BREAKING NEWS

Text of Title III Regulation to Be Published in the Federal Register in August

http://www.ada.gov/regs2010/titleIII_2010/titleIII_combined.html

Changes are indicated in bold text.


PART 36 - NONDISCRIMINATION ON THE BASIS OF DISABILITY IN PUBLIC
ACCOMMODATIONS AND COMMERCIAL FACILITIES (as amended by the title
III final rule signed by Attorney General Holder on July 23,2010
)

Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12186(b).

Subpart A -- General

Sec.36.101 Purpose.

The purpose of this part is to implement title III of the
Americans with Disabilities Act of 1990 (42 U.S.C. 12181), which
prohibits discrimination on the basis of disability by public
accommodations and requires places of public accommodation and
commercial facilities to be designed, constructed, and altered in
compliance with the accessibility standards established by this part.

Sec.36.102 Application.

(a) General. This part applies to any --

(1) Public accommodation;

(2) Commercial facility; or

(3) Private entity that offers examinations or courses related to
applications, licensing, certification, or credentialing for
secondary or postsecondary education, professional, or trade
purposes.

(b) Public accommodations. (1) The requirements of this
part applicable to public accommodations are set forth in subparts B,
C, and D of this part.

(2) The requirements of subparts B and C of this part obligate a
public accommodation only with respect to the operations of a place
of public accommodation.

(3) The requirements of subpart D of this part obligate a public
accommodation only with respect to --

(i) A facility used as, or designed or constructed for use as, a
place of public accommodation; or

(ii) A facility used as, or designed and constructed for use as, a
commercial facility.

(c) Commercial facilities. The requirements of this part
applicable to commercial facilities are set forth in subpart D of
this part.

(d) Examinations and courses. The requirements of this
part applicable to private entities that offer examinations or
courses as specified in paragraph (a) of this section are set forth
in § 36.309.

(e) Exemptions and exclusions. This part does not apply
to any private club (except to the extent that the facilities of the
private club are made available to customers or patrons of a place of
public accommodation), or to any religious entity or public entity.

Sec.36.103 Relationship to other laws.

(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) or the regulations issued
by Federal agencies pursuant to that title.

(b) Section 504. This part does not affect the
obligations of a recipient of Federal financial assistance to comply
with the requirements of section 504 of the Rehabilitation Act of
1973 (29 U.S.C. 794) and regulations issued by Federal agencies
implementing section 504.

(c) Other laws. This part does not invalidate or limit
the remedies, rights, and procedures of any other Federal laws, or
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.

Sec.36.104 Definitions.

For purposes of this part, the term --

1991 Standards means
requirements set forth in the ADA Standards for Accessible Design,
codified at 28 CFR part 36, app. A (2009).

2004 ADAAG means the
requirements set forth in appendices B and D to 36 CFR part 1191
(2009).

2010 Standard means the 2010 ADA
Standards for Accessible Design, which consist of the 2004 ADAAG and
the requirements contained in subpart D of 28 CFR part 36.

Act means the Americans with Disabilities Act of 1990
(Pub. L. 101 - 336, 104 Stat. 327, 42 U.S.C. 12101 - 12213 and 47
U.S.C. 225 and 611).

Commerce means travel, trade, traffic, commerce,
transportation, or communication --

(1) Among the several States;

(2) Between any foreign country or any territory or possession and
any State; or

(3) Between points in the same State but through another State or
foreign country.

Commercial facilities means facilities --

(1) Whose operations will affect commerce;

(2) That are intended for nonresidential use by a private entity;
and

(3) That are not --

(i) Facilities that are covered or expressly exempted from
coverage under the Fair Housing Act of 1968, as amended (42 U.S.C.
3601 - 3631);

(ii) Aircraft; or

(iii) Railroad locomotives, railroad freight cars, railroad
cabooses, commuter or intercity passenger rail cars (including
coaches, dining cars, sleeping cars, lounge cars, and food service
cars), any other railroad cars described in section 242 of the Act or
covered under title II of the Act, or railroad rights-of-way. For
purposes of this definition, "rail'' and "railroad'' have
the meaning given the term "railroad'' in section 202(e) of the
Federal Railroad Safety Act of 1970 (45 U.S.C. 431(e)).

Current illegal use of drugs means illegal use of drugs
that occurred recently enough to justify a reasonable belief that a
person's drug use is current or that continuing use is a real and
ongoing problem.

Direct threat means 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, as provided in §
36.208.

Disability means, with respect to an individual, a
physical or mental impairment that substantially limits one or more
of the major life activities of such individual; a record of such an
impairment; or being regarded as having such an impairment.

(1) The phrase physical or mental impairment means --

(i) Any physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or more of the
following body systems: neurological; musculoskeletal; special sense
organs; respiratory, including speech organs; cardiovascular;
reproductive; digestive; genitourinary; hemic and lymphatic; skin;
and endocrine;

(ii) Any mental or psychological disorder such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities;

(iii) The phrase physical or mental impairment includes, but is
not limited to, such contagious and noncontagious diseases and
conditions as orthopedic, visual, speech, and hearing impairments,
cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis,
cancer, heart disease, diabetes, mental retardation, emotional
illness, specific learning disabilities, HIV disease (whether
symptomatic or asymptomatic), tuberculosis, drug addiction, and
alcoholism;

(iv) The phrase physical or mental impairment does not include
homosexuality or bisexuality.

(2) The phrase major life activities means functions such
as caring for one's self, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working.

(3) The phrase has a record of such an impairment means
has a history of, or has been misclassified as having, a mental or
physical impairment that substantially limits one or more major life
activities.

(4) The phrase is regarded as having an impairment means
--

(i) Has a physical or mental impairment that does not
substantially limit major life activities but that is treated by a
private entity as constituting such a limitation;

(ii) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others
toward such impairment; or

(iii) Has none of the impairments
defined in paragraph (1) of this definition but is treated by a
private entity as having such an impairment.

(5) The term disability does not include --

(i) Transvestism, transsexualism, pedophilia, exhibitionism,
voyeurism, gender identity disorders not resulting from physical
impairments, or other sexual behavior disorders;

(ii) Compulsive gambling, kleptomania, or pyromania; or

(iii) Psychoactive substance use disorders resulting from current
illegal use of drugs.

Drug means a controlled substance, as defined in
schedules I through V of section 202 of the Controlled Substances Act
(21 U.S.C. 812).

Existing facility means a
facility in existence on any given date, without regard to whether
the facility may also be considered newly constructed or altered
under this part.

Facility means all or any portion of buildings,
structures, sites, complexes, equipment, rolling stock or other
conveyances, roads, walks, passageways, parking lots, or other real
or personal property, including the site where the building,
property, structure, or equipment is located.

Housing at a place of education
means housing operated by or on behalf of an elementary, secondary,
undergraduate, or postgraduate school, or other place of education,
including dormitories, suites, apartments, or other places of
residence.

Illegal use of drugs means the use of one or more drugs,
the possession or distribution of which is unlawful under the
Controlled Substances Act (21 U.S.C. 812). The term "illegal use
of drugs'' does not include the use of a drug taken under supervision
by a licensed health care professional, or other uses authorized by
the Controlled Substances Act or other provisions of Federal law.

Individual with a disability means a person who has a
disability. The term "individual with a disability'' does not
include an individual who is currently engaging in the illegal use of
drugs, when the private entity acts on the basis of such use.

Other power-driven mobility device means
any mobility device powered by batteries, fuel, or other engines --
whether or not designed primarily for use by individuals with
mobility disabilities -- that is used by individuals with mobility
disabilities for the purpose of locomotion, including golf cars,
electronic personal assistance mobility devices (EPAMDs), such as the
Segway® PT, or any mobility device designed to operate in areas
without defined pedestrian routes, but that is not a wheelchair
within the meaning of this section. This definition does not apply to
Federal wilderness areas; wheelchairs in such areas are defined in
section 508(c)(2) of the ADA, 42 U.S.C. 12207(c)(2).

Place of public accommodation means a facility, operated
by a private entity, whose operations affect commerce and fall within
at least one of the following categories --

(1) Place of lodging, except for an establishment located
within a facility that contains not more than five rooms for rent or
hire and that actually is occupied by the proprietor of the
establishment as the residence of the proprietor. For purposes of
this part, a facility is a "place of lodging" if it is--

(i) an inn, hotel, or motel; or

(ii) a facility that--

(A) Provides guest rooms for sleeping for stays that
primarily are short-term in nature (generally 30 days or less) where
the occupant does not have the right to return to a specific room or
unit after the conclusion of his or her stay; and

(B) Provides guest rooms under conditions and with
amenities similar to a hotel, motel, or inn, including the
following--

(1) On- or off-site management and reservations service;

(2) Rooms available on a walk-up or call-in basis;

(3) Availability of housekeeping or linen service; and

(4) Acceptance of reservations for a guest room type
without guaranteeing a particular unit or room until check-in, and
without a prior lease or security deposit.

(2) A restaurant, bar, or other establishment serving food or
drink;

(3) A motion picture house, theater, concert hall, stadium, or
other place of exhibition or entertainment;

(4) An auditorium, convention center, lecture hall, or other place
of public gathering;

(5) A bakery, grocery store, clothing store, hardware store,
shopping center, or other sales or rental establishment;

(6) A laundromat, dry-cleaner, bank, barber shop, beauty shop,
travel service, shoe repair service, funeral parlor, gas station,
office of an accountant or lawyer, pharmacy, insurance office,
professional office of a health care provider, hospital, or other
service establishment;

(7) A terminal, depot, or other station used for specified public
transportation;

(8) A museum, library, gallery, or other place of public display
or collection;

(9) A park, zoo, amusement park, or other place of recreation;

(10) A nursery, elementary, secondary, undergraduate, or
postgraduate private school, or other place of education;

(11) A day care center, senior citizen center, homeless shelter,
food bank, adoption agency, or other social service center
establishment; and

(12) A gymnasium, health spa, bowling alley, golf course, or other
place of exercise or recreation.

Private club means a private club or establishment
exempted from coverage under title II of the Civil Rights Act of 1964
(42 U.S.C. 2000a(e)).

Private entity means a person or entity other than a
public entity.

Public accommodation means a private entity that owns,
leases (or leases to), or operates a place of public accommodation.

Public entity means --

(1) Any State or local government;

(2) Any department, agency, special purpose district, or other
instrumentality of a State or States or local government; and

(3) The National Railroad Passenger Corporation, and any commuter
authority (as defined in section 103(8) of the Rail Passenger Service
Act). (45 U.S.C. 541)

Qualified interpreter means an interpreter who, via a
video remote interpreting (VRI) service or an on-site appearance
,
is able to interpret effectively, accurately and impartially both
receptively and expressively, using any necessary specialized
vocabulary. Qualified interpreters include, for example, sign
language interpreters, oral transliterators, and cued-language
transliterators
.

Qualified reader means a person
who is able to read effectively, accurately, and impartially using
any necessary specialized vocabulary.

Readily achievable means easily accomplishable and able
to be carried out without much difficulty or expense. In determining
whether an action is readily achievable factors to be considered
include --

(1) The nature and cost of the action needed under this part;

(2) The overall financial resources of the site or sites involved
in the action; the number of persons employed at the site; the effect
on expenses and resources; legitimate safety requirements that are
necessary for safe operation, including crime prevention measures; or
the impact otherwise of the action upon the operation of the site;

(3) The geographic separateness, and the administrative or fiscal
relationship of the site or sites in question to any parent
corporation or entity;

(4) If applicable, the overall financial resources of any parent
corporation or entity; the overall size of the parent corporation or
entity with respect to the number of its employees; the number, type,
and location of its facilities; and

(5) If applicable, the type of operation or operations of any
parent corporation or entity, including the composition, structure,
and functions of the workforce of the parent corporation or entity.

Religious entity means a religious organization,
including a place of worship.

