110115th Street, NW Washington, DC20005 Disability Rights Section Civil Rights Division (hair and Chief Elected Officer U.S. Department of Justice Richard D. Purtell, RPA 1425 New York Avenue, NW Grubb & EllisManagement Services Inc. Suite 4039 Cincinna~,OH Washington, DC 20005 (hair-Elect James A. Peck, RPA, FMA CB Richard EllisI New Mexico Albuquerque, NM Vice Chair The Building Owners and Managers Association (BOMA) International Ray H. Mackey, Jr., RPA, (PM, «1M appreciates the opportunity to submit these comments to the Department of Stream Realty Partners, L.P. Justice (the Department) regarding the proposal to amend the regulations under Dallas,1X Title III of the Americans with Disabilities Act (ADA) and adopt Parts I and III of Secretary IT reasurer the 2004 ADA Accessibility Guidelines (ADAAG). By soliciting public David M. Stucky comment via a Notice of Proposed Rulemaking (NPRM), the Department will City of San Diego San Oiega, CA likely be able to develop updated Guidelines that are more timely, less controversial, and best serve the needs of all those affected. President and (hief Operating Officer Henry H. Chamberlain, CAE, APR Founded in 1907, BOMA International is an international federation of more than 100 local associations and affiliated organizations. The 17,000-plus members of BOMAInternational BOMA International own or manage more than 9 billion square feet of Annual Conference and commercial properties in North America and abroad. BOMA International's The Office Building Show mission is to enhance the human, intellectual and physical assets of the June 28·30, 2009 Philadelphia, Pennsylvania commercial real estate industry through advocacy, education, research, standards and information. On the Web at www.boma.org. BOMA International looks forward to working with the Department as the new Guidelines continue to move through the rulemaking process. BOMA International made a significant organizational commitment in working on the ADAAG Review Advisory Committee and in reviewing the NPRM. Based on our extensive review and input from our membership, we have found that the existing Standards create significant hardships for the commercial real estate industry, primarily due to unclear, inconsistent, and in a few places, overly- restrictive, requirements. BOMA International has a long-standing commitment to ensure that future iterations of the ADAAG reflect the "state of the art" of accessibility, provide for a high degree of design flexibility, and are written in clear, understandable, and enforceable language. BOMA International believes that the new Guidelines published by the Access Board substantially achieve these goals. Our attached comments will elucidate the language we find problematic as well as illuminate areas where additional clarity could be included. BOMA International's members have anxiously anticipated the implementation of new and vastly improved Standards since 1996. However, this should not lead the Department to rush issuance of the Final Rules on issues that are not yet fully vetted, nor should it lead to an accelerated effective date after publication of the Final Rules. The final step in the implementation of the new Standards should include adequate opportunity for those who will be impacted by the Standards to implement them without incurring undue costs and delays. Should the Department wish to contact BOMA International for additional information on these comments, or if BOMA International can offer any assistance to the Department as the rulemaking process proceeds, the following individuals can be used as points of contact: Ron Burton Vice President, Codes and Standards Building Owners and Managers Association International 1101 15th Street, NW Suite 800 Washington, DC 20005 202.326.6350 firstname.lastname@example.org David Johnston Director, Codes and Standards Building Owners and Managers Association International 1101 15th Street, NW Suite 800 Washington, DC 20005 202.326.6357 email@example.com Lawrence G Perry, AlA Codes Consultant Building Owners and Managers Association International 604 Cobblestone Court Silver Spring, MD 20905 301.879.4720 LPerryAIA@aol.com BOMA International commends the Department for including broad "safe harbor" clauses for existing buildings and elements in compliance with the current Standards for both the Title III barrier removal and path of travel obligations. It is critical that the Department maintain this broad "safe harbor" approach in the Final Rule so that existing facilities and elements in compliance with current ADAAG are not forced to undergo extensive upgrades simply to comply with changes in the new Standards. The Department's proposed "safe harbor" status for existing facilities and elements in compliance with current ADAAG is consistent with both previous and current federal accessibility standards for federal facilities. Both the Uniform Federal Accessibility Standards and the new Architectural Barriers Act scoping provisions provide 'safe harbor' clauses for existing facilities, as follows: "4.1.6(f). No new accessibility alterations will be required of existing elements or spaces previously constructed or altered in compliance with earlier standards issued pursuant to the Architectural Barriers Act of 1968, as amended." The Architectural Barriers Act Accessibility Guidelines scoping provisions include the following: "F203.2 Existing Elements. Elements in compliance with an earlier standard issued pursuant to the Architectural Barriers Act or Section 504 of the Rehabilitation Act of 1973, as amended shall not be required to comply with these requirements unless altered." Thus, if the Department does not maintain the broad "safe harbor" clauses in the Final Rule, the Department should be required to justify why the private sector is held to a standard that exceeds federal facilities. Additionally, if the Department were to depart from the broad "safe harbor" clauses in the