Attachment 1 thru Attachment 5.pdf

"REGISTER OF WAGE DETERMINATIONS UNDER | U.S. DEPARTMENT OF LABOR

THE SERVICE CONTRACT ACT | EMPLOYMENT STANDARDS ADMINISTRATION

By direction of the Secretary of Labor | WAGE AND HOUR DIVISION

| WASHINGTON D.C. 20210

| Wage Determination No.: 1998-0294 Daniel W. Simms Division of | Revision No.: 42 Director Wage Determinations| Date Of Last Revision: 09/23/2020 Note: Under Executive Order (EO) 13658 an hourly minimum wage of $10.80 for calendar year 2020 applies to all contracts subject to the Service Contract Act for which the contract is awarded (and any solicitation was issued) on or after January 1 2015. If this contract is covered by the EO the contractor must pay all workers in any classification listed on this wage determination at least $10.80 per hour (or the applicable wage rate listed on this wage determination if it is higher) for all hours spent performing on the contract in calendar year 2020. The EO minimum wage rate will be adjusted annually. Additional information on contractor requirements and worker protections under the EO is available at www.dol.gov/whd/govcontracts.

State: Georgia

Area: Georgia Counties of Brantley Glynn Pierce

**Fringe Benefits Required Follow the Occupational Listing**

OCCUPATION CODE - TITLE FOOTNOTE RATE

Food & Lodging:

07041 - Cook I 12.18 07042 - Cook II 14.44 07070 - Dishwasher 9.32 07130 - Food Service Worker 10.04 07260 - Waiter/Waitress 9.32 11060 - Elevator Operator 9.32 11210 - Laborer Grounds Maintenance 10.04 11240 - Maid or Houseman 10.04 99030 - Cashier 10.04 99050 - Desk Clerk (see 1) 10.04 Halfway House & Residential Community Treatment:

01011 - Accounting Clerk I 12.71 01012 - Accounting Clerk II 13.73 01111 - General Clerk I 11.53 01311 - Secretary I 14.74 01611 - Word Processor I 11.53 07041 - Cook I 12.18 07042 - Cook II 14.44 07070 - Dishwasher 9.32 07130 - Food Service Worker 10.04 11150 - Janitor 10.04 11210 - Laborer Grounds Maintenance 10.04 11240 - Maid or Houseman 10.04 23370 - General Maintenance Worker 12.94 27101 - Guard I 11.61 27102 - Guard II 12.40 99050 - Desk Clerk (see 1) 11.53 Moving & Storage:

21020 - Forklift Operator 12.18 21050 - Material Handling Laborer 10.66

12/14/2020https://beta.sam.gov/wage-determination/1998-0294/42?index=wd&is_active=true&date_...

21110 - Shipping Packer 12.18 21410 - Warehouse Specialist 12.18 31361 - Truckdriver Light 12.18 31362 - Truckdriver Medium 12.94 31363 - Truckdriver Heavy 13.72 31364 - Truckdriver Tractor-Trailer 14.44

Note: Executive Order (EO) 13706 Establishing Paid Sick Leave for Federal Contractors applies to all contracts subject to the Service Contract Act for which the contract is awarded (and any solicitation was issued) on or after January 1 2017. If this contract is covered by the EO the contractor must provide employees with 1 hour of paid sick leave for every 30 hours they work up to 56 hours of paid sick leave each year. Employees must be permitted to use paid sick leave for their own illness injury or other health-related needs including preventive care; to assist a family member (or person who is like family to the employee) who is ill injured or has other health-related needs including preventive care; or for reasons resulting from or to assist a family member (or person who is like family to the employee) who is the victim of domestic violence sexual assault or stalking. Additional information on contractor requirements and worker protections under the EO is available at www.dol.gov/whd/govcontracts.

ALL OCCUPATIONS LISTED ABOVE RECEIVE THE FOLLOWING BENEFITS:

HEALTH & WELFARE: $4.54 per hour up to 40 hours per week or $181.60 per week or $786.93 per month

HEALTH & WELFARE EO 13706: $4.22 per hour up to 40 hours per week or $168.80 per week or $731.47 per month*

*This rate is to be used only when compensating employees for performance on an SCA-covered contract also covered by EO 13706 Establishing Paid Sick Leave for Federal Contractors. A contractor may not receive credit toward its SCA obligations for any paid sick leave provided pursuant to EO 13706.