Service animal means any dog
that is individually trained to do work or perform tasks for the
benefit of an individual with a disability, including a physical,
sensory, psychiatric, intellectual, or other mental disability. Other
species of animals, whether wild or domestic, trained or untrained,
are not service animals for the purposes of this definition. The work
or tasks performed by a service animal must be directly related to
the handler's disability. Examples of work or tasks include, but are
not limited to, assisting individuals who are blind or have low
vision with navigation and other tasks, alerting individuals who are
deaf or hard of hearing to the presence of people or sounds,
providing non-violent protection or rescue work, pulling a
wheelchair, assisting an individual during a seizure, alerting
individuals to the presence of allergens, retrieving items such as
medicine or the telephone, providing physical support and assistance
with balance and stability to individuals with mobility disabilities,
and helping persons with psychiatric and neurological disabilities by
preventing or interrupting impulsive or destructive behaviors. The
crime deterrent effects of an animal's presence and the provision of
emotional support, well-being, comfort, or companionship do not
constitute work or tasks for the purposes of this definition.

Specified public transportation means transportation by
bus, rail, or any other conveyance (other than by aircraft) that
provides the general public with general or special service
(including charter service) on a regular and continuing basis.

State means each of the several States, the District of
Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the
Virgin Islands, the Trust Territory of the Pacific Islands, and the
Commonwealth of the Northern Mariana Islands.

Undue burden means significant difficulty or expense. In
determining whether an action would result in an undue burden,
factors to be considered include --

(1) The nature and cost of the action needed under this part;

(2) The overall financial resources of the site or sites involved
in the action; the number of persons employed at the site; the effect
on expenses and resources; legitimate safety requirements that are
necessary for safe operation, including crime prevention measures; or
the impact otherwise of the action upon the operation of the site;

(3) The geographic separateness, and the administrative or fiscal
relationship of the site or sites in question to any parent
corporation or entity;

(4) If applicable, the overall financial resources of any parent
corporation or entity; the overall size of the parent corporation or
entity with respect to the number of its employees; the number, type,
and location of its facilities; and

(5) If applicable, the type of operation or operations of any
parent corporation or entity, including the composition, structure,
and functions of the workforce of the parent corporation or entity.

Video remote interpreting (VRI) service
means an interpreting service that uses video conference technology
over dedicated lines or wireless technology offering high-speed,
wide-bandwidth video connection that delivers high-quality video
images as sprovided in § 36.303(f).

Wheelchair means a
manually-operated or power-driven device designed primarily for use
by an individual with a mobility disability for the main purpose of
indoor or of both indoor and outdoor locomotion. This definition does
not apply to Federal wilderness areas; wheelchairs in such areas are
defined in section 508(c)(2) of the ADA, 42 U.S.C. 12207(c)(2).

Sec.36.105 -- 36.199 [Reserved]

Subpart B -- General Requirements

Sec.36.201 General.

(a) Prohibition of discrimination. No individual shall be
discriminated against on the basis of disability in the full and
equal enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public accommodation by
any private entity who owns, leases (or leases to), or operates a
place of public accommodation.

(b) Landlord and tenant responsibilities. Both the
landlord who owns the building that houses a place of public
accommodation and the tenant who owns or operates the place of public
accommodation are public accommodations subject to the requirements
of this part. As between the parties, allocation of responsibility
for complying with the obligations of this part may be determined by
lease or other contract.

Sec.36.202 Activities.

(a) Denial of participation. A public accommodation shall
not subject an individual or class of individuals on the basis of a
disability or disabilities of such individual or class, directly, or
through contractual, licensing, or other arrangements, to a denial of
the opportunity of the individual or class to participate in or
benefit from the goods, services, facilities, privileges, advantages,
or accommodations of a place of public accommodation.

(b) Participation in unequal benefit. A public
accommodation shall not afford an individual or class of individuals,
on the basis of a disability or disabilities of such individual or
class, directly, or through contractual, licensing, or other
arrangements, with the opportunity to participate in or benefit from
a good, service, facility, privilege, advantage, or accommodation
that is not equal to that afforded to other individuals.

(c) Separate benefit. A public accommodation shall not
provide an individual or class of individuals, on the basis of a
disability or disabilities of such individual or class, directly, or
through contractual, licensing, or other arrangements with a good,
service, facility, privilege, advantage, or accommodation that is
different or separate from that provided to other individuals, unless
such action is necessary to provide the individual or class of
individuals with a good, service, facility, privilege, advantage, or
accommodation, or other opportunity that is as effective as that
provided to others.

(d) Individual or class of individuals. For purposes of
paragraphs (a) through (c) of this section, the term "individual
or class of individuals'' refers to the clients or customers of the
public accommodation that enters into the contractual, licensing, or
other arrangement.

Sec.36.203 Integrated settings.

(a) General. A public accommodation shall afford goods,
services, facilities, privileges, advantages, and accommodations to
an individual with a disability in the most integrated setting
appropriate to the needs of the individual.

(b) Opportunity to participate. Notwithstanding the
existence of separate or different programs or activities provided in
accordance with this subpart, a public accommodation shall not deny
an individual with a disability an opportunity to participate in such
programs or activities that are not separate or different.

(c) Accommodations and services. (1) Nothing in this part
shall be construed to require an individual with a disability to
accept an accommodation, aid, service, opportunity, or benefit
available under this part that such individual chooses not to accept.

(2) Nothing in the Act or this part authorizes the representative
or guardian of an individual with a disability to decline food,
water, medical treatment, or medical services for that individual.

Sec.36.204 Administrative methods.

A public accommodation shall not, directly or through contractual
or other arrangements, utilize standards or criteria or methods of
administration that have the effect of discriminating on the basis of
disability, or that perpetuate the discrimination of others who are
subject to common administrative control.

Sec.36.205 Association.

A public accommodation shall not exclude or otherwise deny equal
goods, services, facilities, privileges, advantages, accommodations,
or other opportunities to an individual or entity because of the
known disability of an individual with whom the individual or entity
is known to have a relationship or association.

Sec.36.206 Retaliation or coercion.

(a) No private or public entity shall discriminate against any
individual because that individual has opposed any act or practice
made unlawful by this part, or because that individual made a charge,
testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under the Act or this part.

(b) No private or public entity shall coerce, intimidate,
threaten, or interfere with any individual in the exercise or
enjoyment of, or on account of his or her having exercised or
enjoyed, or on account of his or her having aided or encouraged any
other individual in the exercise or enjoyment of, any right granted
or protected by the Act or this part.

(c) Illustrations of conduct prohibited by this section include,
but are not limited to:

(1) Coercing an individual to deny or limit the benefits,
services, or advantages to which he or she is entitled under the Act
or this part;

(2) Threatening, intimidating, or interfering with an individual
with a disability who is seeking to obtain or use the goods,
services, facilities, privileges, advantages, or accommodations of a
public accommodation;

(3) Intimidating or threatening any person because that person is
assisting or encouraging an individual or group entitled to claim the
rights granted or protected by the Act or this part to exercise those
rights; or

(4) Retaliating against any person because that person has
participated in any investigation or action to enforce the Act or
this part.

Sec.36.207 Places of public accommodation located in private
residences.

(a) When a place of public accommodation is located in a private
residence, the portion of the residence used exclusively as a
residence is not covered by this part, but that portion used
exclusively in the operation of the place of public accommodation or
that portion used both for the place of public accommodation and for
residential purposes is covered by this part.

(b) The portion of the residence covered under paragraph (a) of
this section extends to those elements used to enter the place of
public accommodation, including the homeowner's front sidewalk, if
any, the door or entryway, and hallways; and those portions of the
residence, interior or exterior, available to or used by customers or
clients, including restrooms.

Sec.36.208 Direct threat.

(a) This part does not require a public accommodation to permit an
individual to participate in or benefit from the goods, services,
facilities, privileges, advantages and accommodations of that public
accommodation when that individual poses a direct threat to the
health or safety of others.

(b) In determining whether an individual poses a
direct threat to the health or safety of others, a public
accommodation must make an individualized assessment, based on
reasonable judgment that relies on current medical knowledge or on
the best available objective evidence, to ascertain: the nature,
duration, and severity of the risk; the probability that the
potential injury will actually occur; and whether reasonable
modifications of policies, practices, or procedures or the
provision of auxiliary aids or services
will mitigate the
risk.

Sec.36.209 Illegal use of drugs.

(a) General. (1) Except as provided in paragraph (b) of
this section, this part does not prohibit discrimination against an
individual based on that individual's current illegal use of drugs.

(2) A public accommodation shall not discriminate on the basis of
illegal use of drugs against an individual who is not engaging in
current illegal use of drugs and who --

(i) Has successfully completed a supervised drug rehabilitation
program or has otherwise been rehabilitated successfully;

(ii) Is participating in a supervised rehabilitation program; or

(iii) Is erroneously regarded as engaging in such use.

(b) Health and drug rehabilitation services. (1) A public
accommodation shall not deny health services, or services provided in
connection with drug rehabilitation, to an individual on the basis of
that individual's current illegal use of drugs, if the individual is
otherwise entitled to such services.

(2) A drug rehabilitation or treatment program may deny
participation to individuals who engage in illegal use of drugs while
they are in the program.

(c) Drug testing. (1) This part does not prohibit a
public accommodation from adopting or administering reasonable
policies or procedures, including but not limited to drug testing,
designed to ensure that an individual who formerly engaged in the
illegal use of drugs is not now engaging in current illegal use of
drugs.

(2) Nothing in this paragraph (c) shall be construed to encourage,
prohibit, restrict, or authorize the conducting of testing for the
illegal use of drugs.

Sec.36.210 Smoking.

This part does not preclude the prohibition of, or the imposition
of restrictions on, smoking in places of public accommodation.

Sec.36.211 Maintenance of accessible features.

(a) A public accommodation shall maintain in operable working
condition those features of facilities and equipment that are
required to be readily accessible to and usable by persons with
disabilities by the Act or this part.

(b) This section does not prohibit isolated or temporary
interruptions in service or access due to maintenance or repairs.

(c) If the 2010 Standards reduce the technical
requirements or the number of required accessible elements below the
number required by the 1991 Standards, the technical requirements or
the number of accessible elements in a facility subject to this part
may be reduced in accordance with the requirements of the 2010
Standards
.

Sec.36.212 Insurance.

(a) This part shall not be construed to prohibit or restrict --

(1) An insurer, hospital or medical service company, health
maintenance organization, or any agent, or entity that administers
benefit plans, or similar organizations from underwriting risks,
classifying risks, or administering such risks that are based on or
not inconsistent with State law; or

(2) A person or organization covered by this part from
establishing, sponsoring, observing or administering the terms of a
bona fide benefit plan that are based on underwriting risks,
classifying risks, or administering such risks that are based on or
not inconsistent with State law; or

(3) A person or organization covered by this part from
establishing, sponsoring, observing or administering the terms of a
bona fide benefit plan that is not subject to State laws that
regulate insurance.

(b) Paragraphs (a) (1), (2), and (3) of this section shall not be
used as a subterfuge to evade the purposes of the Act or this part.

(c) A public accommodation shall not refuse to serve an individual
with a disability because its insurance company conditions coverage
or rates on the absence of individuals with disabilities.

Sec.36.213 Relationship of subpart B to subparts C and D of this
part.

Subpart B of this part sets forth the general principles of
nondiscrimination applicable to all entities subject to this part.
Subparts C and D of this part provide guidance on the application of
the statute to specific situations. The specific provisions,
including the limitations on those provisions, control over the
general provisions in circumstances where both specific and general
provisions apply.

Sec.36.214 -- 36.299 [Reserved]

Subpart C -- Specific Requirements

Sec.36.301 Eligibility criteria.

(a) General. A public accommodation shall not impose or
apply eligibility criteria that screen out or tend to screen out an
individual with a disability or any class of individuals with
disabilities from fully and equally enjoying any goods, services,
facilities, privileges, advantages, or accommodations, unless such
criteria can be shown to be necessary for the provision of the goods,
services, facilities, privileges, advantages, or accommodations being
offered.