Final Rule, the Department would need to undertake an extremely complex Regulatory Impact Analysis, first determining the extent of compliance in all covered existing buildings. Following, it would need to address the extensive costs required for covered facilities, in order to assess their level of noncompliance with new or revised provisions in the Standards. This task would dwarf the scope of the Analysis done to date. By considering anything other than a broad 'safe harbor' clause, the Department would be ignoring the extensive initial costs and efforts that have gone into implemention of the 'barrier removal' concept of Title III since 1992. Nationwide, facility owners and operators have spent countless hours and significant resources just to assess the condition of their existing facilities in comparison to ADAAG. Once these surveys were done, extensive work was undertaken to implement barrier removal projects, or to ensure that identified barriers would be eliminated as part of future alterations to those areas or to 'areas of primary function' elsewhere in the facility with funds triggered by alterations. Changing the baseline so that all existing buildings would be measured against te the new Standards would require a massive re-commitment of funding just to assess facilities, which would then reduce the funding available for ongoing barrier removal. If the Department does not maintain the broad safe harbor approach, existing facilities that have already implemented significant improvement programs will be severely impacted, and many will face a form of "double jeopardy" with these facilities. Those facilities that previously implemented widespread and expensive barrier removal programs, will be most likely to have created new 'barriers' as defined by the new, but not the current, Standards. Property owners have spent over 16 years making accessibility improvements to their facilities as part of 'good faith' efforts to comply with the ADA. Forcing a nationwide reassessment of existing facilities, and requiring work done in accordance with the current ADA Standards to be re-done, simply because the new construction standards have been revised, would be contrary to any concept of' good faith' . BOMA International is pleased that the Department has acted consistent with our previous comments to the Advance Notice of Proposed Rulemaking by including a safe harbor exception for path of travel elements that are in compliance with the current Standards. Providing this reasonable safe harbor for facilities and elements that are already quite accessible will bypass the following negative impacts of the new Standards on existing buildings: • Requiring spending funds and allocating resources to address elements that have either previously been altered to meet the current Standards requirements, or altering elements built in compliance with the current Standards which were not planned to be altered. • Application of a 20% "tax" to upgrade elements in the path of travel which are in compliance with current ADAAG. • Mandating compliance with the new Standards would require allocating funds to revise elements in the path of travel that meet current ADAAG, leaving other existing parts of the path of travel that are lower 'priority' issues inaccessible. • Many of the path of travel issues involve elements where the new Standards vary significantly from current ADAAG. In a typical office building, the most significant 'path of travel' issues are frequently elevators and toilet rooms. The new Standards include extensive changes to both, increasing the likelihood that new path of travel work would involve re-doing work already done to meet current ADAAG, or requiring significant work to reconfigure spaces or elements in new, currently compliant, buildings. Additionally, the path of travel also covers drinking fountains and telephones, both of which have undergone significant technical and scoping changes in the new Standards. Question 1. The Department believes it would be useful to solicit input from the public to inform us on the anticipated costs or benefits for certain requirements. The Department therefore invites comment as to what the actual costs and benefits would be for these eight existing elements, in particular as applied to alterations, in compliance with the proposed regulations (side reach, water closet clearances in single-user toilet rooms with in-swinging doors, stairs, elevators, location of accessible routes to stages, accessible attorney areas and witness stands, assistive listening systems, and accessible teeing grounds, putting greens, and weather shelters at golf courses), as well as additional practical benefits from these requirements, which are often difficult to adequately monetize. The Department does not have statutory authority to modify the 2004 ADAAG; instead, the ADA requires the Attorney General to issue regulations implementing the ADA that are "consistent with" the ADA Accessibility Guidelines issued by the Access Board. See 42 Us.e. 12134(c), 12186(c). As noted above in other parts of this preamble, the Department leaves open the possibility of seeking further consideration by the Access Board of particular issues based on disproportionate costs compared to benefits and public comments. The Access Board did not have the benefit of our RIA or public comment on our RIA as it pertains to the 2004 ADAAG. Question 2. The Department would welcome comment on whether any of the proposed standards for these eight areas (side reach, water closet clearances in single-user toilet rooms with in- swinging doors, stairs, elevators, location of accessible routes to stages, accessible attorney areas and witness stands, assistive listening systems, and accessible teeing grounds, putting greens, and weather shelters at golf courses) should be raised with the Access Boardfor further consideration, in particular as applied to alterations. BOMA International Comment (Combined response to questions 1 and 2.) BOMA International is concerned that the Department appears to be establishing a double standard in how it is approaching the Guidelines developed by the Access Board. Where the Department has identified an area where there may be a need to provide additional flexibility or exceptions for alterations to existing buildings, the Department is seeking additional public comment and leaving open the option of returning an item to the Access Board for further consideration. However, where the Department has determined that the Guidelines may not provide the desired level of access or clarity, the Department is proposing to adopt its own additional criteria without returning the issue to the Access Board. An example of this is found in proposed Section 36.406(f) dealing with the location of wheelchair seating in assembly areas. BOMA International recommends that any additions or deletions to the Guidelines developed by the Access Board should be treated in the same manner, and should not be implemented without review and consideration by the Access Board. The Department's Final Rule should not include scoping or technical provisions that are inconsistent with the Guidelines developed by the Access Board. The proposed Standards include a reduction in the maximum height of a side reach range from 54 inches to 48 inches. The Department is specifically seeking comment regarding the costlbenefit of this change, particularly for alterations. BOMA International does not believe that any unique approach to the side reach requirements is needed or warranted, and that the general approach proposed for barrier removal, alterations, and path of travel obligations are appropriate. • Existing controls located 54 inches or lower with a parallel approach will qualify for the 'safe harbor' of the previous Standards. • Existing controls located higher than 54 inches in areas subject to the barrier removal obligation will continue to be identified as 'barriers. When determining what barriers are 'readily achievable' to remove, the costs to remove the barrier will now be based on lowering the element to 48 inches instead of 54 inches. • Where alterations are made to existing controls, the controls will need to be placed at 48 inches maximum. • Where alterations are undertaken, but they do not involve altering an existing control that is at a height in excess of 48 inches, the control will not need to be lowered, as the proposed Standards (as noted in Section 202.3) apply only to the elements or spaces being altered. Current ADAAG includes vague alteration language that is not carried over into the new Standards: "4.1.6(l)(c) If alterations of single elements, when considered together, amount to an alteration of a room or space in a building or facility, the entire space shall be made accessible." Without this vague trigger that at some point 'captures' all elements within a room or space, regardless of whether they are being altered or not, the proposed Standards will provide a much clearer delineation of where compliance is required. The Department notes that in comments to the ANPRM, "one individual argued that little people can become trapped in elevators, posing serious safety risks, when the controls are over 48 inches." This claim is unfounded, as the elevator industry standard, Al 7.1, for many years has required emergency controls to be located at the bottom of the control panel. It is unclear why the Department appears to be raising the issue of elevator controls at heights above 48 inches as an item that may warrant unique consideration in dealing with alteration, path of travel, or barrier removal provisions. The proposed Standards already include 2 major exceptions that specifically allow elevator controls as high as 54 inches, as follows: • Exception #2 to Section 407.4.6.1 specifically allows elevator car floor designation buttons in existing elevator cars to be up to 54 inches high where a parallel approach is provided. • Exception #1 to Section 407.4.6.1 will allow, in new construction, elevator car floor designation buttons as high as 54 inches where the elevator car serves more than 16 openings (which can occur in a 16-story building, or in shorter buildings where the elevator has front and rear doors). The Department has not indicated any possible consideration of deleting these exceptions, which would require returning this issue to the Access Board. With these two specific exceptions in place, it is unclear where the Department would consider establishing a different means of triggering compliance with a 48-inch maximum control height in elevators. To do so would be inconsistent and unjustified. BOMA International believes the proposed Standards, combined with the proposed 'safe harbors' for barrier removal and path of travel obligations, provide a reasonable approach to regulating elevator controls and all other operable parts that may be affected by the lowering of the maximum side reach height in existing buildings. "In single-user toilet rooms, the water closet will have to provide clearance for both a forward and a parallel approach (the current provisions permit one or the other), and the lavatory will no longer be permitted to overlap the water closet clearance, except in special dwelling unit cases. The in-swinging doors of single user toilet rooms will be permitted to swing into the clearance around any fixture, as long as clear floor space is provided within the toilet room beyond the door's arc." This change will require additional space within single-user toilet rooms. In new construction, this will result in increased costs due both to the loss of the use of the space for other purposes, but also due to the typically higher costs of finishes and materials in toilet rooms. For existing buildings that have single-user toilet rooms in compliance with current ADAAG, the impact of this change is significantly reduced or