CUNA Regulatory Comment Call

April 6, 2005

Advance Notice of Proposed Rulemaking on Application of ADA Standards Revisions


Please feel free to fax your responses to CUNA at 202-638-7052; or e-mail them to Associate General Counsel Mary Dunn at or to Assistant General Counsel Lilly Thomas at; or mail them to Mary or Lilly c/o CUNA’s Regulatory Advocacy Department, 601 Pennsylvania Avenue, NW, South Building, Suite 600, Washington, D.C. 20004. Click here to access the proposed rule.


The Department of Justice issued an Advance Notice of Proposed Rulemaking (ANPR) to start the process of adopting Parts I and III or the revised guidelines implementing the Americans with Disabilities Act of 1990 (ADA) and the Architectural Barriers Act of 1968 (ABA). The guidelines were published by the Architectural and Transportation Barriers Compliance Board (Access Board) on July 23, 2004. As required by the ADA, the Justice Department adopts and enforces standards that are consistent with the Access Board’s guidelines by issuing regulations to implement Title II and III of the ADA. Until the Justice Department issues final rules adopting the revised guidelines, they have no legal effect on the public and are effective only as guidance to the Justice Department.

The ADA is a comprehensive civil rights law prohibiting discrimination on the basis of disability. Revised accessibility guidelines were published by the Access Board to facilitate ADA compliance and enforcement by eliminating inconsistencies among Federal accessibility requirements and between State and local building codes. The Justice Department is planning to adopt standards that are consistent with Parts I and III of the Access Board’s revised guidelines as the ADA Standards for Accessible Design. This will be done in a separate Notice of Proposed Rulemaking.

The purpose of this Advance Notice of Proposed Rulemaking is to receive comments relating to the potential application of the revisions to the ADA Standards and to get background information for the regulatory assessment that the Department must prepare in the process of adopting the revisions to the ADA Standards.

Title III prohibits discrimination on the basis of disability in the activities of places of public accommodation such as businesses that are generally open to the public and that fall into one of the categories listed in the ADA. This includes credit unions since one of the categories listed in the ADA is a "service establishment" such as a credit union or bank. Title III requires newly constructed or altered places of public accommodation and commercial facilities to comply with ADA Standards. Both the ADA and ABA guidelines specify access in new constructions and alterations and provide detailed provisions for various building elements including ramps, elevators, restrooms, parking, signage, automated teller machines and other areas. Title II generally does not apply to credit unions since it applies to State and local government entities and protects qualified individuals with disabilities from discrimination in services, programs and activities provided by State and local government entities regardless of whether these entities receive Federal financial assistance.


The Justice Department is issuing this ANPR to announce its intention to publish a proposed rule that will adopt the revised ADA Standards that were issued in July 2004 consistent with all of the amendments to the ADA Accessibility Guidelines since 1998. The Justice Department is seeking comment on several issues that are divided into four substantive sections:

  1. General Issues
  2. Specific Issues
  3. Miscellaneous Matters, and
  4. Regulatory Assessment Issues

CUNA’s Comment Call focuses on the General Issues Section and the Specific Issues Section only addressing equipment as it relates to automated teller machines. The other areas under the Specific Issues Section, the Miscellaneous Matters Section and Regulatory Assessment Issues do not directly affect credit unions. (They include areas such as stadium-style seating, recreational facilities such as golf courses, individual complaints, and administrative remedies.) If you would like more information or would like to comment on other aspects of this ANPR, you can access the proposal listed in this comment call. Please feel free to submit all of your comments to CUNA.

Equipment Issues

The Architectural and Transportation Barriers Compliance Board (Access Board), which published revised guidelines implementing the ADA and ABA, has established guidelines that apply to a range of fixed equipment that is subject to the ADA. Fixed equipment is equipment that is built into or permanently attached to a new or altered facility. The Justice Department’s regulations will be based on the Access Board’s revised ADA Accessibility Guideline specifications to govern the installation of newly manufactured equipment in new construction or alterations.

The Access Board’s revised Accessibility Guidelines do not address operational issues like the acquisition of previously owned equipment or movable or portable equipment. However, these issues will be addressed in the Justice Department’s regulations.

Some building elements, such as ATMs, use manufactured equipment that becomes built into the structure of a facility (fixed equipment), which differs from equipment that continues to be portable or movable (free-standing equipment). The fixed equipment may be new for the covered entity, but it may not be newly manufactured because credit unions and other businesses will sometimes install previously owned equipment. There is concern that this equipment will be considered new for purposes of compliance simply because its first use occurs after the effective date of the revised ADA Standards. The Justice Department generally views the installation of previously used equipment in a new location as an alteration, rather than new construction. Therefore only the elements of the facility that are actually altered, such as the mounting height or entrance to the equipment, must comply with the revised Standards.

