[Federal Register: June 17, 2008 (Volume 73, Number 117)]
[Proposed Rules]
[Page 34508-34557]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17jn08-21]
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DEPARTMENT OF JUSTICE
28 CFR Part 36
[CRT Docket No. 106; AG Order No. 2968-2008]
RIN 1190-AA44
Nondiscrimination on the Basis of Disability by Public
Accommodations and in Commercial Facilities
AGENCY: Department of Justice, Civil Rights Division.
ACTION: Notice of proposed rulemaking.
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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
Architectural and Transportation Barriers and Compliance Board (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
[[Page 34509]]
the revised ADA Standards (proposed standards).
Concurrently with the publication of this NPRM, the Department is
publishing an NPRM to amend its title II regulation, which covers state
and local government entities, in order to adopt the 2004 ADAAG as its
proposed standards for title II entities, to make amendments to the
title II regulation for consistency with title III, and to make
amendments that reflect the collective experience of 16 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 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. 106 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 at 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
regulation, the Department has reviewed the title III regulation
section by section, and, as a result, proposes several clarifications
and amendments in this NPRM. The Department's initial, formal benefit-
cost analysis can be found at Appendix B. 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 2703 (Jan. 18, 2007); 5 U.S.C. 601, 603, and
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. It has also
been reviewed by the Small Business Administration's Office of Advocacy
pursuant to Executive Order 13272, 67 FR 53461 (Aug. 13, 2002).
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 fifty million individuals with disabilities nationwide by
announcing the New Freedom Initiative (available at http://
www.whitehouse.gov/infocus/newfreedom). The Access Board's 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 also is proposing amendments to its title II
regulation, which prohibits discrimination on the basis of disability
in state and local government services, concurrently with the
publication of this NPRM, in this issue of the Federal Register.
[[Page 34510]]
Title III prohibits discrimination on the basis of disability in
the activities of places of public accommodation (businesses that are
generally open to the public and that fall into one of twelve
categories listed in the ADA, such as restaurants, movie theaters,
schools, day care facilities, recreational facilities, and doctors'
offices) and requires newly constructed or altered places of public
accommodation--as well as commercial facilities (privately owned,
nonresidential facilities like factories, warehouses, or office
buildings)--to comply with the ADA Standards. 42 U.S.C. 12181-89.
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 1991 Standards, which were
based upon the version of ADAAG published by the Access Board on the
same date. Under the Department's regulation implementing title III,
places of public accommodation and commercial facilities are currently
required to comply with the 1991 Standards with respect to newly
constructed or altered facilities.
Relationship to Other Laws
The Department of Justice regulation implementing title III, 28 CFR
36.103, 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) Section 504. This part does not affect the obligations of a
recipient of federal financial assistance to comply with the
requirements of section 504 of the Rehabilitation Act of 1973, 29
U.S.C. 794, and regulations issued by federal agencies implementing
section 504.
(c) Other laws. This part does not invalidate or limit the
remedies, rights, and procedures of any other federal, state, or
local laws (including state common law) that provide greater or
equal 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 accommodations subject to title III
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 ADA regulations does not necessarily
ensure compliance with other federal statutes.
Public accommodations 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 quick
service restaurant in an airport is a public accommodation subject to
title III. It regularly serves the passengers of air carriers subject
to the Air Carrier Access Act (ACAA). The restaurant is subject to the
title III requirements, not to the ACAA requirements. Conversely, the
airline is required to comply with the ACAA, not with the ADA.
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 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 sole responsibility 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 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.
The Revised Guidelines (2004 ADAAG)
Part I of the 2004 ADAAG provides 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--must comply
with the technical specifications. Part II provides scoping (which is
defined in the preamble of title 2) 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 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
people with disabilities. In 1999, based largely on the report and
recommendations of the advisory committee,\1\ the Access Board issued a
proposed rule to update and revise its ADA and ABA Accessibility
Guidelines.
[[Page 34511]]
See 64 FR 62248 (Nov. 16, 1999). In response to its proposed 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. 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.
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\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.
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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 recreational 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) on September 30, 2004, 69 FR 58768, for two reasons: (1) To
begin the process of adopting the Access Board's 2004 ADAAG by
soliciting public input on issues relating to the potential application
of the Access Board's revisions once the Department adopts them as
revised standards; and (2) to request background information that would
assist the Department in preparing a regulatory analysis under the
guidance provided in OMB Circular A-4, available at 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 barrier removal requirement applicable to existing
facilities under title III (like the program access requirement in
title II) is solely within the discretion of the Department. 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 elements in
small facilities, 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 that would excuse elements built 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. Comments also dealt with specific requirements in the 2004
ADAAG.
Many commenters requested clarification of or changes to the
Department's title III regulation. Commenters observed that now, more
than seventeen years after 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 that
individuals with disabilities can actually gain access to and use the
accessible elements. So, for example, commenters asked the Department
to focus on such issues as ticketing in assembly areas and reservations
for hotel rooms, rental cars, and 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 II. Issues involving title
II of the ADA, such as the exhaustion of administrative remedies under
the Prison Litigation Reform Act (PLRA), 42 U.S.C. 1997e et seq., are
addressed in the Department's NPRM for title II, in this issue of the
Federal Register, published concurrently with this NPRM.
