BREAKING NEWS

Final Rule, published July 23, 2010

From http://edocket.access.gpo.gov/2010/2010-21824.htm

[Federal Register: September 15, 2010 (Volume 75, Number 178)]
[Rules and Regulations]
[Page 56236-56358]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15se10-28]

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DEPARTMENT OF JUSTICE

28 CFR Part 36

[CRT Docket No. 106; AG Order No. 3181-2010]
RIN 1190-AA44

Nondiscrimination on the Basis of Disability by Public
Accommodations and in Commercial Facilities

AGENCY: Department of Justice, Civil Rights Division.

ACTION: Final rule.

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SUMMARY: This final rule revises the Department of Justice (Department)
regulation that implements title III of the Americans with Disabilities
Act

[[Page 56237]]

(ADA), relating to nondiscrimination on the basis of disability by
public accommodations and in commercial facilities. The Department is
issuing this final rule in order to adopt enforceable accessibility
standards under the Americans with Disabilities Act of 1990 (ADA) that
are consistent with the minimum guidelines and requirements issued by
the Architectural and Transportation Barriers Compliance Board, and to
update or amend certain provisions of the title III regulation so that
they comport with the Department's legal and practical experiences in
enforcing the ADA since 1991. Concurrently with the publication of the
final rule for title III, the Department is publishing a final rule
amending its ADA title II regulation, which covers nondiscrimination on
the basis of disability in State and local government services.

DATES: Effective Date: March 15, 2011.

FOR FURTHER INFORMATION CONTACT: Janet L. Blizard, Deputy Chief, or
Christina Galindo-Walsh, Attorney Advisor, Disability Rights Section,
Civil Rights Division, U.S. Department of Justice, at (202) 307-0663
(voice or TTY). This is not a toll-free number. Information may also be
obtained from the Department's toll-free ADA Information Line at (800)
514-0301 (voice) or (800) 514-0383 (TTY).
This rule is also available in an accessible format on the ADA Home
Page at http://www.ada.gov. You may obtain copies of this rule in large
print or on computer disk by calling the ADA Information Line listed
above.

SUPPLEMENTARY INFORMATION:

The Roles of the Access Board and the Department of Justice

The Access Board was established by section 502 of the
Rehabilitation Act of 1973. 29 U.S.C. 792. The Board consists of 13
public members appointed by the President, the majority of whom must be
individuals with disabilities, and the heads of 12 Federal departments
and agencies specified by statute, including the heads of the
Department of Justice and the Department of Transportation (DOT).
Originally, the Access Board was established to develop and maintain
accessibility guidelines for facilities designed, constructed, altered,
or leased with Federal dollars under the Architectural Barriers Act of
1968 (ABA). 42 U.S.C. 4151 et seq. The passage of the ADA expanded the
Access Board's responsibilities.
The ADA requires the Access Board to ``issue minimum guidelines
that shall supplement the existing Minimum Guidelines and Requirements
for Accessible Design for purposes of subchapters II and III of this
chapter * * * to ensure that buildings, facilities, rail passenger
cars, and vehicles are accessible, in terms of architecture and design,
transportation, and communication, to individuals with disabilities.''
42 U.S.C. 12204. The ADA requires the Department to issue regulations
that include enforceable accessibility standards applicable to
facilities subject to title II or title III that are consistent with
the ``minimum guidelines'' issued by the Access Board, 42 U.S.C.
12134(c), 12186(c), but vests in the Attorney General sole
responsibility for the promulgation of those standards that fall within
the Department's jurisdiction and enforcement of the regulations.
The ADA also requires the Department to develop regulations with
respect to existing facilities subject to title II (Subtitle A) and
title III. How and to what extent the Access Board's guidelines are
used with respect to the barrier removal requirement applicable to
existing facilities under title III of the ADA and to the provision of
program accessibility under title II of the ADA are solely within the
discretion of the Department.

Enactment of the ADA and Issuance of the 1991 Regulations

On July 26, 1990, President George H.W. Bush signed into law the
ADA, a comprehensive civil rights law prohibiting discrimination on the
basis of disability.\1\ The ADA broadly protects the rights of
individuals with disabilities in employment, access to State and local
government services, places of public accommodation, transportation,
and other important areas of American life. The ADA also requires newly
designed and constructed or altered State and local government
facilities, public accommodations, and commercial facilities to be
readily accessible to and usable by individuals with disabilities. 42
U.S.C. 12101 et seq. Section 306(a) of the ADA directs the Secretary of
Transportation to issue regulations for demand responsive or fixed
route systems operated by private entities not primarily engaged in the
business of transporting people (sections 302(b)(2)(B) and (C)) and for
private entities that are primarily engaged in the business of
transporting people (section 304). See 42 U.S.C. 12182(b), 12184,
12186(a). Section 306(b) directs the Attorney General to promulgate
regulations to carry out the provisions of the rest of title III. 42
U.S.C. 12186(b).
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\1\ On September 25, 2008, President George W. Bush signed into
law the Americans with Disabilities Amendments Act of 2008 (ADA
Amendments Act), Public Law 110-325. The ADA Amendments Act amended
the ADA definition of disability to clarify its coverage of persons
with disabilities and to provide guidance on the application of the
definition. This final rule does not contain regulatory language
implementing the ADA Amendments Act. The Department intends to
publish a supplemental rule to amend the regulatory definition of
``disability'' to implement the changes mandated by that law.
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Title II applies to State and local government entities, and, in
Subtitle A, protects qualified individuals with disabilities from
discrimination on the basis of disability in services, programs, and
activities provided by State and local government entities. Title II
extends the prohibition on discrimination established by section 504 of
the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794 (section
504), to all activities of State and local governments regardless of
whether these entities receive Federal financial assistance. 42 U.S.C.
12131-65.
Title III, which this rule addresses, prohibits discrimination on
the basis of disability in the activities of places of public
accommodation (businesses that are generally open to the public and
that fall into one of 12 categories listed in the ADA, such as
restaurants, movie theaters, schools, day care facilities, recreation
facilities, and doctors' offices) and requires newly constructed or
altered places of public accommodation--as well as commercial
facilities (privately owned, nonresidential facilities such as
factories, warehouses, or office buildings)--to comply with the ADA
Standards. 42 U.S.C. 12181-89.
On July 26, 1991, the Department issued rules implementing title II
and title III, which are codified at 28 CFR part 35 (title II) and part
36 (title III). Appendix A of the 1991 title III regulation, which is
republished as Appendix D to 28 CFR part 36, contains the ADA Standards
for Accessible Design (1991 Standards), which were based upon the
version of the Americans with Disabilities Act Accessibility Guidelines
(1991 ADAAG) published by the Access Board on the same date. Under the
Department's 1991 title III regulation, places of public accommodation
and commercial facilities currently are required to comply with the
1991 Standards with respect to newly constructed or altered facilities.
The Access Board's publication of the 2004 ADA/ABA Guidelines was
the culmination of a long-term effort to facilitate ADA compliance by
eliminating, to the extent possible, inconsistencies among Federal
accessibility requirements and between

[[Page 56238]]

Federal accessibility requirements and State and local building codes.
In support of this effort, the Department is amending its regulation
implementing title III and adopting standards consistent with ADA
Chapter 1, ADA Chapter 2, and Chapters 3 through 10 of the 2004 ADA/ABA
Guidelines. The Department is also amending its title II regulation,
which prohibits discrimination on the basis of disability in State and
local government services, concurrently with the publication of this
rule in this issue of the Federal Register.

