Adopts Several NATO Positions, But Stadium-Style
Questions Persist
Access Board Releases Draft of
Proposed Revised ADAAG Regulations
by Steven John Fellman
NATO Washington Counsel
In a very unusual
procedure, the Access Board (Architectural & Transportation
Barriers Compliance Board) has released a draft of the Revised Americans
With Disabilities Act Accessibility Guidelines (ADAAG). In the draft
revision, the Access Board appears to adopt three of the four major
positions presented by NATO.
First, the Access Board has reduced the requirement for the number
of headsets for assistive listening systems in a multiplex motion
picture theatre. Second, the Access Board has recognized that neither
the ADAAG nor the Department of Justice regulations requires captioning
of motion pictures. Third, the Access Board appears to recognize
that the current Department of Justice ADA regulations do not require
that wheelchair locations be placed in the upper half of the stadium
section of a stadium-style motion picture theatre auditorium. These
are all wins for NATO. However the Access Board appears to require
that for future builds, after the effective date of the regulation,
wheelchair seating be moved higher into the stadium portion of stadium-style
motion picture theatre auditoria provided that wheelchair seating
is not vertically dispersed.
In
the draft revision, the Access Board appears to adopt
three of the four major positions
presented by NATO. |
|
You will note
that with regard to stadium-style seating issues, we have used the
word “appears.” We have used this word because the draft
regulations are in fact unclear. Hopefully, as the process moves
forward and the regulations become final regulations, additional
clarity will be provided.
The original
proposed revised ADAAG was published for comment in the Federal
Register in 1999. The Access Board received thousands of comments
including comments by major associations such as NATO, by disability
rights groups, by codes officials, and by individuals with disabilities.
For more than two years, the Access Board has been struggling to
review all of the comments and publish final regulations. Once the
Access Board has finished its analysis and drafted proposed final
regulations, it is required to submit the regulation to the Office
of Management and Budget (OMB) for review and approval. Only after
the regulations have been approved by the OMB can they be published
in the Federal Register as final regulations. When the regulations
are published in the Federal Register, interested parties can go
directly to a Court of Appeals and challenge the regulations.
The Access Board was concerned that unless it published its final
regulations at this time, the regulations would not be harmonized
with the provisions of the International Building Code or the provisions
of the American National Standards Institutes (ANSI) Standard A117.1.
Several members of the Access Board staff are active participants
in the ANSI and ICC standard-making committees. ICC and ANSI revise
their respective standards on a multi-year cycle. Both organizations
are presently in the process of finalizing a revision. The Access
Board’s staff believed that unless they published a revised
ADAAG immediately, there would be no harmonization between the ADAAG,
ANSI and ICC, and another multi-year cycle would have to pass before
an attempt could be made at harmonization.
In an effort to avoid this multi-year delay, the Access Board followed
a very unusual procedure and placed a copy of its “draft”
revised ADAAG in the docket of its ADAAG revision proceeding. This
“draft” revised ADAAG is still subject to final review
by the Access Board and submission to and approval by OMB before
it can be published in a final form. The regulation is then subject
to challenge in the courts. Since the Access Board recognized that
it could not go through a final vote and submission to OMB until
this summer, it chose to publish its revised regulations in “draft”
on April 2. The ICC Codes Committee was scheduled to meet the following
week.
The same day that the Access Board published its “draft,”
an Access Board staffer and an Access Board member filed a 40-page
“code harmonization” document with the ICC recommending
revisions in the ICC that would harmonize the code with the “draft”
revised ADAAG. This procedure is highly suspect and will be strongly
objected to at the ICC meeting by NATO’s representative, Gene
Boecker of Code Consultants Inc.
The draft revised ADAAG is over 300 pages long and will be reviewed
in detail by the NATO Codes Task Force. For NATO, the highlights
include:
1. Assistive listening devices. For many years, NATO members have
complained that assistive listening devices are rarely used in multiplexes.
We have argued that a requirement that the number of headsets must
equal 4 percent of the number of seats makes no sense. NATO submitted
data to the Access Board showing that the current headset requirement
was far in excess of need. In response, the Access Board recognized
that in a multiplex motion picture theatre where headsets can be
moved from auditorium to auditorium, the total number of headsets
can be reduced. Rather than basing the headset requirements on the
number of seats in each auditorium, the headset requirement is now
being based on the total number of seats in the complex. There will
be a significant reduction in the number of headsets required.
2. Captioning. In a series of litigations, disability rights groups
representing deaf individuals have claimed that the ADA requires
that motion picture theatres provide captioning. In several of these
cases, the plaintiffs have demanded “closed captioning”
rather than open captioning. In discussing the captioning issue
in the “draft” regulations, the Access Board states that
neither the ADAAG nor the Department of Justice regulations require
captioning of motion pictures. Further, the Access Board notes that
most of the comments that it receives from individuals with disabilities
indicated a preference for open captioning over closed captioning.
3. Wheelchair seating in existing stadium-style theatres. In the
original proposed revised ADAAG, the Access Board had required that
wheelchair seating be located in the main seating area of a theatre
and have sight lines comparable to the sight lines of the seating
adjacent to the wheelchair seating. As part of the proposed regulations,
the Access Board noted that the Department of Justice had adopted
a “litigating position” that wheelchair seating be in
a location so that the wheelchair patron had lines of sight equal
or better to the lines of sight available to the median of all of
the seats in the auditorium. The Access Board asked for comments
on this position. In the “draft” revised ADAAG, the Access
Board notes that persons with disabilities supported the concept
that in smaller auditoriums where no dispersion of wheelchair seating
is required, the wheelchair seating locations provide lines of sight
better than the average lines of sight of all seats available in
the auditorium. The Access Board said that it had changed its proposed
revision to include something similar to the Department of Justice
concept. The Access Board stated that to include such a concept
required a change in the existing regulations. To the extent that
this language can be interpreted as an admission that in order for
the Department of Justice litigating position to be sustained, the
regulations need to be revised, this is a win for NATO. It is a
clear recognition that the current Department of Justice litigating
position cannot be supported based on the existing ADAAG requirements.
But the language in the Access Board document is not completely
clear. Until a final document is issued by the Access Board–
and the Department of Justice, in turn, issues revised regulations
– there will be much controversy concerning this point.
4. Wheelchair seating in new construction. The Access Board draft
revision requires that where wheelchair seating is not dispersed,
wheelchair patrons be afforded lines of sight that are better than
the average lines of sight in the auditorium. However, the regulations
do not define how you determine lines of sight and do not define
what are the best lines of sight in the theatre. In reading the
regulations, it is still not possible to define with a certainty
where stadium-style seating must be located in a motion picture
theatre. This matter will be discussed in detail by the Codes Task
Force.
Copies of the draft ADA regulations dealing with stadium-style seating
and assistive listening devices are available at the NATO offices.
The NATO offices also have the 300-page complete draft document.