(b) Safety. A public accommodation may impose legitimate
safety requirements that are necessary for safe operation. Safety
requirements must be based on actual risks and not on mere
speculation, stereotypes, or generalizations about individuals with
disabilities.

(c) Charges. A public accommodation may not impose a
surcharge on a particular individual with a disability or any group
of individuals with disabilities to cover the costs of measures, such
as the provision of auxiliary aids, barrier removal, alternatives to
barrier removal, and reasonable modifications in policies, practices,
or procedures, that are required to provide that individual or group
with the nondiscriminatory treatment required by the Act or this
part.

Sec.36.302 Modifications in policies, practices, or procedures.

(a) General. A public accommodation shall make reasonable
modifications in policies, practices, or procedures, when the
modifications are necessary to afford goods, services, facilities,
privileges, advantages, or accommodations to individuals with
disabilities, unless the public accommodation can demonstrate that
making the modifications would fundamentally alter the nature of the
goods, services, facilities, privileges, advantages, or
accommodations.

(b) Specialties-- (1) General. A public
accommodation may refer an individual with a disability to another
public accommodation, if that individual is seeking, or requires,
treatment or services outside of the referring public accommodation's
area of specialization, and if, in the normal course of its
operations, the referring public accommodation would make a similar
referral for an individual without a disability who seeks or requires
the same treatment or services.

(2) Illustration-- medical specialties. A health
care provider may refer an individual with a disability to another
provider, if that individual is seeking, or requires, treatment or
services outside of the referring provider's area of specialization,
and if the referring provider would make a similar referral for an
individual without a disability who seeks or requires the same
treatment or services. A physician who specializes in treating only a
particular condition cannot refuse to treat an individual with a
disability for that condition, but is not required to treat the
individual for a different condition.

(c) Service animals. (1) General. Generally, a
public accommodation shall modify policies, practices, or procedures
to permit the use of a service animal by an individual with a
disability.

(c)(2) Exceptions.
A public accommodation may ask an individual with a disability to
remove a service animal from the premises if:

(i) The animal is out of control and the animal's handler
does not take effective action to control it; or

(ii) The animal is not housebroken.

(3) If an animal is properly
excluded
. If a public accommodation properly
excludes a service animal under § 36.302(c)(2), it shall give
the individual with a disability the opportunity to obtain goods,
services, and accommodations without having the service animal on the
premises.

(4) Animal under handler's control.
A service animal shall be under the control of its handler. A service
animal shall have a harness, leash, or other tether, unless either
the handler is unable because of a disability to use a harness,
leash, or other tether, or the use of a harness, leash, or other
tether would interfere with the service animal's safe, effective
performance of work or tasks, in which case the service animal must
be otherwise under the handler's control (e.g., voice control,
signals, or other effective means).

(5) Care or supervision.
A public accommodation is not responsible for the care or supervision
of a service animal.

(6) Inquiries.
A public accommodation shall not ask about the nature or extent of a
person's disability, but may make two inquiries to determine whether
an animal qualifies as a service animal. A public accommodation may
ask if the animal is required because of a disability and what work
or task the animal has been trained to perform. A public
accommodation shall not require documentation, such as proof that the
animal has been certified, trained, or licensed as a service animal.
Generally, a public accommodation may not make these inquiries about
a service animal when it is readily apparent that an animal is
trained to do work or perform tasks for an individual with a
disability (e.g., the dog is observed guiding an individual who is
blind or has low vision, pulling a person's wheelchair, or providing
assistance with stability or balance to an individual with an
observable mobility disability).

(7) Access to areas of a public
accommodation
. Individuals with disabilities
shall be permitted to be accompanied by their service animals in all
areas of a place of public accommodation where members of the public,
program participants, clients, customers, patrons, or invitees, as
relevant, are allowed to go.

(8) Surcharges.
A public accommodation shall not ask or require an individual with a
disability to pay a surcharge, even if people accompanied by pets are
required to pay fees, or to comply with other requirements generally
not applicable to people without pets. If a public accommodation
normally charges individuals for the damage they cause, an individual
with a disability may be charged for damage caused by his or her
service animal.

(9) Miniature horses.
(i) A public accommodation shall make reasonable modifications in
policies, practices, or procedures to permit the use of a miniature
horse by an individual with a disability if the miniature horse has
been individually trained to do work or perform tasks for the benefit
of the individual with a disability.

(ii) Assessment factors.
In determining whether reasonable modifications in policies,
practices, or procedures can be made to allow a miniature horse into
a specific facility, a public accommodation shall consider --

(A) The type, size, and weight of the miniature horse and
whether the facility can accommodate these features;

(B) Whether the handler has sufficient control of the
miniature horse;

(C) Whether the miniature horse is housebroken; and

(D) Whether the miniature horse's presence in a specific
facility compromises legitimate safety requirements that are
necessary for safe operation.

(iii) Other requirements.
Sections 36.302(c)(3) through (c)(8), which apply to service animals,
shall also apply to miniature horses.

(d) Check-out aisles. A store with check-out aisles shall
ensure that an adequate number of accessible check-out aisles are
kept open during store hours, or shall otherwise modify its policies
and practices, in order to ensure that an equivalent level of
convenient service is provided to individuals with disabilities as is
provided to others. If only one check-out aisle is accessible, and it
is generally used for express service, one way of providing
equivalent service is to allow persons with mobility impairments to
make all their purchases at that aisle.

(e)(1) Reservations made by places of
lodging
. A public accommodation that owns,
leases (or leases to), or operates a place of lodging shall, with
respect to reservations made by telephone, in-person, or through a
third party --

(i) Modify its policies, practices, or procedures to
ensure that individuals with disabilities can make reservations for
accessible guest rooms during the same hours and in the same manner
as individuals who do not need accessible rooms;

(ii) Identify and describe accessible features in the
hotels and guest rooms offered through its reservations service in
enough detail to reasonably permit individuals with disabilities to
assess independently whether a given hotel or guest room meets his or
her accessibility needs;

(iii) Ensure that accessible guest rooms are held for use
by individuals with disabilities until all other guest rooms of that
type have been rented and the accessible room requested is the only
remaining room of that type;

(iv) Reserve, upon request, accessible guest rooms or
specific types of guest rooms and ensure that the guest rooms
requested are blocked and removed from all reservations systems; and

(v) Guarantee that the specific accessible guest room
reserved through its reservations service is held for the reserving
customer, regardless of whether a specific room is held in response
to reservations made by others.

(2) Exception.
The requirements in paragraphs (iii), (iv), and (v) of this section
do not apply to reservations for individual guest rooms or other
units not owned or substantially controlled by the entity that owns,
leases, or operates the overall facility.

(3) Compliance date.
The requirements in this section will apply to reservations made on
or after [INSERT DATE 18 MONTHS AFTER THE DATE OF PUBLICATION OF THIS
RULE].

(f) Ticketing.
(1)(i) For the purposes of this section, "accessible seating"
is defined as wheelchair spaces and companion seats that comply with
sections 221 and 802 of the 2010 Standards along with any other seats
required to be offered for sale to the individual with a disability
pursuant to paragraph (4) of this section.

(ii) Ticket sales.
A public accommodation that sells tickets for a single event or
series of events shall modify its policies, practices, or procedures
to ensure that individuals with disabilities have an equal
opportunity to purchase tickets for accessible seating––

(A) During the same hours;

(B) During the same stages of ticket sales, including, but
not limited to, pre-sales, promotions, lotteries, wait-lists, and
general sales;

(C) Through the same methods of distribution;

(D) In the same types and numbers of ticketing sales
outlets, including telephone service, in-person ticket sales at the
facility, or third-party ticketing services, as other patrons; and

(E) Under the same terms and conditions as other tickets
sold for the same event or series of events.

(2) Identification of available
accessible seating
. A public accommodation that
sells or distributes tickets for a single event or series of events
shall, upon inquiry --

(i) Inform individuals with disabilities, their
companions, and third parties purchasing tickets for accessible
seating on behalf of individuals with disabilities of the locations
of all unsold or otherwise available accessible seating for any
ticketed event or events at the facility;

(ii) Identify and describe the features of available
accessible seating in enough detail to reasonably permit an
individual with a disability to assess independently whether a given
accessible seating location meets his or her accessibility needs; and

(iii) Provide materials, such as seating maps, plans,
brochures, pricing charts, or other information, that identify
accessible seating and information relevant thereto with the same
text or visual representations as other seats, if such materials are
provided to the general public.

(3) Ticket prices.
The price of tickets for accessible seating for a single event or
series of events shall not be set higher than the price for other
tickets in the same seating section for the same event or series of
events. Tickets for accessible seating must be made available at all
price levels for every event or series of events. If tickets for
accessible seating at a particular price level cannot be provided
because barrier removal in an existing facility is not readily
achievable, then the percentage of tickets for accessible seating
that should have been available at that price level but for the
barriers (determined by the ratio of the total number of tickets at
that price level to the total number of tickets in the assembly area)
shall be offered for purchase, at that price level, in a nearby or
similar accessible location.

(4) Purchasing multiple tickets.
(i)
General. For each
ticket for a wheelchair space purchased by an individual with a
disability or a third-party purchasing such a ticket at his or her
request, a public accommodation shall make available for purchase
three additional tickets for seats in the same row that are
contiguous with the wheelchair space, provided that at the time of
purchase there are three such seats available. A public accommodation
is not required to provide more than three contiguous seats for each
wheelchair space. Such seats may include wheelchair spaces.

(ii) Insufficient additional
contiguous seats available
. If patrons are
allowed to purchase at least four tickets, and there are fewer than
three such additional contiguous seat tickets available for purchase,
a public accommodation shall offer the next highest number of such
seat tickets available for purchase and shall make up the difference
by offering tickets for sale for seats that are as close as possible
to the accessible seats.

(iii) Sales limited to less than four
tickets
. If a public accommodation limits sales
of tickets to fewer than four seats per patron, then the public
accommodation is only obligated to offer as many seats to patrons
with disabilities, including the ticket for the wheelchair space, as
it would offer to patrons without disabilities.

(iv) Maximum number of tickets
patrons may purchase exceeds four
. If patrons
are allowed to purchase more than four tickets, a public
accommodation shall allow patrons with disabilities to purchase up to
the same number of tickets, including the ticket for the wheelchair
space.

(v) Group sales.
If a group includes one or more individuals who need to use
accessible seating because of a mobility disability or because their
disability requires the use of the accessible features that are
provided in accessible seating, the group shall be placed in a
seating area with accessible seating so that, if possible, the group
can sit together. If it is necessary to divide the group, it should
be divided so that the individuals in the group who use wheelchairs
are not isolated from their group.

(5) Hold and release of tickets for
accessible seating
. (i) Tickets
for accessible seating may be released for sale in certain limited
circumstances
. A public accommodation may
release unsold tickets for accessible seating for sale to individuals
without disabilities for their own use for a single event or series
of events only under the following circumstances --

(A) When all non-accessible tickets (excluding luxury
boxes, club boxes, or suites) have been sold;

(B) When all non-accessible tickets in a designated
seating area have been sold and the tickets for accessible seating
are being released in the same designated area; or

(C) When all non-accessible tickets in a designated price
category have been sold and the tickets for accessible seating are
being released within the same designated price category.

(ii) No requirement to release
accessible tickets
. Nothing in this paragraph
requires a facility to release tickets for accessible seating to
individuals without disabilities for their own use.

(iii) Release of series-of-events
tickets on a series-of-events basis
. (A)
Series-of-events tickets sell-out when no
ownership rights are attached.
When
series-of-events tickets are sold out and a public accommodation
releases and sells accessible seating to individuals without
disabilities for a series of events, the public accommodation shall
establish a process that prevents the automatic reassignment of the
accessible seating to such ticket holders for future seasons, future
years, or future series, so that individuals with disabilities who
require the features of accessible seating and who become newly
eligible to purchase tickets when these series-of-events tickets are
available for purchase have an opportunity to do so.