Although the revised ADA Standards will apply directly only to fixed equipment, the Justice Department is required to develop regulations that implement the general nondiscrimination requirements and specific prohibitions on discrimination. The Justice Department may establish requirements affecting equipment that is not fixed and is currently considering whether there is a need for its regulations to contain specific language about the acquisition and use of mobile, portable, and other free-standing equipment, such as free-standing ATMs. If specific requirements are addressed in the regulations, the ADA Standards may be used as guidance in determining whether different types of free-standing equipment are accessible to people with disabilities.

Triggering Events

The Justice Department is considering a triggering event that would identify an event or action that compels compliance with the ADA Standards. The Department’s existing regulations implementing Title II and III establish separate triggering events that work well for new construction and alterations. Currently, the regulations provide that under Title III, newly constructed facilities must be designed and constructed "for first occupancy" and altered facilities have a triggering event as the date "physical alteration begins." The current regulation for Title II provides that the triggering event for both new construction and alterations is the commencement of construction.

The Justice Department intends to use the same triggering event for each category as in existing regulations. However, there may be building situations in which these triggering events are not appropriate – particularly if facilities do not require building permits or do not receive certificates of occupancy.

The Justice Department must address the effect that new or changed ADA Standards will have on the continuing obligation of public accommodations to remove architectural, transportation, and communication barriers in existing facilities to the extent that it is readily achievable to do so. It would like to strike a balance to ensure that people with disabilities are able to have access to buildings and facilities without imposing unnecessary financial burdens on existing places of public accommodation. The Department is considering several ways in which to reduce the financial burdens.

The first option is to establish a safe harbor for any elements of existing facilities that are in compliance with the specific requirements of the current ADA Standards. The safe harbor option would be based on an element-by-element basis so that elements that are addressed for the first time in the revised Standards would not be subject to the safe harbor.

Another option would be to reduce the scoping requirements for some of the new or changed requirements as they are applied to existing facilities. This option would better apply to specific elements in the guidelines adopted for play areas and recreation facilities and may not apply as well to credit unions. The final option would be to determine that certain new or revised technical requirements are inappropriate for barrier removal and would not be required to satisfy a barrier removal obligation. This option is currently used to exempt employee work areas from any obligation to retrofit according to the barrier removal requirement.

Effective Date

The Department of Justice is seeking comment on an effective date to apply the revised ADA Standards to facilities that will be newly constructed or altered after the publication of its final rule. The Department is considering three options: six months, twelve months, or eighteen months after the publication of the final rule. The Department is considering a six-month time period because changes in scoping and technical specifications to the revised ADA Standards are primarily incremental. Additionally, the new requirements have been developed with extensive public participation and in some cases have been available to the public for several years. However, because covered entities may have large ongoing construction projects, they may need longer than six months to incorporate final changes to the revised ADA Standards into the design of their projects.

A twelve-month effective date is considered because it allows more time than six months to integrate the revised ADA Standards into the larger construction projects, but is not as long as the third option of eighteen months. Eighteen months is considered because it is the same time period used for the effective date of the ADA as a whole and of the current ADA Standards with respect to new construction under Title III. However, the longer effective date was used with new law with which there was little or no familiarity or experience unlike the current law with which the public has had extensive participation.


  1. Do you think guidance is necessary on the acquisition and use of mobile, portable, and other free-standing equipment, such as free-standing ATMs? If so, please provide specific examples of situations that should be addressed.

  2. Are you aware of any facilities for which the current triggering events for compelling compliance with the ADA Standards might be unworkable? Please specify the type of facility and what event other than “first use” would work better to comply.

  3. Should there be a safe harbor so that elements of facilities already in compliance with the current ADA Standards do not need to comply with the revised ADA Standards? If so, please provide as much detail as possible to support your view.

  4. Should the regulations have an alternative set of reduced scoping requirements for the barrier removal obligation? If so, which specific requirements or elements should be addressed? Please provide detailed information about the costs or difficulties that would be incurred in making the modification.

  5. Should the regulations exempt certain scoping and technical requirements in the revised ADA Standards that will not be required for barrier removal? If so, which specific requirements or elements should be addressed? Please provide detailed information about he costs or difficulties that would be incurred in making the modification.

  6. Should the effective date of the proposed revised ADA Standards be modeled on the effective date used to implement the current ADA Standards, eighteen months, or a shorter period? If you believe a shorter period is more favorable, please indicate which time period you prefer and provide as much detail as possible in support of your view.

  7. Do you have any additional comments on issues not raised in this Comment Call?

Eric Richard • General Counsel • (202) 508-6742 •
Mary Mitchell Dunn • SVP & Associate General Counsel • (202) 508-6736 •
Jeffrey Bloch • Assistant General Counsel • (202) 508-6732 •
Lilly Thomas • Assistant General Counsel • (202) 508-6733 •
Catherine Orr • Senior Regulatory Counsel • (202) 508-6743 •