[Federal Register: June 17, 2008 (Volume 73, Number 117)]
[Proposed Rules]
[Page 34465-34508]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17jn08-20]
[[Page 34465]]
-----------------------------------------------------------------------
Part III
Department of Justice
-----------------------------------------------------------------------
28 CFR Parts 35 and 36
Nondiscrimination on the Basis of Disability in State and Local
Government Services; Nondiscrimination on the Basis of Disability by
Public Accommodations and in Commercial Facilities; Proposed Rules
[[Page 34466]]
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
28 CFR Part 35
[CRT Docket No. 105; AG Order No. 2967-2008]
RIN 1190-AA46
Nondiscrimination on the Basis of Disability in State and Local
Government Services
AGENCY: Department of Justice, Civil Rights Division.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Department of Justice (Department) is issuing this notice
of proposed rulemaking (NPRM) 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 issued by the Architectural and Transportation Barriers
Compliance Board'' (Access Board); and perform periodic reviews of any
rule judged to have a significant economic impact on a substantial
number of small entities, and a regulatory assessment of the costs and
benefits of any significant regulatory action as required by the
Regulatory Flexibility Act, as amended by the Small Business Regulatory
Enforcement Fairness Act of 1996 (SBREFA).
In this NPRM, the Department proposes to adopt Parts I and III of
the Americans with Disabilities Act and Architectural Barriers Act
Accessibility Guidelines (2004 ADAAG), which were published by the
Access Board on July 23, 2004. Prior to its adoption by the Department,
the 2004 ADAAG is effective only as guidance to the Department; it has
no legal effect on the public until the Department issues a final rule
adopting the revised ADA Standards (proposed standards).
Concurrently with the publication of this NPRM, the Department is
publishing an NPRM to amend its title III regulation, which covers
public accommodations and commercial facilities, in order to adopt the
2004 ADAAG as its proposed standards for title III entities, to make
amendments to the title III regulation for consistency with title II,
and to make amendments that reflect the collective experience of
sixteen years of enforcement of the ADA.
DATES: All comments must be received by August 18, 2008.
ADDRESSES: Submit electronic comments and other data to http://
www.regulations.gov. Address written comments concerning this NPRM to:
ADA NPRM, P.O. Box 2846, Fairfax, VA 22031-0846. Overnight deliveries
should be sent to the Disability Rights Section, Civil Rights Division,
U.S. Department of Justice, located at 1425 New York Avenue, NW., Suite
4039, Washington, DC 20005. All comments will be made available for
public viewing online at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Janet L. Blizard, Deputy Chief,
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 Information Line at (800) 514-0301 (voice) or (800) 514-0383
(TTY).
This rule is also available in an accessible format 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 Information Line at the
number listed above.
SUPPLEMENTARY INFORMATION:
Electronic Submission and Posting of Public Comments
You may submit electronic comments to http://www.regulations.gov.
When submitting comments electronically, you must include CRT Docket
No. 105 in the subject box, and you must include your full name and
address.
Please note that all comments received are considered part of the
public record and made available for public inspection online at http:/
/www.regulations.gov. Such information includes personal identifying
information (such as your name, address, etc.) voluntarily submitted by
the commenter.
If you want to submit personal identifying information (such as
your name, address, etc.) as part of your comment, but do not want it
to be posted online, you must include the phrase ``PERSONAL IDENTIFYING
INFORMATION'' in the first paragraph of your comment. You must also
locate all the personal identifying information you do not want posted
online in the first paragraph of your comment and identify information
you want redacted.
If you want to submit confidential business information as part of
your comment but do not want it posted online, you must include the
phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph of
your comment. You must also prominently identify confidential business
information to be redacted within the comment. If a comment has so much
confidential business information that it cannot be effectively
redacted, all or part of that comment may not be posted on http://
www.regulations.gov.
Personal identifying information identified and located as set
forth above will be placed in the agency's public docket file, but not
posted online. Confidential business information identified and located
as set forth above will not be placed in the public docket file. If you
wish to inspect the agency's public docket file in person by
appointment, please see the FOR FURTHER INFORMATION CONTACT paragraph.
Overview
Throughout this NPRM, the current, legally enforceable ADA
Standards will be referred to as the ``1991 Standards.'' 28 CFR part
36, App. A, 56 FR 35544 (July 26, 1991), modified in part 59 FR 2674
(Jan. 18, 1994). The Access Board's 2004 revised guidelines will be
referred to as the ``2004 ADAAG.'' 69 FR 44084 (July 23, 2004), as
amended (editorial changes only) at 70 FR 45283 (Aug. 5, 2005). The
revisions now proposed in the NPRM, based on the 2004 ADAAG, are
referred to in the preamble as the ``proposed standards.''
In performing the required periodic review of its existing
regulations, the Department has reviewed its title II regulation
section by section, and, as a result, proposes several clarifications
and amendments in this NPRM. In addition, the Department's initial,
formal benefit-cost analysis dealing with the Department's NPRMs for
both titles II and III is included in this NPRM. See E.O. 12866, 58 FR
51735 (Sept. 30, 1993), amended by E.O. 13258, 67 FR 9385 (Feb. 26,
2002), and E.O. 13422, 72 FR 2763 (Jan. 18, 2007); 5 U.S.C. 601, 603,
610(a); and OMB Circular A-4, http://www.whitehouse.gov/omb/circulars/
a004/a-4.pdf. The NPRM was submitted to the Office of Management and
Budget (OMB), Office of Information and Regulatory Affairs, for review
and approval prior to publication in the Federal Register.
Purpose
On July 26, 1990, President George H. W. Bush signed into law the
Americans with Disabilities Act, 42 U.S.C. 12101 et seq., a
comprehensive civil rights law prohibiting discrimination on the basis
of disability. At the beginning of his administration, President George
W. Bush underscored the nation's commitment to ensuring the rights of
over 50 million individuals with disabilities nationwide by announcing
the New Freedom Initiative (available at http://www.whitehouse.gov/
infocus/newfreedom). The Access Board's
[[Page 34467]]
publication of the 2004 ADAAG is the culmination of a long-term effort
to facilitate ADA compliance and enforcement by eliminating, to the
extent possible, inconsistencies among federal accessibility
requirements and between federal accessibility requirements and state
and local building codes. In support of this effort, the Department is
announcing its intention to adopt standards consistent with Parts I and
III of the 2004 ADAAG as the ADA Standards for Accessible Design. To
facilitate this process, the Department is seeking public comment on
the issues discussed in this notice.
The ADA and Department of Justice Regulations
The ADA broadly protects the rights of individuals with
disabilities in employment, access to state and local government
services, places of public accommodation, transportation, and other
important areas of American life and, in addition, requires newly
designed and constructed or altered state and local government
facilities, public accommodations, and commercial facilities to be
readily accessible to and usable by individuals with disabilities. 42
U.S.C. 12101 et seq. Under the ADA, the Department is responsible for
issuing regulations to implement title II and title III of the Act,
except to the extent that transportation providers subject to title II
or title III are regulated by the Department of Transportation. Id. at
12134.
The Department is also proposing amendments to its title III
regulation, which prohibits discrimination on the basis of disability
in public accommodations and commercial facilities, published
concurrently with the publication of this NPRM, in this issue of the
Federal Register.
Title II applies to state and local government entities, and, in
Subtitle A, protects qualified individuals with disabilities from
discrimination on the basis of disability in services, programs, and
activities provided by state and local government entities. Title II
extends the prohibition of 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 local governments regardless of
whether these entities receive federal financial assistance. 42 U.S.C.
12131-65.
On July 26, 1991, the Department issued its final rules
implementing title II and title III, which are codified at 28 CFR part
35 (title II) and part 36 (title III). Appendix A of the title III
regulation, at 28 CFR part 36, contains the current 1991 Standards,
which were based upon the version of ADAAG published by the Access
Board on the same date. Under the current regulation, title II entities
are required to comply either with the 1991 Standards or with the
Uniform Federal Accessibility Standards (UFAS), 41 CFR part 101-19.6,
App. A--which many public entities were accustomed to following under
section 504--with respect to newly constructed or altered facilities.
Relationship to Other Laws
The Department of Justice regulation implementing title II, 28 CFR
35.103, provides:
(a) Rule of interpretation. Except as otherwise provided in this
part, this part shall not be construed to apply a lesser standard
than the standards applied under title V of the Rehabilitation Act
of 1973, 29 U.S.C. 791 et seq., or the regulations issued by federal
agencies pursuant to that title.
(b) 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 protection for the rights of individuals with disabilities or
individuals associated with them.
Nothing in this proposed rule will alter this relationship. The
Department recognizes that public entities subject to title II of the
ADA may also be subject to title I of the ADA, which prohibits
discrimination on the basis of disability in employment, section 504,
which prohibits discrimination on the basis of disability in the
programs and activities of recipients of federal financial assistance,
and other federal statutes such as the Air Carrier Access Act, 49
U.S.C. 41705, and the Fair Housing Act, 42 U.S.C. 3601 et seq.
Compliance with the Department's regulations under the ADA does not
necessarily ensure compliance with other federal statutes. Public
entities that are subject both to the Department's regulations and to
regulations published by other federal agencies must ensure that they
comply with the requirements of both regulations. If there is a direct
conflict between the regulations, the regulation that provides greater
accessibility will prevail. When different statutes apply to entities
that routinely interact, each entity must follow the regulation that
specifically applies to it. For example, a public airport is a title II
facility that houses air carriers subject to the Air Carrier Access Act
(ACAA). The public airport operator would comply with the title II
requirements, not with the ACAA requirements. Conversely, the air
carrier is required to comply with the ACAA, not with the ADA.
In addition, public entities (including AMTRAK) that provide public
transportation services that are subject to subtitle B of title II
should be reminded that the Department's regulation, at 28 CFR 35.102,
provides that--
(a) Except as provided in paragraph (b) of this section, this
part applies to all services, programs, and activities provided or
made available by public entities.
(b) To the extent that public transportation services, programs,
and activities of public entities are covered by subtitle B of title
II of the ADA, 42 U.S.C. 12141, they are not subject to the
requirements of this part.
Nothing in this proposed rule alters that provision. To the extent
that the public transportation services, programs, and activities of
public entities are covered by subtitle B of title II of the ADA, they
are subject to the regulation of the Department of Transportation (DOT)
at 49 CFR part 37 and are not covered by this proposed rule. Matters
not covered by subtitle B are covered by this rule. In addition,
activities not specifically addressed by DOT's ADA regulation may be
covered by DOT's regulation implementing section 504 for its federally
assisted programs and activities at 49 CFR part 27. Like other programs
of public entities that are also recipients of federal financial
assistance, those programs would be covered by both the section 504
regulation and this part. Airports operated by public entities are not
subject to DOT's ADA regulation, but they are subject to subpart A of
title II and to this rule.
The Roles of the Access Board and the Department 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
thirteen public members appointed by the President, of whom the
majority must be individuals with disabilities, and the heads of twelve
federal departments and agencies specified by statute, including the
heads of the Department of Justice and the Department of
Transportation. Originally, the Access Board was established to develop
and maintain accessibility guidelines for federally funded facilities
under the Architectural Barriers Act of 1968 (ABA), 42 U.S.C. 4151 et
seq. The passage of the ADA expanded 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 buildings, facilities, rail
passenger cars, and vehicles are accessible, in terms of
[[Page 34468]]
architecture and design, transportation, and communication, to
individuals with disabilities.'' 42 U.S.C. 12204. The ADA requires the
Department to issue regulations that include enforceable accessibility
standards applicable to facilities subject to title II or title III
that are consistent with the minimum guidelines issued by the Access
Board. Id. at 12134, 12186.
