Billing Code: 4410-13
Department of Justice, Civil Rights Division.
Notice of proposed rulemaking.
The Department of Justice (Department) is issuing this notice of proposed rulemaking (NPRM) in order to: adopt enforceable accessibility standards under the Americans with Disabilities Act of 1990 (ADA) that are "consistent with the minimum guidelines and requirements issued by the Architectural and Transportation Barriers Compliance Board" (Access Board); and perform periodic reviews of any rule judged to have a significant economic impact on a substantial number of small entities, and a regulatory assessment of the costs and benefits of any significant regulatory action as required by the Regulatory Flexibility Act, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA).
In this NPRM, the Department proposes to adopt Parts I and III of the Americans with Disabilities Act and Architectural Barriers Act Accessibility Guidelines (2004 ADAAG), which were published by the Access Board on July 23, 2004. Prior to its adoption by the Department, the 2004 ADAAG is effective only as guidance to the Department; it has no legal effect on the public until the Department issues a final rule adopting the revised ADA Standards (proposed standards).
Concurrently with the publication of this NPRM, the Department is publishing an NPRM to amend its title III regulation, which covers public accommodations and commercial facilities, in order to adopt the 2004 ADAAG as its proposed standards for title III entities, to make amendments to the title III regulation for consistency with title II, and to make amendments that reflect the collective experience of sixteen years of enforcement of the ADA.
All comments must be received by August 18, 2008.
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, N.W., Suite 4039, Washington, D.C. 20005. All comments will be made available for public viewing online at http://www.regulations.gov.
Janet L. Blizard, Deputy Chief, Disability Rights Section, Civil Rights Division, U.S. Department of Justice, at (202) 307-0663 (voice or TTY). This is not a toll-free number. Information may also be obtained from the Department’s toll-free ADA Information Line at (800) 514-0301 (voice) or (800) 514-0383 (TTY).
This rule is also available in an accessible format on the ADA Home Page at http://www.ada.gov. You may obtain copies of this rule in large print or on computer disk by calling the ADA Information Line at the number listed above.
You may submit electronic comments to http://www.regulations.gov. When submitting comments electronically, you must include CRT Docket No. 105 in the subject box, and you must include your full name and address.
Please note that all comments received are considered part of the public record and made available for public inspection online at http://www.regulations.gov. Such information includes personal identifying information (such as your name, address, etc.) voluntarily submitted by the commenter.
If you want to submit personal identifying information (such as your name, address, etc.) as part of your comment, but do not want it to be posted online, you must include the phrase "PERSONAL IDENTIFYING INFORMATION" in the first paragraph of your comment. You must also locate all the personal identifying information you do not want posted online in the first paragraph of your comment and identify information you want redacted.
If you want to submit confidential business information as part of your comment but do not want it posted online, you must include the phrase "CONFIDENTIAL BUSINESS INFORMATION" in the first paragraph of your comment. You must also prominently identify confidential business information to be redacted within the comment. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted on http://www.regulations.gov.
Personal identifying information identified and located as set forth above will be placed in the agency’s public docket file, but not posted online. Confidential business information identified and located as set forth above will not be placed in the public docket file. If you wish to inspect the agency’s public docket file in person by appointment, please see the "For Further Information Contact" paragraph.
Throughout this NPRM, the current, legally enforceable ADA Standards will be referred to as the "1991 Standards." 28 CFR part 36, App. A, 56 FR 35544 (July 26, 1991), modified in part 59 FR 2674 (Jan. 18, 1994). The Access Board’s 2004 revised guidelines will be referred to as the "2004 ADAAG." 69 FR 44084 (July 23, 2004), as amended (editorial changes only) at 70 FR 45283 (Aug. 5, 2005). The revisions now proposed in the NPRM, based on the 2004 ADAAG, are referred to in the preamble as the "proposed standards."
In performing the required periodic review of its existing regulations, the Department has reviewed its title II regulation section by section, and, as a result, proposes several clarifications and amendments in this NPRM. In addition, the Department’s initial, formal benefit-cost analysis dealing with the Department’s NPRMs for both titles II and III is included in this NPRM. See E.O. 12866, 58 FR 51735 (Sept. 30, 1993), amended by E.O. 13258, 67 FR 9385 (Feb. 26, 2002), and E.O. 13422, 72 FR 2763 (Jan. 18, 2007); 5 U.S.C. 601, 603, 610(a); and OMB Circular A-4, http://www.whitehouse.gov/omb/circulars/a004/a-4.pdf. The NPRM was submitted to the Office of Management and Budget (OMB), Office of Information and Regulatory Affairs, for review and approval prior to publication in the Federal Register.
On July 26, 1990, President George H. W. Bush signed into law the Americans with Disabilities Act, 42 U.S.C. 12101 et seq., a comprehensive civil rights law prohibiting discrimination on the basis of disability. At the beginning of his administration, President George W. Bush underscored the nation’s commitment to ensuring the rights of over 50 million individuals with disabilities nationwide by announcing the New Freedom Initiative (available at http://www.whitehouse.gov/infocus/newfreedom). The Access Board’s 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 broadly protects the rights of individuals with disabilities in employment, access to state and local government services, places of public accommodation, transportation, and other important areas of American life and, in addition, requires newly designed and constructed or altered state and local government facilities, public accommodations, and commercial facilities to be readily accessible to and usable by individuals with disabilities. 42 U.S.C. 12101 et seq. Under the ADA, the Department is responsible for issuing regulations to implement title II and title III of the Act, except to the extent that transportation providers subject to title II or title III are regulated by the Department of Transportation. Id. at 12134.
The Department is also proposing amendments to its title III regulation, which prohibits discrimination on the basis of disability in public accommodations and commercial facilities, published concurrently with the publication of this NPRM, in this issue of the Federal Register.
Title II applies to state and local government entities, and, in Subtitle A, protects qualified individuals with disabilities from discrimination on the basis of disability in services, programs, and activities provided by state and local government entities. Title II extends the prohibition of discrimination established by section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794 (section 504), to all activities of state and local governments regardless of whether these entities receive federal financial assistance. 42 U.S.C. 12131-65.
On July 26, 1991, the Department issued its final rules implementing title II and title III, which are codified at 28 CFR part 35 (title II) and part 36 (title III). Appendix A of the title III regulation, at 28 CFR part 36, contains the current 1991 Standards, which were based upon the version of ADAAG published by the Access Board on the same date. Under the current regulation, title II entities are required to comply either with the 1991 Standards or with the Uniform Federal Accessibility Standards (UFAS), 41 CFR part 101-19.6, App. A--which many public entities were accustomed to following under section 504--with respect to newly constructed or altered facilities.
The Department of Justice regulation implementing title II, 28 CFR § 35.103, provides:
(a) Rule of interpretation. Except as otherwise provided in this part, this part shall not be construed to apply a lesser standard than the standards applied under title V of the Rehabilitation Act of 1973, 29 U.S.C. 791 et seq., or the regulations issued by federal agencies pursuant to that title.
(b) Other laws. This part does not invalidate or limit the remedies, rights, and procedures of any other federal, state or local laws (including state common law) that provide greater or equal protection for the rights of individuals with disabilities or individuals associated with them.
Nothing in this proposed rule will alter this relationship. The Department recognizes that public entities subject to title II of the ADA may also be subject to title I of the ADA, which prohibits discrimination on the basis of disability in employment, section 504, which prohibits discrimination on the basis of disability in the programs and activities of recipients of federal financial assistance, and other federal statutes such as the Air Carrier Access Act, 49 U.S.C. 41705, and the Fair Housing Act, 42 U.S.C. 3601 et seq. Compliance with the Department’s regulations under the ADA does not necessarily ensure compliance with other federal statutes. Public entities that are subject both to the Department’s regulations and to regulations published by other federal agencies must ensure that they comply with the requirements of both regulations. If there is a direct conflict between the regulations, the regulation that provides greater accessibility will prevail. When different statutes apply to entities that routinely interact, each entity must follow the regulation that specifically applies to it. For example, a public airport is a title II facility that houses air carriers subject to the Air Carrier Access Act (ACAA). The public airport operator would comply with the title II requirements, not with the ACAA requirements. Conversely, the air carrier is required to comply with the ACAA, not with the ADA.