eliminated as long as the safe harbor for both barrier removal and path of travel obligations is maintained. It would appear that a significant impact would occur where toilet rooms that comply with current ADAAG, but not with the proposed Standards, are altered. A relatively minor alteration to a toilet room could trigger a requirement to increase the overall size of the toilet room and to relocate fixtures. However, in practice, the likely result will be that work in single-user toilet rooms will be carefully limited to avoid triggering the obligation to provide increase clearance at the water closet. It is clear that wall and floor finishes could be replaced or upgraded without triggering the additional clearance requirements, and that a fixture could be replaced with a like replacement as part of repair or maintenance. Unless the planned alteration would involve moving of walls or fixtures, it does not appear that there would be any basis for the increased water closet clearance requirements to be triggered. The Department should clarify that repairs, maintenance, or small alteration work would not trigger an obligation to increase the water closet clearance. Existing buildings with existing single-user toilet rooms or only separate-sex toilet rooms not in full compliance with current ADAAG will be most significantly impacted by this increased space requirement. Existing single-user toilet rooms that are not in conformance with current ADAAG would likely be further out of conformance with the new Standards. For facilities subject to the barrier removal obligation, this would make it less likely that achieving compliance would be readily achievable. An alteration undertaken to the toilet room could trigger an obligation to comply; therefore, a common approach would be to avoid a level of work that would trigger compliance, especially where the space is not available to provide the additional clearance. Alterations to primary function areas that would trigger a path of travel obligation would be the most likely activity that would trigger work to increase the size of the single-sex toilet room. Existing buildings with separate-sex toilet rooms not in conformance with current ADAAG will find it more difficult to achieve conformance with the proposed Standards. Multiple-fixture separate-sex toilet rooms will be subject to more restrictive requirements, due to the elimination of exceptions in current ADAAG that allow smaller "alternate stall" configurations where a fully-compliant toilet compartment cannot be provided. The combination of this change and the increased size for the single-sex toilet room make it less likely that it will be readily achievable to provide a compliant toilet room through barrier removal, and will significantly increase the cost of compliance where the toilet rooms are altered or where the path of travel obligation is triggered. BOMA International is concerned with the elimination of exceptions that allow for alternative configurations where full compliance cannot be achieved in existing buildings. Elimination of the two 'alternate' toilet compartment configurations in current ADAAG might be viewed by some as increasing access, by mandating the 'best' compartment size; BOMA sees it as a loss of valuable guidance to those existing facilities that are unable to achieve full compliance in barrier removal or alterations. Similarly, the change that removes the three options for clearances around water closets, and will permit only the largest parallel- and forward-approach configuration, will make it less likely that barrier removal will occur, and will make it more difficult for alterations to comply. Where there is inadequate space for full compliance in alterations, providing 'alternate' configurations is a valuable tool. Without such additional guidance, there will be a wide variety of solutions provided where full compliance is not feasible, some of which will not be usable. The Department should consider allowing the continued use of the other water closet configurations permitted in current ADAAG in the case of alterations where there is not adequate clearance for the combined parallel- and forward approach clearance. The Department should clarify the application of Exception 2 to Section 210.1, and make it clear that handrails on all means of egress stairs are not required to comply with Section 504 as part of barrier removal or as part of path of travel obligations. This would appear to be the case under the broad 'safe harbor' provisions for both barrier removal and path of travel; however, the wording of the exception makes it unclear how it would be applied. There is no justification to mandate alterations to handrails on stairs in existing buildings where an accessible route is already provided. If the exception only triggers compliant handrails where the stairs are altered, the provision would likely rarely trigger handrail work that was not otherwise planned. Model codes typically include specific provisions for handrails, and include exceptions for existing handrail configurations and locations that meet previous code provisions. Retroactive upgrades are required in very rare circumstances, only where it is determined that conditions create a significant, and imminent, hazard. The Department should clarify that, in the instance of alterations that trigger the path of travel obligation, stairs (and their handrails) are never included as part of the path of travel where an accessible route is already provided. Attempting to introduce retroactive means of egress upgrades into the Standards is inappropriate, and is also inconsistent with the reference to the International Building Code for accessible means of egress provisions. The IBC exempts existing buildings from accessible means of egress requirements. As shown in the Regulatory Impact Analysis, this approach also adds an enormous cost impact to the new Standards with no real benefit. If