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 costs and benefits 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, http://
www.whitehouse.gov/ omb/circulars/a004/a-4.pdf; 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.
[[Page 34512]]
Regulatory Impact Analysis. An initial regulatory impact analysis
of the costs and benefits of a proposed rule is required by Executive
Order 12866 (as amended by Executive Order 13258 and Executive Order
13422). 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 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 recreational 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 cost 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 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 the 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.
For example, the Department's proposed standards for existing
stairs and elevators have identical counterparts in one or more IBC
versions (2000, 2003, or 2006). 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 the actual costs and benefits would be for these eight existing
elements, in particular as applied to alterations, in compliance with
the proposed regulations (side reach, water closet clearances in
single-user toilet rooms with in-swinging doors, stairs, elevators,
location of accessible routes to stages, accessible attorney areas and
witness stands, assistive listening systems, and accessible teeing
grounds, putting greens, and weather shelters at golf courses), as well
as additional practical benefits from these
[[Page 34513]]
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 based on disproportionate
costs compared to benefits and public comments. The Access Board did
not have the benefit of our RIA or public comment on our RIA as it
pertains to the 2004 ADAAG.
Question 2: The Department would welcome comment on whether any of
the proposed standards for these eight areas (side reach, water closet
clearances in single-user toilet rooms with in-swinging doors, stairs,
elevators, location of accessible routes to stages, accessible attorney
areas and witness stands, assistive listening systems, and accessible
teeing grounds, putting greens, and weather shelters at golf courses)
should be raised with the Access 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
alteration 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 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
[[Page 34514]]
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 2) 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 to 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 II
regulation are proposed in the NPRM for title II published concurrently
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,
a significant goal in 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.
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
III regulation or have been the subject of attention or comment. The
topics introduced in the general issues section include: safe harbor
and other proposed limitations on barrier removal, service animals,
equipment, wheelchairs and other power-driven mobility devices,
auxiliary aids and services (including captioning and video
interpreting services), and certification of state and local building
codes.
Following the ``General Issues'' section, there is a section
entitled, ``Section-By-Section Analysis and Response to Comments.''
This section provides a detailed discussion of the proposed changes to
the title III 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.
Both the ``General Issues'' section and the ``Section-By-Section
Analysis'' include 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 III, that follow the section-by-section analysis are entitled,
``Part 36: Nondiscrimination on the Basis of Disability by Public
Accommodations and in Commercial Facilities.''
General Issues
This section briefly introduces topics that are noteworthy because
they are new to the title III regulation or have been the subject of
considerable attention or comment. Each topic is discussed subsequently
in the section-by-section analysis.
Safe harbor and other proposed limitations on barrier removal. One
of the most important issues that the Department must address is the
effect that supplemental or changed ADA Standards will have on the
continuing
[[Page 34515]]
obligation of public accommodations to remove architectural,
transportation, and communication barriers in existing facilities to
the extent that it is readily achievable to do so. This issue was not
addressed in the 2004 ADAAG because it was outside the scope of the
Access Board's authority under the ADA. Responsibility for implementing
title III's requirement that public accommodations eliminate existing
architectural barriers where it is readily achievable to do so rests
solely with the Department.
The Department's current regulation implementing title III of the
ADA establishes the requirements for barrier removal by public
accommodations. 28 CFR 36.304. Under this requirement, the Department
uses the 1991 Standards as a guide to identify what constitutes an
architectural barrier, as well as the specifications that covered
entities must follow in making architectural changes to the extent that
it is readily achievable. 28 CFR part 36, App. B. Once adopted,
therefore, the 2004 ADAAG will present a new reference point for title
III's requirement to remove architectural barriers in existing places
of public accommodation. The Department is concerned that the
incremental changes in the 2004 ADAAG may place unnecessary cost
burdens on businesses that have already removed barriers by complying
with the 1991 Standards in their existing facilities.
The Department seeks to strike an appropriate balance between
ensuring that people with disabilities are provided access to buildings
and facilities and potential financial burdens on existing places of
public accommodation under their continuing obligation for barrier
removal. Such a balance would not impose unnecessary financial burdens
on existing places of public accommodation.
The Department's ANPRM raised several options that might reduce
such financial burdens. One approach, described in the ANPRM as Option
I, is to establish a safe harbor with regard to elements in existing
facilities that comply with the scoping and technical provisions in the
1991 Standards. Specifically, the Department would deem that public
accommodations have met their obligation for barrier removal with
respect to any element in an existing facility if that element complies
with the scoping and technical requirements in the 1991 Standards.