In addition, public entities (including AMTRAK) that provide public transportation services that are subject to subtitle B of title II should be reminded that the Department’s regulation, at 28 CFR § 35.102, provides that -
(a) Except as provided in paragraph (b) of this section, this part applies to all services, programs, and activities provided or made available by public entities.
(b) To the extent that public transportation services, programs, and activities of public entities are covered by subtitle B of title II of the ADA, 42 U.S.C. 12141, they are not subject to the requirements of this part.
Nothing in this proposed rule alters that provision. To the extent that the public transportation services, programs, and activities of public entities are covered by subtitle B of title II of the ADA, they are subject to the regulation of the Department of Transportation (DOT) at 49 CFR part 37 and are not covered by this proposed rule. Matters not covered by subtitle B are covered by this rule. In addition, activities not specifically addressed by DOT’s ADA regulation may be covered by DOT’s regulation implementing section 504 for its federally assisted programs and activities at 49 CFR part 27. Like other programs of public entities that are also recipients of federal financial assistance, those programs would be covered by both the section 504 regulation and this part. Airports operated by public entities are not subject to DOT’s ADA regulation, but they are subject to subpart A of title II and to this rule.
The 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 responsibility solely of the Attorney General to promulgate standards and to interpret and enforce those standards.
The ADA also requires the Department to develop regulations with respect to existing facilities subject to title II (Subtitle A) and title III. How and to what extent the Access Board’s guidelines are used with respect to the readily achievable barrier removal requirement applicable to existing facilities under title III of the ADA and to the provision of program accessibility under title II of the ADA are solely within the discretion of the Department of Justice.
Part I of the 2004 ADAAG provides so-called "scoping" requirements for facilities subject to the ADA; "scoping" is a term used in the 2004 ADAAG to describe requirements (set out in Parts I and II) that prescribe what elements and spaces--and, in some cases, how many of them--must comply with the technical specifications. Part II provides scoping requirements for facilities subject to the ABA (i.e., facilities designed, built, altered, or leased with federal funds). Part III provides uniform technical specifications for facilities subject to either statute. This revised format is designed to eliminate unintended conflicts between the two federal accessibility standards and to minimize conflicts between the federal regulations and the model codes that form the basis of many state and local building codes.
The revised 2004 ADAAG is the culmination of a ten-year effort to improve ADA compliance and enforcement. In 1994, the Access Board began the process of updating the original ADAAG by establishing an advisory committee composed of members of the design and construction industry, the building code community, state and local government entities, and individuals with disabilities. In 1999, based largely on the report and recommendations of the advisory committee,[1] the Access Board issued a proposed rule to jointly update and revise its ADA and ABA accessibility guidelines. 64 FR 62248 (Nov. 16, 1999). In response to its rule, the Access Board received more than 2,500 comments from individuals with disabilities, affected industries, state and local governments, and others. The Access Board provided further opportunity for participation by holding public hearings throughout the nation. The Access Board worked vigorously from the beginning to harmonize the ADA and ABA Accessibility Guidelines with industry standards and model codes that form the basis for many state and local building codes. The Access Board released an interim draft of its guidelines to the public on April 2, 2002, 67 FR 15509, in order to provide an opportunity for entities with model codes to consider amendments that would promote further harmonization. By the date of its final publication on July 23, 2004, 69 FR 44084, the 2004 ADAAG had been the subject of extraordinary public participation and review.
In addition, the Access Board amended the ADAAG four times since 1998. In 1998, it added specific guidelines on state and local government facilities, 63 FR 2000 (Jan. 13, 1998), and building elements designed for use by children, 63 FR 2060 (Jan. 13, 1998). Subsequently, the Access Board added specific guidelines on play areas, 65 FR 62498 (Oct. 18, 2000), and on recreation facilities, 67 FR 56352 (Sept. 3, 2002).
These amendments to the ADAAG have not previously been adopted by the Department as ADA Standards. Through this NPRM, the Department is announcing its intention to publish a proposed rule that will adopt revised ADA Standards consistent with the 2004 ADAAG, including all of the amendments to the ADAAG since 1998.
The Department published an advance notice of proposed rulemaking (ANPRM) regarding its ADA regulation on September 30, 2004, 69 FR 58768, for two reasons: (1) to begin the process of adopting the Access Board’s 2004 ADAAG by soliciting public input on issues relating to the potential application of the Access Board’s revisions once the Department adopts them as revised standards; and (2) to request background information that would assist the Department in preparing a regulatory analysis under the guidance provided in OMB Circular A-4, http://www.whitehouse.gov/omb/circulars/a004/a-4.pdf, Sections D (Analytical Approaches) and E (Identifying and Measuring Benefits and Costs). While underscoring that the Department, as a member of the Access Board, had already reviewed comments provided to the Access Board during its development of the 2004 ADAAG, the Department specifically requested public comment on the potential application of the 2004 ADAAG to existing facilities. The extent to which the 2004 ADAAG is used with respect to the program access requirement in title II (like the readily achievable barrier removal requirement applicable to existing facilities under title III) is solely within the discretion of the Department. The ANPRM dealt with the Department’s responsibilities under both title II and title III.
Public response to the ANPRM was extraordinary. The Department extended the comment deadline by four months at the public’s request. 70 FR 2992 (Jan. 19, 2005). By the end of the extended comment period, the Department had received more than 900 comments covering a broad range of issues. Most of the comments responded to questions specifically posed by the Department, including issues involving the application of the 2004 ADAAG once the Department adopts it, and cost information to assist the Department in its regulatory assessment. The public provided information on how to assess the cost of compliance by small entities, office buildings, hotels and motels, assembly areas, hospitals and long-term care facilities, residential units, recreational facilities, and play areas. Comments addressed the effective date of the proposed standards, the triggering event by which the effective date is measured in new construction, and variations on a safe harbor, which would excuse elements in compliance with the 1991 Standards from compliance with the proposed standards. Comments responded to questions regarding elements scoped for the "first time" in the 2004 ADAAG, including detention and correctional facilities, recreational facilities and play areas, as well as proposed additions to the Department’s regulation for items such as free-standing equipment. Comments also dealt with the specific requirements of the 2004 ADAAG.
Many commenters requested clarification of or changes to the Department’s title II regulation. Commenters observed that now, more than seventeen years after the enactment of the ADA, as facilities are becoming physically accessible to individuals with disabilities, the Department needs to focus on second-generation issues that ensure individuals with disabilities actually gain access to the accessible elements. So, for example, commenters asked the Department to focus on such issues as ticketing in assembly areas and reservations of boat slips. The public asked about captioning and the division of responsibility between the Department and the Access Board for fixed and non-fixed (or free-standing) equipment. Finally, commenters asked for clarification on some issues in the existing regulations, such as title III’s requirements regarding service animals.
All of the issues raised in the public comments are addressed, in turn, in this NPRM or in the NPRM for title III. Issues involving title III of the ADA, such as readily achievable barrier removal, are addressed in the NPRM for title III, published concurrently with this NPRM in this issue of the Federal Register.