the referenced code will exempt all other accessible means of egress provisions in existing buildings, what is the rationale for mandating what could easily be $100 million of handrail retrofits? The Regulatory Impact Analysis notes the following 'incremental' change regarding alterations to elevators: When an element in an existing elevator is altered, the same element will have to be altered in any other elevators that are programmed to respond to the same call button. Currently, only elements being altered have to be made accessible. This is a provision that was added with the intent of trying to regulate more accessibility; however the result will be less access in elevators in existing buildings. Provided 'safe harbor' exceptions for barrier removal and path of travel obligations are maintained in the Final Rule, the major impact of this new provision will be the over-regulation of planned alterations and upgrades to existing elevator equipment. If a facility determines that it can spend "X" dollars annually on elevator upgrades, currently they can allocate funds annually in the most efficient manner, leading to fully upgraded elevators in the shortest time and at the least cost. This change will prohibit undertaking any upgrade unless the same upgrades are performed in multiple elevators at the same time. There is no logical way to replace 1/5 of the control panel in 5 cars at once; the result is that no upgrades will occur for 5 years or, worse, the facility will not undertake elevator upgrades at all, preferring to allocate funds where they can be used in a more logical fashion. The proposed 'solution' to this new requirement is supposedly to add separate hall controls for the 'accessible' elevator(s), which would then allow only those elevators to be upgraded. This wastes money on the installation of interim separate call stations, and likely extends the length of time it will take to provide fully compliant elevators. It also sets the precedent for the Department's position that it is acceptable to provide a single 'accessible' elevator, for which users may need to queue up and wait for long periods of time, while the multiple non-compliant adjacent elevators quickly serve the majority of the building population. As written, this new language will lead to any 'phasing' of work being cited as a violation. The Standards, as proposed, would require a facility to take all the elevators in a bank out of service so that they could all be upgraded at the same time. Any phasing (l car out of service per day, per week, or per month) violates the letter of this requirement, and will lead to frivolous complaints and lawsuits. The Department should return this flawed provision to the Access Board and not include it in the Final Rule. BOMA International has become aware of another issue in the proposed Standards that eithef needs to be clarified by the Department. "404.2.7. Door and Gate Hardware. Handles, pulls, latches, locks and other operable parts on doors and gates shall comply with 309.4 .... " "404.2.9 Door and Gate Opening Force. Fire doors shall have a minimum opening force allowable by the appropriate administrative authority. The force for pushing or pulling open a door or gate other than fire doors shall be as follows: 1. Interior hinged doors and gates: 5 pounds (22.2 N) maximum. 2. Sliding or folding doors: 5 pounds (22.2 N) maximum. These forces do not apply to the force required to retract latch bolts or disengage other devices that hold the door open or gate in the closed position." "Operable parts shall be operable with one hand and shall not require tight grasping, pinching, or twisting of the wrist. The force required to activate operable parts shall be 5 pounds (22.2 N) maximum." In current ADAAG, the equivalent section on door hardware does not include a requirement for hardware to meet the 5 pounds force limitation. The wording in the proposed Standards is consistent with that proposed by the ADAAG Review Federal Advisory Committee, on which BOMA International served. BOMA International believes that the intent of these sections remain consistent with current ADAAG; that is, the last sentence of 404.2.9 exempts door hardware from the 5 pound force limitation. "A lock component having a beveled end which projects from the lock front in an extended position, but may be forced back into the lock case by end pressure or drawn back by action of the lock mechanism. When the door is closed, the latch bolt projects into a hole provided in the strike thus holding the door in a closed position." BOMA International has become aware that some may read these editorially revised sections to somehow introduce a major change to the regulation of door hardware that was not intended. A review of the Preamble and the Regulatory Impact Analysis does not provide any indication that the Department believes a change from current ADAAG has been proposed. The Department can easily clarify this issue, so that the question of allowable force on door hardware does not become a contested issue in the new Standards. The Department could seek to modify the text of 404.2.7 to eliminate the reference to Section 309.4, and provide language similar to current ADAAG, applying only the performance criteria without the specific force limitation. At a minimum, the Department could specifically state in the Preamble to the Final Rule and in the Final Regulatory Impact Analysis that no change to door hardware was intended, and that the 'exception' at 404.2.9 applies to door hardware. If, on the other hand, the Department believes that the 5-pound force limitation is intended to apply to door hardware, the Department has failed to adequately assess the impact of the proposed Standards. Nothing in the Regulatory Impact Analysis addresses the costs involved in trying to retroactively make existing installations comply with a newly-introduced maximum force, and nothing addresses the costs