Another possible approach--Option II in the ANPRM--is to reduce the
scoping requirements for some of the supplemental or changed
requirements as they apply to existing facilities (e.g., play areas and
recreational facilities). Option III in the ANPRM proposed the
exemption of certain elements in the proposed standards; under this
option, the Department would determine that certain supplemental
requirements are inappropriate for barrier removal. After reviewing the
public comments on the ANPRM, the Department has decided to propose a
combination of Options I and II. The specific proposals are addressed
in the discussion of barrier removal in the section-by-section analysis
of Sec. 36.304 below.
The Department is not proposing to adopt Option III. Instead, in
keeping with its obligations under the SBREFA to consider regulatory
alternatives, the Department is seeking public comment on an
alternative suggested by advocates for small business. Under this
alternative, the Department would revamp its approach to barrier
removal that is readily achievable as applied to ``qualified small
business'' entities, which are defined in Sec. 36.104.
Small business advocates argued for clearer guidance on when
barrier removal is, and is not, readily achievable. According to the
small business advocacy groups, the Department's current approach to
readily achievable barrier removal disproportionately affects small
businesses for the following reasons: (1) Small businesses are more
likely to operate in older buildings and facilities; (2) the 1991
Standards are too numerous and technical for most small business owners
to understand and then to square with the ADA requirements with state
and local building or accessibility codes; and (3) small businesses are
particularly vulnerable to title III litigation and are often compelled
to settle because they cannot afford the litigation costs involved in
proving whether an action is readily achievable. Advocates for small
business endorsed many of the proposals in the ANPRM, such as the safe
harbor and reduced scoping for some elements.
The proposed standards will go a long way toward meeting the
concern of small businesses with regard to harmonizing federal and
state requirements; the Access Board harmonized the 2004 ADAAG with the
model codes that form the basis of most state and local accessibility
codes. Still, the Department is proposing that a qualified small
business is presumed to have done what is readily achievable in a given
year if, in the prior tax year, it spent a fixed percentage of its
revenues on readily achievable barrier removal. The Department believes
that the efficacy of any such proposal will turn on two determinations:
(1) The definition of a qualified small business, and (2) the formula
for calculating what percentage of revenues should be sufficient to
satisfy the readily achievable presumption. The Department discusses
its proposal for safe harbor and reduced scoping requirements in the
section-by-section analysis of Sec. 36.304.
The Department invites comment on whether public accommodations
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 that 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 accommodations
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 owners and operators of
public accommodations 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 places of public
accommodation.
Service animals. The Department wishes to clarify the obligations
of public accommodations 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
that many covered entities are confused regarding their obligations
under the ADA with regard to individuals with disabilities who use
service animals. At the same time, some individuals with impairments--
who would not be covered as individuals with disabilities--are claiming
that their animals are legitimate service animals, whether fraudulently
or sincerely (albeit mistakenly), to gain access to hotels,
[[Page 34516]]
restaurants, and other places of public accommodation. Another trend is
the use of wild, exotic, or unusual species, many of which are
untrained, as service animals. The Department is proposing amendments
to its regulation on service animals in the hope of mitigating the
apparent confusion.
Minimal protection. In the Department's ADA Business Brief on
Service Animals, which was published in 2002, the Department
interpreted the minimal protection language 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 minimal protection language, the Department continues to
believe that it should retain the ``providing minimal protection''
language and interpret the language to exclude so-called ``attack
dogs'' that pose a direct threat to others.
Guidance on permissible service animals. In the original regulation
implementing title III, ``service animal'' was defined as ``any guide
dog, signal dog, or other animal,'' and the Department believed, at the
time, that leaving the species selection up to the discretion of the
person with a disability was the best course of action. Due to the
proliferation of animals used by individuals, including wild animals,
the Department believes that this area needs some parameters.
Therefore, the Department is proposing to eliminate certain species
from coverage even if the other elements of the definition are
satisfied.
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 perform tasks excluded all
individuals with mental disabilities from having service animals.
Others have assumed that any person with a psychiatric condition whose
pet provided comfort to them 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
individuals 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. 36.104 to
formalize its position on emotional support/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 state, however, that the exclusion of emotional support animals from
ADA coverage does not mean that individuals with psychiatric,
cognitive, or mental disabilities cannot use service animals. The
Department proposes specific regulatory text in Sec. 36.104 to make
this clear: ``The 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 and is not a new 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.
Modification in policies, practices, or procedures. The preamble to
Sec. 36.302 of the current title III regulation states that the
regulatory language was intended to provide the ``broadest feasible
access'' to individuals with service animals while acknowledging that,
in rare circumstances, accommodating service animals may not be
required if it would result in a fundamental alteration of the nature
of the goods or services the public accommodation provides or the safe
operation of the public accommodation. 56 FR 35544, 35565 (July 26,
1991). In order to clarify this provision, the Department is
incorporating into the proposed regulation guidance that it has
provided previously through technical assistance.
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 groups have urged the Department to modify this
position, the Department does not believe 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
definition section, Sec. 36.104, and the section on modifications in
policies, practices, and procedures, Sec. 36.302(c).