VACATION: 2 weeks paid vacation after 1 year of service with a contractor or successor 3 weeks after 8 years and 4 weeks after 15 years. Length of service includes the whole span of continuous service with the present contractor or successor wherever employed and with the predecessor contractors in the performance of similar work at the same Federal facility. (See 29 CFR 4.173)

HOLIDAYS: A minimum of ten paid holidays per year: New Year's Day Martin Luther King Jr.'s Birthday Washington's Birthday Memorial Day Independence Day Labor Day Columbus Day Veterans' Day Thanksgiving Day and Christmas Day. (A contractor may substitute for any of the named holidays another day off with pay in accordance with a plan communicated to the employees involved.) (See 29 CFR 4.174)

THE OCCUPATIONS WHICH HAVE NUMBERED FOOTNOTES IN PARENTHESES RECEIVE THE FOLLOWING:

1) Rates are applicable only under the appropriate occupational category.

** UNIFORM ALLOWANCE **

If employees are required to wear uniforms in the performance of this contract (either by the terms of the Government contract by the employer by the state or local law etc.) the cost of furnishing such uniforms and maintaining (by laundering or dry cleaning) such uniforms is an expense that may not be borne by an employee where such cost reduces the hourly rate below that required by the wage determination. The Department of Labor will accept payment in accordance with the following standards as compliance:

The contractor or subcontractor is required to furnish all employees with an adequate number of uniforms without cost or to reimburse employees for the actual cost of the uniforms. In addition where uniform cleaning and maintenance is made the responsibility of the employee all contractors and subcontractors subject to this wage determination shall (in the absence of a bona fide collective bargaining agreement providing for a different amount or the furnishing of contrary affirmative proof as to the actual cost) reimburse all employees for such cleaning and maintenance at a rate of $3.35 per week (or $.67 cents per day). However in those instances where the uniforms furnished are made of ""wash and wear"" materials may be routinely washed and dried with other personal garments and do not require any special treatment such as dry cleaning daily washing or commercial laundering in order to meet the cleanliness or appearance standards set by the terms of the Government contract by the contractor by law or by the nature of the work there is no requirement that employees be reimbursed for uniform maintenance costs.

** SERVICE CONTRACT ACT DIRECTORY OF OCCUPATIONS **

The duties of employees under job titles listed are those described in the ""Service Contract Act Directory of Occupations"" Fifth Edition (Revision 1) dated September 2015 unless otherwise indicated.

REQUEST FOR AUTHORIZATION OF ADDITIONAL CLASSIFICATION AND WAGE RATE

Standard Form 1444 (SF-1444)

Conformance Process:

The contracting officer shall require that any class of service employee which is not listed herein and which is to be employed under the contract (i.e. the work to be performed is not performed by any classification listed in the wage determination) be classified by the contractor so as to provide a reasonable relationship (i.e. appropriate level of skill comparison) between such unlisted classifications and the classifications listed in the wage determination. Such conformed classes of employees shall be paid the monetary wages and furnished the fringe benefits as are determined (See 29 CFR 4.6(b)(2)(i)). Such conforming procedures shall be initiated by the contractor prior to the performance of contract work by such unlisted class(es) of employees (See 29 CFR 4.6(b)(2)(ii)). The Wage and Hour Division shall make a final determination of conformed classification wage rate and/or fringe benefits which shall be retroactive to the commencement date of the contract (See 29 CFR 4.6(b)(2)(iv)(C)(vi)). When multiple wage determinations are included in a contract a separate SF-1444 should be prepared for each wage determination to which a class(es) is to be conformed.

The process for preparing a conformance request is as follows:

1) When preparing the bid the contractor identifies the need for a conformed occupation(s) and computes a proposed rate(s).

2) After contract award the contractor prepares a written report listing in order the proposed classification title(s) a Federal grade equivalency (FGE) for each proposed classification(s) job description(s) and rationale for proposed wage rate(s) including information regarding the agreement or disagreement of the authorized representative of the employees involved or where there is no authorized representative the employees themselves. This report should be submitted to the contracting officer no later than 30 days after such unlisted class(es) of employees performs any contract work.