for making this a new construction requirement. Additionally, if the Department does intend to apply the 5-pound force to door hardware, the proposed Standards are flawed in that 404.2.9 would then include language that exempts the type of hardware most typically used. BOMA International does not believe that the Department intended a change of this magnitude for door hardware, and further, does not believe that the Department would want to undertake a new issue of this magnitude at this late point in the rulemaking process. Although this issue is not one of the eight issues that the Department was specifically seeking comment on, it is appropriate to be addressed and clarified in response to the Notice of Proposed Rulemaking. As the Department states: "The Department leaves open the possibility that, as a result of receipt of comments on an issue raised by the 2004 ADAAG, or if the Departments Regulatory Impact Analysis reveals that the costs of making a particular feature or facility accessible are disproportionate to the benefits to persons with disabilities, the Attorney General, as a member of the Access Board, may return the issue to the Access Board for further consideration of the particular feature or facility. In such a case, the Department would delay adoption of the accessibility requirement for the particular feature or facility in question in its final rule and await Access Board action before moving to consider any final action." Note that by clarifying that the proposed Standards are essentially the same as current ADAAG, the Department is not indicating that door hardware forces are not an issue. There are both fire door and other industry hardware standards that are currently widely in use that provide appropriate limits for door hardware forces, while ensuring that the hardware performs its necessary functions. BOMA International is not aware of any information provided during the ADAAG Review process, the Access Board rulemaking process, or the DOl rulemaking process that indicates specific or anecdotal problems with door hardware and its use by persons with disabilities. Question 46. Should the Department adopt a presumption whereby qualifying small businesses are presumed to have done what is readily achievable for a given year if, during the previous tax year, the entity spent at least one percent (l %) of its gross revenues on barrier removal? Why or why not? Is one percent (l %) an appropriate amount? Are gross revenues the appropriate measure? Why or why not? BOMA International recommends that the Department not adopt any specific benchmark for barrier removal expenditures. While providing such a benchmark might provide some comfort level to some covered entities, determining an appropriate benchmark for the breadth of entities and facilities covered by Title III will not be feasible, and, once established, any benchmark will lead to changing interpretations regarding the intent of the barrier removal obligation. One primary concern is whether establishing a specific benchmark for determining 'readily achievable' barrier removal is that it would appear to be contrary to Congressional intent. Whether any new benchmark would be voluntary or not, it would establish a specific criteria against which many facilities, and their barrier removal efforts, would be compared. This conflicts with the clear intent that barrier removal is something addressed on a case-by-case basis, and that it allows a wide range of both fully compliant retrofit work and 'cheap, easy' alternative solutions for dealing with existing architectural barriers. Establishing any specific barrier removal safe harbor expenditure level would quickly become the standard against which the barrier removal efforts of facilities would be assessed. This will be done not only on a forward-looking basis, but also used to assess whether facilities have spent enough over the past 16 years since the barrier removal obligation has been in effect. Whether intended or not by the Department, any benchmark would become a test applied by plaintiffs and considered by judges as an appropriate factor in determining resolution to complaints. Additionally, this would likely work its way into state and local regulations as a minimum requirement. Furthermore, a facility could probably spend several years worth of barrier removal funds simply to 1) create the documentation of all the barrier removal work that has been undertaken since 1992, and 2) to analyze how this compares to the revenues of the entity over the same period. Undoubtedly, the Department will also receive comment from advocacy groups challenging the concept of any benchmark, the specific criteria or percentages proposed, and allegations that businesses will simply 'cook the books' to show paper compliance with whatever benchmark is settled on. BOMA International is very concerned that establishing what will clearly be an arbitrary 'benchmark' will do little to provide clarity as to the intent of the barrier removal obligation and even less towards providing a comfort level or safety net for businesses concerned about exposure to Title III complaints or suits. Rather than increasing the extent to which barriers are removed due to the new 'clarity', the result will be an enormous accounting and documentation obligation, regardless of whether the benchmark is an optional or mandatory test. Similar to the current regulations, while a comprehensive facility survey is not required, it is a prudent course of action, and becomes a needed step in the event of a complaint or lawsuit, establishing a financial 'benchmark' will trigger a need for businesses to undergo forensic accounting to be able to show how they did (or why they chose not to) satisfy the new benchmark. Rather than reducing the burden of Title III for small business, the end result will increase costs for paperwork and financial document, which will either reduce funds available for barrier removal, or eat into the profit margin of the business. Both are contrary to the intent of this concept. Even if developing a specific benchmark level is appropriate, the criteria proposed by the Department are not. First, there appears to be no rationale for basing any benchmark on gross revenues. Businesses with equivalent gross revenues can have vastly different net revenues. 