Development of the 2004 ADA/ABA Guidelines

In 1994, the Access Board began the process of updating the 1991
ADAAG by establishing an advisory committee composed of members of the
design and construction industry, the building code community, and
State and local government entities, as well as individuals with
disabilities. In 1998, the Access Board added specific guidelines on
State and local government facilities, 63 FR 2000 (Jan. 13, 1998), and
building elements designed for use by children, 63 FR 2060 (Jan. 13,
1998). In 1999, based largely on the report and recommendations of the
advisory committee, the Access Board issued a notice of proposed
rulemaking (NPRM) to update and revise its ADA and ABA Accessibility
Guidelines. See 64 FR 62248 (Nov. 16, 1999). In 2000, the Access Board
added specific guidelines on play areas. See 65 FR 62498 (Oct. 18,
2000). The Access Board released an interim draft of its guidelines to
the public on April 2, 2002, 67 FR 15509, in order to provide an
opportunity for entities with model codes to consider amendments that
would promote further harmonization. In September of 2002, the Access
Board set forth specific guidelines on recreation facilities. 67 FR
56352 (Sept. 3, 2002).
By the date of its final publication on July 23, 2004, the 2004
ADA/ABA Guidelines had been the subject of extraordinary review and
public participation. The Access Board received more than 2,500
comments from individuals with disabilities, affected industries, State
and local governments, and others. The Access Board provided further
opportunity for participation by holding public hearings.
The Department was involved extensively in the development of the
2004 ADA/ABA Guidelines. As a Federal member of the Access Board, the
Attorney General's representative voted to approve the revised
guidelines. ADA Chapter 1 and ADA Chapter 2 of the 2004 ADA/ABA
Guidelines provide scoping requirements for facilities subject to the
ADA; ``scoping'' is a term used in the 2004 ADA/ABA Guidelines to
describe requirements that prescribe which elements and spaces--and, in
some cases, how many--must comply with the technical specifications.
ABA Chapter 1 and ABA Chapter 2 provide scoping requirements for
facilities subject to the ABA (i.e., facilities designed, built,
altered, or leased with Federal funds). Chapters 3 through 10 of the
2004 ADA/ABA Guidelines provide uniform technical specifications for
facilities subject to either the ADA or the ABA. This revised format is
designed to eliminate unintended conflicts between the two sets of
Federal accessibility standards and to minimize conflicts between the
Federal regulations and the model codes that form the basis of many
State and local building codes. For the purposes of this final rule,
the Department will refer to ADA Chapter 1, ADA Chapter 2, and Chapters
3 through 10 of the 2004 ADA/ABA Guidelines as the 2004 ADAAG.
These amendments to the 1991 ADAAG have not been adopted previously
by the Department as ADA Standards. Through this rule, the Department
is adopting revised ADA Standards consistent with the 2004 ADAAG,
including all of the amendments to the 1991 ADAAG since 1998. For the
purposes of this part, the Department's revised standards are entitled
``The 2010 Standards for Accessible Design'' and consist of the 2004
ADAAG and the requirements contained in subpart D of 28 CFR part 36.
Because the Department has adopted the 2004 ADAAG as part of its title
II and title III regulations, once the Department's final rules become
effective, the 2004 ADAAG will have legal effect with respect to the
Department's title II and title III regulations and will cease to be
mere guidance for those areas regulated by the Department. In 2006, DOT
adopted the 2004 ADAAG. With respect to those areas regulated by DOT,
these guidelines, as adopted by DOT, have had legal effect since 2006.
Under this regulation, the Department of Justice covers passenger
vessels operated by private entities not primarily engaged in the
business of transporting people with respect to the provision of goods
and services of a public accommodation on the vessel. For example, a
vessel operator whose vessel departs from Point A, takes passengers on
a recreational trip, and returns passengers to Point A without ever
providing for disembarkation at a Point B (e.g., a dinner or harbor
cruise, a fishing charter) is a public accommodation operated by a
private entity not primarily engaged in the business of transporting
people. This regulation covers those aspects of the vessel's operation
relating to the use and enjoyment of the public accommodation,
including, for example, the boarding process, safety policies,
accessible routes on the vessel, and the provision of effective
communication. Persons with complaints or concerns about discrimination
on the basis of disability by vessel operators who are private entities
not primarily engaged in the business of transporting people, or
questions about how this regulation applies to such operators and
vessels, should contact the Department of Justice.
Vessels operated by private entities primarily engaged in the
business of transporting people and that provide the goods and services
of a public accommodation are covered by this regulation and the
Department of Transportation's passenger vessel rule, 49 CFR part 39. A
vessel operator whose vessel takes passengers from Point A to Point B
(e.g., a cruise ship that sails from Miami to one or more Caribbean
islands, a private ferry boat between two points on either side of a
river or bay, a water taxi between two points in an urban area) is most
likely a private entity primarily engaged in the business of
transporting people. Persons with questions about how this regulation
applies to such operators and vessels may contact the Department of
Justice or the Department of Transportation for guidance or further
information. However, the Department of Justice has enforcement
authority for all private entities under title III of the ADA, so
individuals with complaints about noncompliance with part 39 should
provide those complaints to the Department of Justice.
The provisions of this rule and 49 CFR part 39 are intended to be
substantively consistent with one another. Consequently, in
interpreting the application of this rule to vessel operators who are
private entities not primarily engaged in the business of transporting
people, the Department of Justice views the obligations of those vessel
operators as being similar to those of private entities primarily
engaged in the business of transporting people under the provisions of
49 CFR part 39.

The Department's Rulemaking History

The Department published an advance notice of proposed rulemaking
(ANPRM) on September 30, 2004, 69 FR

[[Page 56239]]

58768, for two reasons: (1) To begin the process of adopting the 2004
ADAAG by soliciting public input on issues relating to the potential
application of the Access Board's revisions once the Department adopts
them as revised standards; and (2) to request background information
that would assist the Department in preparing a regulatory analysis
under the guidance provided in Office of Management and Budget (OMB)
Circular A-4 sections D (Analytical Approaches) and E (Identifying and
Measuring Benefits and Costs) (Sept. 17, 2003), available at http://
www.whitehouse.gov/OMB/circulars/a004/a-4.pdf (last visited June 24,
2010). While underscoring that the Department, as a member of the
Access Board, already had reviewed comments provided to the Access
Board during its development of the 2004 ADAAG, the Department
specifically requested public comment on the potential application of
the 2004 ADAAG to existing facilities. The extent to which the 2004
ADAAG is used with respect to the barrier removal requirement
applicable to existing facilities under title III (as well as with
respect to the program access requirement in title II) is within the
sole discretion of the Department. The ANPRM dealt with the
Department's responsibilities under both title II and title III.
The public response to the ANPRM was substantial. The Department
extended the comment deadline by four months at the public's request.
70 FR 2992 (Jan. 19, 2005). By the end of the extended comment period,
the Department had received more than 900 comments covering a broad
range of issues. Many of the commenters responded to questions posed
specifically by the Department, including questions regarding the
Department's application of the 2004 ADAAG once adopted by the
Department and the Department's regulatory assessment of the costs and
benefits of particular elements. Many other commenters addressed areas
of desired regulation or of particular concern.
To enhance accessibility strides made since the enactment of the
ADA, commenters asked the Department to focus on previously unregulated
areas, such as ticketing in assembly areas; reservations for hotel
rooms, rental cars, and boat slips; and captioning. They also asked for
clarification on some issues in the 1991 regulations, such as the
requirements regarding service animals. Other commenters dealt with
specific requirements in the 2004 ADAAG or responded to questions
regarding elements scoped for the first time in the 2004 ADAAG,
including recreation facilities and play areas. Commenters also
provided some information on how to assess the cost of elements in
small facilities, office buildings, hotels and motels, assembly areas,
hospitals and long-term care facilities, residential units, recreation
facilities, and play areas. Still other commenters addressed the
effective date of the proposed standards, the triggering event by which
the effective date is calculated for new construction, and variations
on a safe harbor that would excuse elements built in compliance with
the 1991 Standards from compliance with the proposed standards.
After careful consideration of the public comments in response to
the ANPRM, on June 17, 2008, the Department published an NPRM covering
title III. 73 FR 34508. The Department also published an NPRM on that
day covering title II. 73 FR 34466. The NPRMs addressed the issues
raised in the public's comments to the ANPRM and sought additional
comment, generally and in specific areas, such as the Department's
adoption of the 2004 ADAAG, the Department's regulatory assessment of
the costs and benefits of the rule, its updates and amendments of
certain provisions of the existing title II and III regulations, and
areas that were in need of additional clarification or specificity.
A public hearing was held on July 15, 2008, in Washington, DC.
Forty-five individuals testified in person or by phone. The hearing was
streamed live over the Internet. By the end of the 60-day comment
period, the Department had received 4,435 comments addressing a broad
range of issues, many of which were common to the title II and title
III NPRMs, from representatives of businesses and industries, State and
local government agencies, disability advocacy organizations, and
private individuals.
The Department notes that this rulemaking was unusual in that much
of the proposed regulatory text and many of the questions asked across
titles II and III were the same. Consequently, many of the commenters
did not provide separate sets of documents for the proposed title II
and title III rules, and in many instances, the commenters did not
specify which title was being commented upon. As a result, where
comments could be read to apply to both titles II and III, the
Department included them in the comments and responses for each final
rule.
Most of the commenters responded to questions posed specifically by
the Department, including what were the most appropriate definitions
for terms such as ``wheelchair,'' ``mobility device,'' and ``service
animal''; how to quantify various benefits that are difficult to
monetize; what requirements to adopt for ticketing and assembly areas;
whether to adopt safe harbors for small businesses; and how best to
regulate captioning. Some comments addressed specific requirements in
the 2004 ADAAG or responded to questions regarding elements scoped for
the first time in the 2004 ADAAG, including recreation facilities and
play areas. Other comments responded to questions posed by the
Department concerning certain specific requirements in the 2004 ADAAG.

Relationship to Other Laws

The Department of Justice regulation implementing title III, 28 CFR
36.103, provides the following:
(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, 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.
These provisions remain unchanged by the final rule. The Department
recognizes that public accommodations subject to title III of the ADA
may also be subject to title I of the ADA, which prohibits
discrimination on the basis of disability in employment; section 504 of
the Rehabilitation Act of 1973 and other Federal statutes that prohibit
discrimination on the basis of disability in the programs and
activities of recipients of Federal financial assistance; and other
Federal statutes such as the Air Carrier Access Act (ACAA), 49 U.S.C.
41705 et seq., and the Fair Housing Act (FHAct), 42 U.S.C. 3601 et seq.
Compliance with the Department's title II and title III regulations
does not ensure compliance with other Federal statutes.
Public accommodations that are subject to the ADA as well as other
Federal disability discrimination laws

[[Page 56240]]

must be aware of the requirements of all applicable laws and must
comply with these laws and their implementing regulations. Although in
many cases similar provisions of different statutes are interpreted to
impose similar requirements, there are circumstances in which similar
provisions are applied differently because of the nature of the covered
entity or activity, or because of distinctions between the statutes.
For example, emotional support animals that do not qualify as service
animals under the Department's title III regulations may nevertheless
qualify as permitted reasonable accommodations for persons with
disabilities under the FHAct and the ACAA. See, e.g., Overlook Mutual
Homes, Inc. v. Spencer, 666 F. Supp. 2d 850 (S.D. Ohio 2009). Public
accommodations that operate housing facilities must ensure that they
apply the reasonable accommodation requirements of the FHAct in
determining whether to allow a particular animal needed by a person
with a disability into housing and may not use the ADA definition as a
justification for reducing their FHAct obligations. In addition,
nothing in the ADA prevents a public accommodation subject to one
statute from modifying its policies and providing greater access in
order to assist individuals with disabilities in achieving access to
entities subject to other Federal statutes. For example, a quick
service restaurant at an airport is, as a public accommodation, subject
to the title III requirements, not to the ACAA requirements.
Conversely, an air carrier that flies in and out of the same airport is
required to comply with the ACAA, but is not covered by title III of
the ADA. If a particular animal is a service animal for purposes of the
ACAA and is thus allowed on an airplane, but is not a service animal
for purposes of the ADA, nothing in the ADA prohibits an airport
restaurant from allowing a ticketed passenger with a disability who is
traveling with a service animal that meets the ACAA's definition of a
service animal to bring that animal into the facility even though under
the ADA's definition of service animal the animal lawfully could be
excluded.