(B) Series-of-events tickets when
ownership rights are attached
. When
series-of-events tickets with an ownership right in accessible
seating areas are forfeited or otherwise returned to a public
accommodation, the public accommodation shall make reasonable
modifications in its policies, practices, or procedures to afford
individuals with mobility disabilities or individuals with
disabilities that require the features of accessible seating an
opportunity to purchase such tickets in accessible seating areas.

(6) Ticket transfer.
Individuals with disabilities who hold tickets for accessible seating
shall be permitted to transfer tickets to third parties under the
same terms and conditions and to the same extent as other spectators
holding the same type of tickets, whether they are for a single event
or series of events.

(7) Secondary ticket market.
(i) A public accommodation shall modify its policies, practices, or
procedures to ensure that an individual with a disability may use a
ticket acquired in the secondary ticket market under the same terms
and conditions as other individuals who hold a ticket acquired in the
secondary ticket market for the same event or series of events.

(ii) If an individual with a disability acquires a ticket
or series of tickets to an inaccessible seat through the secondary
market, a public accommodation shall make reasonable modifications to
its policies, practices, or procedures to allow the individual to
exchange his ticket for one to an accessible seat in a comparable
location if accessible seating is vacant at the time the individual
presents the ticket to the public accommodation.

(8) Prevention of fraud in purchase
of tickets for accessible seating
. A public
accommodation may not require proof of disability, including, for
example, a doctor's note, before selling tickets for accessible
seating.

(i) Single-event tickets.
For the sale of single-event tickets, it is permissible to inquire
whether the individual purchasing the tickets for accessible seating
has a mobility disability or a disability that requires the use of
the accessible features that are provided in accessible seating, or
is purchasing the tickets for an individual who has a mobility
disability or a disability that requires the use of the accessible
features that are provided in the accessible seating.

(ii) Series-of-events tickets.
For series-of-events tickets, it is permissible to ask the individual
purchasing the tickets for accessible seating to attest in writing
that the accessible seating is for a person who has a mobility
disability or a disability that requires the use of the accessible
features that are provided in the accessible seating.

(iii) Investigation of fraud.
A public accommodation may investigate the potential misuse of
accessible seating where there is good cause to believe that such
seating has been purchased fraudulently.

Sec.36.303 Auxiliary aids and services.

(a) General. A public accommodation shall take those
steps that may be necessary to ensure that no individual with a
disability is excluded, denied services, segregated or otherwise
treated differently than other individuals because of the absence of
auxiliary aids and services, unless the public accommodation can
demonstrate that taking those steps would fundamentally alter the
nature of the goods, services, facilities, privileges, advantages, or
accommodations being offered or would result in an undue burden,
i.e., significant difficulty or expense.

(b) Examples. The term "auxiliary aids and
services'' includes:

(1) Qualified interpreters on-site or through video remote
interpreting (VRI) services
; notetakers; real-time
computer-aided transcription services; written materials; exchange
of written notes
; telephone handset amplifiers; assistive
listening devices; assistive listening systems; telephones compatible
with hearing aids; closed caption decoders; open and closed
captioning, including real-time captioning; voice, text, and
video-based telecommunications products and systems,
including
text telephones (TTY's), videophones, and captioned telephones
,
or equally effective telecommunications devices; videotext displays;
accessible electronic and information technology;, or other effective
methods of making aurally delivered information available to
individuals who are deaf or hard of hearing;

(2) Qualified readers; taped texts; audio recordings; brailled
materials and displays; screen reader software; magnification
software; optical readers; secondary auditory programs (SAP)
;
large print materials; accessible electronic and information
technology
; or other effective methods of making visually
delivered materials available to individuals who are blind or
have low vision
;

(3) Acquisition or modification of equipment or devices; and

(4) Other similar services and actions.

(c) Effective communication. (1) A public accommodation
shall furnish appropriate auxiliary aids and services where necessary
to ensure effective communication with individuals with disabilities.
This includes an obligation to provide effective
communication to companions who are individuals with disabilities
.

(i) For purposes of this section, "companion"
means a family member, friend, or associate of an individual seeking
access to, or participating in, the goods, services, facilities,
privileges, advantages, or accommodations of a public accommodation,
who, along with such individual, is an appropriate person with whom
the public accommodation should communicate.

(ii) The type of auxiliary aid or service necessary to
ensure effective communication will vary in accordance with the
method of communication used by the individual; the nature, length,
and complexity of the communication involved; and the context in
which the communication is taking place. A public accommodation
should consult with individuals with disabilities whenever possible
to determine what type of auxiliary aid is needed to ensure effective
communication, but the ultimate decision as to what measures to take
rests with the public accommodation, provided that the method chosen
results in effective communication. In order to be effective,
auxiliary aids and services must be provided in accessible formats,
in a timely manner, and in such a way as to protect the privacy and
independence of the individual with a disability.

(2) A public accommodation shall not require an individual
with a disability to bring another individual to interpret for him or
her.

(3) A public accommodation shall not rely on an adult
accompanying an individual with a disability to interpret or
facilitate communication, except --

(i) In an emergency involving an imminent threat to the
safety or welfare of an individual or the public where there is no
interpreter available; or

(ii) Where the individual with a disability specifically
requests that the accompanying adult interpret or facilitate
communication, the accompanying adult agrees to provide such
assistance, and reliance on that adult for such assistance is
appropriate under the circumstances.

(4) A public accommodation shall not rely on a minor child
to interpret or facilitate communication, except in an emergency
involving an imminent threat to the safety or welfare of an
individual or the public where there is no interpreter available.

(d) Telecommunications.
(1) When a public accommodation uses an automated-attendant system,
including, but not limited to, voicemail and messaging, or an
interactive voice response system, for receiving and directing
incoming telephone calls, that system must provide effective
real-time communication with individuals using auxiliary aids and
services, including text telephones (TTYs) and all forms of
FCC-approved telecommunications relay systems, including
Internet-based relay systems.

(2) A public accommodation that offers a customer, client,
patient, or participant the opportunity to make outgoing telephone
calls using the public accommodation's equipment on more than an
incidental convenience basis shall make available public telephones,
TTYs, or other telecommunications products and systems for use by an
individual who is deaf or hard of hearing, or has a speech
impairment.

(3) A public accommodation may use relay services in place
of direct telephone communication for receiving or making telephone
calls incident to its operations.

(4) A public accommodation shall respond to telephone
calls from a telecommunications relay service established under title
IV of the ADA in the same manner that it responds to other telephone
calls.

(5) This part does not require a public
accommodation to use a TTY for receiving or making
telephone calls incident to its operations.

(e) Closed caption decoders. Places of lodging that
provide televisions in five or more guest rooms and hospitals that
provide televisions for patient use shall provide, upon request, a
means for decoding captions for use by an individual with impaired
hearing.

(f) Video remote interpreting (VRI)
services
. A public accommodation that chooses
to provide qualified interpreters via VRI service shall ensure that
it provides --

(1) Real-time, full-motion video and audio over a
dedicated high-speed, wide-bandwidth video connection or wireless
connection that delivers high-quality video images that do not
produce lags, choppy, blurry, or grainy images, or irregular pauses
in communication;

(2) A sharply delineated image that is large enough to
display the interpreter's face, arms, hands, and fingers, and the
participating individual's face, arms, hands, and fingers, regardless
of his or her body position;

(3) A clear, audible transmission of voices; and

(4) Adequate training to users of the technology and other
involved individuals so that they may quickly and efficiently set up
and operate the VRI.

(g) Alternatives. If provision of a
particular auxiliary aid or service by a public accommodation would
result in a fundamental alteration in the nature of the goods,
services, facilities, privileges, advantages, or accommodations being
offered or in an undue burden, i.e., significant difficulty or
expense, the public accommodation shall provide an alternative
auxiliary aid or service, if one exists, that would not result in an
alteration or such burden but would nevertheless ensure that, to the
maximum extent possible, individuals with disabilities receive the
goods, services, facilities, privileges, advantages, or
accommodations offered by the public accommodation.

Sec.36.304 Removal of barriers.

(a) General. A public accommodation shall remove
architectural barriers in existing facilities, including
communication barriers that are structural in nature, where such
removal is readily achievable, i.e., easily accomplishable and able
to be carried out without much difficulty or expense.

(b) Examples. Examples of steps to remove barriers
include, but are not limited to, the following actions --

(1) Installing ramps;

(2) Making curb cuts in sidewalks and entrances;

(3) Repositioning shelves;

(4) Rearranging tables, chairs, vending machines, display racks,
and other furniture;

(5) Repositioning telephones;

(6) Adding raised markings on elevator control buttons;

(7) Installing flashing alarm lights;

(8) Widening doors;

(9) Installing offset hinges to widen doorways;

(10) Eliminating a turnstile or providing an alternative
accessible path;

(11) Installing accessible door hardware;

(12) Installing grab bars in toilet stalls;

(13) Rearranging toilet partitions to increase maneuvering space;

(14) Insulating lavatory pipes under sinks to prevent burns;

(15) Installing a raised toilet seat;

(16) Installing a full-length bathroom mirror;

(17) Repositioning the paper towel dispenser in a bathroom;

(18) Creating designated accessible parking spaces;

(19) Installing an accessible paper cup dispenser at an existing
inaccessible water fountain;

(20) Removing high pile, low density carpeting; or

(21) Installing vehicle hand controls.

(c) Priorities. A public accommodation is urged to take
measures to comply with the barrier removal requirements of this
section in accordance with the following order of priorities.

(1) First, a public accommodation should take measures to provide
access to a place of public accommodation from public sidewalks,
parking, or public transportation. These measures include, for
example, installing an entrance ramp, widening entrances, and
providing accessible parking spaces.

(2) Second, a public accommodation should take measures to provide
access to those areas of a place of public accommodation where goods
and services are made available to the public. These measures
include, for example, adjusting the layout of display racks,
rearranging tables, providing Brailled and raised character signage,
widening doors, providing visual alarms, and installing ramps.

(3) Third, a public accommodation should take measures to provide
access to restroom facilities. These measures include, for example,
removal of obstructing furniture or vending machines, widening of
doors, installation of ramps, providing accessible signage, widening
of toilet stalls, and installation of grab bars.

(4) Fourth, a public accommodation should take any other measures
necessary to provide access to the goods, services, facilities,
privileges, advantages, or accommodations of a place of public
accommodation.

(d) Relationship to alterations requirements of subpart D of
this part
. (1) Except as provided in paragraph (d)(3)
of this section, measures taken to comply with the barrier removal
requirements of this section shall comply with the applicable
requirements for alterations in § 36.402 and §§ 36.404
-36.406 of this part for the element being altered. The path of
travel requirements of § 36.403 shall not apply to measures
taken solely to comply with the barrier removal requirements of this
section.

(d)(2)(i) Safe harbor.
Elements that have not been altered in existing facilities on or
after [INSERT DATE 18 MONTHS AFTER THE DATE OF PUBLICATION OF THIS
RULE IN THE FEDERAL REGISTER] and that comply with the corresponding
technical and scoping specifications for those elements in the 1991
Standards are not required to be modified in order to comply with the
requirements set forth in the 2010 Standards.

(ii)(A) Before [INSERT DATE 18 MONTHS AFTER THE DATE OF
PUBLICATION OF THIS RULE IN THE FEDERAL REGISTER], elements in
existing facilities that do not comply with the corresponding
technical and scoping specifications for those elements in the 1991
Standards must be modified to the extent readily achievable to comply
with either the 1991 Standards or the 2010 Standards. Noncomplying
newly constructed and altered elements may also be subject to the
requirements of § 36.406(c).

(B) On or after [INSERT DATE 18 MONTHS AFTER THE DATE OF
PUBLICATION OF THIS RULE IN THE FEDERAL REGISTER], elements in
existing facilities that do not comply with the corresponding
technical and scoping specifications for those elements in the 2010
Standards must be modified to the extent readily achievable to comply
with the requirements set forth in the 2010 Standards. Noncomplying
newly constructed and altered elements may also be subject to the
requirements of § 36.406(c).