1% of gross revenues could be 30% or more of the net revenues of a high volume, low profit-margin operation such as a grocery store. Similarly, businesses that sell expensive products, such as automobile dealers, jewelry dealers, or electronics, will have very high gross revenues and vastly smaller net revenues. Any number based on gross revenues will unfairly demand a higher level of expenditure from these types of public accommodations, while allowing higher-profit margin operations to spend comparatively little of their profits to achieve the' safe harbor'. Another major factor ignored by the proposed benchmark is that some public accommodations have a very high percentage of 'places of public accommodation' that are part of their operations, and others have very limited 'places of public accommodation'. The great degree of variation would need to be assessed and factored in to determining the appropriate level of barrier removal. Establishing a benchmark would also reduce or eliminate some factors that are currently used when determining whether it is readily achievable to remove a barrier. For example, it is reasonable for a tenant to consider the length of time remaining on their lease prior to undertaking barrier removal within their existing space. Under a 'benchmark' scenario, the tenant would be taking a chance that they could be challenged for not doing enough to improve a space they were soon to move out of. Again, this would be a risk even if, as proposed, use of the benchmark were a voluntary choice. In a facility that was in compliance with the majority of current ADAAG, except for one major item (lack of an elevator, for example), creation of an annual 'benchmark' could lead to claims that major barrier removal would clearly be required at a certain point in time. Claims will be made that a facility should be setting aside the 'benchmarked' funds on an annual basis until they can remove the barrier. This would be inconsistent with the current approach, where there is no precedent for establishing an ongoing escrow fund for long-term barrier removal. Barrier removal is supposed to be an ongoing obligation, but nothing in the current regulations indicates it is intended to be a permanent tax on a business until the facility is 100% compliant. Question 50. The Department proposes using the start of construction as the triggering event for applying the proposed standards to new construction under title III. The Department asks for public comment on how to define the start of construction and the practicality of applying commencement of construction as a triggering event. Is the proposed definition of the start of construction sufficiently clear and inclusive of different types offacilities? Please be specific about the situations that are not covered in the proposed definitions, and suggest alternatives or additional language. In addition, the Department asks that the public identify facilities subject to title III for which commencement of construction would be ambiguous or problematic. BOMA International is opposed to a six-month effective date from the time of Final Rule publication, particularly where it is tied to a 'construction start' trigger for new construction. This does not provide adequate lead-time for larger construction projects. It is unreasonable for the Department to rush the implementation date for new construction after the total federal process to update the Standards took more than a decade. A six-month effective date after publication of the Final Rule would be acceptable only if the Department had provided a clear timeline as to when the Final Rule would be published. Assuming the Final Rule is published soon after the NPRM public comment period ends, new construction would potentially be covered less than 12 months from now, without the Department as of yet providing notice of the impending effective date. This is simply an unacceptable notice of the significant changes imposed by the new Standards. At a minimum, a phase-in period comparable to that for current ADAAG should be provided. BOMA International does support adding the 'construction start' date as an additional test for determining whether a project is covered by the new Standards, but it should not be the only test, unless the effective date is extended well beyond six months. New construction would be required to comply with the new Standards where all of the following apply: • Last permit (or permit extension): received >6 months after publication of Final Rule, and • Construction commences >6 months after publication, and • Occupancy permit received> 18 months after publication of Final Rule. BOMA International recommends that the Department use an eighteen-month implementation period for the new Standards, modeled after the approach used to implement the current Standards. Any shorter implementation period would result in significant impact on large projects that take several years from design to occupancy. Even the eighteen-month implementation period will create problems for large projects when the new Standards are implemented. Eighteen months may be an adequate time frame for design and construction of a single-family home, but it does not reflect the reality of the timelines required for the design and construction of larger commercial properties. There may be design costs for making changes to a project to meet the new Standards, or both design and construction costs if construction has already commenced. Even with the 'two-trigger' approach (final permit date or occupancy date) used