Organization of This Rule

Throughout this rule, the original ADA Standards, which are
republished as Appendix D to 28 CFR part 36, will be referred to as the
``1991 Standards.'' The original title III regulation, codified at 28
CFR part 36 (2009), will be referred to as the ``1991 regulation'' or
the ``1991 title III regulation.'' ADA Chapter 1, ADA Chapter 2, and
Chapters 3 through 10 of the 2004 ADA/ABA Guidelines, 36 CFR part 1191,
app. B and D (2009), will be referred to as the ``2004 ADAAG.'' The
Department's Notice of Proposed Rulemaking, 73 FR 34508 (June 17,
2008), will be referred to as the ``NPRM.'' As noted above, the 2004
ADAAG, taken together with the requirements contained in subpart D of
28 CFR part 36 (New Construction and Alterations) of the final rule,
will be referred to as the ``2010 Standards.'' The amendments made to
the 1991 title III regulation and the adoption of the 2004 ADAAG, taken
together, will be referred to as the ``final rule.''
In performing the required periodic review of its existing
regulation, the Department has reviewed the title III regulation
section by section, and, as a result, has made several clarifications
and amendments in this rule. Appendix A of the final rule, ``Guidance
on Revisions to ADA Regulation on Nondiscrimination on the Basis of
Disability by Public Accommodations and Commercial Facilities,''
codified as Appendix A to 28 CFR part 36, provides the Department's
response to comments and its explanations of the changes to the
regulation. The section entitled ``Section-by-Section Analysis and
Response to Comments'' in Appendix A provides a detailed discussion of
the changes to the title III regulation. The Section-by-Section
Analysis follows the order of the 1991 title III regulation, except
that regulatory sections that remain unchanged are not referenced. The
discussion within each section explains the changes and the reasoning
behind them, as well as the Department's response to related public
comments. Subject areas that deal with more than one section of the
regulation include references to the related sections, where
appropriate. The Section-by-Section Analysis also discusses many of the
questions asked by the Department for specific public response. The
section of Appendix A entitled ``Other Issues'' discusses public
comment on several issues of concern to the Department that were the
subject of questions that are not specifically addressed in the
Section-by-Section Analysis.
The Department's description of the 2010 Standards, as well as a
discussion of the public comments on specific sections of the 2004
ADAAG, is found in Appendix B of this final rule, ``Analysis and
Commentary on the 2010 ADA Standards for Accessible Design,'' codified
as Appendix B to 28 CFR part 36.
The provisions of this rule generally take effect six months from
its publication in the Federal Register. The Department has determined,
however, that compliance with the requirements related to new
construction and alterations and reservations at a place of lodging
shall not be required until 18 months from the publication date of this
rule. These exceptions are set forth in Sec. Sec. 36.406(a) and
36.302(e)(3), respectively, and are discussed in greater detail in
Appendix A. See discussions in Appendix A entitled ``Section 36.406
Standards for New Construction and Alterations'' and ``Section
36.302(e) Hotel Reservations.''
This final rule only addresses issues that were identified in the
NPRM as subjects the Department intended to regulate through this
rulemaking proceeding. Because the Department indicated in the NPRM
that it did not intend to regulate certain areas, including equipment
and furniture, accessible golf cars, and movie captioning and video
description, as part of this rulemaking proceeding, the Department
believes it would be appropriate to solicit more public comment about
these areas prior to making them the subject of a rulemaking. The
Department intends to engage in additional rulemaking in the near
future addressing accessibility in these areas and others, including
next generation 9-1-1 and accessibility of Web sites operated by
covered public entities and public accommodations.

ADDITIONAL INFORMATION:

Regulatory Process Matters (SBREFA, Regulatory Flexibility Act, and
Executive Orders)

The Department must provide two types of assessments as part of its
final rule: An analysis of the costs and benefits of adopting the
changes contained in this rule, and a periodic review of its existing
regulations to consider their impact on small entities, including small
businesses, small nonprofit organizations, and small governmental
jurisdictions. See E.O. 12866, 58 FR 51735, 3 CFR, 1994 Comp., p. 638,
as amended; Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601 et
seq., as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996 (SBREFA), 5 U.S.C. 610(a); OMB Circular A-4, available at
http://www.whitehouse.gov/OMB/circulars/a004/a-4.pdf (last visited June
24, 2010); E.O. 13272, 67 FR 53461, 3 CFR, 2003 Comp., p. 247.
In the NPRM, the Department kept open the possibility that, if
warranted by public comments received on an issue raised by the 2004
ADAAG or by the results of the Department's Initial Regulatory Impact
Analysis (Initial RIA), available at http://www.ada.gov/NPRM2008/
ria.htm, showing that the

[[Page 56241]]

likely costs of making a particular feature or facility accessible were
disproportionate to the benefits (including both monetized and non-
monetized benefits) to persons with disabilities, the Attorney General,
as a member of the Access Board, could return the issue to the Access
Board for further consideration. After careful consideration, the
Department has determined that it is unnecessary to return any issues
to the Access Board for additional consideration.

Executive Order 12866

This rule has been reviewed by the Office of Management and Budget
(OMB) under Executive Order 12866. The Department has evaluated its
existing regulations for title II and title III section by section, and
many of the provisions in the final rule for both titles reflect its
efforts to mitigate any negative effects on small entities. A Final
Regulatory Impact Analysis (Final RIA or RIA) was prepared by the
Department's contractor, HDR[bond]HLB Decision Economics, Inc. (HDR).
In accordance with Executive Order 12866, as amended, and OMB Circular
A-4, the Department has reviewed and considered the Final RIA and has
accepted the results of this analysis as its assessment of the benefits
and costs of the final rules.
Executive Order 12866 refers explicitly not only to monetizable
costs and benefits but also to ``distributive impacts'' and ``equity,''
see E.O. 12866, section 1(a), and it is important to recognize that the
ADA is intended to provide important benefits that are distributional
and equitable in character. The ADA states, ``[i]t is the purpose of
this [Act] (1) to provide a clear and comprehensive national mandate
for the elimination of discrimination against individuals with
disabilities; [and] (2) to provide clear, strong, consistent,
enforceable standards addressing discrimination against individuals
with disabilities[.]'' 42 U.S.C. 12101(b). Many of the benefits of this
rule stem from the provision of such standards, which will promote
inclusion, reduce stigma and potential embarrassment, and combat
isolation, segregation, and second-class citizenship of individuals
with disabilities. Some of these benefits are, in the words of
Executive Order 12866, ``difficult to quantify, but nevertheless
essential to consider.'' E.O. 12866, section 1(a). The Department has
considered such benefits here.

Final Regulatory Impact Analysis

The Final RIA embodies a comprehensive benefit-cost analysis of the
final rules for both title II and title III and assesses the
incremental benefits and costs of the 2010 Standards relative to a
primary baseline scenario (1991 Standards). In addition, the Department
conducted additional research and analyses for requirements having the
highest negative net present values under the primary baseline
scenario. This approach was taken because, while the 1991 Standards are
the only uniform set of accessibility standards that apply to public
accommodations, commercial facilities, and State and local government
facilities nationwide, it is also understood that many State and local
jurisdictions have already adopted IBC/ANSI model code provisions that
mirror those in the 2004 ADAAG. The assessments based on this approach
assume that covered entities currently implementing codes that mirror
the 2004 ADAAG will not need to modify their code requirements once the
rules are finalized. They also assume that, even without the final
rules, the current level of compliance would be unchanged. The Final
RIA contains specific information, including data in chart form,
detailing which States have already adopted the accessibility standards
for this subset of six requirements. The Department believes that the
estimates resulting from this approach represent a reasonable upper and
lower measure of the likely effects these requirements will have that
the Department was able to quantify and monetize.
The Final RIA estimates the benefits and costs for all new
(referred to as ``supplemental'') requirements and revised requirements
across all types of newly constructed and existing facilities. The
Final RIA also incorporates a sophisticated risk analysis process that
quantifies the inherent uncertainties in estimating costs and benefits
and then assesses (through computer simulations) the relative impact of
these factors when varied simultaneously. A copy of the Final RIA will
be made available online for public review on the Department's ADA Home
Page (http://www.ada.gov).
From an economic perspective (as specified in OMB Circular A-B4),
the results of the Final RIA demonstrate that the Department's final
rules increase social resources and thus represent a public good
because monetized benefits exceed monetized costs--that is, the
regulations have a positive net present value (NPV). Indeed, under
every scenario assessed in the Final RIA, the final rules have a
positive NPV. The Final RIA's first scenario examines the incremental
impact of the final rules using the ``main'' set of assumptions (i.e.,
assuming a primary baseline (1991 Standards), that the safe harbor
applies, and that for title III entities barrier removal is readily
achievable for 50 percent of elements subject to supplemental
requirements).

Expected Impact of the Rules 2
[In billions]
------------------------------------------------------------------------
Total Total
Discount rate Expected expected PV expected PV
NPV (benefits) (costs)
------------------------------------------------------------------------
3%............................... $40.4 $66.2 $25.8
7................................ 9.3 22.0 12.8
------------------------------------------------------------------------

---------------------------------------------------------------------------

\2\ The analysis assumes these regulations will be in force for
15 years. Incremental costs and benefits are calculated for all
construction, alterations, and barrier removal that is expected to
occur during these 15 years. The analysis also assumes that any new
or revised ADA rules enacted 15 years from now will include a safe
harbor provision. Thus, any facilities constructed in year 14 of the
final rules are assumed to continue to generate benefits to users,
and to incur any operating or replacement costs for the life of
these buildings, which is assumed to be 40 years.
---------------------------------------------------------------------------

Under this set of assumptions, the final rules have an expected NPV
of $9.3 billion (7 percent discount rate) and $40.4 billion (3 percent
discount rate). See Final RIA, table ES-1 & figure ES-2.