The Department was extensively involved in the development of the
2004 ADAAG. As a federal member of the Access Board, the Attorney
General's representative voted to approve the revised guidelines.
Although the enforceable standards issued by the Department under title
II and title III must be consistent with the minimum guidelines
published by the Access Board, it is the responsibility solely of the
Attorney General to promulgate standards and to interpret and enforce
those standards.
The ADA also requires the Department to develop 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 readily achievable barrier removal requirement
applicable to existing facilities under title III of the ADA and to the
provision of program accessibility under title II of the ADA are solely
within the discretion of the Department of Justice.
The Revised Guidelines (2004 ADAAG)
Part I of the 2004 ADAAG provides so-called ``scoping''
requirements for facilities subject to the ADA; ``scoping'' is a term
used in the 2004 ADAAG to describe requirements (set out in Parts I and
II) that prescribe what elements and spaces--and, in some cases, how
many of them--must comply with the technical specifications. Part II
provides scoping requirements for facilities subject to the ABA (i.e.,
facilities designed, built, altered, or leased with federal funds).
Part III provides uniform technical specifications for facilities
subject to either statute. This revised format is designed to eliminate
unintended conflicts between the two federal accessibility standards
and to minimize conflicts between the federal regulations and the model
codes that form the basis of many state and local building codes.
The revised 2004 ADAAG is the culmination of a ten-year effort to
improve ADA compliance and enforcement. In 1994, the Access Board began
the process of updating the original ADAAG by establishing an advisory
committee composed of members of the design and construction industry,
the building code community, state and local government entities, and
individuals with disabilities. In 1999, based largely on the report and
recommendations of the advisory committee,\1\ the Access Board issued a
proposed rule to jointly update and revise its ADA and ABA
accessibility guidelines. 64 FR 62248 (Nov. 16, 1999). In response to
its rule, the Access Board received more than 2,500 comments from
individuals with disabilities, affected industries, state and local
governments, and others. The Access Board provided further opportunity
for participation by holding public hearings throughout the nation. The
Access Board worked vigorously from the beginning to harmonize the ADA
and ABA Accessibility Guidelines with industry standards and model
codes that form the basis for many state and local building codes. 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. By the date of its final publication on July 23,
2004, 69 FR 44084, the 2004 ADAAG had been the subject of extraordinary
public participation and review.
---------------------------------------------------------------------------
\1\ After a two-year process of collaboration with the Access
Board, the Advisory Committee issued its Recommendations for a New
ADAAG in September 1996, available at http://www.access-board.gov/
pubs.htm.
---------------------------------------------------------------------------
In addition, the Access Board amended the ADAAG four times since
1998. In 1998, it added specific guidelines on state and local
government facilities, 63 FR 2000 (Jan. 13, 1998), and building
elements designed for use by children, 63 FR 2060 (Jan. 13, 1998).
Subsequently, the Access Board added specific guidelines on play areas,
65 FR 62498 (Oct. 18, 2000), and on recreation facilities, 67 FR 56352
(Sept. 3, 2002).
These amendments to the ADAAG have not previously been adopted by
the Department as ADA Standards. 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.
The Advance Notice of Proposed Rulemaking
The Department published an advance notice of proposed rulemaking
(ANPRM) regarding its ADA regulation 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,
http://www.whitehouse.gov/omb/circulars/a004/a-4.pdf, Sections D
(Analytical Approaches) and E (Identifying and Measuring Benefits and
Costs). While underscoring that the Department, as a member of the
Access Board, had already reviewed comments provided to the Access
Board during its development of the 2004 ADAAG, the Department
specifically requested public comment on the potential application of
the 2004 ADAAG to existing facilities. The extent to which the 2004
ADAAG is used with respect to the program access requirement in title
II (like the readily achievable barrier removal requirement applicable
to existing facilities under title III) is solely within the discretion
of the Department. The ANPRM dealt with the Department's
responsibilities under both title II and title III.
Public response to the ANPRM was extraordinary. 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. Most of the comments responded to questions
specifically posed by the Department, including issues involving the
application of the 2004 ADAAG once the Department adopts it, and cost
information to assist the Department in its regulatory assessment. The
public provided information on how to assess the cost of compliance by
small entities, office buildings, hotels and motels, assembly areas,
hospitals and long-term care facilities, residential units,
recreational facilities, and play areas. Comments addressed the
effective date of the proposed standards, the triggering event by which
the effective date is measured in new construction, and variations on a
safe harbor, which would excuse elements in compliance with the 1991
Standards from compliance with the proposed standards. Comments
responded to questions regarding elements scoped for the ``first time''
in the 2004 ADAAG, including detention and correctional facilities,
recreational facilities and play areas, as well as proposed additions
to the Department's regulation for items such as free-standing
equipment.
[[Page 34469]]
Comments also dealt with the specific requirements of the 2004 ADAAG.
Many commenters requested clarification of or changes to the
Department's title II regulation. Commenters observed that now, more
than seventeen years after the enactment of the ADA, as facilities are
becoming physically accessible to individuals with disabilities, the
Department needs to focus on second-generation issues that ensure
individuals with disabilities actually gain access to the accessible
elements. So, for example, commenters asked the Department to focus on
such issues as ticketing in assembly areas and reservations of boat
slips. 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. Finally, commenters asked
for clarification on some issues in the existing regulations, such as
title III's requirements regarding service animals.
All of the issues raised in the public comments are addressed, in
turn, in this NPRM or in the NPRM for title III. Issues involving title
III of the ADA, such as readily achievable barrier removal, are
addressed in the NPRM for title III, published concurrently with this
NPRM in this issue of the Federal Register.
Background (SBREFA, Regulatory Flexibility Act, and Executive Order)
Reviews
The Department must provide two types of assessments as part of its
NPRM: an analysis of the benefits and costs of adopting the 2004 ADAAG
as its proposed standards, 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. E.O. 12866, 58 FR 51735 (Sept. 30, 1993), as amended by
E.O. 13258, 67 FR 9385 (Feb. 26, 2002) and E.O. 13422, 72 FR 2763 (Jan.
18, 2007); Regulatory Flexibility Act of 1980, 5 U.S.C. 601, 603, as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA), 5 U.S.C. 610(a); OMB Circular A-4; and E.O. 13272, 67 FR
53461 (Aug. 13, 2002).
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. 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.
Regulatory Impact Analysis. An initial regulatory impact analysis
of the benefits and costs of a proposed rule is required by Executive
Order 12866 (as amended by Executive Order 13258 and Executive Order
13422). A full benefit-cost analysis is required of any regulatory
action that is deemed to be significant--that is, a regulation that
will have an annual effect of $100 million or more on the economy. See
OMB Circular A-4; Regulatory Flexibility Act of 1980, 5 U.S.C. 601,
603, as amended by the SBREFA, 5 U.S.C. 610(a).
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 $100 million. 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 may notice differences between the Department's
regulatory impact analysis and the Access Board's regulatory assessment
of the 2004 ADAAG. The differences in framework and approach result
from the differing postures and responsibilities of the Department and
the Access Board. First, the breadth of the proposed changes assessed
in Appendix A of this NPRM is greater than in the Access Board's
assessments related to the 2004 ADAAG. Unlike the Access Board, the
Department must examine the effect of the proposed standards not only
on newly constructed or altered facilities, but also on existing
facilities. Second, whereas the Access Board issued separate rules for
many of the differences between the 1991 Standards and the 2004 ADAAG
(e.g., play areas and recreation facilities), the Department is
proposing to adopt several years of revisions in a single rulemaking.
According to the Department's initial Regulatory Impact Analysis
(``RIA''), it is estimated that the incremental costs of the proposed
requirements for each of the following eight existing elements will
exceed monetized benefits by more than $100 million when using the 1991
Standards as the comparative baseline: 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.
However, this baseline figure does not take into account the fact that,
since 1991, various model codes and consensus standards--such as the
model International Building Codes (``IBC'') published by the
International Codes Council and the consensus accessibility standards
developed by the American National Standards Institute (``ANSI'')--have
been adopted by a majority of states (in whole or in part) and that
these codes have provisions mirroring the substance of the Department's
proposed regulations. Indeed, such regulatory overlap is intentional
since harmonization among federal accessibility standards, state and
local building codes, and model codes is one of the goals of the
Department's rulemaking efforts.
Even though the 1991 Standards are an appropriate baseline to
compare the new requirements against, since they represent the current
set of uniform federal regulations governing accessibility, in practice
it is likely that many public and private facilities across the country
are already being built or altered in compliance with the Department's
proposed alterations standards with respect to these elements. Because
the model codes are voluntary, public entities often modify or carve
out particular standards when adopting them into their laws, and even
when the standards are the same, local officials often interpret them
differently. The mere fact that a state or local government has adopted
a version of the IBC does not necessarily mean that facilities within
that jurisdiction are legally subject to its accessibility provisions.
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. In addition, since
the Department is soliciting comment on these eight particular
provisions with high net costs, the Department believes it is useful to
further discuss the potential impact of alternative baselines on these
particular provisions.
[[Page 34470]]
For example, the Department's proposed standards for existing
stairs and elevators have identical counterparts in one or more IBC
versions put in place before the 2004 ADAAG (2000 or 2003). 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. In the four (4) remaining
states (Colorado, Delaware, Illinois, and Mississippi), while IBC
adoption is left to the discretion of local jurisdictions, the vast
majority of these local jurisdictions have elected to adopt IBC as
their local code. Thus, given that nearly all jurisdictions in the
country currently enforce a version of the IBC as their building code,
and to the extent that the IBC building codes may be settled in this
area and would not be further modified to be consistent if they differ
from the final version of these regulations, the incremental costs and
benefits attributable to the Department's proposed regulations
governing alterations to existing stairs and elevators may be less
significant than the RIA suggests over the life of the regulation.
In a similar vein, consideration of an alternate IBC/ANSI baseline
would also likely lower the incremental costs and benefits for five
other proposed standards (side reach; water closet clearances in
single-user toilet rooms with in-swinging doors; location of accessible
routes to stages; accessible attorney areas and witness stands; and
assistive listening systems), albeit to a lesser extent. Each of these
proposed standards has a counterpart in either Chapter 11 of one or
more versions of the IBC, ANSI A117.1, or a functionally equivalent
state accessibility code. While IBC Chapter 11 and ANSI A117.1 have yet
not been as widely adopted as some other IBC chapters, the RIA
nonetheless still estimates that between 15% and 35% of facilities
nationwide are already covered by IBC/A117.1 provisions that mirror
these five proposed standards. It is thus expected that the incremental
costs and benefits for these proposed standards may also be lower than
the costs and benefits relative to the 1991 Standards baseline.
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 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 U.S.C.
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 raised by the 2004 ADAAG based
on disproportionate costs and 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 Board for further consideration, in
particular as applied to alterations.
Stages. The proposed requirement to provide direct access to stages
represents an effort to ensure that individuals with disabilities are
able to participate in programs in an integrated setting. Under the
current 1991 Standards, a compliant accessible route connecting seating
locations to performing areas is permitted to go outside the assembly
area and make use of an indirect interior accessible route to access
the stage area. As a result, even when other audience members are able
to access a stage directly via stairs in order to participate in
ceremonies, skits, or other interactive on-stage events, persons with
mobility disabilities may be required to use an inconvenient indirect
entrance to the stage. As graduates or award recipients, they may be
required to part company with their peers, to make their way to the
stage alone, and to make a conspicuous entrance. To address this
situation, the proposed requirement mandates that, when a direct
circulation path (for audience members) connects the seating area to a
stage, the accessible route to the stage must also be direct.
