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Please note, however, that the IBC 2006 version bases a number of its provisions on guidelines in the 2004 ADAAG.

These IBC versions, in turn, have been adopted collectively by forty-six (46) states and the District of Columbia on a statewide basis.

Through this NPRM, the Department is announcing its intention to publish a proposed rule that will adopt revised ADA Standards consistent with the 2004 ADAAG, including all of the amendments to the ADAAG since 1998. Early in the rulemaking process, the Department concluded that the economic impact of its adoption of the 2004 ADAAG as proposed standards for title II and title III was likely to exceed the threshold for significant regulatory actions of 0 million.

The Department published an advance notice of proposed rulemaking (ANPRM) on September 30, 2004, 69 FR 58768, for two reasons: (1) To begin the process of adopting the Access Board's 2004 ADAAG by soliciting public input on issues relating to the potential application of the Access Board's revisions once the Department adopts them as revised standards; and (2) to request background information that would assist the Department in preparing a regulatory analysis under the guidance provided in OMB Circular A-4, available at Sections D (Analytical Approaches) and E (Identifying and Measuring Benefits and Costs). The Department leaves open the possibility that, as a result of the receipt of comments on an issue raised by the 2004 ADAAG, or if the Department's 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. The Department has completed its initial regulatory impact analysis measuring the incremental benefits and costs of the proposed standards; the initial regulatory impact analysis is addressed at length with responses to public comments from the ANPRM, in Appendix B.

The public asked about captioning and the division of responsibility between the Department and the Access Board for fixed and non-fixed (or free-standing) equipment. The mere fact that a state or local government has adopted a version of the IBC does not necessarily mean that the facilities within that jurisdiction are legally subject to its accessibility provisions.

Finally, commenters asked for clarification on some issues in the existing regulations, such as title III's requirements regarding service animals. Because of these complications, and the inherent difficulty of determining which baseline is the most appropriate for each provision, the RIA accompanying this rulemaking compares the costs and benefits of the proposed requirements to several alternative baselines, which reflect various versions of existing building codes.

The Department's initial, formal benefit-cost analysis can be found at Appendix B. In addition, the Access Board amended the ADAAG four times since 1998.

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The extent to which the 2004 ADAAG is used with respect to the barrier removal requirement applicable to existing facilities under title III (like the program access requirement in title II) is solely within the discretion of the Department. By the end of the extended comment period, the Department had received more than 900 comments covering a broad range of issues. An initial regulatory impact analysis of the costs and benefits of a proposed rule is required by Executive Order 12866 (as amended by Executive Order 13258 and Executive Order 13422). The differences in framework and approach result from the differing postures and responsibilities of the Department and the Access Board.

Throughout this NPRM, the current, legally enforceable ADA Standards will be referred to as the "1991 Standards," 28 CFR part 36, App. 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.