space for persons with disabilities who use other types of mobility aids such as walkers and crutches.

The expert benefits panel estimated that single-user toilet rooms with in-swinging doors are used less frequently on average—about once every 20 visits to a facility with such a toilet room by a person who uses a wheelchair—than their counterpart toilet rooms with out-swinging doors. This panel also determined that, on average, each user would realize a time savings of about 9 minutes as a result of the enhanced clearances required by this revised standard.

The RIA estimates that there are about 4 million single-user toilet rooms with in-swinging doors in existing facilities. About half of the single-user toilet rooms with in-swinging doors are assumed to be located in single-level stores, and about a quarter of them are assumed to be located in restaurants. Based on construction industry data, it was estimated that approximately 3 percent of existing single-user toilet rooms with in-swinging doors would be altered each year, and that the number of newly constructed facilities with these types of toilet rooms would increase at the rate of about 1 percent each year. However, due to the widespread adoption at the State and local level of model code provisions that mirror Req. #32, it is further understood that slightly more than 70 percent of all existing facilities assumed to have single-user toilet rooms with in-swinging doors already are covered by State or local building codes that require equivalent water closet clearances. Due to the general element-by-element safe harbor provision in the final rules, no unaltered single-user toilet rooms that comply with the current 1991 Standards will be required to retrofit to meet the revised clearance requirements in the final rules.

Similar to the assumptions for Req. #28, it is assumed that newly constructed single-user toilet rooms with in-swinging doors will last the life of the building, about 40 years. For alterations, the amount of time such a toilet room will be used depends upon the remaining life of the building (i.e., a period of time between 1 and 39 years). Over this time period, the total estimated value of benefits to users of water closets with in-swinging doors from the time they will save and decreased discomfort they will experience is nearly $12 million.

Additional benefits of water closet clearance standards. The standards requiring sufficient space in single-user toilet rooms for a wheelchair user to effect a side or parallel transfer are among the most costly (in monetary terms) of the new provisions in the Access Board’s guidelines that the Department adopts in this rule—but also, the Department believes, one of the most beneficial in non-monetary terms. Although the monetized costs of these requirements substantially exceed the monetized benefits, the additional benefits that persons with disabilities will derive from greater safety, enhanced independence, and the avoidance of stigma and humiliation— benefits that the Department’s economic model could not put in monetary terms—are, in the Department’s experience and considered judgment, likely to be quite high. Wheelchair users, including veterans returning from our Nation’s wars with disabilities, are taught to transfer onto toilets from the side. Side transfers are the safest, most efficient, and most independence-promoting way for wheelchair users to get onto the toilet. The opportunity to effect a side transfer will often obviate the need for a wheelchair user or individual with another type of mobility impairment to obtain the assistance of another person to engage in what is, for most people, among the most private of activities. Executive Order 12866 refers explicitly not only to monetizable costs and benefits but also to “distributive impacts” and “equity,”See E.O. 12866, section 1(a), and it is important to recognize that the ADA is intended to provide important benefits that are distributional and equitable in character. These water closet clearance provisions will have non-monetized benefits that promote equal access and equal opportunity for individuals with disabilities, and will further the ADA’ s purpose of providing “a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. 12101(b)(1).

The Department’s calculations indicated that, in fact, people with the relevant disabilities would have to place only a very small monetary value on these quite substantial benefits for the costs and benefits of these water closet clearance standards to break even. To make these calculations, the Department separated out toilet rooms with out-swinging doors from those with in-swinging doors, because the costs and benefits of the respective water closet clearance requirements are significantly different. The Department estimates that, assuming 46 percent of covered facilities nationwide are located in jurisdictions that have adopted the relevant equivalent IBC/ANSI model code provisions, the costs of the requirement as applied to toilet rooms with out-swinging doors will exceed the monetized benefits by $454 million, an annualized net cost of approximately $32.6 million. But a large number of people with disabilities will realize benefits of independence, safety, and avoided stigma and humiliation as a result of the requirement’s application in this context. Based on the estimates of its expert panel and its own experience, the Department believes that both wheelchair users and people with a variety of other mobility disabilities will benefit. The Department estimates that people with the relevant disabilities will use a newly accessible single-user toilet room with an out-swinging door approximately 677 million times per year. Dividing the $32.6 million annual cost by the 677 million annual uses, the Department concludes that for the costs and benefits to break even in this context, people with the relevant disabilities will have to value safety, independence, and the avoidance of stigma and humiliation at just under 5 cents per visit. The Department believes, based on its experience and informed judgment, that 5 cents substantially understates the value people with the relevant disabilities would place on these benefits in this context.