The Department must provide two types of assessments as part of its NPRM: an analysis of the benefits and costs of adopting the 2004 ADAAG as its proposed standards, and a periodic review of its existing regulations to consider their impact on small entities, including small businesses, small nonprofit organizations, and small governmental jurisdictions. E.O. 12866, 58 FR 51735 (Sept. 30, 1993), as amended by E.O. 13258, 67 FR 9385 (Feb. 26, 2002) and E.O. 13422, 72 FR 2763 (Jan. 18, 2007); Regulatory Flexibility Act of 1980, 5 U.S.C. 601, 603, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 610(a); OMB Circular A-4; and E.O. 13272, 67 FR 53461 (Aug. 13, 2002).
The Department leaves open the possibility that, as a result of the receipt of comments on an issue raised by the 2004 ADAAG, or if the Department’s Regulatory Impact Analysis reveals that the costs of making a particular feature or facility accessible are disproportionate to the benefits to persons with disabilities, the Attorney General, as a member of the Access Board, may return the issue to the Access Board for further consideration of the particular feature or facility. In such a case, the Department would delay adoption of the accessibility requirement for the particular feature or facility in question in its final rule and await Access Board action before moving to consider any final action.
An initial regulatory impact analysis of the benefits and costs of a proposed rule is required by Executive Order 12866 (as amended by Executive Order 13258 and Executive Order 13422). A full benefit-cost analysis is required of any regulatory action that is deemed to be significant--that is, a regulation that will have an annual effect of $100 million or more on the economy. See OMB Circular A-4; Regulatory Flexibility Act of 1980, 5 U.S.C. 601, 603, as amended by the SBREFA, 5 U.S.C. 610(a).
Early in the rulemaking process, the Department concluded that the economic impact of its adoption of the 2004 ADAAG as proposed standards for title II and title III was likely to exceed the threshold for significant regulatory actions of $100 million. The Department has completed its initial regulatory impact analysis measuring the incremental benefits and costs of the proposed standards; the initial regulatory impact analysis is addressed at length with responses to public comments from the ANPRM in Appendix B.
The public may notice differences between the Department's regulatory impact analysis and the Access Board's regulatory assessment of the 2004 ADAAG. The differences in framework and approach result from the differing postures and responsibilities of the Department and the Access Board. First, the breadth of the proposed changes assessed in Appendix A of this NPRM is greater than in the Access Board’s assessments related to the 2004 ADAAG. Unlike the Access Board, the Department must examine the effect of the proposed standards not only on newly constructed or altered facilities, but also on existing facilities. Second, whereas the Access Board issued separate rules for many of the differences between the 1991 Standards and the 2004 ADAAG (e.g., play areas and recreation facilities), the Department is proposing to adopt several years of revisions in a single rulemaking.
According to the Department’s initial Regulatory Impact Analysis ("RIA"), it is estimated that the incremental costs of the proposed requirements for each of the following eight existing elements will exceed monetized benefits by more than $100 million when using the 1991 Standards as the comparative baseline: side reach; water closet clearances in single-user toilet rooms with in-swinging doors; stairs; elevators; location of accessible routes to stages; accessible attorney areas and witness stands; assistive listening systems; and accessible teeing grounds, putting greens, and weather shelters at golf courses. However, this baseline figure does not take into account the fact that, since 1991, various model codes and consensus standards--such as the model International Building Codes ("IBC") published by the International Codes Council and the consensus accessibility standards developed by the American National Standards Institute ("ANSI")--have been adopted by a majority of states (in whole or in part) and that these codes have provisions mirroring the substance of the Department’s proposed regulations. Indeed, such regulatory overlap is intentional since harmonization among federal accessibility standards, state and local building codes, and model codes is one of the goals of the Department’s rulemaking efforts.
Even though the 1991 Standards are an appropriate baseline to compare the new requirements against, since they represent the current set of uniform federal regulations governing accessibility, in practice it is likely that many public and private facilities across the country are already being built or altered in compliance with the Department’s proposed alterations standards with respect to these elements. Because the model codes are voluntary, public entities often modify or carve out particular standards when adopting them into their laws, and even when the standards are the same, local officials often interpret them differently. The mere fact that a state or local government has adopted a version of the IBC does not necessarily mean that facilities within that jurisdiction are legally subject to its accessibility provisions. Because of these complications, and the inherent difficulty of determining which baseline is the most appropriate for each provision, the RIA accompanying this rulemaking compares the costs and benefits of the proposed requirements to several alternative baselines, which reflect various versions of existing building codes. In addition, since the Department is soliciting comment on these eight particular provisions with high net costs, the Department believes it is useful to further discuss the potential impact of alternative baselines on these particular provisions.
For example, the Department’s proposed standards for existing stairs and elevators have identical counterparts in one or more IBC versions put in place before the 2004 ADAAG (2000 or 2003). Please note, however, that the IBC 2006 version bases a number of its provisions on guidelines in the 2004 ADAAG. These IBC versions, in turn, have been adopted collectively by forty-six (46) states and the District of Columbia on a statewide basis. In the four (4) remaining states (Colorado, Delaware, Illinois, and Mississippi), while IBC adoption is left to the discretion of local jurisdictions, the vast majority of these local jurisdictions have elected to adopt IBC as their local code. Thus, given that nearly all jurisdictions in the country currently enforce a version of the IBC as their building code, and to the extent that the IBC building codes may be settled in this area and would not be further modified to be consistent if they differ from the final version of these regulations, the incremental costs and benefits attributable to the Department’s proposed regulations governing alterations to existing stairs and elevators may be less significant than the RIA suggests over the life of the regulation.
In a similar vein, consideration of an alternate IBC/ANSI baseline would also likely lower the incremental costs and benefits for five other proposed standards (side reach; water closet clearances in single-user toilet rooms with in-swinging doors; location of accessible routes to stages; accessible attorney areas and witness stands; and assistive listening systems), albeit to a lesser extent. Each of these proposed standards has a counterpart in either Chapter 11 of one or more versions of the IBC, ANSI A117.1, or a functionally equivalent state accessibility code. While IBC Chapter 11 and ANSI A117.1 have yet not been as widely adopted as some other IBC chapters, the RIA nonetheless still estimates that between 15% and 35% of facilities nationwide are already covered by IBC/A117.1 provisions that mirror these five proposed standards. It is thus expected that the incremental costs and benefits for these proposed standards may also be lower than the costs and benefits relative to the 1991 Standards baseline.
Question 1: The Department believes it would be useful to solicit input from the public to inform us on the anticipated costs or benefits for certain requirements. The Department therefore invites comment as to what actual costs and benefits would be for these eight existing elements, in particular as applied to alterations, in compliance with the proposed regulations (side reach, water closet clearances in single-user toilet rooms with in-swinging doors, stairs, elevators, location of accessible routes to stages, accessible attorney areas and witness stands, assistive listening systems, and accessible teeing grounds, putting greens, and weather shelters at golf courses), as well as additional practical benefits from these requirements, which are often difficult to adequately monetize.
The Department does not have statutory authority to modify the 2004 ADAAG; instead the ADA requires the Attorney General to issue regulations implementing the ADA that are "consistent with" the ADA Accessibility Guidelines issued by the Access Board. See 42 U.S.C. 12134(c), 12186(c). As noted above in other parts of this preamble, the Department leaves open the possibility of seeking further consideration by the Access Board of particular issues raised by the 2004 ADAAG based on disproportionate costs and compared to benefits and public comments. The Access Board did not have the benefit of our RIA or public comment on our RIA as it pertains to the 2004 ADAAG.
Question 2: The Department would welcome comment on whether any of the proposed standards for these eight areas (side reach, water closet clearances in single-user toilet rooms with in-swinging doors, stairs, elevators, location of accessible routes to stages, accessible attorney areas and witness stands, assistive listening systems, and accessible teeing grounds, putting greens, and weather shelters at golf courses) should be raised with the Access Board for further consideration, in particular as applied to alterations.