The Department has generally determined that the overall costs for
this requirement are relatively high in the alterations context, due to
the expense of having to provide a lift or ramp to access the stage
area directly, regardless of which baseline is used for the analysis.
The Department, however, has had difficulty in estimating the real
costs of this requirement because of a lack of information about
whether colleges, elementary and secondary schools, and entertainment
venues now routinely provide such access when they are altering
existing auditoriums or how frequently such alterations occur. Also,
the Department currently lacks sufficient data or other sources with
which to quantify the benefits that accrue to students and other
persons with disabilities who, as a result of direct access to stages,
would be able to participate fully and equally in graduation exercises
and other events.
Question 3: The Department would welcome information from operators
of auditoriums on the likelihood that their auditoriums will be altered
in the next fifteen years, and, if so, whether such alterations are
likely to include accessible and direct access to stages. In addition,
the Department would like specific information on whether, because of
local law or policy, auditorium operators are already providing a
direct accessible route to their stages. (The Department is also
interested in whether having to provide a direct access to the stage
would encourage operators of auditoriums to postpone or cancel the
alterations of their facilities.) The Department also seeks information
on possible means of quantifying the benefits that accrue to persons
with disabilities from this proposed requirement or on its importance
to them. To the extent that such information cannot be quantified, the
Department welcomes examples of personal or anecdotal experience that
illustrate the value of this requirement.
The Department's RIA also estimates significant costs, regardless
of the baseline used, for the proposed requirement that court
facilities must provide an accessible route to a witness stand or
attorney area and clear floor space to accommodate a wheelchair. These
costs arise both in the new construction and alteration contexts. If
the witness stand is raised, then either a ramp or lift must be
provided to ensure access to the witness stand. While the RIA
quantifies the benefits for
[[Page 34471]]
this proposed requirement (as it does for all of the proposed
requirements) primarily in terms of time savings, the Department fully
appreciates that such a methodology does not capture the intangible
benefits that accrue when persons with mobility disabilities are able
to participate in the court process as conveniently as any other
witness or party. Without access to the witness stand, for example, a
wheelchair user, or a witness who uses other mobility devices such as a
walker or crutches, may have to sit at floor level. If the witness with
a mobility disability testifies from a floor level position, the
witness could be placed at a disadvantage in communicating with the
judge and jury, who may no longer be able to see the witness as easily,
or, potentially, at all. This may create a reciprocal difficulty for
the judge and jurors who lose the sightline normally provided by the
raised witness stand that enables them to see and hear the witness in
order to evaluate his or her demeanor and credibility--difficulty that
redounds to the detriment of litigants themselves and ultimately our
system of justice.
Question 4: The Department welcomes comment on how to measure or
quantify the intangible benefits that would accrue from accessible
witness stands. We particularly invite anecdotal accounts of the
courtroom experiences of individuals with disabilities who have
encountered inaccessible witness stands, as well as the experiences of
state and local governments in making witness stands accessible, either
in the new construction or alteration context.
Under the 1991 Standards, Assistive Listening Systems (``ALS'') are
required in courtrooms and in other settings where audible
communication is integral to the use of the space and audio
amplification systems are provided for the general audience. However,
these Standards do not set forth technical specifications for such
systems. Since 1991, advancements in ALS and the advent of digital
technologies have made these systems more amenable to uniform technical
specifications. In keeping with these technological advancements, the
revised requirements create a technical standard that, among other
things, ensures that a certain percentage of required ALS have hearing-
aid compatible receivers. Requiring hearing-aid compatible ALS enables
persons who are hard of hearing to hear a speech, a play, a movie, or
to follow the content of a trial. Without an effective ALS, people with
hearing loss are effectively excluded from participation because they
are unable to hear or understand the audible portion of the
presentation.
From an economic perspective, the cost of a single hearing-aid
compliant ALS is not high--about $500 more than a non-compliant
system--and compliant equipment is readily available on the retail
market. As estimated in the RIA, the high overall costs for the revised
technical requirements for ALS are instead driven by the assumption
that entities with large assembly areas (such as universities,
stadiums, and auditoriums) will be required to purchase a relatively
large number of compliant systems. On the other hand, the overall
scoping for ALS has been reduced in the Department's proposed
requirement, thus mitigating the cost to covered entities. The proposed
revision to the technical requirement merely specifies that 25% (or at
least two) of the required ALS receivers must be hearing-aid
compatible. The RIA estimates that a significant part of the cost of
this requirement will come from the replacement of individual ALS
receivers and system maintenance.
Question 5: The Department seeks information from arena and
assembly area administrators on their experiences in managing ALS. In
order to evaluate the accuracy of the assumptions in the RIA relating
to ALS costs, the Department welcomes particular information on the
life expectancy of ALS equipment and the cost of ongoing maintenance.
The Department's proposed requirements mandate an accessible
(pedestrian) route that connects all accessible elements within the
boundary of the golf course and facility, including teeing grounds,
putting greens, and weather shelters. Requiring access to necessary
features of a golf course ensures that persons with mobility
disabilities may fully and equally participate in a recreational
activity.
From an economic perspective, the Department's RIA assumes that
virtually every tee and putting green on an existing course will need
to be regraded in order to provide compliant accessible (pedestrian)
routes to these features. However, the Department's proposal also
excuses compliance with the requirement for an accessible (pedestrian)
route so long as a ``golf car passage'' (i.e., the path typically used
by golf cars) is otherwise provided to the teeing ground, putting
green, or other accessible element on a course. Because it is likely
that most public and private golf courses in the United States already
provide golf passages to most or all holes, the actual costs of this
requirement for owners and operators of existing golf courses should be
reduced with little or no practical loss in accessibility.
Question 6: The Department seeks information from the owners and
operators of golf courses, both public and private, on the extent to
which their courses already have golf car passages to teeing grounds,
putting greens, and weather shelters, and, if so, whether they intend
to avail themselves of the proposed exception.
Analysis of impact on small entities. The second type of analysis
that the Department has undertaken is a review of its existing
regulations for title II and title III in order to consider the impact
of those regulations on small entities. The review requires agencies to
consider five factors: (1) The continued need for the rule; (2) the
nature of complaints or comments received concerning the rule from the
public; (3) the complexity of the rule; (4) the extent to which the
rule overlaps, duplicates, or conflicts with other federal rules, and,
to the extent feasible, with state and local governmental rules; and
(5) the length of time since the rule has been evaluated or the degree
to which technology, economic conditions, or other factors have changed
in the area affected by the rule. 5 U.S.C. 610(b). Based on these
factors, the agency should determine whether to continue the rule
without change or to amend or rescind the rule to minimize any
significant economic impact of the rule on a substantial number of
small entities. Id. at 610(a).
In performing this review, the Department has gone through its
regulation section by section, and, as a result, proposes several
clarifications and amendments in this NPRM. Amendments to its title III
regulation are proposed in the NPRM for title III published jointly
with this rule. The proposals reflect the Department's analysis and
review of complaints or comments from the public as well as changes in
technology. Many of the proposals aim to clarify and simplify the
obligations of covered entities. As discussed in greater detail above,
one significant goal of the development of the 2004 ADAAG was to
eliminate duplication or overlap in federal accessibility guidelines as
well as to harmonize the federal guidelines with model codes. The
Department has also worked to create harmony where appropriate between
the requirements of titles II and III. Finally, while the regulation is
required by statute and there is a continued need for it as a whole,
the Department proposes several modifications that are intended to
reduce its effects on small entities.
[[Page 34472]]
Organization of This NPRM
The subsequent sections of this NPRM deal with the Department's
response to comments and its proposals for changes to its current
regulation that derive from the required, periodic review that it
performed. The proposed standards and the Department's response to
comments regarding the 2004 ADAAG are contained in Appendix A to the
NPRM. Appendix B to the NPRM contains the Department's initial, formal
benefit-cost analysis.
The section of the NPRM entitled, ``General Issues,'' briefly
introduces topics that are noteworthy because they are new to the title
II regulation or have been the subject of attention or comment. The
topics introduced in the general issues section include: Safe harbor,
service animals, wheelchairs and other power-driven mobility devices,
effective communication and auxiliary aids, alterations to prison
cells, and equipment.
Following the general issues section is the ``Section-By-Section
Analysis and Response to Comments.'' This section includes a detailed
discussion of the proposed changes to the text of the title II
regulation. The section-by-section analysis follows the order of the
current regulation, except that regulatory sections that remain
unchanged are not indicated. The discussion within each section
explains the proposals and the reasoning behind them as well as the
Department's response to related public comments. 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 includes specific questions to
which the Department requests public response. These questions are
numbered and italicized so that they are easier for readers to locate
and reference. The Department emphasizes, however, that the public may
comment on any aspect of this NPRM and is not required to respond
solely to questions specifically posed by the Department.
The Department's proposed changes to the actual regulatory text of
title II that follow the section-by-section analysis are entitled,
``Part 35: Nondiscrimination on the Basis of Disability in State and
Local Government Services.''
General Issues
This section briefly introduces topics that are noteworthy because
they are new to the title II regulation or have been the subject of
considerable attention or comment. Each topic is discussed in greater
detail subsequently in the section-by-section analysis.
Safe harbor. One of the most important issues the Department must
address in proposing to adopt the 2004 ADAAG as its new ADA Standards
for Accessible Design is the effect that the proposed standards will
have on existing facilities under title II. This issue was not
addressed in the 2004 ADAAG because it is outside of the scope of the
Access Board's authority under the ADA.
Under title II, program accessibility requires that state and local
government agencies provide individuals with disabilities with access
to their programs when ``viewed in their entirety.'' Title II does not
require structural modifications in all circumstances in order to
provide program access. As a result of this flexibility, the Department
believes that the program accessibility requirement as it is codified
in the current regulation may appropriately mitigate any burdens on
public entities without additional regulatory safeguards. Nevertheless,
in order to provide certainty and clarity, the Department is proposing
a safe harbor for elements in existing facilities that are in
compliance with either the 1991 Standards or the Uniform Federal
Accessibility Standards (UFAS), 41 CFR part 101-19.6, App. A. This
proposal is discussed below in Sec. 35.150(b)(2) of the section-by-
section analysis.
The Department invites comment on whether public entities that
operate existing facilities with play or recreation areas should be
exempted from compliance with certain requirements in the 2004 ADAAG.
Existing facilities would continue to be subject to accessibility
requirements in existing law, but not specifically to the requirements
in: (1) The Access Board's supplemental guidelines on play areas, 65 FR
62498 (Oct. 18, 2000); and (2) the Access Board's supplemental
guidelines on recreation facilities, 67 FR 56352 (Sept. 3, 2002). Under
this scenario, the 2004 ADAAG would apply only to new play areas and
recreation facilities, and would not govern the accessibility of
existing facilities as legal requirements. Public entities that operate
existing facilities with play or recreation areas, pursuant to the
ADA's requirements to provide equal opportunity for individuals with
disabilities, may still have the obligation to provide an accessible
route to the playground, some accessible equipment, and an accessible
surface for the play area or recreation facility.
Question 7: Should the Department exempt public entities from
specific compliance with the supplemental requirements for play areas
and recreation facilities, and instead continue to determine
accessibility in these facilities on a case-by-case basis under
existing law? Please provide information on the effect of such a
proposal on people with disabilities and public entities.