There are substantially fewer single-user toilet rooms with in-swinging doors, and substantially fewer people with disabilities will benefit from making those rooms accessible. While both wheelchair users and individuals with other ambulatory disabilities will benefit from the additional space in a room with an out-swinging door, the Department believes, based on the estimates of its expert panel and its own experience, that wheelchair users likely will be the primary beneficiaries of the in-swinging door requirement. The Department estimates that people with the relevant disabilities will use a newly accessible single-user toilet room with an in-swinging door approximately 8.7 million times per year. Moreover, the alteration costs to make a single-user toilet room with an in-swinging door accessible are substantially higher (because of the space taken up by the door) than the equivalent costs of making a room with an out-swinging door accessible. Thus, the Department calculates that, assuming 72 percent of covered facilities nationwide are located in jurisdictions that have adopted the relevant equivalent IBC/ANSI model code provisions, the costs of applying the toilet room accessibility standard to rooms with in-swinging doors will exceed the monetized benefits of doing so by $266.3 million over the life of the regulations, or approximately $19.14 million per year. Dividing the $19.14 million annual cost by the 8.7 million annual uses, the Department concludes that for the costs and benefits to break even in this context, people with the relevant disabilities will have to value safety, independence, and the avoidance of stigma and humiliation at approximately $2.20 per visit. The Department believes, based on its experience and informed judgment, that this figure approximates, and probably understates, the value wheelchair users place on safety, independence, and the avoidance of stigma and humiliation in this context.

Alternate Scenarios

Another scenario in the Final RIA explores the incremental impact of varying the assumptions concerning the percentage of existing elements subject to supplemental requirements for which barrier removal would be readily achievable. Readily achievable barrier removal rates are modeled at 0 percent, 50 percent, and 100 percent levels. The results of this scenario show that the expected NPV is positive for each readily achievable barrier removal rate and that varying this assumed rate has little impact on expected NPV. See Final RIA, figure ES–3.

A third set of analyses in the Final RIA demonstrates the impact of using alternate baselines based on model codes instead of the primary baseline. The IBC model codes, which have been widely adopted by State and local jurisdictions around the country, are significant because many of the requirements in the final rules mirror accessibility provisions in the IBC model codes (or standards incorporated therein by reference, such as ANSI A117.1). The actual economic impact of the Department’s final rules is, therefore, tempered by the fact that many jurisdictions nationwide have already adopted and are enforcing portions of the final rules—indeed, this was one of the goals underlying the Access Board’s efforts to harmonize the 2004 ADAAG Standards with the model codes. However, capturing the economic impact of this reality poses a difficult modeling challenge due to the variety of methods by which States and localities have adopted the IBC/ANSI model codes (e.g., in whole, in part, and with or without amendments), as well as the lack of a national “facility census’ establishing the location, type, and age of existing ADA-covered facilities.

As a result, in the first set of alternate IBC baseline analyses, the Final RIA assumes that all of the three IBC model codes—IBC 2000, IBC 2003, and IBC 2006—have been fully adopted by all jurisdictions and apply to all facilities nationwide. As with the primary baseline scenarios examined in the Final RIA, use of these three alternate IBC baselines results in positive expected NPVs in all cases. See Final RIA, figure ES–4. These results also indicate that IBC 2000 and IBC 2006 respectively have the highest and lowest expected NPVs. These results are due to changes in the make-up of the set of requirements that is included in each alternative baseline.

Additionally, a second, more limited alternate baseline analysis in the Final RIA uses a State-specific and requirement-specific alternate IBC/ANSI baseline in order to demonstrate the likely actual incremental impact of an illustrative subset of 20 requirements under current conditions nationwide. For this analysis, research was conducted on a subset of 20 requirements in the final rules that have negative net present values under the primary baseline and readily identifiable IBC/ANSI counterparts to determine the extent to which they each respectively have been adopted at the State or local level. With respect to facilities, the population of adopting jurisdictions was used as a proxy for facility location. In other words, it was assumed that the number of ADA-covered facilities respectively compliant with these 20 requirements was equal to the percentage of the United States population (based on statistics from the Census Bureau) currently residing in those States or local jurisdictions that have adopted the IBC/ANSI counterparts to these requirements. The results of this more limited analysis, using State-specific and requirement-specific alternate IBC/ANSI baselines for these 20 requirements, demonstrate that the widespread adoption of IBC model codes by States and localities significantly lessens the financial impact of these specific requirements. Indeed, the Final RIA estimates that, if the NPVs for these 20 requirements resulting from the requirement-specific alternate IBC/ANSI baseline are substituted for their respective results under the primary baseline, the overall NPV for the final rules increases from $9.2 billion to $12.0 billion. See Final RIA, section 6.2.2 & table 10.