(iii) The safe harbor provided in § 36.304(d)(2)(i)
does not apply to those elements in existing facilities that are
subject to supplemental requirements (i.e., elements for which there
are neither technical nor scoping specifications in the 1991
Standards), and therefore those elements must be modified to the
extent readily achievable to comply with the 2010 Standards.
Noncomplying newly constructed and altered elements may also be
subject to the requirements of § 36.406(c). Elements in the 2010
Standards not eligible for the element-by-element safe harbor are
identified as follows --

(A) Residential facilities and
dwelling units
, sections 233 and 809.

(B) Amusement rides,
sections 234 and 1002; 206.2.9; 216.12.

(C) Recreational boating facilities,
sections 235 and 1003; 206.2.10.

(D) Exercise machines and equipment,
sections 236 and 1004; 206.2.13.

(E) Fishing piers and platforms,
sections 237 and 1005; 206.2.14.

(F) Golf facilities,
sections 238 and 1006; 206.2.15.

(G) Miniature golf facilities,
sections 239 and 1007; 206.2.16.

(H) Play areas,
sections 240 and 1008; 206.2.17.

(I) Saunas and steam rooms,
sections 241 and 612.

(J) Swimming pools, wading pools, and
spas
, sections 242 and 1009.

(K) Shooting facilities with firing
positions
, sections 243 and 1010.

(L) Miscellaneous.

(1) Team or player seating,
section 221.2.1.4.

(2) Accessible route to bowling
lanes, section 206.2.11.

(3) Accessible route in court
sports facilities, section 206.2.12.

Appendix to § 36.304(d)

Compliance Dates
and Applicable Standards for Barrier Removal and Safe Harbor

Date

Requirement

Applicable Standards

Before [INSERT DATE 18 MONTHS AFTER DATE OF PUBLICATION
OF THIS RULE IN THE FEDERAL REGISTER]

Elements that do not comply with the requirements for
those elements in the 1991 Standards must be modified to the
extent readily achievable. Note: Noncomplying newly constructed
and altered elements may also be subject to the requirements of
36.406(c).

1991 Standards or 2010 Standards

On or after [INSERT DATE 18 MONTHS AFTER THE DATE OF
PUBLICATION OF THIS RULE IN THE FEDERAL REGISTER]

Elements that do not comply with the requirements for
those elements in the 1991 Standards or that do not comply with
the supplemental requirements (i.e., elements for which there are
neither technical nor scoping specifications in the 1991
Standards) must be modified to the extent readily achievable.
Note: Noncomplying newly constructed and altered elements may also
be subject to the requirements of 36.406(c).

2010 Standards

Elements not altered after [INSERT DATE 18 MONTHS AFTER
DATE OF PUBLICATION OF THIS RULE IN THE FEDERAL REGISTER]

Elements that comply with the requirements for those
elements in the 1991 Standards do not need to be modified.

Safe Harbor

(3) If, as a result of compliance with the
alterations requirements specified in paragraph (d)(1) and (d)(2) of
this section, the measures required to remove a barrier would not be
readily achievable, a public accommodation may take other readily
achievable measures to remove the barrier that do not fully comply
with the specified requirements. Such measures include, for example,
providing a ramp with a steeper slope or widening a doorway to a
narrower width than that mandated by the alterations requirements. No
measure shall be taken, however, that poses a significant risk to the
health or safety of individuals with disabilities or others.

(e) Portable ramps. Portable ramps should be used to
comply with this section only when installation of a permanent ramp
is not readily achievable. In order to avoid any significant risk to
the health or safety of individuals with disabilities or others in
using portable ramps, due consideration shall be given to safety
features such as nonslip surfaces, railings, anchoring, and strength
of materials.

(f) Selling or serving space. The rearrangement of
temporary or movable structures, such as furniture, equipment, and
display racks is not readily achievable to the extent that it results
in a significant loss of selling or serving space.

(g) Limitation on barrier removal obligations. (1) The
requirements for barrier removal under § 36.304 shall not be
interpreted to exceed the standards for alterations in subpart D of
this part.

(2) To the extent that relevant standards for alterations are not
provided in subpart D of this part, then the requirements of §
36.304 shall not be interpreted to exceed the standards for new
construction in subpart D of this part.

(3) This section does not apply to rolling stock and other
conveyances to the extent that § 36.310 applies to rolling stock
and other conveyances.

(4) This requirement does not apply to guest rooms in
existing facilities that are places of lodging where the guest rooms
are not owned by the entity that owns, leases, or operates the
overall facility and the physical features of the guest room
interiors are controlled by their individual owners.

Sec.36.305 Alternatives to barrier removal.

(a) General. Where a public accommodation can demonstrate
that barrier removal is not readily achievable, the public
accommodation shall not fail to make its goods, services, facilities,
privileges, advantages, or accommodations available through
alternative methods, if those methods are readily achievable.

(b) Examples. Examples of alternatives to barrier removal
include, but are not limited to, the following actions --

(1) Providing curb service or home delivery;

(2) Retrieving merchandise from inaccessible shelves or racks;

(3) Relocating activities to accessible locations;

(c) Multiscreen cinemas. If it is not readily achievable
to remove barriers to provide access by persons with mobility
impairments to all of the theaters of a multiscreen cinema, the
cinema shall establish a film rotation schedule that provides
reasonable access for individuals who use wheelchairs to all films.
Reasonable notice shall be provided to the public as to the location
and time of accessible showings.

Sec.36.306 Personal devices and services.

This part does not require a public accommodation to provide its
customers, clients, or participants with personal devices, such as
wheelchairs; individually prescribed devices, such as prescription
eyeglasses or hearing aids; or services of a personal nature
including assistance in eating, toileting, or dressing.

Sec.36.307 Accessible or special goods.

(a) This part does not require a public accommodation to alter its
inventory to include accessible or special goods that are designed
for, or facilitate use by, individuals with disabilities.

(b) A public accommodation shall order accessible or special goods
at the request of an individual with disabilities, if, in the normal
course of its operation, it makes special orders on request for
unstocked goods, and if the accessible or special goods can be
obtained from a supplier with whom the public accommodation
customarily does business.

(c) Examples of accessible or special goods include items such as
Brailled versions of books, books on audio cassettes,
closed-captioned video tapes, special sizes or lines of clothing, and
special foods to meet particular dietary needs.

Sec.36.308 Seating in assembly areas.

A public accommodation shall ensure that wheelchair spaces
and companion seats are provided in each specialty seating area that
provides spectators with distinct services or amenities that
generally are not available to other spectators. If it is not readily
achievable for a public accommodation to place wheelchair spaces and
companion seats in each such specialty seating area, it shall provide
those services or amenities to individuals with disabilities and
their companions at other designated accessible locations at no
additional cost. The number of wheelchair spaces and companion seats
provided in specialty seating areas shall be included in, rather than
in addition to, wheelchair space requirements set forth in table
221.2.1.1 in the 2010 Standards.

Sec.36.309 Examinations and courses.

(a) General. Any private entity that offers examinations
or courses related to applications, licensing, certification, or
credentialing for secondary or postsecondary education, professional,
or trade purposes shall offer such examinations or courses in a place
and manner accessible to persons with disabilities or offer
alternative accessible arrangements for such individuals.

(b) Examinations. (1) Any private entity offering an
examination covered by this section must assure that --

(i) The examination is selected and administered so as to best
ensure that, when the examination is administered to an individual
with a disability that impairs sensory, manual, or speaking skills,
the examination results accurately reflect the individual's aptitude
or achievement level or whatever other factor the examination
purports to measure, rather than reflecting the individual's impaired
sensory, manual, or speaking skills (except where those skills are
the factors that the examination purports to measure);

(ii) An examination that is designed for individuals with impaired
sensory, manual, or speaking skills is offered at equally convenient
locations, as often, and in as timely a manner as are other
examinations; and

(iii) The examination is administered in facilities that are
accessible to individuals with disabilities or alternative accessible
arrangements are made.

(iv) Any request for documentation, if such documentation
is required, is reasonable and limited to the need for the
modification, accommodation, or auxiliary aid or service requested.

(v) When considering requests for modifications,
accommodations, or auxiliary aids or services, the entity gives
considerable weight to documentation of past modifications,
accommodations, or auxiliary aids or services received in similar
testing situations, as well as such modifications, accommodations, or
related aids and services provided in response to an Individualized
Education Program (IEP) provided under the Individuals with
Disabilities Education Act or a plan describing services provided
pursuant to section 504 of the Rehabilitation Act of 1973, as amended
(often referred as a Section 504 Plan).

(vi) The entity responds in a timely manner to requests
for modifications, accommodations, or aids to ensure equal
opportunity for individuals with disabilities.

(2) Required modifications to an examination may include changes
in the length of time permitted for completion of the examination and
adaptation of the manner in which the examination is given.

(3) A private entity offering an examination covered by this
section shall provide appropriate auxiliary aids for persons with
impaired sensory, manual, or speaking skills, unless that private
entity can demonstrate that offering a particular auxiliary aid would
fundamentally alter the measurement of the skills or knowledge the
examination is intended to test or would result in an undue burden.
Auxiliary aids and services required by this section may include
taped examinations, interpreters or other effective methods of making
orally delivered materials available to individuals with hearing
impairments, Brailled or large print examinations and answer sheets
or qualified readers for individuals with visual impairments or
learning disabilities, transcribers for individuals with manual
impairments, and other similar services and actions.

(4) Alternative accessible arrangements may include, for example,
provision of an examination at an individual's home with a proctor if
accessible facilities or equipment are unavailable. Alternative
arrangements must provide comparable conditions to those provided for
nondisabled individuals.

(c) Courses. (1) Any private entity that offers a course
covered by this section must make such modifications to that course
as are necessary to ensure that the place and manner in which the
course is given are accessible to individuals with disabilities.

(2) Required modifications may include changes in the length of
time permitted for the completion of the course, substitution of
specific requirements, or adaptation of the manner in which the
course is conducted or course materials are distributed.

(3) A private entity that offers a course covered by this section
shall provide appropriate auxiliary aids and services for persons
with impaired sensory, manual, or speaking skills, unless the private
entity can demonstrate that offering a particular auxiliary aid or
service would fundamentally alter the course or would result in an
undue burden. Auxiliary aids and services required by this section
may include taped texts, interpreters or other effective methods of
making orally delivered materials available to individuals with
hearing impairments, Brailled or large print texts or qualified
readers for individuals with visual impairments and learning
disabilities, classroom equipment adapted for use by individuals with
manual impairments, and other similar services and actions.

(4) Courses must be administered in facilities that are accessible
to individuals with disabilities or alternative accessible
arrangements must be made.

(5) Alternative accessible arrangements may include, for example,
provision of the course through videotape, cassettes, or prepared
notes. Alternative arrangements must provide comparable conditions to
those provided for nondisabled individuals.

Sec.36.310 Transportation provided by public accommodations.

(a) General. (1) A public accommodation that provides
transportation services, but that is not primarily engaged in the
business of transporting people, is subject to the general and
specific provisions in subparts B, C, and D of this part for its
transportation operations, except as provided in this section.

(2) Examples. Transportation services subject to this
section include, but are not limited to, shuttle services operated
between transportation terminals and places of public accommodation,
customer shuttle bus services operated by private companies and
shopping centers, student transportation systems, and transportation
provided within recreational facilities such as stadiums, zoos,
amusement parks, and ski resorts.

(b) Barrier removal. A public accommodation subject to
this section shall remove transportation barriers in existing
vehicles and rail passenger cars used for transporting individuals
(not including barriers that can only be removed through the
retrofitting of vehicles or rail passenger cars by the installation
of a hydraulic or other lift) where such removal is readily
achievable.

(c) Requirements for vehicles and systems. A public
accommodation subject to this section shall comply with the
requirements pertaining to vehicles and transportation systems in the
regulations issued by the Secretary of Transportation pursuant to
section 306 of the Act.

Sec.36.311 Mobility devices.