Service animals. The Department wishes to clarify the obligations
of public entities to accommodate individuals with disabilities who use
service animals. The Department continues to receive a large number of
complaints from individuals with service animals. It appears,
therefore, that many covered entities are confused about their
obligations under the ADA in this area. At the same time, some
individuals with impairments--who would not be covered as qualified
individuals with disabilities--are claiming that their animals are
legitimate service animals, whether fraudulently or sincerely (albeit
mistakenly), to gain access to the facilities of public entities.
Another trend is the use of wild or exotic animals, many of which are
untrained, as service animals. In order to clarify its position and
avoid further misapplication of the ADA, the Department is proposing
amendments to its regulation with regard to service animals.
Minimal protection. In the Department's ADA Business Brief on
Service Animals, which was published in 2002, the Department
interpreted the minimal protection language in its definition of
service animals within the context of a seizure (i.e., alerting and
protecting a person who is having a seizure). Although the Department
received comments urging it to eliminate the phrase ``providing minimal
protection'' from its regulation, the Department continues to believe
that the language serves the important function of excluding from
coverage so-called ``attack dogs'' that pose a direct threat to others.
Guidance on permissible service animals. The existing regulation
implementing title III defines a ``service animal'' as ``any guide dog,
signal dog, or other animal.'' At the time the regulation was
promulgated, the Department believed that leaving the species selection
up to the discretion of the individual with a disability was the best
course of action. Due to the proliferation of animal types that have
been used as ``service animals,'' including wild animals, the
Department believes that this area needs established parameters.
Therefore, the Department is proposing to eliminate certain species
from coverage under the ADA even if the other elements of the
definition are satisfied.
[[Page 34473]]
Comfort animals vs. psychiatric service animals. Under the
Department's present regulatory language, some individuals and entities
have assumed that the requirement that service animals must be
individually trained to do work or carry out tasks excluded all persons
with mental disabilities from having service animals. Others have
assumed that any person with a psychiatric condition whose pet provided
comfort to him or her was covered by the ADA. The Department believes
that psychiatric service animals that are trained to do work or perform
a task (e.g., reminding its owner to take medicine) for persons whose
disability is covered by the ADA are protected by the Department's
present regulatory approach.
Psychiatric service animals can be trained to perform a variety of
tasks that assist individuals with disabilities to detect the onset of
psychiatric episodes and ameliorate their effects. Tasks performed by
psychiatric service animals may include reminding the handler to take
medicine; providing safety checks, or room searches, or turning on
lights for persons with Post Traumatic Stress Disorder; interrupting
self-mutilation by persons with dissociative identity disorders; and
keeping disoriented individuals from danger.
The Department is proposing new regulatory text in Sec. 35.104 to
formalize its position on emotional support or comfort animals, which
is that ``[a]nimals whose sole function is to provide emotional
support, comfort, therapy, companionship, therapeutic benefits, or
promote emotional well-being are not service animals.'' The Department
wishes to underscore that the exclusion of emotional support animals
from ADA coverage does not mean that persons with psychiatric,
cognitive, or mental disabilities cannot use service animals. The
Department proposes specific regulatory text in Sec. 35.104 to make
this clear: ``[t]he term service animal includes individually trained
animals that do work or perform tasks for the benefit of individuals
with disabilities, including psychiatric, cognitive, and mental
disabilities.'' This language simply clarifies the Department's
longstanding position.
The Department's rule is based on the assumption that the title II
and title III regulations govern a wider range of public settings than
the settings that allow for emotional support animals. The Department
recognizes, however, that there are situations not governed exclusively
by the title II and title III regulations, particularly in the context
of residential settings and employment where there may be compelling
reasons to permit the use of animals whose presence provides emotional
support to a person with a disability. Accordingly, other federal
agency regulations governing those situations may appropriately provide
for increased access for animals other than service animals.
Proposed training standards. The Department has always required
that service animals be individually trained to do work or perform
tasks for the benefit of an individual with a disability, but has never
imposed any type of formal training requirements or certification
process. While some advocacy groups have urged the Department to modify
its position, the Department does not believe that such a modification
would serve the array of individuals with disabilities who use service
animals.
Detailed regulatory text changes and the Department's response to
public comments on these issues and others are discussed below in the
definitions Sec. 35.104 and in a newly-proposed Sec. 35.136.
Wheelchairs and other power-driven mobility devices. Since the
passage of the ADA, choices of mobility aids available to individuals
with disabilities have vastly increased. In addition to devices such as
wheelchairs and mobility scooters, individuals with disabilities may
use devices that are not designed primarily for use by individuals with
disabilities, such as electronic personal assistive mobility devices
(EPAMDs). (The only available model known to the Department is the
Segway[supreg].) The Department has received complaints and become
aware of situations where individuals with mobility disabilities have
utilized riding lawn mowers, golf cars, large wheelchairs with rubber
tracks, gasoline-powered, two-wheeled scooters, and other devices for
locomotion in pedestrian areas. These new or adapted mobility aids
benefit individuals with disabilities, but also present new challenges
for state and local governments.
EPAMDs illustrate some of the challenges posed by new mobility
devices. The basic Segway[supreg] model is a two-wheeled,
gyroscopically stabilized, battery-powered personal transportation
device. The user stands on a platform suspended three inches off the
ground by wheels on each side, grasps a T-shaped handle, and steers the
device similarly to a bicycle. The EPAMD can travel up to 12\1/2\ miles
per hour, compared to the average pedestrian walking speed of 3 to 4
miles per hour and the approximate maximum speed for power-operated
wheelchairs of 6 miles per hour. In a study of trail and other
nonmotorized transportation users including EPAMDs, the Federal Highway
Administration (FHWA) found that the eye height of people using EPAMDs
ranged from 68\1/4\ inches to 79\1/2\ inches. See Federal Highway
Administration, Characteristics of Emerging Road and Trail Users and
Their Safety (Oct. 2004), available at http://www.tfhrc.gov/safety/
pubs/04103. Thus, EPAMDs can operate at much greater speeds than
wheelchairs, and the average user is much taller than most wheelchair
users.
EPAMDs have been the subject of debate among users, pedestrians,
disability advocates, state and local governments, businesses, and
bicyclists. The fact that a device is not designed primarily for use by
or marketed primarily to individuals with disabilities, nor used
primarily by persons with disabilities, complicates the question of
whether individuals with disabilities should be allowed to operate them
in areas and facilities where other powered devices are not allowed.
Those who question the use of EPAMDs in pedestrian areas argue that the
speed, size, and operating features of the devices make them too
dangerous to operate alongside pedestrians and wheelchair users.
Although the question of EPAMD safety has not been resolved, many
states have passed legislation addressing EPAMD operation on sidewalks,
bicycle paths, and roads. In addition, some states, such as Iowa and
Oregon, have minimum age requirements, or mandatory helmet laws. New
Jersey requires helmets for all EPAMD users, while Hawaii and
Pennsylvania require helmets for users under a certain age.
While there may be legitimate safety issues for EPAMD users and
bystanders, EPAMDs and other nontraditional mobility devices can
deliver real benefits to individuals with disabilities. For example,
individuals with severe respiratory conditions who can walk limited
distances and individuals with multiple sclerosis have reported
benefitting significantly from EPAMDs. Such individuals often find that
EPAMDs are more comfortable and easier to use than wheelchairs, and
assist with balance, circulation, and digestion in ways that
wheelchairs do not. See Rachel Metz, Disabled Embrace Segway, New York
Times, Oct. 14, 2004.
The Department has received questions and complaints from
individuals with disabilities and covered entities about which mobility
aids must be accommodated and under what circumstances. While some
[[Page 34474]]
individuals with disabilities support the use of unique mobility
devices, other individuals with disabilities are concerned about their
personal safety when others are using such devices. There is also
concern about the impact of such mobility devices on facilities, such
as the weight of the device on fragile floor surfaces.
The Department intends to address these issues and proposes to
adopt a policy that sets the parameters for when these devices must be
accommodated. Toward that end, the Department proposes new definitions
of the terms ``wheelchair''--which includes manually and power-driven
wheelchairs and mobility scooters--and ``other power-driven mobility
device'' and accompanying regulatory text. The proposed definitions are
discussed in the section-by-section analysis of Sec. 35.104, and the
proposed regulatory text is discussed in the section-by-section
analysis of Sec. 35.137.
Much of the debate surrounding mobility aids has centered on
appropriate definitions for the terms ``wheelchair'' and ``other power-
driven mobility devices.'' The Department has not defined the term
``manually powered mobility aids.'' Instead, the proposed rule provides
a list including wheelchairs, walkers, crutches, canes, braces, or
similar devices. The inclusion of the term ``similar devices''
indicates that the list is not intended to be exhaustive. The
Department would like input as to whether addressing ``manually powered
mobility aids'' in this manner (i.e., via examples of such devices) is
appropriate. The Department also would like information as to whether
there are any other non-powered or manually powered mobility aids that
should be added to the list and an explanation of the reasons they
should be included. If an actual definition is preferred, the
Department would welcome input with regard to the language that might
be used to define ``manually powered mobility aids,'' and an
explanation of the reasons this language would better serve the public.
Effective communication and auxiliary aids. Revised Sec. 35.160(a)
of the title II regulation requires a public entity to take appropriate
steps to ensure that communications with individuals with disabilities,
including applicants, participants, members of the public, and their
companions, are as effective as communications with others. The
Department has investigated hundreds of complaints alleging that public
entities have failed to provide effective communication, many of which
resulted in settlement agreements and consent decrees. During the
course of its investigations, the Department has determined that public
entities sometimes misunderstand the scope of their obligations under
the statute and the regulation. Moreover, the number of individuals
with hearing loss continues to grow in this country as a large segment
of the population ages and as individuals live longer.
The Department is proposing several changes and additions to
Sec. Sec. 35.104, 35.160, and 35.161 of the title II regulation to
address these issues. Among other amendments, these changes update the
regulatory language in response to numerous technological advances and
breakthroughs in the area of auxiliary aids and services since the
regulation was promulgated sixteen years ago. The most significant
changes relate to video interpreting services (VIS) and the provision
of effective communication for companions.
A technology that has emerged since promulgation of the original
regulation is video interpreting services (VIS), and the Department
proposes to include it in the regulation. VIS permits an individual who
is deaf or hard of hearing to view and sign to a video interpreter
(i.e., a live interpreter in another location) who can see and sign to
the individual through a camera located on or near the monitor. VIS can
provide immediate, effective access to interpreting services seven days
a week, twenty-four hours a day in a variety of situations by allowing
individuals in separate locations to have live, face-to-face
communications.
The specific amendments to the section on auxiliary aids and
services, in addition to the provision of VIS, are described in
Sec. Sec. 35.104, 35.160, and 35.161 of the section-by-section
analysis below.
Alterations to prison cells. The 2004 ADAAG establishes
requirements for the design and construction of cells in correctional
facilities. When the Access Board adopted these new requirements, it
deferred one decision to the Attorney General, specifically:
``Alterations to cells shall not be required to comply except to the
extent determined by the Attorney General.'' The unique environment and
security concerns of a correctional facility present challenges that
are not an issue in other government buildings, so the Department must
strike a balance between the accessibility needs of inmates with
disabilities and the concerns of the prison officials and staff that
run the facilities. Therefore, in the ANPRM, the Department sought
public comment about the most effective means to ensure that existing
correctional facilities are made accessible to prisoners with
disabilities and presented three options: (1) Require all altered
elements to be accessible, which would maintain the current policy that
applies to other ADA alterations requirements; (2) permit substitute
cells to be made accessible within the same facility, which would
permit correctional authorities to meet their obligation by providing
the required accessible features in cells within the same facility,
other than those specific cells in which alterations are planned; or
(3) permit substitute cells to be made accessible within a prison
system, which would focus on ensuring that prisoners with disabilities
are housed in facilities that best meet their needs, since alterations
within a prison environment often result in piecemeal accessibility.