The Department has generally determined that the overall costs for this requirement are relatively high in the alterations context, due to the expense of having to provide a lift or ramp to access the stage area directly, regardless of which baseline is used for the analysis. The Department, however, has had difficulty in estimating the real costs of this requirement because of a lack of information about whether colleges, elementary and secondary schools, and entertainment venues now routinely provide such access when they are altering existing auditoriums or how frequently such alterations occur. Also, the Department currently lacks sufficient data or other sources with which to quantify the benefits that accrue to students and other persons with disabilities who, as a result of direct access to stages, would be able to participate fully and equally in graduation exercises and other events.
Question 3: The Department would welcome information from operators of auditoriums on the likelihood that their auditoriums will be altered in the next fifteen years, and, if so, whether such alterations are likely to include accessible and direct access to stages. In addition, the Department would like specific information on whether, because of local law or policy, auditorium operators are already providing a direct accessible route to their stages. (The Department is also interested in whether having to provide a direct access to the stage would encourage operators of auditoriums to postpone or cancel the alterations of their facilities.) The Department also seeks information on possible means of quantifying the benefits that accrue to persons with disabilities from this proposed requirement or on its importance to them. To the extent that such information cannot be quantified, the Department welcomes examples of personal or anecdotal experience that illustrate the value of this requirement.
The Department’s RIA also estimates significant costs, regardless of the baseline used, for the proposed requirement that court facilities must provide an accessible route to a witness stand or attorney area and clear floor space to accommodate a wheelchair. These costs arise both in the new construction and alteration contexts. If the witness stand is raised, then either a ramp or lift must be provided to ensure access to the witness stand. While the RIA quantifies the benefits for this proposed requirement (as it does for all of the proposed requirements) primarily in terms of time savings, the Department fully appreciates that such a methodology does not capture the intangible benefits that accrue when persons with mobility disabilities are able to participate in the court process as conveniently as any other witness or party. Without access to the witness stand, for example, a wheelchair user, or a witness who uses other mobility devices such as a walker or crutches, may have to sit at floor level. If the witness with a mobility disability testifies from a floor level position, the witness could be placed at a disadvantage in communicating with the judge and jury, who may no longer be able to see the witness as easily, or, potentially, at all. This may create a reciprocal difficulty for the judge and jurors who lose the sightline normally provided by the raised witness stand that enables them to see and hear the witness in order to evaluate his or her demeanor and credibility--difficulty that redounds to the detriment of litigants themselves and ultimately our system of justice.
Question 4: The Department welcomes comment on how to measure or quantify the intangible benefits that would accrue from accessible witness stands. We particularly invite anecdotal accounts of the courtroom experiences of individuals with disabilities who have encountered inaccessible witness stands, as well as the experiences of state and local governments in making witness stands accessible, either in the new construction or alteration context.
Under the 1991 Standards, Assistive Listening Systems ("ALS") are required in courtrooms and in other settings where audible communication is integral to the use of the space and audio amplification systems are provided for the general audience. However, these Standards do not set forth technical specifications for such systems. Since 1991, advancements in ALS and the advent of digital technologies have made these systems more amenable to uniform technical specifications. In keeping with these technological advancements, the revised requirements create a technical standard that, among other things, ensures that a certain percentage of required ALS have hearing-aid compatible receivers. Requiring hearing-aid compatible ALS enables persons who are hard of hearing to hear a speech, a play, a movie, or to follow the content of a trial. Without an effective ALS, people with hearing loss are effectively excluded from participation because they are unable to hear or understand the audible portion of the presentation.From an economic perspective, the cost of a single hearing-aid compliant ALS is not high--about $500 more than a non-compliant system--and compliant equipment is readily available on the retail market. As estimated in the RIA, the high overall costs for the revised technical requirements for ALS are instead driven by the assumption that entities with large assembly areas (such as universities, stadiums, and auditoriums) will be required to purchase a relatively large number of compliant systems. On the other hand, the overall scoping for ALS has been reduced in the Department’s proposed requirement, thus mitigating the cost to covered entities. The proposed revision to the technical requirement merely specifies that 25% (or at least two) of the required ALS receivers must be hearing-aid compatible. The RIA estimates that a significant part of the cost of this requirement will come from the replacement of individual ALS receivers and system maintenance.
Question 5: The Department seeks information from arena and assembly area administrators on their experiences in managing ALS. In order to evaluate the accuracy of the assumptions in the RIA relating to ALS costs, the Department welcomes particular information on the life expectancy of ALS equipment and the cost of ongoing maintenance. The Department’s proposed requirements mandate an accessible (pedestrian) route that connects all accessible elements within the boundary of the golf course and facility, including teeing grounds, putting greens, and weather shelters. Requiring access to necessary features of a golf course ensures that persons with mobility disabilities may fully and equally participate in a recreational activity. From an economic perspective, the Department’s RIA assumes that virtually every tee and putting green on an existing course will need to be regraded in order to provide compliant accessible (pedestrian) routes to these features. However, the Department’s proposal also excuses compliance with the requirement for an accessible (pedestrian) route so long as a "golf car passage" (i.e., the path typically used by golf cars) is otherwise provided to the teeing ground, putting green, or other accessible element on a course. Because it is likely that most public and private golf courses in the United States already provide golf passages to most or all holes, the actual costs of this requirement for owners and operators of existing golf courses should be reduced with little or no practical loss in accessibility.
The Department’s proposed requirements mandate an accessible (pedestrian) route that connects all accessible elements within the boundary of the golf course and facility, including teeing grounds, putting greens, and weather shelters. Requiring access to necessary features of a golf course ensures that persons with mobility disabilities may fully and equally participate in a recreational activity.
From an economic perspective, the Department’s RIA assumes that virtually every tee and putting green on an existing course will need to be regraded in order to provide compliant accessible (pedestrian) routes to these features. However, the Department’s proposal also excuses compliance with the requirement for an accessible (pedestrian) route so long as a “golf car passage” (i.e., the path typically used by golf cars) is otherwise provided to the teeing ground, putting green, or other accessible element on a course. Because it is likely that most public and private golf courses in the United States already provide golf passages to most or all holes, the actual costs of this requirement for owners and operators of existing golf courses should be reduced with little or no practical loss in accessibility.
Question 6: The Department seeks information from the owners and operators of golf courses, both public and private, on the extent to which their courses already have golf car passages to teeing grounds, putting greens, and weather shelters, and, if so, whether they intend to avail themselves of the proposed exception.
In performing this review, the Department has gone through its regulation section by section, and, as a result, proposes several clarifications and amendments in this NPRM. Amendments to its title III regulation are proposed in the NPRM for title III published jointly with this rule. The proposals reflect the Department’s analysis and review of complaints or comments from the public as well as changes in technology. Many of the proposals aim to clarify and simplify the obligations of covered entities. As discussed in greater detail above, one significant goal of the development of the 2004 ADAAG was to eliminate duplication or overlap in federal accessibility guidelines as well as to harmonize the federal guidelines with model codes. The Department has also worked to create harmony where appropriate between the requirements of titles II and III. Finally, while the regulation is required by statute and there is a continued need for it as a whole, the Department proposes several modifications that are intended to reduce its effects on small entities.
The subsequent sections of this NPRM deal with the Department’s response to comments and its proposals for changes to its current regulation that derive from the required, periodic review that it performed. The proposed standards and the Department’s response to comments regarding the 2004 ADAAG are contained in Appendix A to the NPRM. Appendix B to the NPRM contains the Department’s initial, formal benefit-cost analysis.
The section of the NPRM entitled, "General Issues," briefly introduces topics that are noteworthy because they are new to the title II regulation or have been the subject of attention or comment. The topics introduced in the general issues section include: Safe harbor, service animals, wheelchairs and other power-driven mobility devices, effective communication and auxiliary aids, alterations to prison cells, and equipment.