for determining if a project is covered, there are still many projects for which an eighteen-month lead-time is very short. Alterations should receive at least a six-month phase-in, consistent with current ADAAG. While this does create similar problems as those faced by new construction, a very large percentage of alteration projects are of a scale that they should be able to accommodate the phase-in. The fact that all those involved in the design, development, and construction industry are now familiar with ADAAG does not justify a faster implementation of the new Standards. Regardless of the familiarity with current ADAAG, the new Standards are organized in an entirely different manner, and do contain extensive changes, both large and small. For those who have not been tracking the development of the new Standards and their process through the Access Board, the shift from the old to the new will be quite complicated. It would be unwise for the Department to attempt to rush the implementation of the new Standards after publication of the Final Rule. BOMA International and its' members have been awaiting the new Standards since 1996, when the Access Boards' ADAAG Review Advisory Committee submitted their final report. Upon publication of the Departments' Final Rule, there will likely be those who will begin using the new Standards immediately; those already familiar with the new Standards will recognize the benefits of doing so. However, forcing those not already familiar with the new Standards to incorporate them into projects already well into the design or construction pipeline would only result in errors, poor implementation, and unnecessary costs. BOMA International members, in jurisdictions where the building code is currently certified, have expressed concern that, depending on the effective date of the new Standards after publication of the Final Rule, there will not be adequate time for the certified code to be amended. This will leave those undertaking new construction or alteration projects trapped between conflicting state/local code requirements (which are certified as being equivalent to ADAAG) and the new federal Standards. This situation will be worse than when ADAAG first became effective, as most jurisdictions with certified codes have implemented extremely strict amendment/waiver processes to ensure they do not exempt their certified, federally-equivalent accessibility requirements. Amending the building code in some jurisdictions first requires the passage of legislation. In other jurisdictions, there is a lengthy drafting and public review/hearing process that must be utilized. There is no mechanism to shortcut these procedures at the state and local level. Without knowing when the Final Rule will be published, and what the effective date will be, state and local jurisdictions cannot commit to beginning the amendment/update process. Combined with the proposed six-month phase-in period, this will create enormous hardships, with certified jurisdictions unable to formally amend their certified codes prior to the effective dates of the new Standards. Ironically, the problem will be greatest in those jurisdictions that chose to create a 'certifiable' code by adopting current ADAAG as the basis of their state/local code. Jurisdictions using later editions of the International Building Code and the ICC/ ANSI A 117.1 standard, whether currently certified or not, will find that their code is much closer to the federal Standards once the Final Rule is issued. Extending the effective date phase-in period offers the only practical solution to reduce the significant problems that will be created by the issuance of a Final Rule at some undefined point in the near future. The Department indicates in the NPRM Preamble that, in the time period between publication of the Final Rule and the effective date, efforts and resources will be focused on assisting states with certified codes in identifying changes necessary to obtain Ore-certification' under the new Standards. Unless the effective date is expanded significantly beyond the proposed 6 months, this focused effort will do little to eliminate the major conflicts that will occur. There are few (if any) states that can start and complete a code amendment process in a 6-month time frame. Because several states with certified codes currently have either 'home-grown' accessibility requirements or use current ADAAG as the basis of their state accessibility code, a Department decision to focus initial efforts on currently certified jurisdictions may actually slow down the speed and number of codes that can be reviewed. As the Department notes in numerous locations in the Preamble, the new Standards are very consistent with the accessibility provisions of the International Building Code and the ICC/ANSI A117.1 standard. Focusing on these model documents, or jurisdictions that use them as the basis of their accessibility codes, would provide information needed by a large number of jurisdictions. BOMA International recognizes that, due to increased scope of the new Standards, regulation of some covered facilities or elements will fall under different departments or agencies. The Department notes that it contemplates "that when a jurisdiction uses more than one regulatory scheme to incorporate its accessibility requirements for Title III facilities, all of the requirements would be the subject of a request for certification ... " BOMA International recommends that where multiple regulatory schemes are involved to cover the full breadth of facilities covered by the new Standards, the Department allow certification even though not all agencies have been included. For example, if a building department wishes to seek certification of the building code, it should be able to do so, even if another agency regulates docks and piers, and is not interested in pursuing certification.
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