3) The contracting officer reviews the proposed action and promptly submits a report of the action together with the agency's recommendations and pertinent information including the position of the contractor and the employees to the Wage and Hour Division U.S. Department of Labor for review (See 29 CFR 4.6(b)(2)(ii)).

4) Within 30 days of receipt the Wage and Hour Division approves modifies or disapproves the action via transmittal to the agency contracting officer or notifies the contracting officer that additional time will be required to process the request.

5) The contracting officer transmits the Wage and Hour decision to the contractor.

6) The contractor informs the affected employees.

Information required by the Regulations must be submitted on SF-1444 or bond paper.

When preparing a conformance request the ""Service Contract Act Directory of Occupations"" (the Directory) should be used to compare job definitions to ensure that duties requested are not performed by a classification already listed in the wage determination. Remember it is not the job title but the required tasks that determine whether a class is included in an established wage determination.

Conformances may not be used to artificially split combine or subdivide classifications listed in the wage determination."

Federal Law Enforcement Training Center Off-Center Lodging Attachment 2: Occupational Safety and Health Act Of 1970

Attachment 3: Hotel and Motel Fire Safety Act of 1979

Attachment 4: Fire Administration Acto of 1992

Attachment 5: Americans With Disabilities Act Title IIIi Regulations

NOTICE:

The title III regulation was modified by the Pool Extension Final Rule, the ADA Amendments Act Final Rule, and the Movie Captioning and Audio

Description Final Rule, which can be found in the Title III Regulation Supplement. This document and the supplement should be read together for the most up-to-date regulation.

Alternatively, the fully updated regulation is available in html.

http://www.ada.gov/regs2010/titleIII_2010/title_iii_reg_update.pdf http://www.ada.gov/regs2010/titleIII_2010/title_iii_reg_update.pdf https://www.ada.gov/regs2010/titleIII_2010/titleIII_2010_regulations.htm

Americans with Disabilities Act Title III Regulations

Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities

Department of Justice

September 15, 2010

Contents

1 Supplementary Information.....………...……... 1

Revised Final Title III Regulation with Integrated Text

2010 Guidance and Section-by-Section Analysis

1991 Preamble and Section-by-Section Analysis i ii Department of Justice

Title III Regulations

Supplementary Information

28 CFR Part 36

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 Depart- ment of Justice (Department) regulation that implements title III of the Americans with Disabil- ities 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 is- sued by the Architectural and Transportation Bar- riers 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 Galin- do-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 In- formation Line at (800) 514–0301 (voice) or (800)

514–0383 (TTY).

This rule is also available in an accessible for- mat on the ADA Home Page at http://www.ada. gov. You may obtain copies of this rule in large print or on computer disk by calling the ADA In- formation Line listed above.

Title III

SUPPLEMENTARY INFORMATION:

The Roles of the Access Board and the Depart- ment 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 De- partment of Justice and the Department of Trans- portation (DOT). Originally, the Access Board was established to develop and maintain accessi- bility guidelines for facilities designed, construct- ed, 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 ex- panded 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 build- ings, facilities, rail passenger cars, and vehicles are accessible, in terms of architecture and design, transportation, and communication, to individu- als with disabilities.’’ 42 U.S.C. 12204. The ADA requires the Department to issue regulations that include enforceable accessibility standards appli- cable 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), Department of Justice Supplementary Information- 1

12186(c), but vests in the Attorney General sole responsibility for the promulgation of those stan- dards that fall within the Department’s jurisdiction and enforcement of the regulations.

The ADA also requires the Department to de- velop 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 re- quirement applicable to existing facilities under title III of the ADA and to the provision of pro- gram 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 disability.1 The ADA broadly protects the rights of individuals with disabilities in em- ployment, access to State and local government services, places of public accommodation, trans- portation, 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 commer-cial 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

1 On September 25, 2008, President George W.Bush signed into law the Americans with Disabilities Amendments Act of 2008 (ADA Amendments Act), Public Law 110–325. The ADA Amendments Act amended the ADA definition of disability to clarify its coverage of persons with disabilities and to provide guidance on the application of the definition. This final rule does not contain regulatory language implement- ing the ADA Amendments Act. The Department intends to publish a supplemental rule to amend the regulatory definition of ‘‘disability’’ to implement the changes mandated by that law.