Following the general issues section is the "Section-By-Section Analysis and Response to Comments." This section includes a detailed discussion of the proposed changes to the text of the title II regulation. The section-by-section analysis follows the order of the current regulation, except that regulatory sections that remain unchanged are not indicated. The discussion within each section explains the proposals and the reasoning behind them as well as the Department’s response to related public comments. Subject areas that deal with more than one section of the regulation include references to the related sections where appropriate.
The section-by-section analysis includes specific questions to which the Department requests public response. These questions are numbered and italicized so that they are easier for readers to locate and reference. The Department emphasizes, however, that the public may comment on any aspect of this NPRM and is not required to respond solely to questions specifically posed by the Department.
The Department’s proposed changes to the actual regulatory text of title II that follow the section-by-section analysis are entitled, "Part 35: Nondiscrimination on the Basis of Disability in State and Local Government Services."
This section briefly introduces topics that are noteworthy because they are new to the title II regulation or have been the subject of considerable attention or comment. Each topic is discussed in greater detail subsequently in the section-by-section analysis.
One of the most important issues the Department must address in proposing to adopt the 2004 ADAAG as its new ADA Standards for Accessible Design is the effect that the proposed standards will have on existing facilities under title II. This issue was not addressed in the 2004 ADAAG because it is outside of the scope of the Access Board’s authority under the ADA.
Under title II, program accessibility requires that state and local government agencies provide individuals with disabilities with access to their programs when "viewed in their entirety." Title II does not require structural modifications in all circumstances in order to provide program access. As a result of this flexibility, the Department believes that the program accessibility requirement as it is codified in the current regulation may appropriately mitigate any burdens on public entities without additional regulatory safeguards. Nevertheless, in order to provide certainty and clarity, the Department is proposing a safe harbor for elements in existing facilities that are in compliance with either the 1991 Standards or the Uniform Federal Accessibility Standards (UFAS), 41 CFR part 101-19.6, App. A. This proposal is discussed below in § 35.150(b)(2) of the section-by-section analysis.
The Department invites comment on whether public entities that operate existing facilities with play or recreation areas should be exempted from compliance with certain requirements in the 2004 ADAAG. Existing facilities would continue to be subject to accessibility requirements in existing law, but not specifically to the requirements in: (1) The Access Board’s supplemental guidelines on play areas, 65 FR 62498 (Oct. 18, 2000); and (2) the Access Board’s supplemental guidelines on recreation facilities, 67 FR 56352 (Sept. 3, 2002). Under this scenario, the 2004 ADAAG would apply only to new play areas and recreation facilities, and would not govern the accessibility of existing facilities as legal requirements. Public entities that operate existing facilities with play or recreation areas, pursuant to the ADA’s requirements to provide equal opportunity for individuals with disabilities, may still have the obligation to provide an accessible route to the playground, some accessible equipment, and an accessible surface for the play area or recreation facility.
Question 7: Should the Department exempt public entities from specific compliance with the supplemental requirements for play areas and recreation facilities, and instead continue to determine accessibility in these facilities on a case-by-case basis under existing law? Please provide information on the effect of such a proposal on people with disabilities and public entities.
The Department wishes to clarify the obligations of public entities to accommodate individuals with disabilities who use service animals. The Department continues to receive a large number of complaints from individuals with service animals. It appears, therefore, that many covered entities are confused about their obligations under the ADA in this area. At the same time, some individuals with impairments--who would not be covered as qualified individuals with disabilities--are claiming that their animals are legitimate service animals, whether fraudulently or sincerely (albeit mistakenly), to gain access to the facilities of public entities. Another trend is the use of wild or exotic animals, many of which are untrained, as service animals. In order to clarify its position and avoid further misapplication of the ADA, the Department is proposing amendments to its regulation with regard to service animals.
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 § 35.104 to formalize its position on emotional support or comfort animals, which is that "[a]nimals whose sole function is to provide emotional support, comfort, therapy, companionship, therapeutic benefits, or promote emotional well-being are not service animals." The Department wishes to underscore that the exclusion of emotional support animals from ADA coverage does not mean that persons with psychiatric, cognitive, or mental disabilities cannot use service animals. The Department proposes specific regulatory text in § 35.104 to make this clear: "[t]he term service animal includes individually trained animals that do work or perform tasks for the benefit of individuals with disabilities, including psychiatric, cognitive, and mental disabilities." This language simply clarifies the Department’s longstanding position.
The Department’s rule is based on the assumption that the title II and title III regulations govern a wider range of public settings than the settings that allow for emotional support animals. The Department recognizes, however, that there are situations not governed exclusively by the title II and title III regulations, particularly in the context of residential settings and employment where there may be compelling reasons to permit the use of animals whose presence provides emotional support to a person with a disability. Accordingly, other federal agency regulations governing those situations may appropriately provide for increased access for animals other than service animals.
Proposed training standards. The Department has always required that service animals be individually trained to do work or perform tasks for the benefit of an individual with a disability, but has never imposed any type of formal training requirements or certification process. While some advocacy groups have urged the Department to modify its position, the Department does not believe that such a modification would serve the array of individuals with disabilities who use service animals.
Detailed regulatory text changes and the Department’s response to public comments on these issues and others are discussed below in the definitions § 35.104 and in a newly-proposed § 35.136.
EPAMDs illustrate some of the challenges posed by new mobility devices. The basic Segway® 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 12½ 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 68¼ inches to 79½ inches. See Federal Highway Administration, Characteristics of Emerging Road and Trail Users and Their Safety (Oct. 2004), available at http://www.tfhrc.gov/safety/pubs/04103. Thus, EPAMDs can operate at much greater speeds than wheelchairs, and the average user is much taller than most wheelchair users.
EPAMDs have been the subject of debate among users, pedestrians, disability advocates, state and local governments, businesses, and bicyclists. The fact that a device is not designed primarily for use by or marketed primarily to individuals with disabilities, nor used primarily by persons with disabilities, complicates the question of whether individuals with disabilities should be allowed to operate them in areas and facilities where other powered devices are not allowed. Those who question the use of EPAMDs in pedestrian areas argue that the speed, size, and operating features of the devices make them too dangerous to operate alongside pedestrians and wheelchair users. Although the question of EPAMD safety has not been resolved, many states have passed legislation addressing EPAMD operation on sidewalks, bicycle paths, and roads. In addition, some states, such as Iowa and Oregon, have minimum age requirements, or mandatory helmet laws. New Jersey requires helmets for all EPAMD users, while Hawaii and Pennsylvania require helmets for users under a certain age.
While there may be legitimate safety issues for EPAMD users and bystanders, EPAMDs and other nontraditional mobility devices can deliver real benefits to individuals with disabilities. For example, individuals with severe respiratory conditions who can walk limited distances and individuals with multiple sclerosis have reported benefitting significantly from EPAMDs. Such individuals often find that EPAMDs are more comfortable and easier to use than wheelchairs, and assist with balance, circulation, and digestion in ways that wheelchairs do not. See Rachel Metz, Disabled Embrace Segway, New York Times, Oct. 14, 2004.
The Department has received questions and complaints from individuals with disabilities and covered entities about which mobility aids must be accommodated and under what circumstances. While some 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 § 35.104, and the proposed regulatory text is discussed in the section-by-section analysis of § 35.137.
Much of the debate surrounding mobility aids has centered on appropriate definitions for the terms "wheelchair" and "other power-driven mobility devices." The Department has not defined the term "manually powered mobility aids." Instead, the proposed rule provides a list including wheelchairs, walkers, crutches, canes, braces, or similar devices. The inclusion of the term "similar devices" indicates that the list is not intended to be exhaustive. The Department would like input as to whether addressing "manually powered mobility aids" in this manner (i.e., via examples of such devices) is appropriate. The Department also would like information as to whether there are any other non-powered or manually powered mobility aids that should be added to the list and an explanation of the reasons they should be included. If an actual definition is preferred, the Department would welcome input with regard to the language that might be used to define "manually powered mobility aids," and an explanation of the reasons this language would better serve the public.