Equipment and furniture. In question seven of the ANPRM, the
Department asked for comment on whether regulatory guidance is needed
with respect to the acquisition and use of free-standing equipment or
furnishings used by covered entities to provide services, and asked for
specific examples of the circumstances in which such equipment should
be addressed. The ANPRM explained that free-standing equipment was
already addressed in the regulation in several different contexts, but
because covered entities continue to raise questions about their
obligations to provide accessible free-standing equipment, the
Department was considering adding specific language on equipment. The
Department received comments both in favor and against new guidance on
accessible equipment and furniture, but has decided not to add any
specific regulation governing equipment at this time.
Many businesses were opposed to additional requirements for free-
standing equipment, although they favored a move toward clarity and
specificity. Some businesses were concerned that they lack control of
the design or manufacturing of such equipment.
Most organizations and individuals 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 not relevant whether the equipment (e.g.,
ATMs, vending machines) is free-standing or fixed, because the
equipment must be accessible in order for individuals with disabilities
to use it.
A specific point of concern to several commenters was inaccessible
aisles
[[Page 34517]]
between movable display racks in stores. The Department's current
regulation addresses this issue under barrier removal, requiring that
stores rearrange display racks when readily achievable but adding the
following exception to Sec. 36.304(f): ``The rearrangement of
temporary or movable structures, such as furniture, equipment, and
display racks is not readily achievable to the extent that it results
in a significant loss of selling or serving space.'' If the
rearrangement of display racks is not readily achievable, stores still
have an obligation to provide alternatives to barrier removal, such as
retrieving merchandise from inaccessible shelves or racks. 28 CFR
36.305(b)(2).
When the title III regulation was initially proposed in 1991, it
contained a provision concerning accessible equipment, which required
that newly purchased furniture or equipment that was made available for
use at a place of public accommodation be accessible, unless complying
with this requirement would fundamentally alter the goods, services,
facilities, privileges, advantages, or accommodations offered, or would
not be readily achievable. See 56 FR 7452, 7470-71 (Feb. 22, 1991). In
the final title III regulation promulgated in 1991, the Department
decided not to include this provision, explaining in the preamble to
the regulation that ``its requirements are more properly addressed
under other sections, and . . . there are currently no appropriate
accessibility standards addressing many types of furniture and
equipment.'' 56 FR 35544, 35572 (July 26, 1991).
Equipment has been covered under the Department's ADA regulation,
including under the provision requiring modifications in policies,
practices, and procedures and the provision requiring barrier removal,
even though there is no provision specifically addressing equipment.
See 28 CFR 36.302, 36.304. If a person with a disability does not have
full and equal access to a covered entity's services because of the
lack of accessible equipment, the entity must provide that equipment,
unless doing so would be a fundamental alteration or would not be
readily achievable.
The Department has decided to continue with this approach, and not
to add any specific regulatory guidance addressing equipment at this
time. It intends to analyze the economic impact of future regulations
governing specific types of free-standing equipment. 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 may apply those requirements to analogous free-
standing equipment to ensure that they are accessible, and to avoid
potential liability for discrimination. The Department also believes
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). With
regard to the specific issue of display racks in stores, the Department
does not propose to change the approach in the current regulation. The
tension between access for individuals with disabilities and loss of
selling space caused by the arrangement of the racks within the store
is the same whether the store is newly constructed or an existing
facility. The existing approach appropriately balances the needs of
businesses and individuals with disabilities.
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 than that required of other
golfers. The ANPRM also asked about the safety of such cars and their
potential for damaging golf course greens. Accessible golf cars are
designed for use by individuals with mobility disabilities and are
operated using hand controls. An individual with a disability can hit a
golf ball while remaining in the seat of an accessible golf car. Some
accessible golf cars have a swivel, elevated seat that allows the
golfer to play from a semi-standing position. Accessible golf cars can
be used by individuals without disabilities as well. The Department
received many comments on the subject of accessible golf cars
(approximately one quarter of all comments received), the majority of
which favored a requirement for accessible golf cars. However, the
Department has decided not to add a regulation specifically addressing
accessible golf cars at this time.
Comments in support of requiring courses to provide accessible golf
cars came from individuals both with and without disabilities. These
commenters generally supported having one, two, or multiple cars per
course. A number of comments stressed the social aspect of golf,
generally, and its specific importance in many business transactions.
Most commenters believed that no advance notice should be required to
reserve an accessible golf car. Some golf course owners argued that a
requirement for advance reservation of an accessible golf car might
allow them to develop pooling arrangements with other courses.
In response to the Department's questions regarding the safety of
accessible golf cars, most commenters stated that the accessible cars
are safe, do not damage the greens, and speed up the pace of play. Some
commenters expressed concern about the safety of accessible golf cars,
arguing either that the cars should pass the American National
Standards Institute (ANSI) standards for traditional golf cars,\2\ or
that accessible cars should not be required until there are applicable
safety standards. Comments from golf courses with experience in
providing accessible golf cars were generally positive in terms of the
cars' safety and the impact on maintenance of the greens and the
course.