Discussion of the proposed options and submitted comments are described
below in the section-by-section analysis of Sec. 35.152, a newly
proposed section on matters related to detention and correctional
facilities.
Equipment and furniture. Question seven of the ANPRM asked for
comment on whether regulatory guidance is needed with respect to the
acquisition and use of mobile, portable, and other free-standing
equipment or furnishings used by covered entities to provide services,
and asked for specific examples of situations that should be addressed.
The ANPRM explained that free-standing equipment was already addressed
in the regulations in several different contexts, but that since
covered entities continue to raise questions about the extent of their
obligation to provide accessible free-standing equipment, the
Department was considering adding specific language on equipment.
The Department received comments both in favor and against this
proposal with a majority of comments in favor of requiring accessible
equipment and furniture. However, the Department has decided to add no
new regulatory text with respect to equipment at this time. A few title
II entities submitted very brief comments, with about half in favor of
specific requirements for free-standing equipment and half opposed.
Most individuals and organizations representing individuals with
disabilities were in favor of adding or clarifying requirements for
accessible equipment. Disability organizations pointed out that from
the user's perspective, it is irrelevant whether the equipment (e.g.,
ATMs or vending machines) is free-standing or fixed, since the
equipment must be accessible in order for them to use it.
[[Page 34475]]
The Department believes that accessible equipment and furnishings
are required when appropriate under the existing regulations governing
modifications of policies, practices, and procedures, and in the
requirement for program accessibility. 28 CFR 35.130(7); 35.150. In
addition, some equipment may also be subject to the effective
communication requirements. 28 CFR 35.160. The existing regulation at
Sec. 35.150(a) requires that entities operate each service, program,
or activity so that, when viewed in its entirety, each is readily
accessible to and usable by individuals with disabilities, subject to a
defense of fundamental alteration or undue burden. Section 35.150(b)
specifies that such entities may meet their obligation to make each
program accessible to individuals with disabilities through the
``redesign of equipment.'' Section 35.160(a) requires covered entities
to provide effective communication to program participants.
Consequently, providing accessible equipment is required when
appropriate under the existing regulations. The Department has decided
to continue with this approach and not to add any specific regulatory
guidance addressing equipment at this time.
The 2004 ADAAG includes revised requirements for some types of
fixed equipment that are specifically addressed in the 1991 Standards,
such as ATMs and vending machines, as well as detailed requirements for
fixed equipment that is not addressed by name in the current Standards,
such as depositories, change machines, and fuel dispensers. Because the
2004 ADAAG provides detailed requirements for many types of fixed
equipment, covered entities should consult those requirements in
determining what steps are appropriate for making free-standing
equipment accessible. The Department also agrees that when federal
guidance for accessibility exists for equipment required to be
accessible to individuals who are blind or have low vision, entities
should consult such guidance (e.g., federal standards implementing
section 508 of the Rehabilitation Act, 36 CFR part 1194, or the
guidelines that specify communication accessibility for ATMs and fare
card machines in the 2004 ADAAG, 36 CFR part 1191, App. D). The
Department intends to continue to monitor the use of accessible
equipment by covered entities and to analyze the economic impact of
possibly providing more detailed requirements in future regulations
governing specific types of free-standing equipment.
Accessible golf cars. Question six of the ANPRM asked whether golf
courses should be required to make at least one, and possibly two,
specialized golf cars available for the use of individuals with
disabilities, with no greater advance notice required to obtain them
than for use of other golf cars. The Department also asked about the
golf car's safety and use on golf course greens. Accessible single-user
golf cars are cars for use by individuals with mobility impairments
that are driven with hand controls, and from which a person with a
disability can hit the golf ball while remaining in the seat of the
car. Some golf cars have a swivel, elevated seat that allows the golfer
to play from a semi-standing position. These cars can be used by
individuals without disabilities as well.
The Department received many comments regarding accessible golf
cars, with the majority of commenters in favor of requiring accessible
golf cars. The comments in opposition to requiring accessible golf cars
came from some individuals and from entities covered by title III. The
Department has decided to propose no new regulations specific to
accessible golf cars at this time.
Many commenters in favor of requiring accessible golf cars noted
the social aspect of golf, generally, and its specific--albeit
informal--importance, in many business transactions, thus affecting
both the social lives and the careers of some individuals with
disabilities.
Comments opposed to requiring accessible golf cars generally came
from individuals and golf course owners and associations covered by
title III. Some commenters believed that there is little demand for
accessible golf cars, or that the problem is solved by putting
``medical'' flags on traditional cars to identify individuals with
disabilities who are then permitted to drive onto the greens, which
otherwise would not be permitted. Others stated that accessible golf
cars were too expensive or were specialized equipment that individuals
with disabilities should purchase for themselves. One city
representative commented that courses that do not provide golf cars
should not be required to provide accessible golf cars.
Safety and the impact on golf course grounds were other areas
addressed by the comments. Again, opinions were divided. Some
commenters said that the single-user golf cars are safe, do not damage
the greens, and speed up the pace of play. Others argued that the cars
should pass the American National Standards Institute (ANSI) standards
\2\ for traditional golf cars, and that the single-user cars should not
be required until there are safety standards for these cars.
---------------------------------------------------------------------------
\2\ ANSI Z130.1-1999.
---------------------------------------------------------------------------
Other concerns raised by public comments were the effect of
allowing accessible golf car use on the greens and their impact on
maintenance of the course. Some commenters suggested that the cars
would damage the greens and that the repair costs would be more
significant than for traditional golf cars. In addition, one commenter
suggested that courses exceeding certain slope and degree standards be
exempted from having single-user cars because of safety concerns.
Comments from golf courses that have provided accessible golf cars were
generally positive in terms of safety and maintenance of the course.
Further, courses that provide accessible cars do not report any safety
issues or more than minimal damage to the greens.
With respect to making golf cars available, most supporters of
providing accessible golf cars believe that no advance notice should be
required to reserve the golf cars. One association supported requiring
golf courses to have accessible cars with advance notice, which could
be achieved through pooling arrangements with other courses. Some
commenters explained that at least two cars per course should be
required so that golfers with disabilities can play together.
Commenters also addressed whether courses that provide no cars at
all should provide accessible cars. Some commenters supported requiring
every golf course, whether or not it provides traditional golf cars, to
provide accessible cars because individuals with disabilities will not
be able to play without an accessible car.
The Department has decided not to add a regulation specifically
addressing accessible golf cars at this time. The existing regulation,
which requires that entities operate each service, program, or activity
so that, when viewed in its entirety, the service, program, or activity
is readily accessible to and usable by individuals with disabilities,
subject to a defense of fundamental alteration or undue burden, will
continue to govern this issue. 28 CFR 35.150(a).
The Department is aware that the Department of Defense has recently
undertaken an extensive study of the accessibility of golf courses
operated for military personnel. As a result of its study, the
Department of Defense plans to provide two accessible golf cars at each
of the 174 golf courses that the Department of Defense operates, except
those at which it would be unsafe to operate such golf cars because of
the terrain of the course. See U.S. Department of Defense, Report to
[[Page 34476]]
Congress: Access of Disabled Persons to Morale, Recreation, and Welfare
(MRW) Facilities and Activities (Sept. 25, 2007). The Department of
Justice plans to study the Defense Department's implementation of its
plan to determine if it provides an effective framework for ensuring
golf course accessibility.
Section-by-Section Analysis and Response to Comments
This section provides a detailed description of the Department's
proposed changes to the title II regulation, the reasoning behind the
proposals, and responses to public comments received on the topic. The
section-by-section analysis follows the order of the current title II
regulation, except that if the Department is not proposing a change to
a regulation section, the unchanged section is not discussed. In
addition, this section includes specific questions for which the
Department requests public response. These questions are numbered and
italicized in order to make them easier for readers to locate and
reference.
Subpart A--General
Section 35.104 Definitions
``1991 Standards'' and ``2004 ADAAG''
The Department is proposing to add to the proposed regulation
definitions of both the ``1991 Standards'' and the ``2004 ADAAG.'' The
term ``1991 Standards'' refers to the currently enforceable ADA
Standards for Accessible Design, codified at 28 CFR part 36, App. A.
The term ``2004 ADAAG'' refers to Parts I and III of the Americans with
Disabilities Act and Architectural Barriers Act Accessibility
Guidelines, which were issued by the Architectural and Transportation
Barriers Compliance Board on July 23, 2004, at 69 FR 44084 (to be
codified at 36 CFR 1191), and which the Department is proposing to
adopt in this NPRM. These terms are included in the definitions section
for ease of reference.
``Auxiliary Aids and Services''
Several types of auxiliary aids that have become more readily
available have been added to Sec. 35.104 under the definition of
auxiliary aids and services.
For purposes of clarification, the Department has added the
exchange of written notes as an example of an auxiliary aid or service.
This common-sense example is a codification of the Department's
longstanding policy with regard to title III entities. See The
Americans with Disabilities Act, Title III Technical Assistance Manual,
Covering Public Accommodations and Commercial Facilities (Title III TA
Manual), III-4.300, available at http://www.ada.gov/taman3.html. The
title III definition of auxiliary aids and services provided the
framework for the same definition in title II. See 56 FR 35544, 35565
(July 26, 1991) and 56 FR 35694, 35697 (July 26, 1991). This additional
example of an appropriate auxiliary aid and service was inserted
because many public entities do not realize that this easy and
efficient technique is available to them. While the exchange of written
notes is inappropriate for lengthy or complicated communications, it
can be appropriate for situations such as routine requests for written
information, for a police officer issuing a speeding ticket, or as a
means of communication while awaiting the arrival of an interpreter.
Also in paragraph (1) of the definition, the Department has
replaced the term ``telecommunications devices for deaf persons (TDD)''
with ``text telephones (TTYs).'' Although ``TDD'' is the term used in
the ADA, the use of ``TTY'' has become the commonly accepted term and
is consistent with the terminology used by the Access Board in the 2004
ADAAG. The Department has also included in paragraph (1) ``accessible
electronic and information technology'' as another example of auxiliary
aids and services. Lastly, ``computer-aided'' has been added to
describe ``transcription services'' to make it consistent with title
III.
The Department has added to paragraph (1) a new technology, video
interpreting services (VIS), which consists of a video phone, video
monitors, cameras, a high speed Internet connection, and an
interpreter. VIS is specifically discussed below in the proposed
definition of VIS.
In paragraph (2) of the definition, the Department proposes to
insert additional examples of auxiliary aids and services for
individuals who are blind or have low vision. The preamble to the
original regulation makes clear that the original list in the
regulation was ``not an all-inclusive or exhaustive catalogue of
possible or available auxiliary aids or services. It is not possible to
provide an exhaustive list, and an attempt to do so would omit the new
devices that will become available with emerging technology.'' See 56
FR 35694, 35697 (July 26, 1991). Because technological advances in the
seventeen years since the ADA was enacted have increased the range of
auxiliary aids and services for those who are blind or have low vision,
the Department has added additional examples, including brailled
displays, screen reader software, magnification software, optical
readers, secondary auditory programs (SAP), and accessible electronic
and information technology.
``Direct Threat''
In the Department's proposed Sec. 35.136(b)(3), a service animal
may be removed from the premises of a public entity if the animal poses
a direct threat to the health or safety of others that cannot be
eliminated by reasonable modifications. Direct threat is not defined in
title II, but it is defined in Sec. 36.208(b) of the current title III
regulation as ``a significant risk to the health or safety of others
that cannot be eliminated by a modification of policies, practices, or
procedures, or by the provision of auxiliary aids or services.'' The
Department proposes taking the definition from its current location in
title III and placing it in the definitions section in both title II
(Sec. 35.104) and title III (Sec. 36.104).