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 transport- ing people (section 304). See 42 U.S.C. 12182(b), 12184, 12186(a). Section 306(b) directs the At- torney 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 in- dividuals with disabilities from discrimination on the basis of disability in services, programs, and activities provided by State and local govern- ment 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 lo- cal governments regardless of whether these enti- ties 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 doc- tors’ offices) and requires newly constructed or altered places of public accommodation—as well as commercial facilities (privately owned, nonresi- dential facilities such as factories, warehouses, or office buildings)—to comply with the ADA Stan- dards. 42 U.S.C. 12181–89.

On July 26, 1991, the Department issued rules implementing title II and title III, which are codi- fied 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 Acces- sible Design (1991 Standards), which were based upon the version of the Americans with Disabili- ties Act Accessibility Guidelines (1991 ADAAG) published by the Access Board on the same date. Under the Department’s 1991 title III regulation, 2 - Supplementary Information Department of Justice 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 be- tween Federal accessibility requirements and State and local building codes. In support of this effort, the Department is amending its regulation imple- menting title III and adopting standards consistent with ADA Chapter 1, ADA Chapter 2, and Chap- ters 3 through 10 of the 2004 ADA/ABA Guide- lines. 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 de- signed for use by children, 63 FR 2060 (Jan. 13, 1998). In 1999, based largely on the report and recommendations of the advisory com- mittee, the Access Board issued a notice of pro- posed 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 rec- reation 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 lo- cal 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 Guide- lines. As a Federal member of the Access Board, the Attorney General’s representative voted to ap- prove the revised guidelines. ADA Chapter 1 and ADA Chapter 2 of the 2004 ADA/ABA Guide- lines 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 mini- mize 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 Chap- ter 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 Depart-

Department of Justice Supplementary Information- 3 ment is adopting revised ADA Standards consis- tent with the 2004 ADAAG, including all of the amendments to the 1991 ADAAG since 1998.

For the purposes of this part, the Department’s re- vised standards are entitled ‘‘The 2010 Standards for Accessible Design’’ and consist of the 2004 ADAAG and the requirements contained in sub- part 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 fi- nal 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 enti- ties not primarily engaged in the business of trans- porting 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 busi- ness of transporting people. This regulation covers those aspects of the vessel’s operation relating to the use and enjoyment of the public accommoda- tion, 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 ac- commodation are covered by this regulation and the Department of Transportation’s passenger ves- sel 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 Trans- portation for guidance or further information.

However, the Department of Justice has enforce- ment 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 ap- plication of this rule to vessel operators who are private entities not primarily engaged in the busi- ness of transporting people, the Department of Justice views the obligations of those vessel op-erators 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 rea- sons: (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 back- ground information that would assist the Depart- ment in preparing a regulatory analysis under the guidance provided in Office of Management and

4 - Supplementary Information Department of Justice

Budget (OMB) Circular A–4 sections D (Analyti- cal 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 com- ments provided to the Access Board during its de- velopment of the 2004 ADAAG, the Department specifically requested public comment on the po-tential application of the 2004 ADAAG to existing facilities. The extent to which the 2004 ADAAG is used with respect to the barrier removal require- ment 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 sub- stantial. 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 http://www.whitehouse.gov/OMB/

Department, including questions regarding the De- partment’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 ad- dressed 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; reserva- tions 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 re-garding elements scoped for the first time in the 2004 ADAAG, including recreation facilities and play areas.

Commenters also provided some in- formation on how to assess the cost of elements in small facilities, office buildings, hotels and mo- tels, 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 compli- ance with the proposed standards.

After careful consideration of the public com- ments in response to the ANPRM, on June 17, 2008, the Department published an NPRM covering title III. 73 FR 34508. The De- partment also published an NPRM on that day covering title II. 73 FR 34466. The NPRMs ad- dressed the issues raised in the public’s comments to the ANPRM and sought additional comment, generally and in specific areas, such as the Depart- ment’s adoption of the 2004 ADAAG, the Depart- ment’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 addi- tional 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 is- sues, many of which were common to the title II and title III NPRMs, from representatives of businesses and industries, State and local gov- ernment agencies, disability advocacy organiza- tions, 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, Department of Justice Supplementary Information- 5 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 re- quirements 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 ques- tions posed by the Department concerning certain specific requirements in the 2004 ADAAG.