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As the Department requested, the public also addressed the issue of
whether a golf course that does not provide standard golf cars should
offer accessible cars. One commenter explained that the courses that do
not provide golf cars are often shorter length courses, such as
``executive'' or nine-hole courses, and that individuals with
disabilities who are learning to play golf, or who might not have the
stamina to play eighteen holes, would be more likely to use these
courses. Thus, accessible golf cars should be available at these
courses. This commenter pointed out that one executive course that had
no traditional--but two accessible--cars made money on the single-user
cars because individuals with and without disabilities wanted to use
them.
The Department also received comments opposing a requirement to
provide accessible golf cars from some golf course owners,
associations, and individuals. Those opposing such a requirement argued
that there was little demand for accessible golf cars, or that the
problem could be solved by putting ``medical flags'' on traditional
golf cars. Such flags might identify cars that were permitted to have
wider use of the course. Other commenters stated that accessible golf
cars were too expensive
[[Page 34518]]
or were specialized equipment that individuals with disabilities should
purchase for themselves.
Like some individuals with disabilities, some commenters who
opposed a requirement for accessible golf cars also expressed concern
about the lack of safety standards. There were also concerns that
repair costs for greens or for accessible golf cars would be more
significant than with traditional golf cars. One commenter suggested
that courses exceeding certain slope and degree standards be exempted
from having single-user cars. Others argued that, in practice, the
safety issue and the issue of damage to courses are negligible.
The Department has decided not to add a regulation specifically
addressing accessible golf cars at this time. As with free-standing
equipment, the Department believes that the existing regulation is
adequate to address this issue. The Department may gain additional
guidance in the future from the experience of the Department of
Defense, which is planning 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
Congress: Access of Disabled Persons to Morale, Recreation, and Welfare
(MRW) Facilities and Activities (Sept. 25, 2007).
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 public accommodations and commercial facilities.
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 the 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 their 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 non-traditional 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 more traditional
mobility devices 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
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. 36.104, and the
proposed regulatory text is discussed in the section-by-section
analysis of Sec. 36.311.
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.
Auxiliary aids and services: captioning and video interpreting
services. Section 36.303 of the title III regulation requires a public
[[Page 34519]]
accommodation to take such steps as may be necessary to ensure that no
individual with a disability is excluded, denied services, segregated,
or otherwise treated differently than other individuals because of the
absence of auxiliary aids and services, unless the public accommodation
can demonstrate that taking such steps would fundamentally alter the
nature of the goods, services, facilities, advantages, or
accommodations being offered or would result in an undue burden.
Implicit in this duty to provide auxiliary aids and services is the
underlying obligation of a public accommodation to communicate
effectively with its customers, clients, patients, or participants who
have disabilities affecting hearing, vision, or speech, and their
companions.
The Department has investigated hundreds of complaints alleging
that public accommodations have failed to provide effective
communication, many of which have resulted in settlement agreements and
consent decrees. During the course of its investigations, the
Department has determined that public accommodations 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 people live longer.
The Department is proposing several changes to Sec. 36.303 to
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 are in the language regarding video interpreting
services and the provision of effective communication for companions.
In addition, the Department is discussing in its preamble to Sec.
36.303 options for adding captioning and narrative description that may
eventually result in proposed textual changes. The specific amendments
are described below in Sec. 36.303 of the section-by-section analysis.
Certification. The current title III regulation provides that state
or local governments may apply to the Department for certification that
state laws or local building codes comply with or exceed the minimum
accessibility requirements of the ADA. The current submission
requirements and certification process, however, have proved onerous
for state and local governments and for the Department. Many have urged
the Department to streamline the certification process and make it less
cumbersome for state and local jurisdictions.
In keeping with the Department's efforts to clarify legal
obligations under the ADA and harmonize requirements with other federal
laws and model codes, the proposed rule includes amendments to subpart
F (Sec. Sec. 36.601-36.608) to streamline the certification process.
The proposed changes are intended to provide more flexibility in the
certification process and shorten the overall time involved. The
Department believes that the adoption of the 2004 ADAAG will help
achieve these goals because it has been further harmonized with model
codes. The specific changes to subpart F are described below in the
section-by-section analysis.
Section-By-Section Analysis and Response to Comments
This section provides a detailed description of the Department's
proposed changes to the title III 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 title III
regulation itself, except that if the Department is not proposing a
change to a regulation section, the unchanged section is not mentioned.
Subpart A--General
Section 36.104 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.
``Existing Facility''
Under the ADA, a facility is initially classified as one of three
types: (1) An existing facility; (2) an altered facility; or (3) a
newly designed and constructed facility. In the current regulation,
title III defines new construction at Sec. 36.401(a) and alterations
at Sec. 36.402. In contrast, the term ``existing facility'' is not
defined, although it is used in the statute and 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 facility.'' 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.
``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 carts, 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. 36.311 of the section-by-section analysis.