``Existing Facility''
Under the ADA, a facility may be one or more of three types at
different points in time: (1) An existing facility, (2) an altered
facility, or (3) a newly designed and constructed facility. In the
current regulation, title II defines new construction at Sec.
35.151(a) and alterations at Sec. 35.151(b). In contrast, the term
``existing facility'' is not defined although it is used in the statute
and in the regulations for titles II and III. 42 U.S.C.
12182(b)(2)(A)(iv); 28 CFR 35.150.
The Department's enforcement of the ADA is premised on a broad
understanding of ``existing facilities.'' The classifications of
facilities under the ADA regulation are not static. Rather, a building
that was newly designed and constructed at one time--and, therefore,
subject to the accessibility standards in effect at the time--becomes
an ``existing facility'' after it is completed. At some point in its
life, it may also be considered ``altered'' and then again become
``existing.''
The added definition of ``existing facility'' in the proposed
regulation clarifies that the term means exactly what it says: A
facility in existence on any given date is an existing facility under
the ADA. If a facility exists, it is an existing facility whether it
was built in 1989, 1999, or 2009. Of course, if the construction of a
facility at issue begins after the triggering dates for the new
construction standards, then the facility is subject to the new
construction standards, and if it is altered, it is subject to the
alterations standards.
[[Page 34477]]
``Other Power-Driven Mobility Device''
The proposed regulation defines the term ``other power-driven
mobility device'' as ``any of a large range of devices powered by
batteries, fuel, or other engines--whether or not designed solely for
use by individuals with mobility impairments--that are used by
individuals with mobility impairments for the purpose of locomotion,
including golf cars, bicycles, electronic personal assistance mobility
devices (EPAMDs) (e.g., Segway[supreg]), or any mobility aid designed
to operate in areas without defined pedestrian routes.'' The definition
is designed to be broad and inclusive because the Department recognizes
the diverse needs and preferences of individuals with disabilities and
does not wish to impede individual choice except when necessary. Power-
driven mobility devices are included in this category. Mobility aids
that are designed for areas or conditions without defined pedestrian
areas, such as off-road bike paths, roads (except where allowed by law
or where a sidewalk is not provided), freeways, or natural surfaces
such as beaches where there is not a defined circulation route for
pedestrians, are also included in this category.
Question 8: Please comment on the proposed definition of other
power-driven mobility devices. Is the definition overly inclusive of
power-driven mobility devices that may be used by individuals with
disabilities?
The Department's proposed regulatory text on accommodating
wheelchairs and other power-driven mobility devices is discussed below
in Sec. 35.137 of the section-by-section analysis.
``Proposed Standards''
The Department has added the term ``proposed standards'' to mean
the 2004 ADAAG as revised or amended by the Department in this
rulemaking. The full text of the 2004 ADAAG is available for review at
http://www.access-board.gov along with a detailed comparison of the
1991 Standards and the 2004 ADAAG that identifies the differences
between the two documents.
``Qualified Interpreter''
The Department proposes to add to the definition of ``qualified
interpreter'' to clarify that the term includes, but is not limited to,
sign language interpreters, oral interpreters, and cued speech
interpreters.
Not all interpreters are qualified for all situations. For example,
a qualified interpreter who uses American Sign Language (ASL) is not
necessarily qualified to interpret orally. Also, someone with just a
rudimentary familiarity with sign language or finger spelling is not a
qualified sign language interpreter. Likewise, a qualified sign
language interpreter would not include someone who is fluent in sign
language but unable to translate spoken communication into ASL or to
translate signed communication into spoken words.
The revised definition includes examples of different types of
interpreters. An oral interpreter has special skill and training to
mouth a speaker's words silently for individuals who are deaf or hard
of hearing, many of whom were raised orally and were taught to read
lips or were diagnosed with hearing loss later in life and do not know
sign language. An individual who is deaf or hard of hearing may need an
oral interpreter if the speaker's voice is unclear, there is a quick-
paced exchange of communication (e.g., in a meeting), or when the
speaker does not directly face the individual who is deaf or hard of
hearing. A cued speech interpreter functions in the same manner as an
oral interpreter except that he or she also uses a hand code, or cue,
to represent each speech sound.
``Qualified Reader''
The current regulation identifies a qualified reader as an
auxiliary aid, but it does not define the term. See 28 CFR 35.104(2).
Based upon the Department's investigation of complaints alleging that
some entities have provided ineffective readers, the Department
proposes to define ``qualified reader'' similarly to ``qualified
interpreter'' to ensure that entities select qualified individuals to
read an examination or other written information in an effective,
accurate, and impartial manner. Failing to provide a qualified reader
to a person with a disability could amount to discrimination based upon
disability.
``Service Animal''
Although there is no specific language in the current title II
regulation concerning service animals, title II entities have the same
legal obligations as title III entities to make reasonable
modifications in policies, practices, or procedures to allow service
animals when necessary to avoid discrimination on the basis of
disability, unless the modifications would fundamentally alter the
nature of the service, program, or activity. 28 CFR 35.130(b)(7). In
order to qualify for coverage under title II, a person must be a
``qualified individual with a disability,'' which is defined as ``an
individual with a disability who, with or without reasonable
modifications to rules, policies, or practices, the removal of
architectural, communication, or transportation barriers, or the
provision of auxiliary aids and services, meets the essential
eligibility requirements for the receipt of services or the
participation in programs or activities provided by a public entity.''
28 CFR 35.104. The Department is proposing to add to the title II
regulation the same definition of ``service animal'' that it will
propose for the title III regulation. The title III regulation
currently contains a definition of ``service animal'' in Sec. 36.104.
The current definition of ``service animal'' in Sec. 36.104 is,
``any guide dog, signal dog, or other animal individually trained to do
work or perform tasks for the benefit of an individual with a
disability, including, but not limited to, guiding individuals with
impaired vision, alerting individuals with impaired hearing to
intruders or sounds, providing minimal protection or rescue work,
pulling a wheelchair, or fetching dropped items.'' The Department would
modify that current definition, and add the same definition, as
modified, to the title II regulation at Sec. 35.104. The changes that
would be made to the title III definition, and that would be
incorporated in the title II definition are as follows:
1. Remove ``guide'' or ``signal'' as descriptions of types of
service dogs, add ``other common domestic'' animal, and add
``qualified'' to ``individual'' in the Department's current definition;
2. Remove ``individuals with impaired vision'' and replace it with
``individuals who are blind or have low vision;''
3. Change ``individuals with impaired hearing'' to ``individuals
who are deaf or hard of hearing;''
4. Replace the term ``intruders'' with the phrase ``the presence of
people'' in the section on alerting individuals who are deaf or hard of
hearing;
5. Add the following to the list of work and task examples:
Assisting an individual during a seizure, retrieving medicine or the
telephone, providing physical support to assist with balance and
stability to individuals with mobility disabilities, and assisting
individuals, including those with cognitive disabilities, with
navigation;
6. Add that ``service animal'' includes individually trained
animals that do work or perform tasks for the benefit of individuals
with disabilities, including psychiatric, cognitive, or mental
disabilities;
7. Add that ``service animal'' does not include wild animals
(including nonhuman primates born in captivity),
[[Page 34478]]
reptiles, rabbits, farm animals (including any breed of horse, pony,
miniature horse, pig, and goat), ferrets, amphibians, and rodents; and
8. Add that animals whose sole function is to provide emotional
support, comfort, therapy, companionship, therapeutic benefits, or
promote emotional well-being are not service animals.
The Department is proposing these changes in response to concerns
expressed by commenters regarding the Department's ANPRM. Issues raised
by the commenters include:
``Minimal protection.'' There were many comments by service dog
users urging the Department to remove from the definition the phrase
``providing minimal protection.'' The commenters set forth the
following reasons for why the phrase should be deleted: (1) The current
phrase can be interpreted to apply coverage under the ADA to
``protection dogs'' that are trained to be aggressive and protective,
so long as they are paired with a person with a disability; and (2)
since some view the minimal protection language to mean that a dog's
very presence can act as a crime deterrent, the language may be
interpreted to allow any untrained pet dog to provide minimal
protection by its mere presence. These interpretations were not
contemplated by the ADA.
Question 9: Should the Department clarify the phrase ``providing
minimal protection'' in the definition or remove it? Are there any
circumstances where a service animal providing ``minimal protection''
would be appropriate or expected?
``Alerting to intruders.'' Some commenters expressed a similar
concern regarding the phrase ``alerting * * * to intruders'' in the
current text as the concern expressed by commenters regarding the
phrase ``providing minimal protection.'' Commenters indicated that
``alerting to intruders'' has been misinterpreted by some individuals
to apply to a special line of protection dogs that are trained to be
aggressive. People have asserted, incorrectly, that use of such animals
is protected under the ADA. The Department reiterates that public
entities are not required to admit any animal that poses a direct
threat to the health or safety of others. The Department has proposed
removing ``intruders'' and replacing it with ``the presence of
people.''
``Task'' emphasis. Many commenters followed the lead of an umbrella
service dog organization and suggested that the phrase ``performing
tasks'' should form the basis of the service animal definition, that
``do work'' should be eliminated from the definition, and that
``physical'' should be added to describe tasks. Tasks by their nature
are physical, so the Department does not believe that such a change is
warranted. In contrast, the existing phrase ``do work'' is slightly
broader than ``perform tasks,'' and adds meaning to the definition. For
example, a psychiatric service dog can help some individuals with
dissociative identity disorder to remain grounded in time or place. As
one service dog user stated, in some cases, ``critical forms of
assistance can't be construed as physical tasks,'' noting that the
manifestations of ``brain-based disabilities,'' such as psychiatric
disorders and autism, are as varied as their physical counterparts. One
commenter stated that the current definition works for everyone (i.e.,
those with physical and mental disabilities) and urged the Department
to keep it. The Department has evaluated this issue and believes that
the crux of the current definition (individual training to do work or
perform tasks) is inclusive of the varied services provided by working
animals on behalf of individuals with all types of disabilities and
proposes that this portion of the definition remain the same.
Define ``task.'' One commenter suggested defining the term
``task,'' presumably so that there would be a better understanding of
what type of service performed by an animal would qualify for coverage.
The Department feels that the common definition of task is sufficiently
clear and that it is not necessary to add the term to the definitions
section; however, the Department has proposed additional examples of
work or tasks to help illustrate this requirement in the definition of
service animal.
Define ``animal'' or what qualifies certain species as ``service
animals.'' When the regulation was promulgated in 1991, the Department
did not define the parameters of acceptable animal species, and few
anticipated the variety of animals that would be used in the future,
ranging from pigs and miniature horses to snakes and iguanas. One
commenter suggested defining ``animal'' (in the context of service
animals) or the parameters of acceptable species to reduce the
confusion over whether a particular service animal is covered. One
service dog organization commented that other species would be
acceptable if those animals could meet the behavioral standards of
trained service dogs. Other commenters asserted that there are certain
animals (e.g., reptiles) that cannot be trained to do work or perform
tasks, so these animals would not be covered. The Department has
followed closely this particular issue (i.e., how many unusual animals
are now claimed as service animals) and believes that this aspect of
the regulation needs clarification.