The Department is proposing several changes and additions to §§ 35.104, 35.160, and 35.161 of the title II regulation to address these issues. Among other amendments, these changes update the regulatory language in response to numerous technological advances and breakthroughs in the area of auxiliary aids and services since the regulation was promulgated sixteen years ago. The most significant changes relate to video interpreting services (VIS) and the provision of effective communication for companions.
A technology that has emerged since promulgation of the original regulation is video interpreting services (VIS), and the Department proposes to include it in the regulation. VIS permits an individual who is deaf or hard of hearing to view and sign to a video interpreter (i.e., a live interpreter in another location) who can see and sign to the individual through a camera located on or near the monitor. VIS can provide immediate, effective access to interpreting services seven days a week, twenty-four hours a day in a variety of situations by allowing individuals in separate locations to have live, face-to-face communications.
The specific amendments to the section on auxiliary aids and services, in addition to the provision of VIS, are described in §§ 35.104, 35.160, and 35.161 of the section-by-section analysis below.
The Department received comments both in favor and against this proposal with a majority of comments in favor of requiring accessible equipment and furniture. However, the Department has decided to add no new regulatory text with respect to equipment at this time. A few title II entities submitted very brief comments, with about half in favor of specific requirements for free-standing equipment and half opposed. Most individuals and organizations representing individuals with disabilities were in favor of adding or clarifying requirements for accessible equipment. Disability organizations pointed out that from the user’s perspective, it is irrelevant whether the equipment (e.g., ATMs or vending machines) is free-standing or fixed, since the equipment must be accessible in order for them to use it.
The Department believes that accessible equipment and furnishings are required when appropriate under the existing regulations governing modifications of policies, practices, and procedures, and in the requirement for program accessibility. 28 CFR 35.130(7); 35.150. In addition, some equipment may also be subject to the effective communication requirements. 28 CFR 35.160. The existing regulation at § 35.150(a) requires that entities operate each service, program, or activity so that, when viewed in its entirety, each is readily accessible to and usable by individuals with disabilities, subject to a defense of fundamental alteration or undue burden. Section 35.150(b) specifies that such entities may meet their obligation to make each program accessible to individuals with disabilities through the "redesign of equipment." Section 35.160 (a) requires covered entities to provide effective communication to program participants. Consequently, providing accessible equipment is required when appropriate under the existing regulations. The Department has decided to continue with this approach and not to add any specific regulatory guidance addressing equipment at this time.
The 2004 ADAAG includes revised requirements for some types of fixed equipment that are specifically addressed in the 1991 Standards, such as ATMs and vending machines, as well as detailed requirements for fixed equipment that is not addressed by name in the current Standards, such as depositories, change machines, and fuel dispensers. Because the 2004 ADAAG provides detailed requirements for many types of fixed equipment, covered entities should consult those requirements in determining what steps are appropriate for making free-standing equipment accessible. The Department also agrees that when federal guidance for accessibility exists for equipment required to be accessible to individuals who are blind or have low vision, entities should consult such guidance (e.g., federal standards implementing section 508 of the Rehabilitation Act, 36 CFR part 1194, or the guidelines that specify communication accessibility for ATMs and fare card machines in the 2004 ADAAG, 36 CFR part 1191, App. D). The Department intends to continue to monitor the use of accessible equipment by covered entities and to analyze the economic impact of possibly providing more detailed requirements in future regulations governing specific types of free-standing equipment.
The Department received many comments regarding accessible golf cars, with the majority of commenters in favor of requiring accessible golf cars. The comments in opposition to requiring accessible golf cars came from some individuals and from entities covered by title III. The Department has decided to propose no new regulations specific to accessible golf cars at this time.
Many commenters in favor of requiring accessible golf cars noted the social aspect of golf, generally, and its specific--albeit informal--importance, in many business transactions, thus affecting both the social lives and the careers of some individuals with disabilities.
Comments opposed to requiring accessible golf cars generally came from individuals and golf course owners and associations covered by title III. Some commenters believed that there is little demand for accessible golf cars, or that the problem is solved by putting "medical" flags on traditional cars to identify individuals with disabilities who are then permitted to drive onto the greens, which otherwise would not be permitted. Others stated that accessible golf cars were too expensive or were specialized equipment that individuals with disabilities should purchase for themselves. One city representative commented that courses that do not provide golf cars should not be required to provide accessible golf cars.
Safety and the impact on golf course grounds were other areas addressed by the comments. Again, opinions were divided. Some commenters said that the single-user golf cars are safe, do not damage the greens, and speed up the pace of play. Others argued that the cars should pass the American National Standards Institute (ANSI) standards[2] for traditional golf cars, and that the single-user cars should not be required until there are safety standards for these cars.
Other concerns raised by public comments were the effect of allowing accessible golf car use on the greens and their impact on maintenance of the course. Some commenters suggested that the cars would damage the greens and that the repair costs would be more significant than for traditional golf cars. In addition, one commenter suggested that courses exceeding certain slope and degree standards be exempted from having single-user cars because of safety concerns.
Comments from golf courses that have provided accessible golf cars were generally positive in terms of safety and maintenance of the course. Further, courses that provide accessible cars do not report any safety issues or more than minimal damage to the greens.
With respect to making golf cars available, most supporters of providing accessible golf cars believe that no advance notice should be required to reserve the golf cars. One association supported requiring golf courses to have accessible cars with advance notice, which could be achieved through pooling arrangements with other courses. Some commenters explained that at least two cars per course should be required so that golfers with disabilities can play together.
Commenters also addressed whether courses that provide no cars at all should provide accessible cars. Some commenters supported requiring every golf course, whether or not it provides traditional golf cars, to provide accessible cars because individuals with disabilities will not be able to play without an accessible car.
The Department has decided not to add a regulation specifically addressing accessible golf cars at this time. The existing regulation, which requires that entities operate each service, program, or activity so that, when viewed in its entirety, the service, program, or activity is readily accessible to and usable by individuals with disabilities, subject to a defense of fundamental alteration or undue burden, will continue to govern this issue. 28 CFR 35.150(a).
The Department is aware that the Department of Defense has recently undertaken an extensive study of the accessibility of golf courses operated for military personnel. As a result of its study, the Department of Defense plans to provide two accessible golf cars at each of the 174 golf courses that the Department of Defense operates, except those at which it would be unsafe to operate such golf cars because of the terrain of the course. See U.S. Department of Defense, Report to Congress: Access of Disabled Persons to Morale, Recreation, and Welfare (MRW) Facilities and Activities (Sept. 25, 2007). The Department of Justice plans to study the Defense Department’s implementation of its plan to determine if it provides an effective framework for ensuring golf course accessibility.
This section provides a detailed description of the Department’s proposed changes to the title II regulation, the reasoning behind the proposals, and responses to public comments received on the topic. The section-by-section analysis follows the order of the current title II regulation, except that if the Department is not proposing a change to a regulation section, the unchanged section is not discussed. In addition, this section includes specific questions for which the Department requests public response. These questions are numbered and italicized in order to make them easier for readers to locate and reference.
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.
Several types of auxiliary aids that have become more readily available have been added to § 35.104 under the definition of auxiliary aids and services.