Water Closet Clearances

The Department gave careful consideration to the costs and benefits
of its adoption of the standards relating to water closet clearances in
single-user toilet rooms. The primary effect of the Department's
proposed final rules governing water closet clearances in single-user
toilet rooms with in-swinging and out-swinging doors is to allow
sufficient room for ``side'' or ``parallel'' methods of transferring
from a wheelchair to a toilet. Under the current 1991 Standards, the
requisite clearance space in single-user toilet rooms between and
around the toilet and the lavatory does not permit these methods of
transfer. Side or parallel transfers are used by large numbers of
persons who use wheelchairs and are regularly taught in rehabilitation
and occupational therapy. Currently, persons who use side or parallel
transfer methods from their wheelchairs are faced with a stark choice
at establishments with single-user toilet rooms--i.e., patronize the
establishment but run the risk of needing assistance when using the
restroom, travel with someone who would be able to provide assistance
in toileting, or forgo the visit entirely. The revised water closet
clearance regulations would make single-user toilet rooms accessible to
all persons

[[Page 56242]]

who use wheelchairs, not just those with the physical strength,
balance, and dexterity and the training to use a front-transfer method.
Single-user toilet rooms are located in a wide variety of public and
private facilities, including restaurants, fast-food establishments,
schools, retail stores, parks, sports stadiums, and hospitals. Final
promulgation of these requirements might thus, for example, enable a
person who uses a side or parallel transfer method to use the restroom
(or use the restroom independently) at his or her local coffee shop for
the first time.
Because of the complex nature of its cost-benefit analysis, the
Department is providing ``plain language'' descriptions of the benefits
calculations for the two revised requirements with the highest
estimated total costs: Water closet clearance in single-user toilet
rooms with out-swinging doors (RIA Req. 28) (section 604.3 of
the 2010 Standards) and water closet clearance in single-user toilet
rooms with in-swinging doors (RIA Req. 32) (sections 604.3 and
603.2.3 Exception 2 of the 2010 Standards). Since many of the concepts
and calculations in the Final RIA are highly technical, it is hoped
that, by providing ``lay'' descriptions of how benefits are monetized
for an illustrative set of requirements, the Final RIA will be more
transparent and afford readers a more complete understanding of the
benefits model generally. Because of the widespread adoption of the
water closet clearance standards in existing State and local building
codes, the following calculations use the IBC/ANSI baseline.
General description of monetized benefits for water closet
clearance in single-user toilet rooms--out-swinging doors (Req. #28).
In order to assess monetized benefits for the requirement covering
water closet clearances in single-user toilet rooms with out-swinging
doors, a determination needed to be made concerning the population of
users with disabilities who would likely benefit from this revised
standard. Based on input received from a panel of experts jointly
convened by HDR and the Department to discuss benefits-related
estimates and assumptions used in the RIA model, it was assumed that
accessibility changes brought about by this requirement would benefit
persons with any type of ambulatory (i.e., mobility-related)
disability, such as persons who use wheelchairs, walkers, or braces.
Recent census figures estimate that about 11.9 percent of Americans
ages 15 and older have an ambulatory disability, or about 35 million
people. This expert panel also estimated that single-user toilet rooms
with out-swinging doors would be used slightly less than once every
other visit to a facility with such toilet rooms covered by the final
rules (or, viewed another way, about once every two hours spent at a
covered facility assumed to have one or more single-user toilet rooms
with out-swinging doors) by an individual with an ambulatory
disability. The expert panel further estimated that, for such
individuals, the revised requirement would result in an average time
savings of about five and a half minutes when using the restroom. This
time savings is due to the revised water closet clearance standard,
which permits, among other things, greater flexibility in terms of
access to the toilet by parallel or side transfer, thereby perhaps
reducing the wait for another person to assist with toileting and the
need to twist or struggle to access the toilet independently. Based on
average hourly wage rates compiled by the U.S. Department of Labor, the
time savings for Req. 28 is valued at just under $10 per hour.
For public and private facilities covered by the final rules, it is
estimated that there are currently about 11 million single-user toilet
rooms with out-swinging doors. The majority of these types of single-
user toilet rooms, nearly 7 million, are assumed to be located at
``Indoor Service Establishments,'' a broad facility group that
encompasses various types of indoor retail stores such as bakeries,
grocery stores, clothing stores, and hardware stores. Based on
construction industry data, it was estimated that approximately 3
percent of existing single-user toilet rooms with out-swinging doors
would be altered each year, and that the number of newly constructed
facilities with these types of toilet rooms would increase at the rate
of about 1 percent each year. However, due to the widespread adoption
at the State and local level of model code provisions that mirror Req.
28, it is further understood that about half of all existing
facilities assumed to have single-user toilet rooms with out-swinging
doors already are covered by State or local building codes that require
equivalent water closet clearances. Due to the general element-by-
element safe harbor provision in the final rules, no unaltered single-
user toilet rooms that comply with the current 1991 Standards will be
required to retrofit to meet the revised clearance requirements in the
final rules.
With respect to new construction, it is assumed that each single-
user toilet room with an out-swinging door will last the life of the
building, about 40 years. For alterations, the amount of time such a
toilet room will be used depends upon the remaining life of the
building (i.e., a period of time between 1 and 39 years).
Summing up monetized benefits to users with disabilities across all
types of public and private facilities covered by the final rules, and
assuming 46 percent of covered facilities nationwide are located in
jurisdictions that have adopted the relevant equivalent IBC/ANSI model
code provisions, it is expected that the revised requirement for water
closet clearance in single-user toilet rooms with out-swinging doors
will result in net benefits of approximately $900 million over the life
of these regulations.
General description of monetized benefits for water closet
clearance in single-user toilet rooms--in-swinging doors (Req. # 32).
For the water closet clearance in single-user toilet rooms with the in-
swinging door requirement (Req. 32), the expert panel
determined that the primary beneficiaries would be persons who use
wheelchairs. As compared to single-user toilet rooms with out-swinging
doors, those with in-swinging doors tend to be larger (in terms of
square footage) in order to accommodate clearance for the in-swinging
door and, thus, are already likely to have adequate clear floor space
for persons with disabilities who use other types of mobility aids such
as walkers and crutches.
The expert benefits panel estimated that single-user toilet rooms
with in-swinging doors are used less frequently on average--about once
every 20 visits to a facility with such a toilet room by a person who
uses a wheelchair--than their counterpart toilet rooms with out-
swinging doors. This panel also determined that, on average, each user
would realize a time savings of about 9 minutes as a result of the
enhanced clearances required by this revised standard.
The RIA estimates that there are about 4 million single-user toilet
rooms with in-swinging doors in existing facilities. About half of the
single-user toilet rooms with in-swinging doors are assumed to be
located in single-level stores, and about a quarter of them are assumed
to be located in restaurants. Based on construction industry data, it
was estimated that approximately 3 percent of existing single-user
toilet rooms with in-swinging doors would be altered each year, and
that the number of newly constructed facilities with these types of
toilet rooms would increase at the rate of about 1 percent each year.
However, due to the widespread adoption at the State and local level of
model code provisions that mirror Req. 32, it is further
understood that slightly more than 70 percent of all

[[Page 56243]]

existing facilities assumed to have single-user toilet rooms with in-
swinging doors already are covered by State or local building codes
that require equivalent water closet clearances. Due to the general
element-by-element safe harbor provision in the final rules, no
unaltered single-user toilet rooms that comply with the current 1991
Standards will be required to retrofit to meet the revised clearance
requirements in the final rules.
Similar to the assumptions for Req. 28, it is assumed that
newly constructed single-user toilet rooms with in-swinging doors will
last the life of the building, about 40 years. For alterations, the
amount of time such a toilet room will be used depends upon the
remaining life of the building (i.e., a period of time between 1 and 39
years). Over this time period, the total estimated value of benefits to
users of water closets with in-swinging doors from the time they will
save and decreased discomfort they will experience is nearly $12
million.
Additional benefits of water closet clearance standards. The
standards requiring sufficient space in single-user toilet rooms for a
wheelchair user to effect a side or parallel transfer are among the
most costly (in monetary terms) of the new provisions in the Access
Board's guidelines that the Department adopts in this rule--but also,
the Department believes, one of the most beneficial in non-monetary
terms. Although the monetized costs of these requirements substantially
exceed the monetized benefits, the additional benefits that persons
with disabilities will derive from greater safety, enhanced
independence, and the avoidance of stigma and humiliation--benefits
that the Department's economic model could not put in monetary terms--
are, in the Department's experience and considered judgment, likely to
be quite high. Wheelchair users, including veterans returning from our
Nation's wars with disabilities, are taught to transfer onto toilets
from the side. Side transfers are the safest, most efficient, and most
independence-promoting way for wheelchair users to get onto the toilet.
The opportunity to effect a side transfer will often obviate the need
for a wheelchair user or individual with another type of mobility
impairment to obtain the assistance of another person to engage in what
is, for most people, among the most private of activities. Executive
Order 12866 refers explicitly not only to monetizable costs and
benefits but also to ``distributive impacts'' and ``equity,'' see E.O.
12866, section 1(a), and it is important to recognize that the ADA is
intended to provide important benefits that are distributional and
equitable in character. These water closet clearance provisions will
have non-monetized benefits that promote equal access and equal
opportunity for individuals with disabilities, and will further the
ADA's purpose of providing ``a clear and comprehensive national mandate
for the elimination of discrimination against individuals with
disabilities.'' 42 U.S.C. 12101(b)(1).
The Department's calculations indicated that, in fact, people with
the relevant disabilities would have to place only a very small
monetary value on these quite substantial benefits for the costs and
benefits of these water closet clearance standards to break even. To
make these calculations, the Department separated out toilet rooms with
out-swinging doors from those with in-swinging doors, because the costs
and benefits of the respective water closet clearance requirements are
significantly different. The Department estimates that, assuming 46
percent of covered facilities nationwide are located in jurisdictions
that have adopted the relevant equivalent IBC/ANSI model code
provisions, the costs of the requirement as applied to toilet rooms
with out-swinging doors will exceed the monetized benefits by $454
million, an annualized net cost of approximately $32.6 million. But a
large number of people with disabilities will realize benefits of
independence, safety, and avoided stigma and humiliation as a result of
the requirement's application in this context. Based on the estimates
of its expert panel and its own experience, the Department believes
that both wheelchair users and people with a variety of other mobility
disabilities will benefit. The Department estimates that people with
the relevant disabilities will use a newly accessible single-user
toilet room with an out-swinging door approximately 677 million times
per year. Dividing the $32.6 million annual cost by the 677 million
annual uses, the Department concludes that for the costs and benefits
to break even in this context, people with the relevant disabilities
will have to value safety, independence, and the avoidance of stigma
and humiliation at just under 5 cents per visit. The Department
believes, based on its experience and informed judgment, that 5 cents
substantially understates the value people with the relevant
disabilities would place on these benefits in this context.
There are substantially fewer single-user toilet rooms with in-
swinging doors, and substantially fewer people with disabilities will
benefit from making those rooms accessible. While both wheelchair users
and individuals with other ambulatory disabilities will benefit from
the additional space in a room with an out-swinging door, the
Department believes, based on the estimates of its expert panel and its
own experience, that wheelchair users likely will be the primary
beneficiaries of the in-swinging door requirement. The Department
estimates that people with the relevant disabilities will use a newly
accessible single-user toilet room with an in-swinging door
approximately 8.7 million times per year. Moreover, the alteration
costs to make a single-user toilet room with an in-swinging door
accessible are substantially higher (because of the space taken up by
the door) than the equivalent costs of making a room with an out-
swinging door accessible. Thus, the Department calculates that,
assuming 72 percent of covered facilities nationwide are located in
jurisdictions that have adopted the relevant equivalent IBC/ANSI model
code provisions, the costs of applying the toilet room accessibility
standard to rooms with in-swinging doors will exceed the monetized
benefits of doing so by $266.3 million over the life of the
regulations, or approximately $19.14 million per year. Dividing the
$19.14 million annual cost by the 8.7 million annual uses, the
Department concludes that for the costs and benefits to break even in
this context, people with the relevant disabilities will have to value
safety, independence, and the avoidance of stigma and humiliation at
approximately $2.20 per visit. The Department believes, based on its
experience and informed judgment, that this figure approximates, and
probably understates, the value wheelchair users place on safety,
independence, and the avoidance of stigma and humiliation in this
context.