To establish a practical and reasonable species parameter, the
Department proposes to narrow the definition of acceptable animal
species to ``dog or other common domestic animal'' by excluding the
following animals: Wild animals (including nonhuman primates born in
captivity), reptiles, rabbits, farm animals (including any breed of
horse, miniature horse, pony, pig, or goat), ferrets, amphibians, and
rodents. Many commenters asserted that limiting the number of allowable
species would help stop erosion of the public's trust, which results in
reduced access for many individuals with disabilities, despite the fact
that they use trained service animals that adhere to high behavioral
standards. The Department is compelled to take into account practical
considerations of certain animals and contemplate their suitability in
a variety of public contexts, such as libraries or courtrooms.
In addition, the Department believes that it is necessary to
eliminate from coverage all wild animals, whether born or bred in
captivity or the wild. Some animals, such as nonhuman primates, pose a
direct threat to safety based on behavior that can be aggressive and
violent without notice or provocation. The American Veterinary Medical
Association (AVMA) issued a position statement against the use of
monkeys as service animals, stating, ``[t]he AVMA does not support the
use of nonhuman primates as assistance animals because of animal
welfare concerns, the potential for serious injury, and zoonotic
[animal-to-human disease transmission] risks.'' See the AVMA 2005
position statement, Nonhuman Primates as Assistance Animals, available
at http://www.avma.org/issues/policy/nonhuman_primates.asp. The
potential for nonhuman primates to transmit dangerous diseases to
humans has been documented in scientific journals.
Although unusual species make up a very small percentage of service
animals as a collective group, their use has engendered broad public
debate and, therefore, the Department seeks comment on this issue.
Question 10: Should the Department eliminate certain species from
the definition of ``service animal''? If so, please provide comment on
the Department's use of the phrase ``common domestic animal'' and on
its choice of which types of animals to exclude.
[[Page 34479]]
Question 11: Should the Department impose a size or weight
limitation for common domestic animals, even if the animal satisfies
the ``common domestic animal'' prong of the proposed definition?
Comfort animals. It is important to address the concept of comfort
animals or emotional support animals, which have become increasingly
popular. The increased use of comfort animals is primarily by
individuals with mental or psychiatric impairments, many of which do
not rise to the level of disability. Comfort animals are also used by
individuals without any type of impairment who claim the need for such
an animal in order to bring their pets into facilities of public
entities.
The difference between an emotional support animal and a
psychiatric service animal is the service that is provided, i.e., the
actual work or task performed by the service animal. Another critical
factor rests on the severity of the individual's impairment. For
example, only individuals with conditions that substantially limit them
in a major life activity qualify for coverage under the ADA, and only
those individuals' use of a service animal will be covered under the
ADA. See definition of disability, 42 U.S.C. 12102(2) and 28 CFR
35.104. Major life activities include functions such as caring for
one's self, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working. Many Americans have some
type of physical or mental impairment (e.g., arthritis, anxiety, back
pain, imperfect vision, etc.), but establishing a physical or mental
disability also requires a substantial limitation of a major life
activity. Traditionally, service dogs worked as guides for individuals
who were blind or had low vision. Since the original regulations were
promulgated, service animals have been trained to assist individuals
with different types of disabilities. As a result, individuals with
minor impairments may mistakenly conclude that any type of impairment
qualifies them for ADA coverage.
Change ``service animal'' to ``assistance animal.'' Some commenters
asserted that ``assistance animal'' is a term of art and should replace
``service animal.'' While some agencies, like the Department of Housing
and Urban Development (HUD), use the term ``assistance animal,'' that
term is used to denote a broader category of animals than is covered by
the ADA. The Department believes that changing the term used under the
ADA would create confusion, particularly in view of the broader
parameters for coverage under the Fair Housing Act (FHA) (cf., HUD
Handbook No. 4350.3 Rev-1, Chg-2, Occupancy Requirements of Subsidized
Multifamily Housing Programs (June 2007), available at http://
www.hudclips.org.) Moreover, the Department's proposal to change the
definition of ``service animal'' under the ADA is not intended to
affect the rights of people with disabilities who use assistance
animals in their homes under the FHA.
In addition, the term ``psychiatric service animal'' describes a
service animal that does work or performs a task for the benefit of an
individual with a psychiatric disability. This contrasts with
``emotional support'' animals that are covered under the Air Carrier
Access Act, 49 U.S.C. 41705 et seq., and its implementing regulations,
14 CFR 382.7, see also 68 FR 24874, 24877 (May 9, 2003) (guidance on
accommodation of service animals and emotional support animals on air
transportation) and qualify as ``assistance animals'' under the FHA,
but do not qualify as ``service animals'' under the ADA.
``Video Interpreting Services (VIS)''
The Department has added a definition of video interpreting
services (VIS), a technology composed of a video phone, video monitors,
cameras, a high speed Internet connection, and an interpreter. The
video phone provides video transmission to a video monitor that permits
the individual who is deaf or hard of hearing to view and sign to a
video interpreter (i.e., a live interpreter in another location), who
can see and sign to the individual through a camera located on or near
the monitor, while others can communicate by speaking. The video
monitor can display a split screen of two live images, with the
interpreter in one image and the individual who is deaf or hard of
hearing in the other image.
VIS can provide immediate, effective access to interpreting
services seven days a week, twenty-four hours a day by allowing people
in different locations to engage in live, virtual face-to-face
communications. Moreover, VIS is particularly helpful where qualified
interpreters are not readily available (e.g., for quick response during
emergency hospital visits, in areas with an insufficient number of
qualified interpreters to meet demand, and in rural areas where
distances and an interpreter's travel time present obstacles).
In addition to adding the specific definition of VIS, the
Department proposes to add VIS to the definition of ``auxiliary aids
and services'' (discussed above in Sec. 35.104) and to set out
performance standards for VIS at Sec. 35.160.
``Wheelchair''
The Department proposes the following definition of ``wheelchair''
in Sec. 35.104: ``Wheelchair means a device designed solely for use by
an individual with a mobility impairment for the primary purpose of
locomotion in typical indoor and outdoor pedestrian areas. A wheelchair
may be manually operated or power-driven.''
The proposed definition of ``wheelchair'' is informed by several
existing definitions of ``wheelchair.'' Section 507 of the ADA defines
wheelchair in the context of whether to allow wheelchairs in federal
wilderness areas: ``The term `wheelchair' means a device designed
solely for use by a mobility-impaired person for locomotion, that is
suitable for use in an indoor pedestrian area.'' 42 U.S.C. 12207(c)(2).
The Department believes that while this definition is appropriate in
the limited context of federal wilderness areas, it is not specific
enough to provide clear guidance in the array of settings covered by
title II.
The other existing federal definition of ``wheelchair'' that the
Department reviewed is in the Department of Transportation regulation
implementing the transportation provisions under title II and title III
of the ADA. The Department of Transportation's definition of
``wheelchair'' is ``a mobility aid belonging to any class of three or
four-wheeled devices, usable indoors, designed for and used by
individuals with mobility impairments, whether operated manually or
powered.'' 49 CFR 37.3. The Department has adopted much of the language
from this definition. Under the proposed definition, wheelchairs
include manually operated and power-driven wheelchairs and mobility
scooters. Mobility devices such as golf cars, bicycles, and electronic
personal assistance mobility devices (EPAMDs) are inherently excluded
from the proposed definition. Typically, the devices covered under the
proposed definition are single-user, have three to four wheels, and are
appropriate for both indoor and outdoor pedestrian areas. However, it
could include a variety of types of wheelchairs and mobility scooters
with individualized or unique features or models with different numbers
of wheels. ``Typical indoor and outdoor pedestrian areas'' refer to
locations and surfaces used by and intended for pedestrians, including
sidewalks, paved paths, floors of buildings, elevators, and other
circulation routes, but would not
[[Page 34480]]
include such areas as off-road bike paths, roads (except where allowed
by law or where a sidewalk is not provided), freeways, or natural
surfaces such as beaches where there is not a defined circulation route
for pedestrians.
The Department does not propose to define specific dimensions that
qualify a device as a wheelchair. The Department of Transportation's
definition includes a subpart defining ``common wheelchair'' to provide
guidance for public transit authorities on which devices must be
transported. A ``common wheelchair'' is a wheelchair that ``does not
exceed 30 inches in width and 48 inches in length measured two inches
above the ground, and does not weigh more than 600 pounds when
occupied.'' 49 CFR 37.3. The narrower definition of ``common
wheelchair'' was developed with reference to the requirements for lifts
to establish parameters for the size and weight a lift can safely
accommodate. See 49 CFR part 37, App. D (2002). The Department does not
believe it is necessary to adopt stringent size and weight requirements
for wheelchairs.
The Department requests public input on the proposed definition for
``wheelchair.''
Question 12: As explained above, the definition of ``wheelchair''
is intended to be tailored so that it includes many styles of
traditional wheeled mobility devices (e.g., wheelchairs and mobility
scooters). Does the definition appear to exclude some types of
wheelchairs, mobility scooters, or other traditional wheeled mobility
devices? Please cite specific examples if possible.
Question 13: Should the Department expand its definition of
``wheelchair'' to include Segways[supreg]?
Question 14: Are there better ways to define different classes of
mobility devices, such as the weight and size of the device that is
used by the Department of Transportation in the definition of ``common
wheelchair''?
Question 15: Should the Department maintain the non-exhaustive list
of examples as the definitional approach to the term ``manually powered
mobility aids''? If so, please indicate whether there are any other
non-powered or manually powered mobility devices that should be
considered for specific inclusion in the definition, a description of
those devices, and an explanation of the reasons they should be
included.
Question 16: Should the Department adopt a definition of the term
``manually powered mobility aids''? If so, please provide suggested
language and an explanation of the reasons such a definition would
better serve the public.
The proposed regulation regarding mobility devices, including
wheelchairs, is discussed below in the section-by-section analysis for
Sec. 35.137.
Subpart B--General Requirements
Section 35.130 General Prohibitions Against Discrimination
Section 35.133 Maintenance of Accessible Features
The general rule regarding the maintenance of accessible features,
which provides that a public entity must maintain in operable working
condition those features of facilities and equipment that are required
to be readily accessible to and usable by qualified individuals with
disabilities, is unchanged. However, the Department wishes to clarify
its application and proposes one change to the section.
The Department has noticed that some covered entities do not
understand what is required by Sec. 35.133, and it would like to take
the opportunity presented by this NPRM to clarify the requirement.
Section 35.133(a) broadly covers all features that are required to be
accessible under the ADA, from accessible routes and elevators to roll-
in showers and signage. It is not sufficient for a building or other
feature to be built in compliance with the ADA, only to be changed or
blocked later so that it becomes inaccessible. A common problem
observed by the Department is that covered facilities do not maintain
accessible routes. For example, the accessible routes in offices or
hallways are commonly obstructed by boxes, furniture, or other items so
that the routes are inaccessible to individuals who use wheelchairs.
Under the ADA, the accessible route must be maintained and therefore
these items are required to be removed. If the items are placed there
temporarily--for example, if an office receives multiple boxes of
supplies and is moving them from the hall to the storage room--then
Sec. 35.133(b) excuses such ``isolated or temporary interruptions.''
Other common examples of features that must be maintained, and often
are not, are platform lifts and elevators. Public entities must ensure
that these features are operable, and to meet this requirement, regular
servicing and making repairs quickly will be necessary.
The Department proposes to amend the rule by adding Sec. 35.133(c)
to address the discrete situation in which the scoping requirements
provided in the proposed standards may reduce the number of required
elements below that are required by the 1991 Standards. In that
discrete event, a public entity may reduce such accessible features in
accordance with the requirements in the proposed standards.