[[Page 34520]]
``Place of Lodging''
The Department proposes to add a definition of ``place of lodging''
that will be used in proposed Sec. 36.406(c) to address the coverage
of rental accommodations in time-shares, condominium hotels, and mixed-
use and corporate hotels. The proposed definition specifies that a
place of lodging is a facility that provides guestrooms for sleeping
for stays that are primarily short-term in nature (generally two weeks
or less), where the occupant does not have the right or intent to
return to a specific room or unit after the conclusion of his or her
stay, and which operates under conditions and with amenities similar to
a hotel, motel, or inn, such as an on-site proprietor and reservations
desk. The factors to be followed in determining the conditions and
amenities of a hotel include rooms available on a walk-up basis, linen
service, and accepting reservations for a room type without
guaranteeing a particular unit or room until check-in, without a prior
lease or security deposit. It is the Department's intention that
facilities that do not meet this definition would not be covered by the
proposed Sec. 36.406(c).
``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 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 title III regulation identifies a qualified reader as
an auxiliary aid, but it does not define the term. See 28 CFR
36.303(b)(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 may constitute a
violation of the requirement to provide appropriate auxiliary aids and
services.
``Qualified Small Business''
A qualified small business is a business entity defined as a small
business concern under the regulations promulgated by the Small
Business Administration (SBA) pursuant to the Small Business Act. See
15 U.S.C. 632; 13 CFR part 121. Under section 3(a)(2)(C) of the Small
Business Act, federal departments and agencies are prohibited from
prescribing a size standard for categorizing a business concern as a
small business unless they have been specifically authorized to do so
or have proposed a size standard in compliance with the criteria set
forth in the SBA regulations, have provided an opportunity for public
notice and comment on the proposed standard, and have received approval
from the Administrator of the SBA to use the standard. See id. Federal
agencies or departments promulgating regulations relating to small
businesses usually use SBA size criteria. If they decide otherwise,
they must be prepared to justify how they arrived at a different
standard and why the SBA's regulations do not satisfy the agency's
program requirements. See 13 CFR 121.903.
The ADA does not define ``small business'' or specifically
authorize the Department to prescribe size standards. The Department
believes that the size standards SBA has developed are appropriate for
determining which businesses subject to the ADA should be subject to
the proposed safe harbor provisions. Therefore, the Department proposes
to adopt the SBA's size standards to define small businesses under the
ADA.
The SBA's small business size standards define the maximum size
that a concern, together with all of its affiliates, may be if it is to
be eligible for federal small business programs or to be considered a
small business for the purpose of other federal agency programs.
Concerns primarily engaged in the same kind of economic activity are
classified in the same industry regardless of their types of ownership
(such as sole proprietorship, partnership or corporation).
Approximately 1200 industries are described in detail in the North
American Industry Classification System--United States, 2007. For most
places of public accommodation, the SBA has established a size standard
based on average annual receipts. The majority of places of public
accommodation will be classified as small businesses if their average
annual receipts are less than $6.5 million. However, some will qualify
with higher annual receipts. The SBA's small business size standards
should be familiar to most small businesses. Current standards, which
can only be changed after notice and comment rulemaking, are available
at http://www.census.gov/epcd/naics07/naics07fr3.htm.
``Service Animal''
The Department is proposing to amend the definition of ``service
animal'' in Sec. 36.104 of the current regulation, which is defined
as, ``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.'' Proposed Sec.
36.104 would:
1. Remove ``guide'' or ``signal'' as descriptions of types of
service dogs and add ``other common domestic'' animal to 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 hearing impairments'' 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
[[Page 34521]]
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), reptiles, rabbits,
farm animals (including horses, miniature horses, ponies, pigs, and
goats), 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 who responded to 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 ``providing
minimal protection.'' The commenters set forth the following reasons:
(1) The current phrase can be interpreted to allow ``protection dogs''
that are trained to be aggressive and to provide protection to be
covered under the ADA, 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 allows any untrained pet dog to provide this minimal
protection by its mere presence. These interpretations were not
contemplated by the ADA or the title III regulation.
In the Department's ADA Business Brief on Service Animals, which
was published in 2002, the Department interpreted the minimal
protection language within the context of a seizure (i.e., alerting and
protecting a person who is having a seizure). Despite the Department's
best efforts, the minimal protection language appears to have been
misinterpreted. Nonetheless, the Department continues to believe that
it should retain the ``providing minimal protection'' language and
interpret the language to exclude so-called ``attack dogs'' that pose a
direct threat to others.
Question 9: Should the Department clarify the phrase ``providing
minimal protection'' in the definition or remove it?
``Alerting to intruders.'' Some commenters argued that the phrase
``alerting to intruders'' in the current text has been misinterpreted
by some people 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 accommodations 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 in suggesting that ``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 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 to the definitions section.
However, the Department has proposed additional examples of work or
tasks to help illustrate this requirement in the definition.
Define ``animal'' or what qualifies certain species as ``service
animals.'' When the regulations were promulgated in the early 1990s,
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 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: Reptiles, rabbits, farm animals (including horses,
miniature horses, ponies, pigs, or goats), 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 restaurants, grocery stores, and
performing arts venues.