(a) Use of wheelchairs and
manually-powered mobility aids
. A public
accommodation shall permit individuals with mobility disabilities to
use wheelchairs and manually-powered mobility aids, such as walkers,
crutches, canes, braces, or other similar devices designed for use by
individuals with mobility disabilities in any areas open to
pedestrian use.

(b)(1) Use of other power-driven
mobility devices
. A public accommodation shall
make reasonable modifications in its policies, practices, or
procedures to permit the use of other power-driven mobility devices
by individuals with mobility disabilities, unless the public
accommodation can demonstrate that the class of other power-driven
mobility devices cannot be operated in accordance with legitimate
safety requirements that the public accommodation has adopted
pursuant to § 36.301(b).

(2) Assessment factors.
In determining whether a particular other power-driven mobility
device can be allowed in a specific facility as a reasonable
modification under paragraph (b)(1) of this section, a public
accommodation shall consider --

(i) The type, size, weight, dimensions, and speed of the
device;

(ii) The facility's volume of pedestrian traffic (which
may vary at different times of the day, week, month, or year);

(iii) The facility's design and operational
characteristics (e.g., whether its business is conducted indoors, its
square footage, the density and placement of stationary devices, and
the availability of storage for the device, if requested by the
user);

(iv) Whether legitimate safety requirements can be
established to permit the safe operation of the other power-driven
mobility device in the specific facility; and

(v) Whether the use of the other power-driven mobility
device creates a substantial risk of serious harm to the immediate
environment or natural or cultural resources, or poses a conflict
with Federal land management laws and regulations.

(c)(1) Inquiry about disability.
A public accommodation shall not ask an individual using a wheelchair
or other power-driven mobility device questions about the nature and
extent of the individual's disability.

(2) Inquiry into use of other
power-driven mobility device
. A public
accommodation may ask a person using an other power-driven mobility
device to provide a credible assurance that the mobility device is
required because of the person's disability. A public accommodation
that permits the use of an other power-driven mobility device by an
individual with a mobility disability shall accept the presentation
of a valid, State-issued disability parking placard or card, or
State-issued proof of disability, as a credible assurance that the
use of the other power-driven mobility device is for the individual's
mobility disability. In lieu of a valid, State-issued disability
parking placard or card, or State-issued proof of disability, a
public accommodation shall accept as a credible assurance a verbal
representation, not contradicted by observable fact, that the other
power-driven mobility device is being used for a mobility disability.
A "valid" disability placard or card is one that is
presented by the individual to whom it was issued and is otherwise in
compliance with the State of issuance's requirements for disability
placards or cards.

Sec. 36.312 -- 36.399 [Reserved]

Subpart D -- New Construction and Alterations

Sec.36.401 New construction.

(a) General. (1) Except as provided in paragraphs (b) and
(c) of this section, discrimination for purposes of this part
includes a failure to design and construct facilities for first
occupancy after January 26, 1993, that are readily accessible to and
usable by individuals with disabilities.

(2) For purposes of this section, a facility is designed and
constructed for first occupancy after January 26, 1993, only --

(i) If the last application for a building permit or permit
extension for the facility is certified to be complete, by a State,
County, or local government after January 26, 1992 (or, in those
jurisdictions where the government does not certify completion of
applications, if the last application for a building permit or permit
extension for the facility is received by the State, County, or local
government after January 26, 1992); and

(ii) If the first certificate of occupancy for the facility is
issued after January 26, 1993.

(b) Commercial facilities located in private residences.
(1) When a commercial facility is located in a private residence, the
portion of the residence used exclusively as a residence is not
covered by this subpart, but that portion used exclusively in the
operation of the commercial facility or that portion used both for
the commercial facility and for residential purposes is covered by
the new construction and alterations requirements of this subpart.

(2) The portion of the residence covered under paragraph (b)(1) of
this section extends to those elements used to enter the commercial
facility, including the homeowner's front sidewalk, if any, the door
or entryway, and hallways; and those portions of the residence,
interior or exterior, available to or used by employees or visitors
of the commercial facility, including restrooms.

(c) Exception for structural impracticability. (1) Full
compliance with the requirements of this section is not required
where an entity can demonstrate that it is structurally impracticable
to meet the requirements. Full compliance will be considered
structurally impracticable only in those rare circumstances when the
unique characteristics of terrain prevent the incorporation of
accessibility features.

(2) If full compliance with this section would be structurally
impracticable, compliance with this section is required to the extent
that it is not structurally impracticable. In that case, any portion
of the facility that can be made accessible shall be made accessible
to the extent that it is not structurally impracticable.

(3) If providing accessibility in conformance with this section to
individuals with certain disabilities (e.g., those who use
wheelchairs) would be structurally impracticable, accessibility shall
nonetheless be ensured to persons with other types of disabilities
(e.g., those who use crutches or who have sight, hearing, or mental
impairments) in accordance with this section.

(d) Elevator exemption. (1) For purposes of this
paragraph (d) --

(i) Professional office of a health care provider means a location
where a person or entity regulated by a State to provide professional
services related to the physical or mental health of an individual
makes such services available to the public. The facility housing the
"professional office of a health care provider'' only includes
floor levels housing at least one health care provider, or any floor
level designed or intended for use by at least one health care
provider.

(ii) Shopping center or shopping mall means --

(A) A building housing five or more sales or rental
establishments; or

(B) A series of buildings on a common site, either under common
ownership or common control or developed either as one project or as
a series of related projects, housing five or more sales or rental
establishments. For purposes of this section, places of public
accommodation of the types listed in paragraph (5) of the definition
of "place of public accommodation'' in section § 36.104 are
considered sales or rental establishments. The facility housing a
"shopping center or shopping mall'' only includes floor levels
housing at least one sales or rental establishment, or any floor
level designed or intended for use by at least one sales or rental
establishment.

(2) This section does not require the installation of an elevator
in a facility that is less than three stories or has less than 3000
square feet per story, except with respect to any facility that
houses one or more of the following:

(i) A shopping center or shopping mall, or a professional office
of a health care provider.

(ii) A terminal, depot, or other station used for specified public
transportation, or an airport passenger terminal. In such a facility,
any area housing passenger services, including boarding and
debarking, loading and unloading, baggage claim, dining facilities,
and other common areas open to the public, must be on an accessible
route from an accessible entrance.

(3) The elevator exemption set forth in this paragraph (d) does
not obviate or limit, in any way the obligation to comply with the
other accessibility requirements established in paragraph (a) of this
section. For example, in a facility that houses a shopping center or
shopping mall, or a professional office of a health care provider,
the floors that are above or below an accessible ground floor and
that do not house sales or rental establishments or a professional
office of a health care provider, must meet the requirements of this
section but for the elevator.

Sec.36.402 Alterations.

(a) General. (1) Any alteration to a place of public
accommodation or a commercial facility, after January 26, 1992, shall
be made so as to ensure that, to the maximum extent feasible, the
altered portions of the facility are readily accessible to and usable
by individuals with disabilities, including individuals who use
wheelchairs.

(2) An alteration is deemed to be undertaken after January 26,
1992, if the physical alteration of the property begins after that
date.

(b) Alteration. For the purposes of this part, an
alteration is a change to a place of public accommodation or a
commercial facility that affects or could affect the usability of the
building or facility or any part thereof.

(1) Alterations include, but are not limited to, remodeling,
renovation, rehabilitation, reconstruction, historic restoration,
changes or rearrangement in structural parts or elements, and changes
or rearrangement in the plan configuration of walls and full-height
partitions. Normal maintenance, reroofing, painting or wallpapering,
asbestos removal, or changes to mechanical and electrical systems are
not alterations unless they affect the usability of the building or
facility.

(2) If existing elements, spaces, or common areas are altered,
then each such altered element, space, or area shall comply with the
applicable provisions of appendix A to this part.

(c) To the maximum extent feasible. The phrase "to
the maximum extent feasible,'' as used in this section, applies to
the occasional case where the nature of an existing facility makes it
virtually impossible to comply fully with applicable accessibility
standards through a planned alteration. In these circumstances, the
alteration shall provide the maximum physical accessibility feasible.
Any altered features of the facility that can be made accessible
shall be made accessible. If providing accessibility in conformance
with this section to individuals with certain disabilities (e.g.,
those who use wheelchairs) would not be feasible, the facility shall
be made accessible to persons with other types of disabilities (e.g.,
those who use crutches, those who have impaired vision or hearing, or
those who have other impairments).

Sec.36.403 Alterations: Path of travel.

(a) General. An alteration that affects or could affect
the usability of or access to an area of a facility that contains a
primary function shall be made so as to ensure that, to the maximum
extent feasible, the path of travel to the altered area and the
restrooms, telephones, and drinking fountains serving the altered
area, are readily accessible to and usable by individuals with
disabilities, including individuals who use wheelchairs, unless the
cost and scope of such alterations is disproportionate to the cost of
the overall alteration.

(1) If a private entity has constructed or altered
required elements of a path of travel at a place of public
accommodation or commercial facility in accordance with the
specifications in the 1991 Standards, the private entity is not
required to retrofit such elements to reflect the incremental changes
in the 2010 Standards solely because of an alteration to a primary
function area served by that path of travel.

(b) Primary function. A "primary function'' is a
major activity for which the facility is intended. Areas that contain
a primary function include, but are not limited to, the customer
services lobby of a bank, the dining area of a cafeteria, the meeting
rooms in a conference center, as well as offices and other work areas
in which the activities of the public accommodation or other private
entity using the facility are carried out. Mechanical rooms, boiler
rooms, supply storage rooms, employee lounges or locker rooms,
janitorial closets, entrances, corridors, and restrooms are not areas
containing a primary function.

(c) Alterations to an area containing a primary function. (1)
Alterations that affect the usability of or access to an area
containing a primary function include, but are not limited to --

(i) Remodeling merchandise display areas or employee work areas in
a department store;

(ii) Replacing an inaccessible floor surface in the customer
service or employee work areas of a bank;

(iii) Redesigning the assembly line area of a factory; or

(iv)
Installing a computer center in an accounting firm.

(2) For the purposes of this section, alterations to windows,
hardware, controls, electrical outlets, and signage shall not be
deemed to be alterations that affect the usability of or access to an
area containing a primary function.

(d) Landlord/tenant: If a tenant is making alterations as
defined in § 36.402 that would trigger the requirements of this
section, those alterations by the tenant in areas that only the
tenant occupies do not trigger a path of travel obligation upon the
landlord with respect to areas of the facility under the landlord's
authority, if those areas are not otherwise being altered.

(e) Path of travel. (1) A "path of travel'' includes
a continuous, unobstructed way of pedestrian passage by means of
which the altered area may be approached, entered, and exited, and
which connects the altered area with an exterior approach (including
sidewalks, streets, and parking areas), an entrance to the facility,
and other parts of the facility.

(2) An accessible path of travel may consist of walks and
sidewalks, curb ramps and other interior or exterior pedestrian
ramps; clear floor paths through lobbies, corridors, rooms, and other
improved areas; parking access aisles; elevators and lifts; or a
combination of these elements.

(3) For the purposes of this part, the term "path of travel''
also includes the restrooms, telephones, and drinking fountains
serving the altered area.

(f) Disproportionality. (1) Alterations made to provide
an accessible path of travel to the altered area will be deemed
disproportionate to the overall alteration when the cost exceeds 20%
of the cost of the alteration to the primary function area.

(2) Costs that may be counted as expenditures required to provide
an accessible path of travel may include:

(i) Costs associated with providing an accessible entrance and an
accessible route to the altered area, for example, the cost of
widening doorways or installing ramps;

(ii) Costs associated with making restrooms accessible, such as
installing grab bars, enlarging toilet stalls, insulating pipes, or
installing accessible faucet controls;

(iii) Costs associated with providing accessible telephones, such
as relocating the telephone to an accessible height, installing
amplification devices, or installing a text telephone (TTY);

(iv) Costs associated with relocating an inaccessible drinking
fountain.

(g) Duty to provide accessible features in the event of
disproportionality. (1) When the cost of alterations necessary to
make the path of travel to the altered area fully accessible is
disproportionate to the cost of the overall alteration, the path of
travel shall be made accessible to the extent that it can be made
accessible without incurring disproportionate costs.