Relationship to Other Laws

The Department of Justice regulation imple- menting title III, 28 CFR 36.103, provides the fol- lowing:

(a) Rule of interpretation. Except as otherwise provided in this part, this part shall not be con- strued 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 ob- ligations of a recipient of Federal financial assis- tance 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 protec- tion 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 ac- commodations subject to title III of the ADA may also be subject to title I of the ADA, which pro- hibits 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 pro- grams and activities of recipients of Federal finan- cial 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 discrimi- nation 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 dif- ferent 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 ac- commodations that operate housing facilities must ensure that they apply the reasonable accommo- dation 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 reduc- ing their FHAct obligations. In addition, nothing

6 - Supplementary Information Department of Justice 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 pur- poses of the ACAA and is thus allowed on an air- plane, 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 ani- mal the animal lawfully could be excluded.

Organization of This Rule

Throughout this rule, the original ADA Stan- dards, which are republished as Appendix D to 28 CFR part 36, will be referred to as the ‘‘1991 Standards.’’ The original title III regulation, codi- fied 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 Rulemak- ing, 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 to- gether, 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 sec- tion, and, as a result, has made several clarifica- tions 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 Com- mercial 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 Appendix A 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 sec- tions 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 com- ments. 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 Appendix A en- titled ‘‘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 Stan- dards, as well as a discussion of the public com- ments 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 ef- fect six months from its publication in the Fed- eral 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

Department of Justice Supplementary Information- 7 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 Al- terations’’ and ‘‘Section 36.302(e) Hotel Reserva- tions.’’

This final rule only addresses issues that were identified in the NPRM as subjects the Depart- ment 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, acces- sible 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 acces- sibility in these areas and others, including next generation 9–1–1 and accessibility of Web sites operated by covered public entities and public ac- commodations.

ADDITIONAL INFORMATION:

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

The Department must provide two types of as- sessments 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; Regula- tory 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 Circu-lar 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 Regu- latory Impact Analysis (Initial RIA), available at http://www.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 nonmon- etized benefits) to persons with disabilities, the At- torney 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 unneces- sary 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 Regula- tory Impact Analysis (Final RIA or RIA) was pre- pared 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 recog-nize that the ADA is intended to provide important benefits that are distributional and equitable in character. The ADA states, ‘‘[i]t is the purpose

8 - Supplementary Information Department of Justice http://www.whitehouse.gov/ http://www.ada.gov/NPRM2008/ria.htm of this [Act] (1) to provide a clear and compre- hensive national mandate for the elimination of discrimination against individuals with disabili- ties; [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, segrega- tion, 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 fa-cilities, 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 repre- sent 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’’) re- quirements 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 simul- taneously. A copy of the Final RIA will be made available online for public review on the Depart- ment’s ADA Home Page (http://www.ada.gov).

From an economic perspective (as specified in OMB Circular A–B4), the results of the Final RIA demonstrate that the Department’s final rules in- crease social resources and thus represent a public good because monetized benefits exceed mon- etized costs—that is, the regulations have a posi- tive 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 sce- nario 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 dis- count rate). See Final RIA, table ES–1 & figure ES–2.

Department of Justice Supplementary Information- 9

Expected Impact of the Rules2

(in billions)

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 stan- dards relating to water closet clearances in single- user toilet rooms. The primary effect of the De- partment’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 clear- ance space in single-user toilet rooms between and around the toilet and the lavatory does not permit these methods of transfer. Side or parallel trans- fers are used by large numbers of persons who use wheelchairs and are regularly taught in rehabilita- tion 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 as-

2 The analysis assumes these regulations will be in force for 15 years. Incremental costs and benefits are calculated for all construction, alterations, and barrier removal that is expected to occur during these 15 years. The analysis also assumes that any new or revised ADA rules enacted 15 years from now will include a safe harbor provision. Thus, any facilities constructed in year 14 of the final rules are assumed to continue to generate benefits to users, and to incur any operating or replacement costs for the life of these buildings, which is assumed to be 40 years.

sistance in toileting, or forgo the visit entirely. The revised water closet clearance regulations would make single-user toilet rooms accessible to all per- sons who use wheelchairs, not…