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)
[[Page 34522]]
risks.'' See AVMA position statement, Nonhuman Primates as Assistance
Animals (2005), 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.
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, primarily with 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 animals in order to bring their
pets into places of public accommodation.
The difference between an emotional support animal and a legitimate
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 currently qualify for coverage under the ADA,
and only those individuals will qualify to use a service animal. See 42
U.S.C. 12102(2) (defining disability); 28 CFR 36.104 (same). Major life
activities include functions such as caring for oneself, 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
there to be 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 many different types of disabilities. In some cases, individuals
with minor impairments who are not individuals with disabilities under
the Act have mistakenly concluded that any type of impairment qualified
them for the ADA's protection of the right of individuals with
disabilities to use service animals.
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 Department
wishes to use the term ``psychiatric service animal'' to describe 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 et seq.; see also 68 FR 24874, 24877 (May 9, 2003)
(discussing accommodation of service animals and emotional support
animals on air transportation), and that 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, face-to-face communications.
Moreover, VIS is particularly helpful where qualified interpreters are
not readily available (e.g., for quick response to 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).
Along with the addition of the definition of VIS, other amendments
to the communications section are discussed below in Sec. 36.303.
``Wheelchair''
The Department proposes the following definition of ``wheelchair''
in Sec. 36.104: ``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 III.
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 disabilities, whether operated manually or powered.'' 49 CFR
37.3. The Department has adopted much of the language from this
definition.
[[Page 34523]]
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 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. 36.311.
Subpart B--General Requirements
Section 36.208 Direct Threat
The proposed regulation moves the definition of direct threat from
Sec. 36.208(b) to the definitions section at Sec. 36.104. This is an
editorial change. Consequently, Sec. 36.208(c) would become Sec.
36.208(b) in the proposed regulation.
Section 36.211 Maintenance of accessible features
The general rule regarding the maintenance of accessible features,
which provides that a public accommodation 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. 36.211, and it would like to take
the opportunity presented by this NPRM to clarify. Section 36.211(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 blocked or changed later
so that it is 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 stores are commonly
obstructed by boxes, potted plants, display racks, or other items so
that the routes are inaccessible to people 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. 36.211(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 accommodations 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. 36.211(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 accommodation may reduce such accessible
features in accordance with the requirements in the proposed standards.
Section 36.302 Modifications in Policies, Practices, or Procedures
Section 36.302(c) Service Animals
The Department's regulation now states that ``[g]enerally, a public
accommodation shall modify policies, practices, or procedures to permit
the use of a service animal by an individual with a disability.'' 28
CFR 36.302(c)(1). In general, the Department is proposing to retain the
scope of the current regulation while clarifying its longstanding
policies and interpretations.
The Department is proposing to revise Sec. 36.302(c) by adding the
following sections as exceptions to the general rule on access.
Proposed Sec. 36.302 would:
1. Expressly incorporate the Department's policy interpretations as
outlined in published technical assistance Commonly Asked Questions
about Service Animals (1996) (http://www.ada.gov/qasrvc.htm) and ADA
Business Brief: Service Animals (2002) (http://www.ada.gov/
svcanimb.htm) and add that a public accommodation may ask an individual
with a disability to remove a service animal from the premises if: (1)
The animal is out of
[[Page 34524]]
control and the animal's owner does not take effective action to
control it; (2) the animal is not housebroken or the animal's presence
or behavior fundamentally alters the nature of the service the public
accommodation provides (e.g., repeated barking during a live
performance); or (3) the animal poses a direct threat to the health or
safety of others that cannot be eliminated by reasonable modifications;
2. Add that if a place of public accommodation properly excludes a
service animal, the public accommodation must give the individual with
a disability the opportunity to obtain goods, services, or
accommodations without having the service animal on the premises;
3. Add 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
place of public accommodation 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. Modify the language in Sec. 36.302(c)(2), which currently
states, ``[n]othing in this part requires a public accommodation to
supervise or care for a service animal,'' to read, ``[a] public
accommodation is not responsible for caring for or supervising a
service animal,'' and relocate this provision to proposed Sec.
36.302(c)(5). (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.);
5. Expressly incorporate the Department's policy interpretations as
outlined in published technical assistance Commonly Asked Questions
about Service Animals (1996) (http://www.ada.gov/qasrvc.htm) and ADA
Business Brief: Service Animals (2002) (http://www.ada.gov/
svcanimb.htm) that a public accommodation must not ask about the nature
or extent of a person's disability, nor require proof of service animal
certification or licensing, but that a public accommodation 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;
6. Add that individuals with disabilities who are accompanied by
service animals may access all areas of a public accommodation where
members of the public are allowed to go; and
7. Expressly incorporate the Department's policy interpretations as
outlined in published technical assistance Commonly Asked Questions
about Service Animals (1996) (http://www.ada.gov/qasrvc.htm) and ADA
Business Brief: Service Animals (2002) (http://www.ada.gov/
svcanimb.htm) and add that a public accommodation must not require an
individual with a disability to pay a fee or surcharge, post a deposit,
or comply with requirements not generally applicable to other patrons
as a condition of permitting a service animal to accompany its handler
in a place of public accommodation, even if such deposits are required
for pets, and that if a public accommodation normally charges its
clients or customers for damage that they cause, a customer with a
disability may be charged for damage caused by his or her service
animal.