Benefits Not Monetized in the Formal Analysis Finally, the RIA recognizes that additional benefits are likely to result from the new standards. Many of these benefits are more difficult to quantify. Among the potential benefits that have been discussed by researchers and advocates are reduced administrative costs due to harmonized guidelines, increased business opportunities, increased social development, and improved health benefits. For example, the final rules will substantially increase accessibility at newly scoped facilities such as recreation facilities and judicial facilities, which previously have been very difficult for persons with disabilities to access. Areas where the Department believes entities may incur benefits that are not monetized in the formal analysis include, but may not be limited to, the following:

Use benefits accruing to persons with disabilities. The final rules should improve the overall sense of well-being of persons with disabilities, who will know that public entities and places of public accommodation are generally accessible, and who will have improved individual experiences. Some of the most frequently cited qualitative benefits of increased access are the increase in one’s personal sense of dignity that arises from increased access and the decrease in possibly humiliating incidents due to accessibility barriers. Struggling to join classmates on a stage, to use a bathroom with too little clearance, or to enter a swimming pool all negatively affect a person’s sense of independence and can lead to humiliating accidents, derisive comments, or embarrassment. These humiliations, together with feelings of being stigmatized as different or inferior from being relegated to use other, less comfortable or pleasant elements of a facility (such as a bathroom instead of a kitchen sink for rinsing a coffee mug at work), all have a negative effect on persons with disabilities.

Use benefits accruing to persons without disabilities. Improved accessibility can affect more than just the rule’s target population; persons without disabilities may also benefit from many of the requirements. Even though the requirements were not designed to benefit persons without disabilities, any time savings or easier access to a facility experienced by persons without disabilities are also benefits that should properly be attributed to that change in accessibility. Curb cuts in sidewalks make life easier for those using wheeled suitcases or pushing a baby stroller. For people with a lot of luggage or a need to change clothes, the larger bathroom stalls can be highly valued. A ramp into a pool can allow a child (or adult) with a fear of water to ease into that pool. All are examples of “unintended” benefits of the rule. And ideally, all should be part of the calculus of the benefits to society of the rule.

Social benefits. Evidence supports the notion that children with and without disabilities benefit in their social development from interaction with one another. Therefore, there will likely be social development benefits generated by an increase in accessible play areas. However, these benefits are nearly impossible to quantify for several reasons. First, there is no guarantee that accessibility will generate play opportunities between children with and without disabilities. Second, there may be substantial overlap between interactions at accessible play areas and interactions at other facilities, such as schools and religious facilities. Third, it is not certain what the unit of measurement for social development should be.

Non-use benefits. There are additional, indirect benefits to society that arise from improved accessibility. For instance, resource savings may arise from reduced social service agency outlays when people are able to access centralized points of service delivery rather than receiving home-based care. Home-based and other social services may include home health care visits and welfare benefits. Third-party employment effects can arise when enhanced accessibility results in increasing rates of consumption by disabled and non-disabled populations, which in turn results in reduced unemployment.

Two additional forms of benefits are discussed less often, let alone quantified: Option value and existence value. Option value is the value that people with and without disabilities derive from the option of using accessible facilities at some point in the future. As with insurance, people derive benefit from the knowledge that the option to use the accessible facility exists, even if it ultimately goes unused. Simply because an individual is a nonuser of accessible elements today does not mean that he or she will remain so tomorrow. In any given year, there is some probability that an individual will develop a disability (either temporary or permanent) that will necessitate use of these features. For example, the 2000 Census found that 41.9 percent of adults 65 years and older identified themselves as having a disability. Census Bureau figures, moreover, project that the number of people 65 years and older will more than double between 2000 and 2030—from 35 million to 71.5 million. Therefore, even individuals who have no direct use for accessibility features today get a direct benefit from the knowledge of their existence should such individuals need them in the future.