Alternate Scenarios

Another scenario in the Final RIA explores the incremental impact
of varying the assumptions concerning the percentage of existing
elements subject to supplemental requirements for which barrier removal
would be readily achievable. Readily achievable barrier removal rates
are modeled at 0 percent, 50 percent, and 100 percent levels. The
results of this scenario show that the expected NPV is positive for
each readily achievable barrier removal rate and that varying this
assumed rate has little impact on expected NPV. See Final RIA, figure
ES-3.
A third set of analyses in the Final RIA demonstrates the impact of
using alternate baselines based on model codes instead of the primary
baseline.

[[Page 56244]]

The IBC model codes, which have been widely adopted by State and local
jurisdictions around the country, are significant because many of the
requirements in the final rules mirror accessibility provisions in the
IBC model codes (or standards incorporated therein by reference, such
as ANSI A117.1). The actual economic impact of the Department's final
rules is, therefore, tempered by the fact that many jurisdictions
nationwide have already adopted and are enforcing portions of the final
rules--indeed, this was one of the goals underlying the Access Board's
efforts to harmonize the 2004 ADAAG Standards with the model codes.
However, capturing the economic impact of this reality poses a
difficult modeling challenge due to the variety of methods by which
States and localities have adopted the IBC/ANSI model codes (e.g., in
whole, in part, and with or without amendments), as well as the lack of
a national ``facility census'' establishing the location, type, and age
of existing ADA-covered facilities.
As a result, in the first set of alternate IBC baseline analyses,
the Final RIA assumes that all of the three IBC model codes--IBC 2000,
IBC 2003, and IBC 2006--have been fully adopted by all jurisdictions
and apply to all facilities nationwide. As with the primary baseline
scenarios examined in the Final RIA, use of these three alternate IBC
baselines results in positive expected NPVs in all cases. See Final
RIA, figure ES-4. These results also indicate that IBC 2000 and IBC
2006 respectively have the highest and lowest expected NPVs. These
results are due to changes in the make-up of the set of requirements
that is included in each alternative baseline.
Additionally, a second, more limited alternate baseline analysis in
the Final RIA uses a State-specific and requirement-specific alternate
IBC/ANSI baseline in order to demonstrate the likely actual incremental
impact of an illustrative subset of 20 requirements under current
conditions nationwide. For this analysis, research was conducted on a
subset of 20 requirements in the final rules that have negative net
present values under the primary baseline and readily identifiable IBC/
ANSI counterparts to determine the extent to which they each
respectively have been adopted at the State or local level. With
respect to facilities, the population of adopting jurisdictions was
used as a proxy for facility location. In other words, it was assumed
that the number of ADA-covered facilities respectively compliant with
these 20 requirements was equal to the percentage of the United States
population (based on statistics from the Census Bureau) currently
residing in those States or local jurisdictions that have adopted the
IBC/ANSI counterparts to these requirements. The results of this more
limited analysis, using State-specific and requirement-specific
alternate IBC/ANSI baselines for these 20 requirements, demonstrate
that the widespread adoption of IBC model codes by States and
localities significantly lessens the financial impact of these specific
requirements. Indeed, the Final RIA estimates that, if the NPVs for
these 20 requirements resulting from the requirement-specific alternate
IBC/ANSI baseline are substituted for their respective results under
the primary baseline, the overall NPV for the final rules increases
from $9.2 billion to $12.0 billion. See Final RIA, section 6.2.2 &
table 10.

Benefits Not Monetized in the Formal Analysis

Finally, the RIA recognizes that additional benefits are likely to
result from the new standards. Many of these benefits are more
difficult to quantify. Among the potential benefits that have been
discussed by researchers and advocates are reduced administrative costs
due to harmonized guidelines, increased business opportunities,
increased social development, and improved health benefits. For
example, the final rules will substantially increase accessibility at
newly scoped facilities such as recreation facilities and judicial
facilities, which previously have been very difficult for persons with
disabilities to access. Areas where the Department believes entities
may incur benefits that are not monetized in the formal analysis
include, but may not be limited to, the following:
Use benefits accruing to persons with disabilities. The final rules
should improve the overall sense of well-being of persons with
disabilities, who will know that public entities and places of public
accommodation are generally accessible, and who will have improved
individual experiences. Some of the most frequently cited qualitative
benefits of increased access are the increase in one's personal sense
of dignity that arises from increased access and the decrease in
possibly humiliating incidents due to accessibility barriers.
Struggling to join classmates on a stage, to use a bathroom with too
little clearance, or to enter a swimming pool all negatively affect a
person's sense of independence and can lead to humiliating accidents,
derisive comments, or embarrassment. These humiliations, together with
feelings of being stigmatized as different or inferior from being
relegated to use other, less comfortable or pleasant elements of a
facility (such as a bathroom instead of a kitchen sink for rinsing a
coffee mug at work), all have a negative effect on persons with
disabilities.
Use benefits accruing to persons without disabilities. Improved
accessibility can affect more than just the rule's target population;
persons without disabilities may also benefit from many of the
requirements. Even though the requirements were not designed to benefit
persons without disabilities, any time savings or easier access to a
facility experienced by persons without disabilities are also benefits
that should properly be attributed to that change in accessibility.
Curb cuts in sidewalks make life easier for those using wheeled
suitcases or pushing a baby stroller. For people with a lot of luggage
or a need to change clothes, the larger bathroom stalls can be highly
valued. A ramp into a pool can allow a child (or adult) with a fear of
water to ease into that pool. All are examples of ``unintended''
benefits of the rule. And ideally, all should be part of the calculus
of the benefits to society of the rule.
Social benefits. Evidence supports the notion that children with
and without disabilities benefit in their social development from
interaction with one another. Therefore, there will likely be social
development benefits generated by an increase in accessible play areas.
However, these benefits are nearly impossible to quantify for several
reasons. First, there is no guarantee that accessibility will generate
play opportunities between children with and without disabilities.
Second, there may be substantial overlap between interactions at
accessible play areas and interactions at other facilities, such as
schools and religious facilities. Third, it is not certain what the
unit of measurement for social development should be.
Non-use benefits. There are additional, indirect benefits to
society that arise from improved accessibility. For instance, resource
savings may arise from reduced social service agency outlays when
people are able to access centralized points of service delivery rather
than receiving home-based care. Home-based and other social services
may include home health care visits and welfare benefits. Third-party
employment effects can arise when enhanced accessibility results in
increasing rates of consumption by disabled and non-disabled
populations, which in turn results in reduced unemployment.

[[Page 56245]]

Two additional forms of benefits are discussed less often, let
alone quantified: Option value and existence value. Option value is the
value that people with and without disabilities derive from the option
of using accessible facilities at some point in the future. As with
insurance, people derive benefit from the knowledge that the option to
use the accessible facility exists, even if it ultimately goes unused.
Simply because an individual is a non-user of accessible elements today
does not mean that he or she will remain so tomorrow. In any given
year, there is some probability that an individual will develop a
disability (either temporary or permanent) that will necessitate use of
these features. For example, the 2000 Census found that 41.9 percent of
adults 65 years and older identified themselves as having a disability.
Census Bureau figures, moreover, project that the number of people 65
years and older will more than double between 2000 and 2030--from 35
million to 71.5 million. Therefore, even individuals who have no direct
use for accessibility features today get a direct benefit from the
knowledge of their existence should such individuals need them in the
future.
Existence value is the benefit that individuals get from the plain
existence of a good, service or resource--in this case, accessibility.
It can also be described as the value that people both with and without
disabilities derive from the guarantees of equal treatment and non-
discrimination that are accorded through the provision of accessible
facilities. In other words, people value living in a country that
affords protections to individuals with disabilities, whether or not
they themselves are directly or indirectly affected. Unlike use
benefits and option value, existence value does not require an
individual ever to use the resource or plan on using the resource in
the future. There are numerous reasons why individuals might value
accessibility even if they do not require it now and do not anticipate
needing it in the future.