(2) In choosing which accessible elements to provide, priority
should be given to those elements that will provide the greatest
access, in the following order:

(i) An accessible entrance;

(ii) An accessible route to the altered area;

(iii) At least one accessible restroom for each sex or a single
unisex restroom;

(iv) Accessible telephones;

(v) Accessible drinking fountains; and

(vi) When possible, additional accessible elements such as
parking, storage, and alarms.

(h) Series of smaller alterations. (1) The obligation to provide
an accessible path of travel may not be evaded by performing a series
of small alterations to the area served by a single path of travel if
those alterations could have been performed as a single undertaking.

(2) (i) If an area containing a primary function has been altered
without providing an accessible path of travel to that area, and
subsequent alterations of that area, or a different area on the same
path of travel, are undertaken within three years of the original
alteration, the total cost of alterations to the primary function
areas on that path of travel during the preceding three year period
shall be considered in determining whether the cost of making that
path of travel accessible is disproportionate.

(ii) Only alterations undertaken after January 26, 1992, shall be
considered in determining if the cost of providing an accessible path
of travel is disproportionate to the overall cost of the alterations.

Sec.36.404 Alterations: Elevator exemption.

(a) This section does not require the installation of an elevator
in an altered facility that is less than three stories or has less
than 3,000 square feet per story, except with respect to any facility
that houses a shopping center, a shopping mall, the professional
office of a health care provider, a terminal, depot, or other station
used for specified public transportation, or an airport passenger
terminal.

(1) For the purposes of this section, "professional office of
a health care provider'' means a location where a person or entity
regulated by a State to provide professional services related to the
physical or mental health of an individual makes such services
available to the public. The facility that houses a "professional
office of a health care provider'' only includes floor levels housing
by at least one health care provider, or any floor level designed or
intended for use by at least one health care provider.

(2) For the purposes of this section, shopping center or shopping
mall means --

(i) A building housing five or more sales or rental
establishments; or

(ii) A series of buildings on a common site, connected by a common
pedestrian access route above or below the ground floor, that is
either under common ownership or common control or developed either
as one project or as a series of related projects, housing five or
more sales or rental establishments. For purposes of this section,
places of public accommodation of the types listed in paragraph (5)
of the definition of "place of public accommodation'' in §
36.104 are considered sales or rental establishments. The facility
housing a "shopping center or shopping mall'' only includes
floor levels housing at least one sales or rental establishment, or
any floor level designed or intended for use by at least one sales or
rental establishment.

(b) The exemption provided in paragraph (a) of this section does
not obviate or limit in any way the obligation to comply with the
other accessibility requirements established in this subpart. For
example, alterations to floors above or below the accessible ground
floor must be accessible regardless of whether the altered facility
has an elevator.

Sec.36.405 Alterations: Historic preservation.

(a) Alterations to buildings or facilities that are eligible for
listing in the National Register of Historic Places under the
National Historic Preservation Act, 16 U.S.C. 470 et seq., or are
designated as historic under State or local law, shall comply to the
maximum extent feasible with this part.

(b) If it is determined that it is not feasible to provide
physical access to an historic property that is a place of public
accommodation in a manner that will not threaten or destroy the
historic significance of the building or the facility, alternative
methods of access shall be provided pursuant to the requirements of
subpart C of this part.

Sec.36.406 Standards for new construction and alterations.

(a) Accessibility standards and
compliance date
. (1) New construction and
alterations subject to §§ 36.401 or 36.402 shall comply
with the 1991 Standards if the date when the last application for a
building permit or permit extension is certified to be complete by a
State, county, or local government (or, in those jurisdictions where
the government does not certify completion of applications, if the
date when the last application for a building permit or permit
extension is received by the State, county, or local government) is
before [INSERT DATE OF PUBLICATION OF THIS RULE IN THE FEDERAL
REGISTER], or if no permit is required, if the start of physical
construction or alterations occurs before [INSERT DATE OF PUBLICATION
OF THIS RULE IN THE FEDERAL REGISTER].

(2) New construction and alterations subject to §§
36.401 or 36.402 shall comply either with the 1991 Standards or with
the 2010 Standards if the date when the last application for a
building permit or permit extension is certified to be complete by a
State, county, or local government (or, in those jurisdictions where
the government does not certify completion of applications, if the
date when the last application for a building permit or permit
extension is received by the State, county, or local government) is
on or after [INSERT DATE OF PUBLICATION OF THIS RULE IN THE FEDERAL
REGISTER] and before [INSERT DATE 18 MONTHS AFTER THE DATE OF
PUBLICATION OF THIS RULE IN THE FEDERAL REGISTER], or if no permit is
required, if the start of physical construction or alterations occurs
on or after [INSERT DATE OF PUBLICATION OF THIS RULE IN THE FEDERAL
REGISTER] and before [INSERT DATE 18 MONTHS AFTER THE DATE OF
PUBLICATION OF THIS RULE IN THE FEDERAL REGISTER].

(3) New construction and alterations subject to §§
36.401 or 36.402 shall comply with the 2010 Standards if the date
when the last application for a building permit or permit extension
is certified to be complete by a State, county, or local government
(or, in those jurisdictions where the government does not certify
completion of applications, if the date when the last application for
a building permit or permit extension is received by the State,
county, or local government) is on or after [INSERT DATE 18 MONTHS
AFTER THE DATE OF PUBLICATION OF THIS RULE IN THE FEDERAL REGISTER],
or if no permit is required, if the start of physical construction or
alterations occurs on or after [INSERT DATE 18 MONTHS AFTER THE DATE
OF PUBLICATION OF THIS RULE IN THE FEDERAL REGISTER].

(4) For the purposes of this section, "start of
physical construction or alterations" does not mean ceremonial
groundbreaking or razing of structures prior to site preparation.

(5) Noncomplying new construction and
alterations
. (i) Newly constructed or altered
facilities or elements covered by §§ 36.401 or 36.402 that
were constructed or altered before [INSERT DATE 18 MONTHS AFTER THE
DATE OF PUBLICATION OF THIS RULE IN THE FEDERAL REGISTER] and that do
not comply with the 1991 Standards shall be made accessible in
accordance with either the 1991 Standards or the 2010 Standards.

(ii) Newly constructed or altered facilities or elements
covered by §§ 36.401 or 36.402 that are constructed or
altered on or after [INSERT DATE 18 MONTHS AFTER THE DATE OF
PUBLICATION OF THIS RULE IN THE FEDERAL REGISTER] that do not comply
with the 1991 Standards shall be made accessible in accordance with
the 2010 Standards.

Appendix to § 36.406(a)

Compliance Dates for New Construction and Alterations

Applicable Standards

On or after January 26, 1993 and before [INSERT DATE OF
PUBLICATION OF THIS RULE IN THE FEDERAL REGISTER]

1991 Standards

On or after [INSERT DATE OF PUBLICATION OF THIS RULE IN
THE FEDERAL REGISTER] and before [INSERT DATE 18 MONTHS AFTER DATE
OF PUBLICATION OF THIS RULE IN THE FEDERAL REGISTER]

1991 Standards or 2010 Standards

On or after [INSERT DATE 18 MONTHS AFTER DATE OF
PUBLICATION OF THIS RULE IN THE FEDERAL REGISTER]

2010 Standards

(b) Scope of coverage.
The 1991 Standards and the 2010 Standards apply to fixed or built-in
elements of buildings, structures, site improvements, and pedestrian
routes or vehicular ways located on a site. Unless specifically
stated otherwise, the advisory notes, appendix notes, and figures
contained in the 1991 Standards and 2010 Standards explain or
illustrate the requirements of the rule; they do not establish
enforceable requirements.

(c) Places of lodging.
Places of lodging subject to this part shall comply with the
provisions of the 2010 Standards applicable to transient lodging,
including, but not limited to, the requirements for transient lodging
guest rooms in sections 224 and 806.

(1) Guest rooms.
Guest rooms with mobility features in places of lodging subject to
the transient lodging requirements of 2010 Standards shall be
provided as follows--

(i) Facilities that are subject to the same permit
application on a common site that each have 50 or fewer guest rooms
may be combined for the purposes of determining the required number
of accessible rooms and type of accessible bathing facility in
accordance with table 224.2 to section 224.2 of the 2010 Standards.

(ii) Facilities with more than 50 guest rooms shall be
treated separately for the purposes of determining the required
number of accessible rooms and type of accessible bathing facility in
accordance with table 224.2 to section 224.2 of the 2010 Standards.

(2) Exception.
Alterations to guest rooms in places of lodging where the guest rooms
are not owned or substantially controlled by the entity that owns,
leases, or operates the overall facility and the physical features of
the guest room interiors are controlled by their individual owners
are not required to comply with § 36.402 or the alterations
requirements in section 224.1.1 of the 2010 Standards.

(3) Facilities with residential units
and transient lodging units
. Residential
dwelling units that are designed and constructed for residential use
exclusively are not subject to the transient lodging standards.

(d) Social service center
establishments
. Group homes, halfway houses,
shelters, or similar social service center establishments that
provide either temporary sleeping accommodations or residential
dwelling units that are subject to this part shall comply with the
provisions of the 2010 Standards applicable to residential
facilities, including, but not limited to, the provisions in sections
233 and 809.

(1) In sleeping rooms with more than 25 beds covered by
this part, a minimum of 5% of the beds shall have clear floor space
complying with section 806.2.3 of the 2010 Standards.

(2) Facilities with more than 50 beds covered by this part
that provide common use bathing facilities shall provide at least one
roll-in shower with a seat that complies with the relevant provisions
of section 608 of the 2010 Standards. Transfer-type showers are not
permitted in lieu of a roll-in shower with a seat, and the exceptions
in sections 608.3 and 608.4 for residential dwelling units are not
permitted. When separate shower facilities are provided for men and
for women, at least one roll-in shower shall be provided for each
group.

(e) Housing at a place of education.
Housing at a place of education that is subject to this part shall
comply with the provisions of the 2010 Standards applicable to
transient lodging, including, but not limited to, the requirements
for transient lodging guest rooms in sections 224 and 806, subject to
the following exceptions. For the purposes of the application of this
section, the term "sleeping room" is intended to be used
interchangeably with the term "guest room" as it is used in
the transient lodging standards.

(1) Kitchens within housing units containing accessible
sleeping rooms with mobility features (including suites and clustered
sleeping rooms) or on floors containing accessible sleeping rooms
with mobility features shall provide turning spaces that comply with
section 809.2.2 of the 2010 Standards and kitchen work surfaces that
comply with section 804.3 of the 2010 Standards.

(2) Multi-bedroom housing units containing accessible
sleeping rooms with mobility features shall have an accessible route
throughout the unit in accordance with section 809.2 of the 2010
Standards.

(3) Apartments or townhouse facilities that are provided
by or on behalf of a place of education, which are leased on a
year-round basis exclusively to graduate students or faculty and do
not contain any public use or common use areas available for
educational programming, are not subject to the transient lodging
standards and shall comply with the requirements for residential
facilities in sections 233 and 809 of the 2010 Standards.

(f) Assembly areas.
Assembly areas that are subject to this part shall comply with the
provisions of the 2010 Standards applicable to assembly areas,
including, but not limited to, sections 221 and 802. In addition,
assembly areas shall ensure that --

(1) In stadiums, arenas, and grandstands, wheelchair
spaces and companion seats are dispersed to all levels that include
seating served by an accessible route;

(2) Assembly areas that are required to horizontally
disperse wheelchair spaces and companion seats by section 221.2.3.1
of the 2010 Standards and have seating encircling, in whole or in
part, a field of play or performance area shall disperse wheelchair
spaces and companion seats around that field of play or performance
area;

(3) Wheelchair spaces and companion seats are not located
on (or obstructed by) temporary platforms or other movable
structures, except that when an entire seating section is placed on
temporary platforms or other movable structures in an area where
fixed seating is not provided, in order to increase seating for an
event, wheelchair spaces and companion seats may be placed in that
section. When wheelchair spaces and companion seats are not required
to accommodate persons eligible for those spaces and seats,
individual, removable seats may be placed in those spaces and seats;

(4) Stadium-style movie theaters shall locate wheelchair
spaces and companion seats on a riser or cross-aisle in the stadium
section that satisfies at least one of the following criteria --

(i) It is located within the rear 60% of the seats
provided in an auditorium; or

(ii) It is located within the
area of an auditorium in which the vertical viewing angles (as
measured to the top of the screen) are from the 40th to the 100th
percentile of vertical viewing angles for all seats as ranked from
the seats in the first row (1st percentile) to seats in the back row
(100th percentile).