Section 35.136 Service Animals
The Department's title II regulation now states that ``[a] public
entity shall make reasonable modifications in policies, practices, or
procedures when the modifications are necessary to avoid discrimination
on the basis of disability, unless the public entity can demonstrate
that making the modifications would fundamentally alter the nature of
the service, program, or activity.'' 28 CFR 35.130(b)(7). In the
proposed title II language, the Department intends to provide the
broadest feasible access to individuals with disabilities who use
service animals, unless a public entity can demonstrate that making the
modifications would fundamentally alter the nature of the public
entity's service, program, or activity.
The proposed section regarding service animals would incorporate
the Department's policy interpretations as outlined in its published
technical assistance Commonly Asked Questions about Service Animals
(1996) (available at http://www.ada.gov/qasrvc.htm), and ADA Business
Brief: Service Animals (2002) (available at http://www.ada.gov/
svcanimb.htm), as well as make changes based on public comment.
Proposed Sec. 35.136 would:
1. Expressly incorporate the Department's policy interpretations as
outlined in its published technical assistance and add that a public
entity may ask an individual with a disability to remove a service
animal from the premises if: (i) The animal is out of control and the
animal's handler does not take effective action to control it; (ii) the
animal is not housebroken; (iii) the animal's presence or behavior
fundamentally alters the nature of the service the public entity
provides (e.g., repeated barking); or (iv) the animal poses a direct
threat to the health or safety of others that cannot be eliminated by
reasonable modifications in Sec. 35.136(b);
2. Add in Sec. 35.136(c) that if a public entity properly excludes
a service animal, the public entity must give the individual with a
disability the opportunity to participate in or benefit from the
services, programs, or activities without having the service animal on
the premises;
3. Add in Sec. 35.136(d) requirements that the work or tasks
performed by a service animal must be directly related to the handler's
disability; that a service animal that accompanies an individual with a
disability into a public entity's
[[Page 34481]]
facility must be individually trained to do work or perform a task, be
housebroken, and be under the control of its owner; and that a service
animal must have a harness, leash, or other tether;
4. Add in Sec. 35.136(e) specific language clarifying that ``[a]
public entity is not responsible for caring for or supervising a
service animal.'' This proposed language does not require that the
person with a disability care for his or her service animal if care can
be provided by a family member, friend, attendant, volunteer, or anyone
acting on behalf of the person with a disability. This provision is a
variation on the existing title III language in Sec. 36.302(c)(2),
which states, ``[n]othing in this part requires a public accommodation
to supervise or care for a service animal.'' The Department is
proposing similar modifications to the title III requirements on
service animals in the NPRM for title III, published concurrently with
this NPRM.
5. Expressly incorporate the Department's policy interpretations as
outlined in its published technical assistance that a public entity
must not ask what the person's disability is or about the nature of the
person's disability, nor require proof of service animal certification
or licensing, but that a public entity may ask (i) if the animal is
required because of a disability; and (ii) what work or tasks the
animal has been trained to perform in Sec. 35.136(f);
6. Expressly incorporate the Department's policy interpretations as
outlined in its published technical assistance and add that a public
entity must not require an individual with a disability to pay a fee or
surcharge or post a deposit as a condition of permitting a service
animal to accompany its handler in a public entity's facility, even if
such deposits are required for pets, and that if a public entity
normally charges its citizens for damage that they cause, a citizen
with a disability may be charged for damage caused by his or her
service animal in Sec. 35.136(h).
These changes will respond to the following concerns raised by
individuals and organizations that commented in response to the ANPRM.
Proposed behavior or training standards. Some commenters proposed
behavior or training standards for the Department to adopt in its
revised regulation, not only to remain in keeping with the requirement
for individual training, but also on the basis that without training
standards the public has no way to differentiate between untrained pets
and service animals. Because of the variety of individual training that
a service animal can receive--from formal licensing at an academy to
individual training on how to respond to the onset of medical
conditions, such as seizures--the Department is not inclined to
establish a standard that all service animals must meet. Some of the
behavioral standards that the Department is proposing actually relate
to suitability for public access, such as being housebroken and under
the control of its handler.
Hospital and healthcare settings. Public entities, including public
hospitals, must modify policies, practices, or procedures to permit the
use of a service animal by an individual with a disability. 28 CFR
35.130(b)(7). The exception to this requirement is if making the
modification would fundamentally alter the nature of the service,
program, or activity. The Department generally follows the guidance of
the Centers for Disease Control and Prevention (CDC) on the use of
service animals in a hospital setting.
As required by the ADA, a healthcare facility must permit a person
with a disability to be accompanied by his or her service animal in all
areas of the facility in which that person would otherwise be allowed,
with some exceptions. Zoonotic diseases can be transmitted to humans
through trauma (e.g., bites or scratches). Although there is no
evidence that most service animals pose a significant risk of
transmitting infectious agents to humans, animals can serve as a
reservoir for a significant number of diseases that could potentially
be transmitted to humans in the healthcare setting. A service animal
may accompany its owner to such areas as admissions and discharge
offices, the emergency room, inpatient and outpatient rooms, examining
and diagnostic rooms, clinics, rehabilitation therapy areas, the
cafeteria and vending areas, the pharmacy, rest rooms, and all other
areas of the facility where visitors are permitted, except those listed
below.
Under the ADA, the only circumstances under which a person with a
disability may not be entitled to be accompanied by his or her service
animal are those rare circumstances in which it has been determined
that the animal poses a direct threat to the health or safety of
others. A direct threat is defined as a significant risk to the health
or safety of others that cannot be eliminated or mitigated by a
modification of polices, practices, or procedures. Based on CDC
guidance, it is generally appropriate to exclude a service animal from
areas that require a protected environment, including operating rooms,
holding and recovery areas, labor and delivery suites, newborn
intensive care nurseries, and sterile processing departments. See
Centers for Disease Control, Guidelines for Environmental Infection
Control in Health Care Facilities (June 2003), available at http://
www.cdc.gov/mmwr/preview/mmwrhtml/rr5210a1.htm.
Section 35.137 Mobility Devices
Proposed Sec. 35.137 has been added to provide additional guidance
to public entities about the circumstances in which power-driven
mobility devices must be accommodated.
As discussed earlier in this NPRM, this proposal is in response to
growing confusion about what types of mobility devices must be
accommodated. The Department has received complaints and become aware
of situations where individuals with mobility disabilities have
utilized for locomotion purposes riding lawn mowers, golf cars, large
wheelchairs with rubber tracks, gasoline-powered, two-wheeled scooters,
and other devices that are not designed for use or exclusively used by
people with disabilities. Indeed, there has been litigation about
whether the ADA requires covered entities to allow people with
disabilities to use their EPAMDs like users of traditional wheelchairs.
Individuals with disabilities have sued several shopping malls in which
businesses refused to allow a person with a disability to use an EPAMD.
See, e.g., Sarah Antonacci, White Oaks Faces Lawsuit over Segway, State
Journal-Register, Oct. 9, 2007, available at http://www.sj-r.com/news/
stories/17784.asp; Shasta Clark, Local Man Fighting Mall Over Right to
Use Segway, WATE 6 News, July 26, 2005, available at http://
www.wate.com/Global/story.asp?s=3643674. The Department believes
clarification on what the ADA requires is necessary at this juncture.
Section 35.137(a) reiterates the general rule that public entities
shall permit individuals using wheelchairs, scooters, and manually
powered mobility aids, including walkers, crutches, canes, braces, and
similar devices, in any areas open to pedestrians. The regulation
underscores this general proposition because the great majority of
mobility scooters and wheelchairs must be accommodated under nearly all
circumstances in which title II applies.
Section 35.137(b) adopts the general requirement in the ADA that
public entities must make reasonable modifications to their policies,
practices, and procedures when necessary to enable an individual with
[[Page 34482]]
a disability to use a power-driven mobility device to participate in
its services, programs, or activities unless doing so would result in a
fundamental alteration of their services, programs, or activities.
If a public entity restricts the use of power-driven mobility
devices by people without disabilities, then it must develop policies
addressing which devices and under what circumstances individuals with
disabilities may use power-driven mobility devices for the purpose of
mobility. Under the Department's proposed regulation in Sec.
35.137(c), public entities must adopt policies and procedures regarding
the accommodation of power-driven mobility devices other than
wheelchairs and scooters that are designed to assess whether allowing
an individual with a disability to use a power-driven mobility device
is reasonable and does not result in a fundamental alteration to its
programs, services, or activities. Public entities may establish
policies and procedures that address and distinguish among types of
mobility devices.
For example, a city may determine that it is reasonable to allow
individuals with disabilities to use EPAMDs in a variety of outdoor
programs and activities, but that it would not be reasonable to allow
the use of golf cars as mobility devices in similar circumstances. At
the same time, the city may address its concerns about factors such as
space limitations by disallowing EPAMDs by members of the general
public.
Section 35.137(c) lists permissible factors that a public entity
may consider in determining whether the use of different types of
power-driven mobility devices by individuals with disabilities may be
permitted. In developing policies, public entities should group power-
driven mobility devices by type (e.g., EPAMDs, golf cars, gasoline-
powered vehicles, wheelchairs designed for outdoor use, and other
devices). A blanket exclusion of all devices that fall under the
definition of other power-driven mobility devices in all locations
would likely violate the proposed regulation.
The factors listed in Sec. 35.137(c)(1)-(3) may be used in order
to develop policies regarding the use of other power-driven mobility
devices by people with disabilities. The dimensions, weight, and other
characteristics of the mobility device in relation to a wheelchair or
scooter, as well as the device's maneuverability and speed, may be
considered. Another permissible factor is the risk of potential harm to
others. The use of gas-powered golf cars by people with disabilities
inside a building may be prohibited, for example, because the exhaust
may be harmful to others. A mobility device that is unsafe to others
would not be reasonable under the proposed regulation. Additionally,
the risk of harm to the environment or natural or cultural resources or
conflicts with federal land management laws and regulations are also to
be considered. The final consideration is the ability of the public
entity to stow the mobility device when not in use, if requested by the
user.
While a public entity may inquire into whether the individual is
using the device due to a disability, the entity may not inquire about
the nature and extent of the disability, as provided in Sec.
35.137(d).
The Department anticipates that, in many circumstances, allowing
the use of unique mobility devices by individuals with disabilities
will be reasonable to provide access to a public entity's services,
programs, and activities, and that in many cases it will not
fundamentally alter the public entity's operations and services. On the
other hand, the use of mobility devices that are unsafe to others, or
unusually unwieldy or disruptive, is unlikely to be reasonable and may
constitute a fundamental alteration.
Consider the following examples:
Example 1: Although people who do not have mobility impairments
are prohibited from operating EPAMDs at the fairgrounds, the county
has developed a policy allowing people with disabilities to use
EPAMDs as their mobility device on the fairgrounds. The county's
policy states that EPAMDs are allowed in all areas of the
fairgrounds that are open to pedestrians as a reasonable
modification to its general policy on EPAMDs. The county determined
that the venue provides adequate space for a larger device such as
an EPAMD and that it does not fundamentally alter the nature of the
fair's activities and services. The county's policies do, however,
require that EPAMDs be operated at a safe speed limit. A county
employee may inquire at the ticket gate whether the device is needed
due to the user's disability and also inform an individual with a
disability using an EPAMD that the county policy requires that it be
operated at or below the designated speed limit.
Example 2: The city has developed a policy specific to city hall
regarding the use of EPAMDs (i.e., users who do not need the devices
due to disability are required to leave the devices outside the
building). While most of city hall is spacious, the city has
determined that it is not reasonable to allow people with
disabilities to bring their EPAMDs into the recorder of deeds
office, which is quite small, and the device's dimensions make it
unsafe and unwieldy in this situation. If it is not possible for the
individua