Costs Not Monetized in the Formal Analysis

The Department also recognizes that in addition to benefits that
cannot reasonably be quantified or monetized, there may be negative
consequences and costs that fall into this category as well. The
absence of a quantitative assessment of such costs in the formal
regulatory analysis is not meant to minimize their importance to
affected entities; rather, it reflects the inherent difficulty in
estimating those costs. Areas where the Department believes entities
may incur costs that are not monetized in the formal analysis include,
but may not be limited to, the following:
Costs from deferring or forgoing alterations. Entities covered by
the final rules may choose to delay otherwise desired alterations to
their facilities due to the increased incremental costs imposed by
compliance with the new requirements. This may lead to facility
deterioration and decrease in the value of such facilities. In extreme
cases, the costs of complying with the new requirements may lead some
entities to opt to not build certain facilities at all. For example,
the Department estimates that the incremental costs of building a new
wading pool associated with the final rules will increase by about
$142,500 on average. Some facilities may opt to not build such pools to
avoid incurring this increased cost.
Loss of productive space while modifying an existing facility.
During complex alterations, such as where moving walls or plumbing
systems will be necessary to comply with the final rules, productive
space may be unavailable until the alterations are complete. For
example, a hotel altering its bathrooms to comply with the final rules
will be unable to allow guests to occupy these rooms while construction
activities are underway, and thus the hotel may forgo revenue from
these rooms during this time. While the amount of time necessary to
perform alterations varies significantly, the costs associated with
unproductive space could be high in certain cases, especially if space
is already limited or if an entity or facility is located in an area
where real estate values are particularly high (e.g., New York or San
Francisco).
Expert fees. Another type of cost to entities that is not monetized
in the formal analysis is legal fees to determine what, if anything, a
facility needs to do in order to comply with the new rules or to
respond to lawsuits. Several commenters indicated that entities will
incur increased legal costs because the requirements are changing for
the first time since 1991. Since litigation risk could increase,
entities could spend more on legal fees than in the past. Likewise,
covered entities may face incremental costs when undertaking
alterations because their engineers, architects, or other consultants
may also need to consider what modifications are necessary to comply
with the new requirements. The Department has not quantified the
incremental costs of the services of these kinds of experts.
Reduction in facility value and losses to individuals without
disabilities due to the new accessibility requirements. It is possible
that some changes made by entities to their facilities in order to
comply with the new requirements may result in fewer individuals
without disabilities using such facilities (because of decreased
enjoyment) and may create a disadvantage for individuals without
disabilities, even though the change might increase accessibility for
individuals with disabilities. For example, the new requirements for
wading pools might decrease the value of the pool to the entity that
owns it due to fewer individuals using it (because the new requirements
for a sloped entry might make the pool too shallow). Similarly, several
commenters from the miniature golf industry expressed concern that it
would be difficult to comply with the regulations for accessible holes
without significantly degrading the experience for other users.
Finally, with respect to costs to individuals who do not have
disabilities, a very tall person, for example, may be inconvenienced by
having to reach further for a lowered light switch.

Section 610 Review

The Department also is required to conduct a periodic regulatory
review pursuant to section 610 of the RFA, as amended by the SBREFA.
The review requires agencies to consider five factors: (1) The
continued need for the rule; (2) the nature of complaints or comments
received concerning the rule from the public; (3) the complexity of the
rule; (4) the extent to which the rule overlaps, duplicates, or
conflicts with other Federal rules, and, to the extent feasible, with
State and local governmental rules; and (5) the length of time since
the rule has been evaluated or the degree to which technology, economic
conditions, or other factors have changed in the area affected by the
rule. 5 U.S.C. 610(b). Based on these factors, the agency is required
to determine whether to continue the rule without change or to amend or
rescind the rule, to minimize any significant economic impact of the
rule on a substantial number of small entities. See id. 610(a).
In developing the 2010 Standards, the Department reviewed the 1991
Standards section by section, and, as a result, has made several
clarifications and amendments in both the title II and title III
implementing regulations. The changes reflect the Department's analysis
and review of complaints or comments from the public, as well as
changes in technology. Many of the

[[Page 56246]]

amendments aim to clarify and simplify the obligations of covered
entities. As discussed in greater detail above, one significant goal of
the development of the 2004 ADAAG was to eliminate duplication or
overlap in Federal accessibility guidelines, as well as to harmonize
the Federal guidelines with model codes. The Department also has worked
to create harmony where appropriate between the requirements of titles
II and III. Finally, while the regulation is required by statute and
there is a continued need for it as a whole, the Department proposes
several modifications that are intended to reduce its effects on small
entities.
The Department has consulted with the Small Business
Administration's Office of Advocacy about this process. The Office of
Advocacy has advised that although the process followed by the
Department was ancillary to the proposed adoption of revised ADA
Standards, the steps taken to solicit public input and to respond to
public concerns are functionally equivalent to the process required to
complete a section 610 review. Therefore, this rulemaking fulfills the
Department's obligations under the RFA.

Final Regulatory Flexibility Analysis

This final rule also has been reviewed by the Small Business
Administration's Office of Advocacy (Advocacy) in accordance with
Executive Order 13272, 67 FR 53461, 3 CFR, 2003 Comp., p. 247. Chapter
Seven of the Final RIA demonstrates that the final rule will not have a
significant economic impact on a substantial number of small entities.
The Department has also conducted a final regulatory flexibility
analysis (FRFA) as a component of this rulemaking. Collectively, the
ANPRM, NPRM, Initial RIA, Final RIA, and 2010 Standards include all of
the elements of a FRFA required by the RFA. See 5 U.S.C. 604(a)(1)-(5).
Section 604(a) lists the specific requirements for a FRFA. The
Department has addressed these RFA requirements throughout the ANPRM,
NPRM, the 2010 Standards, and the RIA. In summary, the Department has
satisfied its FRFA obligations under section 604(a) by providing the
following:
1. Succinct summaries of the need for, and objectives of, the final
rule. The Department is issuing this final rule in order to comply with
its obligations under both the ADA and the SBREFA. The Department is
also updating or amending certain provisions of the existing title III
regulation so that they are consistent with the title II regulations
and comport with the Department's legal and practical experiences in
enforcing the ADA.
The ADA requires the Department to adopt enforceable accessibility
standards under the ADA that are consistent with the Access Board's
minimum accessibility guidelines and requirements. Accordingly, this
rule adopts ADA Chapter 1, ADA Chapter 2, and Chapters 3 through 10 of
the 2004 ADA/ABA Guidelines as part of the 2010 Standards, which will
give the guidelines legal effect with respect to the Department's title
II and title III regulations.
Under the SBREFA, the Department is required to perform a periodic
review of its 1991 rule because the rule may have a significant
economic impact on a substantial number of small entities. The SBREFA
also requires the Department to make a regulatory assessment of the
costs and benefits of any significant regulatory action. See preamble
sections of the final rules for titles II and III entitled ``Summary'';
Department of Justice Advanced Notice of Proposed Rulemaking, 69 FR
58768, 58768B70, (Sept. 30, 2004) (outlining the regulatory history,
goals, and rationale underlying the Department's proposal to revise its
regulations implementing titles II and III of the ADA); and Department
of Justice Notice of Proposed Rulemaking, 73 FR 34508, 34508B14 (June
17, 2008) (outlining the regulatory history and rationale underlying
the Department's proposal to revise its regulations implementing titles
II and III of the ADA).
2. Summaries of significant issues raised by public comments in
response to the Department's initial regulatory flexibility analysis
(IRFA) and discussions of regulatory revisions made as a result of such
comments. The majority of the comments received by the Department
addressing its IRFA set forth in the title III NPRM were submitted by
the Advocacy. Advocacy acknowledged that the Department took into
account the comments and concerns of small businesses; however,
Advocacy remained concerned about certain items in the Department's
NPRM and requested clarification or additional guidance on certain
items.
General Safe Harbor. Advocacy expressed support for the
Department's proposal to allow an element-by-element safe harbor for
elements that now comply with the 1991 Standards and encouraged the
Department to include specific technical assistance in the Small
Business Compliance Guide that the Department is required to publish
pursuant to section 212 of the SBREFA, 5 U.S.C. 610 et seq. Advocacy
requested that technical assistance outlining which standards are
subject to the safe harbor be included in the Department's guidance.
The Department has provided a list of the new requirements in the 2010
Standards that are not eligible for the safe harbor in Sec.
36.304(d)(2)(iii)(A)-(L) of the final rule and plans to include
additional information about the application of the safe harbor in the
Department's Small Business Compliance Guide. Advocacy also requested
that guidance regarding the two effective dates for regulations also be
provided, and the Department plans to include such guidance in its
Small Business Compliance Guide.
Small Business Safe Harbor. Advocacy expressed disappointment that
the Department did not include a small business safe harbor in the
final rule. In the NPRM, the Department proposed to include a small
business safe harbor. Advocacy conceptually supported this safe harbor
but had concerns regarding its application. Commenters from both the
disability community and the business community uniformly, and quite
adamantly, opposed the Department's proposal. Some business commenters
suggested alternative safe harbors, but there was no common thread
among their suggestions that would enable the Department to craft a
proposal that would draw support from the affected communities.
Advocacy recommended that the Department continue to study how the
proposed small business safe harbor might be made workable in future
rulemakings, and recommended that the Department also seek other
alternatives that minimize the economic impact of the ADA rulemakings
in the future. The Department is mindful of its obligations under the
SBREFA and will be sensitive to the need to mitigate costs for small
businesses in any future rulemaking; however, based on the information
currently available, the Department has declined to commit to a
specific regulatory approach in the final rule.
Indirect Costs. Advocacy and other commenters representing business
interests expressed concern that businesses would incur substantial
indirect costs under the final rule for accessibility consultants,
legal counsel, training, and the development of new policies and
procedures. The Department believes that such ``indirect costs,'' even
assuming they would occur as described by these commenters, are not
properly attributed to the Department's final rule implementing the
ADA.
The vast majority of the new requirements are incremental changes
subject to a safe harbor. All businesses