For purposes of clarification, the Department has added the exchange of written notes as an example of an auxiliary aid or service. This common-sense example is a codification of the Department’s longstanding policy with regard to title III entities. See The Americans with Disabilities Act, Title III Technical Assistance Manual, Covering Public Accommodations and Commercial Facilities (Title III TA Manual), III-4.300, available at http://www.ada.gov/taman3.html. The title III definition of auxiliary aids and services provided the framework for the same definition in title II. See 56 FR 35544, 35565 (July 26, 1991) and 56 FR 35694, 35697 (July 26, 1991). This additional example of an appropriate auxiliary aid and service was inserted because many public entities do not realize that this easy and efficient technique is available to them. While the exchange of written notes is inappropriate for lengthy or complicated communications, it can be appropriate for situations such as routine requests for written information, for a police officer issuing a speeding ticket, or as a means of communication while awaiting the arrival of an interpreter.
Also in paragraph (1) of the definition, the Department has replaced the term "telecommunications devices for deaf persons (TDD)" with "text telephones (TTYs)." Although "TDD" is the term used in the ADA, the use of "TTY" has become the commonly accepted term and is consistent with the terminology used by the Access Board in the 2004 ADAAG. The Department has also included in paragraph (1) "accessible electronic and information technology" as another example of auxiliary aids and services. Lastly, "computer-aided" has been added to describe "transcription services" to make it consistent with title III.
The Department has added to paragraph (1) a new technology, video interpreting services (VIS), which consists of a video phone, video monitors, cameras, a high speed Internet connection, and an interpreter. VIS is specifically discussed below in the proposed definition of VIS.
In paragraph (2) of the definition, the Department proposes to insert additional examples of auxiliary aids and services for individuals who are blind or have low vision. The preamble to the original regulation makes clear that the original list in the regulation was "not an all-inclusive or exhaustive catalogue of possible or available auxiliary aids or services. It is not possible to provide an exhaustive list, and an attempt to do so would omit the new devices that will become available with emerging technology." See 56 FR 35694, 35697 (July 26, 1991). Because technological advances in the seventeen years since the ADA was enacted have increased the range of auxiliary aids and services for those who are blind or have low vision, the Department has added additional examples, including brailled displays, screen reader software, magnification software, optical readers, secondary auditory programs (SAP), and accessible electronic and information technology.
In the Department’s proposed § 35.136(b)(3), a service animal may be removed from the premises of a public entity if the animal poses a direct threat to the health or safety of others that cannot be eliminated by reasonable modifications. Direct threat is not defined in title II, but it is defined in § 36.208(b) of the current title III regulation as "a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services." The Department proposes taking the definition from its current location in title III and placing it in the definitions section in both title II (§ 35.104) and title III (§ 36.104).
Under the ADA, a facility may be one or more of three types at different points in time: (1) an existing facility, (2) an altered facility, or (3) a newly designed and constructed facility. In the current regulation, title II defines new construction at § 35.151(a) and alterations at § 35.151(b). In contrast, the term "existing facility" is not defined although it is used in the statute and in the regulations for titles II and III. 42 U.S.C. 12182(b)(2)(A)(iv); 28 CFR 35.150.
The Department’s enforcement of the ADA is premised on a broad understanding of "existing facilities." The classifications of facilities under the ADA regulation are not static. Rather, a building that was newly designed and constructed at one time--and, therefore, subject to the accessibility standards in effect at the time--becomes an "existing facility" after it is completed. At some point in its life, it may also be considered "altered" and then again become "existing."
The added definition of "existing facility" in the proposed regulation clarifies that the term means exactly what it says: A facility in existence on any given date is an existing facility under the ADA. If a facility exists, it is an existing facility whether it was built in 1989, 1999, or 2009. Of course, if the construction of a facility at issue begins after the triggering dates for the new construction standards, then the facility is subject to the new construction standards, and if it is altered, it is subject to the alterations standards.
The proposed regulation defines the term "other power-driven mobility device" as "any of a large range of devices powered by batteries, fuel, or other engines--whether or not designed solely for use by individuals with mobility impairments--that are used by individuals with mobility impairments for the purpose of locomotion, including golf cars, bicycles, electronic personal assistance mobility devices (EPAMDs) (e.g., Segway®), 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 § 35.137 of the section-by-section analysis.
The Department’s proposed regulatory text on accommodating wheelchairs and other power-driven mobility devices is discussed below in § 35.137 of the section-by-section analysis.
The Department has added the term "proposed standards" to mean the 2004 ADAAG as revised or amended by the Department in this rulemaking. The full text of the 2004 ADAAG is available for review at http://www.access-board.gov along with a detailed comparison of the 1991 Standards and the 2004 ADAAG that identifies the differences between the two documents.
The Department proposes to add to the definition of "qualified interpreter" to clarify that the term includes, but is not limited to, sign language interpreters, oral interpreters, and cued speech interpreters.
Not all interpreters are qualified for all situations. For example, a qualified interpreter who uses American Sign Language (ASL) is not necessarily qualified to interpret orally. Also, someone with just a rudimentary familiarity with sign language or finger spelling is not a qualified sign language interpreter. Likewise, a qualified sign language interpreter would not include someone who is fluent in sign language but unable to translate spoken communication into ASL or to translate signed communication into spoken words.
The revised definition includes examples of different types of interpreters. An oral interpreter has special skill and training to mouth a speaker’s words silently for individuals who are deaf or hard of hearing, many of whom were raised orally and were taught to read lips or were diagnosed with hearing loss later in life and do not know sign language. An individual who is deaf or hard of hearing may need an oral interpreter if the speaker’s voice is unclear, there is a quick-paced exchange of communication (e.g., in a meeting), or when the speaker does not directly face the individual who is deaf or hard of hearing. A cued speech interpreter functions in the same manner as an oral interpreter except that he or she also uses a hand code, or cue, to represent each speech sound.
The current regulation identifies a qualified reader as an auxiliary aid, but it does not define the term. See 28 CFR 35.104(2). Based upon the Department’s investigation of complaints alleging that some entities have provided ineffective readers, the Department proposes to define "qualified reader" similarly to "qualified interpreter" to ensure that entities select qualified individuals to read an examination or other written information in an effective, accurate, and impartial manner. Failing to provide a qualified reader to a person with a disability could amount to discrimination based upon disability.
Although there is no specific language in the current title II regulation concerning service animals, title II entities have the same legal obligations as title III entities to make reasonable modifications in policies, practices, or procedures to allow service animals when necessary to avoid discrimination on the basis of disability, unless the modifications would fundamentally alter the nature of the service, program, or activity. 28 CFR 35.130(b)(7). In order to qualify for coverage under title II, a person must be a "qualified individual with a disability," which is defined as "an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity." 28 CFR 35.104. The Department is proposing to add to the title II regulation the same definition of "service animal" that it will propose for the title III regulation. The title III regulation currently contains a definition of "service animal" in § 36.104.
The current definition of "service animal" in § 36.104 is, "any guide dog, signal dog, or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability, including, but not limited to, guiding individuals with impaired vision, alerting individuals with impaired hearing to intruders or sounds, providing minimal protection or rescue work, pulling a wheelchair, or fetching dropped items." The Department would modify that current definition, and add the same definition, as modified, to the title II regulation at § 35.104. The changes that would be made to the title III definition, and that would be incorporated in the title II definition are as follows:
The Department is proposing these changes in response to concerns expressed by commenters regarding the Department’s ANPRM. Issues raised by the commenters include:
Question 9: Should the Department clarify the phrase "providing minimal protection" in the definition or remove it? Are there any circumstances where a service animal providing "minimal protection" would be appropriate or expected?
To establish a practical and reasonable species parameter, the Department proposes to narrow the definition of acceptable animal species to "dog or other common domestic animal" by excluding the following animals: Wild animals (including nonhuman primates born in captivity), reptiles, rabbits, farm animals (including any breed of horse, miniature horse, pony, pig, or goat), ferrets, amphibians, and rodents. Many commenters asserted that limiting the number of allowable species would help stop erosion of the public’s trust, which results in reduced access for many individuals with disabilities, despite the fact that they use trained service animals that adhere to high behavioral standards. The Department is compelled to take into account practical considerations of certain animals and contemplate their suitability in a variety of public contexts, such as libraries or courtrooms.