(g) Medical care facilities.
Medical care facilities that are subject to this part shall comply
with the provisions of the 2010 Standards applicable to medical care
facilities, including, but not limited to, sections 223 and 805. In
addition, medical care facilities that do not specialize in the
treatment of conditions that affect mobility shall disperse the
accessible patient bedrooms required by section 223.2.1 of the 2010
Standards in a manner that is proportionate by type of medical
specialty.

Sec.36.408 -- 36.499 [Reserved]

Subpart E -- Enforcement

Sec.36.501 Private suits.

(a) General. Any person who is being subjected to
discrimination on the basis of disability in violation of the Act or
this part or who has reasonable grounds for believing that such
person is about to be subjected to discrimination in violation of
section 303 of the Act or subpart D of this part may institute a
civil action for preventive relief, including an application for a
permanent or temporary injunction, restraining order, or other order.
Upon timely application, the court may, in its discretion, permit the
Attorney General to intervene in the civil action if the Attorney
General or his or her designee certifies that the case is of general
public importance. Upon application by the complainant and in such
circumstances as the court may deem just, the court may appoint an
attorney for such complainant and may authorize the commencement of
the civil action without the payment of fees, costs, or security.
Nothing in this section shall require a person with a disability to
engage in a futile gesture if the person has actual notice that a
person or organization covered by title III of the Act or this part
does not intend to comply with its provisions.

(b) Injunctive relief. In the case of violations of §
36.304, § 36.308, 36.310(b), 36.401, 36.402, 36.403, and 36.405
of this part, injunctive relief shall include an order to alter
facilities to make such facilities readily accessible to and usable
by individuals with disabilities to the extent required by the Act or
this part. Where appropriate, injunctive relief shall also include
requiring the provision of an auxiliary aid or service, modification
of a policy, or provision of alternative methods, to the extent
required by the Act or this part.

Sec.36.502 Investigations and compliance reviews.

(a) The Attorney General shall investigate alleged violations of
the Act or this part.

(b) Any individual who believes that he or she or a specific class
of persons has been subjected to discrimination prohibited by the Act
or this part may request the Department to institute an
investigation.

(c) Where the Attorney General has reason to believe that there
may be a violation of this part, he or she may initiate a compliance
review.

Sec.36.503 Suit by the Attorney General.

Following a compliance review or investigation under §
36.502, or at any other time in his or her discretion, the Attorney
General may commence a civil action in any appropriate United States
district court if the Attorney General has reasonable cause to
believe that --

(a) Any person or group of persons is engaged in a pattern or
practice of discrimination in violation of the Act or this part; or

(b) Any person or group of persons has been discriminated against
in violation of the Act or this part and the discrimination raises an
issue of general public importance.

Sec.36.504 Relief.

(a) Authority of court. In a civil action under § 36.503, the
court --

(1) May grant any equitable relief that such court considers to be
appropriate, including, to the extent required by the Act or this
part --

(i) Granting temporary, preliminary, or permanent relief;

(ii) Providing an auxiliary aid or service, modification of
policy, practice, or procedure, or alternative method; and

(iii) Making facilities readily accessible to and usable by
individuals with disabilities;

(2) May award other relief as the court considers to be
appropriate, including monetary damages to persons aggrieved when
requested by the Attorney General; and

(3) May, to vindicate the public interest, assess a civil penalty
against the entity in an amount

(i) Not exceeding $50,000 for a first violation; and

(ii) Not exceeding $100,000 for any subsequent violation.

(b) Single violation. For purposes of paragraph (a) (3) of this
section, in determining whether a first or subsequent violation has
occurred, a determination in a single action, by judgment or
settlement, that the covered entity has engaged in more than one
discriminatory act shall be counted as a single violation.

(c) Punitive damages. For purposes of paragraph (a)(2) of this
section, the terms "monetary damages'' and "such other
relief'' do not include punitive damages.

(d) Judicial consideration. In a civil action under § 36.503,
the court, when considering what amount of civil penalty, if any, is
appropriate, shall give consideration to any good faith effort or
attempt to comply with this part by the entity. In evaluating good
faith, the court shall consider, among other factors it deems
relevant, whether the entity could have reasonably anticipated the
need for an appropriate type of auxiliary aid needed to accommodate
the unique needs of a particular individual with a disability.

Sec.36.505 Attorneys fees.

In any action or administrative proceeding commenced pursuant to
the Act or this part, the court or agency, in its discretion, may
allow the prevailing party, other than the United States, a
reasonable attorney's fee, including litigation expenses, and costs,
and the United States shall be liable for the foregoing the same as a
private individual.

Sec.36.506 Alternative means of dispute resolution.

Where appropriate and to the extent authorized by law, the use of
alternative means of dispute resolution, including settlement
negotiations, conciliation, facilitation, mediation, factfinding,
minitrials, and arbitration, is encouraged to resolve disputes
arising under the Act and this part.

Sec.36.507 Effect of unavailability of technical assistance.

A public accommodation or other private entity shall not be
excused from compliance with the requirements of this part because of
any failure to receive technical assistance, including any failure in
the development or dissemination of any technical assistance manual
authorized by the Act.

Sec.36.508 Effective date.

(a) General. Except as otherwise provided in this section
and in this part, this part shall become effective on January 26,
1992.

(b) Civil actions. Except for any civil action brought
for a violation of section 303 of the Act, no civil action shall be
brought for any act or omission described in section 302 of the Act
that occurs --

(1) Before July 26, 1992, against businesses with 25 or fewer
employees and gross receipts of $1,000,000 or less.

(2) Before January 26, 1993, against businesses with 10 or fewer
employees and gross receipts of $500,000 or less.

(c) Transportation services provided by public accommodations.
Newly purchased or leased vehicles required to be accessible by §
36.310 must be readily accessible to and usable by individuals with
disabilities, including individuals who use wheelchairs, if the
solicitation for the vehicle is made after August 25, 1990.

Sec.36.509 -- 36.599 [Reserved]

Subpart F -- Certification of State Laws or Local Building Codes

Sec.36.601 Definitions.

Assistant Attorney General means the Assistant Attorney
General for Civil Rights or his or her designee.

Certification of equivalency means a final certification
that a code meets or exceeds the minimum requirements of title III of
the Act for accessibility and usability of facilities covered by that
title.

Code means a State law or local building code or similar
ordinance, or part thereof, that establishes accessibility
requirements.

Model code means a nationally recognized document
developed by a private entity for use by State or local jurisdictions
in developing codes as defined in this section. A model code is
intended for incorporation by reference or adoption in whole or in
part, with or without amendment, by State or local jurisdictions.

Preliminary determination of equivalency means a
preliminary determination that a code appears to meet or exceed the
minimum requirements of title III of the Act for accessibility and
usability of facilities covered by that title.

Submitting official means the State or local official who
--

(1) Has principal responsibility for administration of a code, or
is authorized to submit a code on behalf of a jurisdiction; and

(2) Files a request for certification under this subpart.

Sec.36.602 General rule.

On the application of a State or local government, the Assistant
Attorney General may certify that a code meets or exceeds the minimum
requirements of the Act for the accessibility and usability of places
of public accommodation and commercial facilities under this part by
issuing a certification of equivalency. At any enforcement proceeding
under title III of the Act, such certification shall be rebuttable
evidence that such State law or local ordinance does meet or exceed
the minimum requirements of title III.

Sec.36.603 Preliminary determination. (Redesignated from
Section 36.604)

Upon receipt and review of all information relevant to a request
filed by a submitting official for certification of a code, and after
consultation with the Architectural and Transportation Barriers
Compliance Board, the Assistant Attorney General shall make a
preliminary determination of equivalency or a preliminary
determination to deny certification.

Sec.36.604 Procedure following preliminary determination
of equivalency.
(Redesignated from Section
36.605)

(a) If the Assistant Attorney General makes a preliminary
determination of equivalency under § 36.603, he or she shall
inform the submitting official, in writing, of that preliminary
determination. The Assistant Attorney General also shall --

(1) Publish a notice in the Federal Register that advises the
public of the preliminary determination of equivalency with respect
to the particular code, and invite interested persons and
organizations, including individuals with disabilities, during a
period of at least 60 days following publication of the notice, to
file written comments relevant to whether a final certification of
equivalency should be issued;

(2) After considering the information received in response to the
notice described in paragraph (a) of this section, and after
publishing a separate notice in the Federal Register, hold
an informal hearing, in the State or local jurisdiction
charged with administration and enforcement of the code, at which
interested individuals,
including individuals with
disabilities, are provided an opportunity to express their views with
respect to the preliminary determination of equivalency; and

(b) The Assistant Attorney General, after consultation with the
Architectural and Transportation Barriers Compliance Board and
consideration of the materials and information submitted pursuant to
this section, as well as information provided previously by
the submitting official,
shall issue either a certification
of equivalency or a final determination to deny the request for
certification. The Assistant Attorney General shall
publish notice of the certification of equivalency or denial of
certification in the Federal Register.

Sec.36.605 Procedure following preliminary denial of
certification.
(Redesignated from 35.606)

(a) If the Assistant Attorney General makes a preliminary
determination to deny certification of a code under § 36.603, he
or she shall notify the submitting official of the determination.

(b) The Assistant Attorney General shall allow the submitting
official not less than 15 days to submit data, views, and arguments
in opposition to the preliminary determination to deny certification.
If the submitting official does not submit materials, the Assistant
Attorney General shall not be required to take any further action. If
the submitting official submits materials, the Assistant Attorney
General shall evaluate those materials and any other relevant
information. After evaluation of any newly submitted materials, the
Assistant Attorney General shall make either a final denial of
certification or a preliminary determination of equivalency.

Sec. 36.606 Effect of certification. (Redesignated
from 35.607)

(a)(1) A certification shall be considered a certification of
equivalency only with respect to those features or elements that are
both covered by the certified code and addressed by the standards
against which equivalency is measured.

(2) For example, if certain equipment is not covered by the code,
the determination of equivalency cannot be used as evidence with
respect to the question of whether equipment in a building built
according to the code satisfies the Act's requirements with respect
to such equipment. By the same token, certification would not be
relevant to construction of a facility for children, if the
regulations against which equivalency is measured do not address
children's facilities.

(b) A certification of equivalency is effective only with respect
to the particular edition of the code for which certification is
granted. Any amendments or other changes to the code after the date
of the certified edition are not considered part of the
certification.

(c) A submitting official may reapply for certification of
amendments or other changes to a code that has already received
certification.

(d) When the standards of the Act against which a code is
deemed equivalent are revised or amended substantially, a
certification of equivalency issued under the preexisting standards
is no longer effective, as of the date the revised standards take
effect. However, construction in compliance with a certified code
during the period when a certification of equivalency was effective
shall be considered rebuttable evidence of compliance with the
Standards then in effect as to those elements of buildings and
facilities that comply with the certified code. A submitting official
may reapply for certification pursuant to the Act's revised
standards, and, to the extent possible, priority will be afforded the
request in the review process.

Sec.36.607 Guidance concerning model codes. (Redesignated
from section 36.608)

Upon application by an authorized representative of a private
entity responsible for developing a model code, the Assistant
Attorney General may review the relevant model code and issue
guidance concerning whether and in what respects the model code is
consistent with the minimum requirements of the Act for the
accessibility and usability of places of public accommodation and
commercial facilities under this part.