[[Page 56247]]

currently in compliance with the 1991 Standards will neither need to
undertake further retrofits nor require the services of a consultant to
tell them so. If, on the other hand, elements at an existing facility
are not currently in compliance with the 1991 Standards, then the cost
of making such a determination and bringing these elements into
compliance are not properly attributed to the final rule, but to lack
of compliance with the 1991 Standards.
For the limited number of requirements in the final rule that are
supplemental, the Department believes that covered entities simply need
to determine whether they have an element covered by a supplemental
requirement (e.g., a swimming pool) and then conduct any necessary
barrier removal work either in-house or by contacting a local
contractor. Determining whether such an element exists is expected to
take only a minimal amount of staff time. Nevertheless, Chapter 5 of
the Final RIA has a high-end estimate of the additional management
costs of such evaluation (from 1 to 8 hours of staff time).
The Department also anticipates that businesses will incur minimal
costs for accessibility consultants to ensure compliance with the new
requirements for New Construction and Alterations in the final rule.
Both the 2004 ADAAG and the proposed requirements have been made public
for some time and are already being incorporated into design plans by
architects and builders. Further, in adopting the final rule, the
Department has sought to harmonize, to the greatest extent possible,
the ADA Standards with model codes that have been adopted on a
widespread basis by State and local jurisdictions across the country.
Accordingly, many of the requirements in the final rule are already
incorporated into building codes nationwide. Additionally, it is
assumed to be part of the regular course of business--and thereby
incorporated into standard professional services or construction
contracts--for architects and contractors to keep abreast of changes in
applicable Federal, State, and local laws and building codes. Given
these considerations, the Department has determined that the additional
costs, if any, for architectural or contractor services that arise out
of the final rule should be minimal.
Some commenters stated that the final rule would require them to
develop new policies or manuals to retrain employees on the revised ADA
standards. However, it is the Department's view that because the
revised and supplemental requirements address architectural issues and
features, the final rule would require minimal, if any, changes to the
overall policies and procedures of covered entities.
Finally, commenters representing business interests expressed the
view that the final rule would cause businesses to incur significant
legal costs in order to defend ADA lawsuits. However, regulatory impact
analyses are not an appropriate forum for assessing the cost covered
entities may bear, or the repercussions they may face, for failing to
comply (or allegedly failing to comply) with current law. See Final
RIA, Ch. 3, section 3.1.4, ``Other Management Transition Costs''; Ch.
5, ``Updates to the Regulatory Impact Analysis''; and table 15,
``Impact of NPV of Estimated Managerial Costs for Supplemental
Requirements at All Facilities.''
3. Estimates of the number and type of small entities to which the
final rule will apply. The Department estimates that the final rule
will apply to approximately three million small entities or facilities
covered by title III. See Final RIA, Ch. 7, ``Small Business Impact
Analysis,'' table 17, and app. 5, ``Small Business Data''; see also 73
FR 36964, 36996-37009 (June 30, 2008) (estimating the number of small
entities the Department believes may be impacted by the NPRM and
calculating the likely incremental economic impact of the rule on small
facilities/entities versus ``typical'' (i.e., average-sized)
facilities/entities).
4. A description of the projected reporting, record-keeping, and
other compliance requirements of the final rule, including an estimate
of the classes of small entities that will be subject to the
requirement and the type of professional skills necessary for
preparation of the report or record. The final rule imposes no new
record-keeping or reporting requirements. See preamble section entitled
``Paperwork Reduction Act.'' Small entities may incur costs as a result
of complying with the final rules. These costs are detailed in the
Final RIA, Chapter 7, ``Small Business Impact Analysis'' and
accompanying Appendix 5, ``Small Business Data.''
5. Descriptions of the steps taken by the Department to minimize
any significant economic impact on small entities consistent with the
stated objectives of the ADA, including the reasons for selecting the
alternatives adopted in the final rule and for rejecting other
significant alternatives. From the outset of this rulemaking, the
Department has been mindful of small entities and has taken numerous
steps to minimize the impact of the final rule on small businesses.
Several of these steps are summarized below.
As an initial matter, the Department--as a voting member of the
Access Board--was extensively involved in the development of the 2004
ADAAG. These guidelines, which are incorporated into the 2010
Standards, reflect a conscious effort to mitigate any significant
economic impact on small businesses in several respects. First, one of
the express goals of the 2004 ADAAG is harmonization of Federal
accessibility guidelines with industry standards and model codes that
often form the basis of State and local building codes, thereby
minimizing the impact of these guidelines on all covered entities, but
especially small businesses. Second, the 2004 ADAAG is the product of a
10-year rulemaking effort in which a host of private and public
entities, including small business groups, worked cooperatively to
develop accessibility guidelines that achieved an appropriate balance
between accessibility and cost. For example, as originally recommended
by the Access Board's Recreation Access Advisory Committee, all holes
on a miniature golf course would be required to be accessible except
for sloped surfaces where the ball could not come to rest. See, e.g.,
``ADA Accessibility Guidelines for Buildings and Facilities--Recreation
Facilities and Outdoor Developed Areas,'' Access Board Advance Notice
of Proposed Rulemaking, 59 FR 48542 (Sept. 21, 1994). Miniature golf
trade groups and facility operators, who are nearly all small
businesses, expressed significant concern that such requirements would
be prohibitively expensive, would require additional space, and might
fundamentally alter the nature of their courses. See, e.g., ``ADA
Accessibility Guidelines for Buildings and Facilities--Recreation
Facilities,'' Access Board Notice of Proposed Rulemaking, 64 FR 37326
(July 9, 1999). In consideration of such concerns and after holding
informational meetings with miniature golf representatives and persons
with disabilities, the Access Board significantly revised the final
miniature golf guidelines. The final guidelines not only reduced
significantly the number of holes required to be accessible to 50
percent of all holes (with one break in the sequence of consecutive
holes permitted), but also added an exemption for carpets used on
playing surfaces, modified ramp landing slope and size requirements,
and reduced the space required for start of play areas. See, e.g.,
Americans with Disabilities Act (ADA) Accessibility Guidelines for
Buildings

[[Page 56248]]

and Facilities--Recreation Facilities Final Rule, 36 CFR parts 1190 and
1191.
The Department also published an ANPRM to solicit public input on
the adoption of the 2004 ADAAG as the revised Federal accessibility
standards implementing titles II and III of the ADA. Among other
things, the ANPRM specifically invited comment from small entities
regarding the proposed rule's potential economic impact and suggested
regulatory alternatives to ameliorate any such impact. See
``Nondiscrimination on the Basis of Disability by Public Accommodations
and in Commercial Facilities,'' Department of Justice Advance Notice of
Proposed Rulemaking, 69 FR 58768, 58778-79 (Sept. 30, 2004). The
Department received over 900 comments, and small business interests
figured prominently. See ``Nondiscrimination on the Basis of Disability
by Public Accommodations and in Commercial Facilities,'' Department of
Justice Notice of Proposed Rulemaking, 73 FR 34508, 34511, 34550 (June
17, 2008).
Subsequently, when the Department published its NPRM in June 2008,
several regulatory proposals were included to address concerns raised
by the small business community in ANPRM comments. First, to mitigate
costs to existing facilities, the Department proposed an element-by-
element safe harbor that would exempt elements in compliance with
applicable technical and scoping requirements in the 1991 Standards
from any retrofit obligations under the revised title III rule. Id. at
34514-15, 34532-33. While this proposed safe harbor applied to title
III covered entities irrespective of size, it was small businesses that
especially stood to benefit since, according to comments from small
business advocates, small businesses are more likely to operate in
older buildings and facilities. The title III NPRM also offered for
public comment a novel safe harbor provision specifically designed to
address small business advocates' request for clearer guidance on the
readily achievable barrier removal requirement. This proposal provided
that qualified small businesses would be deemed to have satisfied their
readily achievable barrier removal obligations for a given year if,
during that tax year, they had spent at least 1 percent of their
respective gross revenues undertaking measures in compliance with title
III barrier removal requirements. Id. at 34538-39. Lastly, the NPRM
sought public input on the inclusion of reduced scoping provisions for
certain types of small existing recreation facilities (i.e., swimming
pools, play areas, and saunas). Id. at 34515, 34534-37.
During the NPRM comment period, the Department engaged in
considerable public outreach to the small business community. A public
hearing was held in Washington, D.C., during which nearly 50 persons,
including several small business owners, testified in person or by
phone. See Transcript of the Public Hearing on Notices of Proposed
Rulemaking (July 15, 2008), available at www.ada.gov/NPRM2008/public_
hearing_transcript.htm. This hearing was also streamed live over the
Internet. By the end of the 60-day comment period, the Department had
also received nearly 4,500 public comments on the title III NPRM,
including a significant number of comments reflecting small businesses'
perspectives on a wide range of regulatory issues.
In addition to soliciting input from small entities through the
formal process for public comment, the Department also targeted the
small business community with less formal regulatory discussions,
including a Small Business Roundtable convened by the Office of
Advocacy and held at the offices of the Small Business Administration
in Washington, D.C., and an informational question-and-answer session
concerning the titles II and III NPRMs at the Department of Justice in
which business representatives attended in-person and by telephone.
These outreach efforts provided the small business community with
information on the NPRM proposals being considered by the Department
and gave small businesses the opportunity to ask questions of the
Department and provide feedback.
As a result of the feedback provided by representatives of small
business interests on the title III NPRM, the Department was able to
assess the impact of various alternatives on small businesses before
adopting its final rule and took steps to minimize any significant
impact on small entities. Most notably, the final rule retains the
element-by-element safe harbor for which the small business community
voiced strong support. See Appendix A discussion of removal of barriers
(Sec. 36.304). The Department believes that this element-by-element
safe harbor provision will go a long way toward mitigating the economic
impact of the final rule on existing facilities owned or operated by
small businesses. Indeed, as demonstrated in the Final RIA, the
element-by-element safe harbor will provide substantial relief to small
businesses that is estimated at $ 7.5 billion over the expected life of
the final rule.
Additional regulatory measures mitigating the economic impact of
the final rule on title III-covered entities (including small
businesses) include deletion of the proposed requirement for captioning
of safety and emergency information on scoreboards at sporting venues,
retention of the proposed path of travel safe harbor, extension of the
compliance date of the 2010 Standards as applied to new construction
and alterations from 6 months to 18 months after publication of the
final rule, and, in response to public comments, modification of the
triggering event for application of the 2010 Standards to new
construction and alterations from a unitary approach (commencement of
physical construction) to a two-pronged approach (date of last
application for building permit or commencement of physical
construction) depending on whether a building permit is or is not
required for the type of construction at issue by State or local
building authorities. See Appendix A discussions of captioning at
sporting venues (Sec. 36.303), alterations and path of travel (Sec.
36.403), and compliance dates and triggering events for new
construction and alterations (Sec. 36.406).
Two sets of proposed alternative measures that would have
potentially provided some cost savings to small businesses--the safe
harbor for qualified small businesses and reduced scoping for certain
existing recreation facilities--were not adopted by the Department in
the final rule. As discussed in more depth previously, the safe harbor
for qualified small businesses was omitted from the final rule because
the general safe harbor already provides significant relief for small
businesses located in existing facilities, the proposed safe harbor
provision lacked support from the small business community and no
consensus emerged from business commenters concerning feasible bases
for the final regulatory provision, and commenters noted practical
considerations that would potentially make some small businesses incur
greater expense or administrative burden. See Appendix A discussion of
the safe harbor for qualified small businesses (Sec. 36.304).
The Department also omitted the proposals to reduce scoping for
certain existing recreation facilities in the final rule. While these
proposals were not specific to small entities, they nonetheless might
have mitigated the impact of the final rule for some small businesses
that owned or operated existing facilities at which these recreational
elements were located. See