In addition, the Department believes that it is necessary to eliminate from coverage all wild animals, whether born or bred in captivity or the wild. Some animals, such as nonhuman primates, pose a direct threat to safety based on behavior that can be aggressive and violent without notice or provocation. The American Veterinary Medical Association (AVMA) issued a position statement against the use of monkeys as service animals, stating, "[t]he AVMA does not support the use of nonhuman primates as assistance animals because of animal welfare concerns, the potential for serious injury, and zoonotic [animal-to-human disease transmission] risks." See the AVMA 2005 position statement, Nonhuman Primates as Assistance Animals, available at http://www.avma.org/issues/policy/nonhuman_primates.asp. The potential for nonhuman primates to transmit dangerous diseases to humans has been documented in scientific journals.
Although unusual species make up a very small percentage of service animals as a collective group, their use has engendered broad public debate and, therefore, the Department seeks comment on this issue.
Question 10: Should the Department eliminate certain species from the definition of "service animal"? If so, please provide comment on the Department’s use of the phrase "common domestic animal" and on its choice of which types of animals to exclude.
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?
The difference between an emotional support animal and a psychiatric service animal is the service that is provided, i.e., the actual work or task performed by the service animal. Another critical factor rests on the severity of the individual’s impairment. For example, only individuals with conditions that substantially limit them in a major life activity qualify for coverage under the ADA, and only those individuals’ use of a service animal will be covered under the ADA. See definition of disability, 42 U.S.C. 12102(2) and 28 CFR 35.104. Major life activities include functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. Many Americans have some type of physical or mental impairment (e.g., arthritis, anxiety, back pain, imperfect vision, etc.), but establishing a physical or mental disability also requires a substantial limitation of a major life activity. Traditionally, service dogs worked as guides for individuals who were blind or had low vision. Since the original regulations were promulgated, service animals have been trained to assist individuals with different types of disabilities. As a result, individuals with minor impair- ments may mistakenly conclude that any type of impairment qualifies them for ADA coverage.
In addition, the term "psychiatric service animal" describes a service animal that does work or performs a task for the benefit of an individual with a psychiatric disability. This contrasts with "emotional support" animals that are covered under the Air Carrier Access Act, 49 U.S.C. 41705 et seq., and its implementing regulations, 14 CFR 382.7, see also 68 FR 24874, 24877 (May 9, 2003) (guidance on accommodation of service animals and emotional support animals on air transportation) and qualify as "assistance animals" under the FHA, but do not qualify as "service animals" under the ADA.
The Department has added a definition of video interpreting services (VIS), a technology composed of a video phone, video monitors, cameras, a high speed Internet connection, and an interpreter. The video phone provides video transmission to a video monitor that permits the individual who is deaf or hard of hearing to view and sign to a video interpreter (i.e., a live interpreter in another location), who can see and sign to the individual through a camera located on or near the monitor, while others can communicate by speaking. The video monitor can display a split screen of two live images, with the interpreter in one image and the individual who is deaf or hard of hearing in the other image.
VIS can provide immediate, effective access to interpreting services seven days a week, twenty-four hours a day by allowing people in different locations to engage in live, virtual face-to-face communications. Moreover, VIS is particularly helpful where qualified interpreters are not readily available (e.g., for quick response during emergency hospital visits, in areas with an insufficient number of qualified interpreters to meet demand, and in rural areas where distances and an interpreter’s travel time present obstacles).
In addition to adding the specific definition of VIS, the Department proposes to add VIS to the definition of "auxiliary aids and services" (discussed above in § 35.104) and to set out performance standards for VIS at § 35.160.
The Department proposes the following definition of "wheelchair" in § 35.104: "Wheelchair means a device designed solely for use by an individual with a mobility impairment for the primary purpose of locomotion in typical indoor and outdoor pedestrian areas. A wheelchair may be manually operated or power-driven."
The proposed definition of "wheelchair" is informed by several existing definitions of "wheelchair." Section 507 of the ADA defines wheelchair in the context of whether to allow wheelchairs in federal wilderness areas: "the term ‘wheelchair’ means a device designed solely for use by a mobility-impaired person for locomotion, that is suitable for use in an indoor pedestrian area." 42 U.S.C. 12207(c)(2). The Department believes that while this definition is appropriate in the limited context of federal wilderness areas, it is not specific enough to provide clear guidance in the array of settings covered by title II.
The other existing federal definition of "wheelchair" that the Department reviewed is in the Department of Transportation regulation implementing the transportation provisions under title II and title III of the ADA. The Department of Transportation’s definition of "wheelchair" is "a mobility aid belonging to any class of three or four-wheeled devices, usable indoors, designed for and used by individuals with mobility impairments, whether operated manually or powered." 49 CFR 37.3. The Department has adopted much of the language from this definition. Under the proposed definition, wheelchairs include manually operated and power-driven wheelchairs and mobility scooters. Mobility devices such as golf cars, bicycles, and electronic personal assistance mobility devices (EPAMDs) are inherently excluded from the proposed definition. Typically, the devices covered under the proposed definition are single-user, have three to four wheels, and are appropriate for both indoor and outdoor pedestrian areas. However, it could include a variety of types of wheelchairs and mobility scooters with individualized or unique features or models with different numbers of wheels. "Typical indoor and outdoor pedestrian areas" refer to locations and surfaces used by and intended for pedestrians, including sidewalks, paved paths, floors of buildings, elevators, and other circulation routes, but would not 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®?
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 § 35.137.
The general rule regarding the maintenance of accessible features, which provides that a public entity must maintain in operable working condition those features of facilities and equipment that are required to be readily accessible to and usable by qualified individuals with disabilities, is unchanged. However, the Department wishes to clarify its application and proposes one change to the section.
The Department has noticed that some covered entities do not understand what is required by § 35.133, and it would like to take the opportunity presented by this NPRM to clarify the requirement. Section 35.133(a) broadly covers all features that are required to be accessible under the ADA, from accessible routes and elevators to roll-in showers and signage. It is not sufficient for a building or other feature to be built in compliance with the ADA, only to be changed or blocked later so that it becomes inaccessible. A common problem observed by the Department is that covered facilities do not maintain accessible routes. For example, the accessible routes in offices or hallways are commonly obstructed by boxes, furniture, or other items so that the routes are inaccessible to individuals who use wheelchairs. Under the ADA, the accessible route must be maintained and therefore these items are required to be removed. If the items are placed there temporarily--for example, if an office receives multiple boxes of supplies and is moving them from the hall to the storage room--then § 35.133(b) excuses such "isolated or temporary interruptions." Other common examples of features that must be maintained, and often are not, are platform lifts and elevators. Public entities must ensure that these features are operable, and to meet this requirement, regular servicing and making repairs quickly will be necessary.
The Department proposes to amend the rule by adding § 35.133(c) to address the discrete situation in which the scoping requirements provided in the proposed standards may reduce the number of required elements below that are required by the 1991 Standards. In that discrete event, a public entity may reduce such accessible features in accordance with the requirements in the proposed standards.
The Department’s title II regulation now states that, "[a] public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity." 28 CFR 35.130(b)(7). In the proposed title II language, the Department intends to provide the broadest feasible access to individuals with disabilities who use service animals, unless a public entity can demonstrate that making the modifications would fundamentally alter the nature of the public entity’s service, program, or activity.
The proposed section regarding service animals would incorporate the Department’s policy interpretations as outlined in its published technical assistance Commonly Asked Questions about Service Animals (1996) (available at http://www.ada.gov/qasrvc.htm), and ADA Business Brief: Service Animals (2002) (available at http://www.ada.gov/svcanimb.htm), as well as make changes based on public comment. Proposed § 35.136 would:
These changes wil