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. While the
Department does not plan to change the current policy of no formal
training or certification requirements, some of the behavioral
standards that it has proposed actually relate to suitability for
public access, such as being housebroken and under the control of its
handler.
Hospital and healthcare settings. Public accommodations, including
hospitals, must modify policies, practices, or procedures to permit the
use of a service animal by an individual with a disability. 28 CFR
36.302(c)(1). The exception to this requirement is if making the
modification would fundamentally alter the nature of the goods,
services, facilities, privileges, advantages, or accommodations. Id. at
36.302(a). 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 (bites, scratches, direct contact, arthropod vectors, or
aerosols). 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 policies, 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: Recommendations of CDC and the
Healthcare Infection Control Practices Advisory Committee (June 2003),
available at http://www.cdc.gov/mmwr/preview/mmwrhtml/rr5210a1.htm.
Section 36.302(e) Hotel Reservations
Each year, the Department receives many complaints about failed
reservations. Most of these complaints involve individuals who have
reserved an accessible hotel room only to discover upon arrival that
the room they reserved is either not available or not accessible.
Although reservations services were not addressed in the ANPRM,
commenters noted the ongoing
[[Page 34525]]
problem with hotel reservations and urged the Department to provide
regulatory guidance on the issue.
The reservations policies, practices, and procedures of public
accommodations are subject to title III's general and specific
nondiscrimination provisions. See 42 U.S.C. 12182; 28 CFR 36.302. With
this NPRM, the Department proposes to address hotel reservations within
its regulation on modifications to policies, practices, and procedures.
See 28 CFR 36.302.
The proposed rule is based on straightforward nondiscrimination
principles: individuals with disabilities should be able to reserve
hotel rooms with the same efficiency, immediacy, and convenience as
those who do not need accessible guest rooms. Currently, this simple
premise appears more often to be the exception than the rule.
General rule on reservations. The Department's proposed Sec.
36.302(e)(1) states the general rule that a public accommodation that
owns, leases (or leases to), or operates a place of lodging shall
modify its policies, practices, and procedures to ensure that
individuals with disabilities can make reservations for accessible
guest rooms in the same way as others (i.e., during the same hours and
in the same manner as individuals who do not need accessible rooms).
Reservations can be made in many different ways--in person, on the
phone, directly with the hotel, with a parent company, or through a
travel agency. The proposed rule is meant to reach any public
accommodation that owns, leases (or leases to), or operates a place of
lodging, and is not limited to a hotel's operation of its own
reservations service. Thus, the rule would apply equally to
corporations that own one or more hotel chains and provide a system by
which prospective customers can reserve guest rooms, as well as to
franchisors that provide reservation services. All covered entities
must modify their policies and practices to ensure parity in
reservations policies between those who need accessible rooms and those
who do not.
Identification of accessible guest rooms. Proposed Sec.
36.302(e)(2) states that hotel reservations services must identify and
describe the accessible features in the hotels and guest rooms. This
requirement is integral to ensuring that individuals with disabilities
receive the information they need to benefit from the services offered
by the place of lodging. As a practical matter, a public
accommodation's designation of a guest room as ``accessible'' will not
necessarily ensure that the room complies with all of the 1991
Standards. In older facilities subject to barrier removal, strict
compliance with the 1991 Standards is not required. Public
accommodations must remove barriers to the extent that it is readily
achievable to do so. Individuals with disabilities must be able to
ascertain which features--in new and existing buildings--are included
in the hotel's accessible guest rooms. The presence or absence of
particular accessible features may be the difference between a room
that is usable by a person with a disability and one that is not.
Information about the availability and nature of accessible features
will minimize the risk that individuals with disabilities will reserve
a room that is not what was expected or needed.
Guarantees of accessible guest room reservations. Section
36.302(e)(3) provides that a public accommodation that owns, operates,
leases (or leases to) a place of lodging shall guarantee accessible
guest rooms that are reserved through a reservations service to the
same extent that it guarantees rooms that are not accessible. The
Department recognizes that not all reservations are guaranteed and the
proposed rule does not impose an affirmative duty to do so. When a
public accommodation typically guarantees hotel reservations (absent
unforeseen circumstances), it must provide the same guarantee for
accessible guest rooms. Because the Department is aware that
reservation guarantees take many different forms (e.g., an upgrade
within the same hotel or a comparable room in another hotel), the
Department seeks comment on the current practices of hotels and third
party reservations services with respect to ``guaranteed'' hotel
reservations and the impact of requiring a public accommodation to
guarantee accessible rooms to the extent it guarantees other rooms.
Question 17: What