[[Page 56249]]

Appendix A discussion of reduced scoping for play areas and other
recreation facilities (Sec. 36.304). The Department gave careful
consideration to how best to insulate small businesses from overly
burdensome barrier removal costs under the 2010 Standards for existing
small play areas, swimming pools, and saunas, while still providing
accessible and integrated recreation facilities that are of great
importance to persons with disabilities. The Department concluded that
the existing readily achievable barrier removal standard, rather than
specific exemptions for these types of existing facilities, is the most
efficacious method by which to protect small businesses.
Once the final rule is promulgated, small businesses will also have
a wealth of documents to assist them in complying with the 2010
Standards. For example, accompanying the final rule in the Federal
Register is the Department's ``Analysis and Commentary on the 2010 ADA
Standards for Accessible Design,'' which provides a plain language
description of the revised scoping and technical requirements in these
Standards and provides illustrative figures. The Department also
expects to publish guidance specifically tailored to small businesses
in the form of a small business compliance guide, as well as to publish
technical assistance materials of general interest to all covered
entities following promulgation of the final rule. Additionally, the
Access Board has published a number of guides that discuss and
illustrate application of the 2010 Standards to play areas and various
types of recreation facilities.

Executive Order 13132: Federalism

Executive Order 13132, 64 FR 43255, 3 CFR, 2000 Comp., p. 206,
requires executive branch agencies to consider whether a rule will have
federalism implications. That is, the rulemaking agency must determine
whether the rule is likely to have substantial direct effects on State
and local governments, a substantial direct effect on the relationship
between the Federal government and the States and localities, or a
substantial direct effect on the distribution of power and
responsibilities among the different levels of government. If an agency
believes that a rule is likely to have federalism implications, it must
consult with State and local elected officials about how to minimize or
eliminate the effects.
Title III of the ADA covers public accommodations and commercial
facilities. These facilities are generally subject to regulation by
different levels of government, including Federal, State, and local
governments. The ADA and the 2010 Standards set minimum civil rights
protections for individuals with disabilities that in turn may affect
the implementation of State and local laws, particularly building
codes. The 2010 Standards address federalism concerns and mitigate
federalism implications, particularly the provisions that streamline
the administrative process for State and local governments seeking ADA
code certification under title III.
As a member of the Access Board, the Department was privy to
substantial feedback from State and local governments throughout the
development of the Board's 2004 guidelines. Before those guidelines
were finalized as the 2004 ADA/ABA Guidelines, they addressed and
minimized federalism concerns expressed by State and local governments
during the development process. Because the Department adopted ADA
Chapter 1, ADA Chapter 2, and Chapters 3 through 10 of the 2004 ADA/ABA
Guidelines as part of the 2010 Standards, the steps taken in the 2004
ADA/ABA Guidelines to address federalism concerns are reflected in the
2010 Standards.
The Department also solicited and received input from public
entities in the September 2004 ANPRM and the June 2008 NPRM. Through
the ANPRM and NPRM processes, the Department solicited comments from
elected State and local officials and their representative national
organizations about the potential federalism implications. The
Department received comments addressing whether the ANPRM and NPRM
directly affected State and local governments, the relationship between
the Federal government and the States, and the distribution of power
and responsibilities among the various levels of government. The rule
preempts State laws affecting entities subject to the ADA only to the
extent that those laws conflict with the requirements of the ADA, as
set forth in the rule.

National Technology Transfer and Advancement Act of 1995

The National Technology Transfer and Advancement Act of 1995
(NTTAA) directs that, as a general matter, all Federal agencies and
departments shall use technical standards that are developed or adopted
by voluntary consensus standards bodies, which are private, generally
non-profit organizations that develop technical standards or
specifications using well-defined procedures that require openness,
balanced participation among affected interests and groups, fairness
and due process, and an opportunity for appeal, as a means to carry out
policy objectives or activities. Public Law 104-113 section 12(d)(1)
(15 U.S.C. 272 Note). In addition, the NTTAA directs agencies to
consult with voluntary, private sector, consensus standards bodies and
requires that agencies participate with such bodies in the development
of technical standards when such participation is in the public
interest and is compatible with agency and departmental missions,
authorities, priorities, and budget resources. Id. section 12(d)(1).
The Department, as a member of the Access Board, was an active
participant in the lengthy process of developing the 2004 ADAAG, on
which the 2010 Standards are based. As part of this update, the Board
has made its guidelines more consistent with model building codes, such
as the IBC, and industry standards. It coordinated extensively with
model code groups and standard-setting bodies throughout the process so
that differences could be reconciled. As a result, an historic level of
harmonization has been achieved that has brought about improvements to
the guidelines, as well as to counterpart provisions in the IBC and key
industry standards, including those for accessible facilities issued
through the American National Standards Institute.

Plain Language Instructions

The Department makes every effort to promote clarity and
transparency in its rulemaking. In any regulation, there is a tension
between drafting language that is simple and straightforward and
drafting language that gives full effect to issues of legal
interpretation. The Department operates a toll-free ADA Information
Line (800) 514-0301 (voice); (800) 514-0383 (TTY) that the public is
welcome to call at any time to obtain assistance in understanding
anything in this rule. If any commenter has suggestions for how the
regulation could be written more clearly, please contact Janet L.
Blizard, Deputy Chief, Disability Rights Section, whose contact
information is provided in the introductory section of this rule,
entitled FOR FURTHER INFORMATION CONTACT.

Paperwork Reduction Act

The Paperwork Reduction Act of 1980 (PRA) requires agencies to
clear forms and recordkeeping requirements with OMB before they can be
introduced. 44 U.S.C. 3501 et seq. This rule does not contain any
paperwork or recordkeeping requirements and does not require clearance
under the PRA.

[[Page 56250]]

Unfunded Mandates Reform Act

Section 4(2) of the Unfunded Mandates Reform Act of 1995, 2 U.S.C.
1503(2), excludes from coverage under that Act any proposed or final
Federal regulation that ``establishes or enforces any statutory rights
that prohibit discrimination on the basis of race, color, religion,
sex, national origin, age, handicap, or disability.'' Accordingly, this
rulemaking is not subject to the provisions of the Unfunded Mandates
Reform Act.

List of Subjects for 28 CFR Part 36

Administrative practice and procedure, Buildings and facilities,
Business and industry, Civil rights, Individuals with disabilities,
Penalties, Reporting and recordkeeping requirements.

0
By the authority vested in me as Attorney General by law, including 28
U.S.C. 509 and 510, 5 U.S.C. 301, and section 306 of the Americans with
Disabilities Act of 1990, Public Law 101-336 (42 U.S.C. 12186), and for
the reasons set forth in Appendix A to 28 CFR part 36, chapter I of
title 28 of the Code of Federal Regulations is amended as follows:

PART 36--NONDISCRIMINATION ON THE BASIS OF DISABILITY BY PUBLIC
ACCOMMODATIONS AND IN COMMERCIAL FACILITIES

Subpart A--General

0
1. The authority citation for 28 CFR part 36 is revised to read as
follows:

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

0
2. Amend Sec. 36.104 by adding the following definitions of 1991
Standards, 2004 ADAAG, 2010 Standards, direct threat, existing
facility, housing at a place of education, other power-driven mobility
device, qualified reader, video remote interpreting (VRI) service, and
wheelchair in alphabetical order and revising the definitions of place
of public accommodation, qualified interpreter, and service animal to
read as follows:

Sec. 36.104 Definitions.

1991 Standards means requirements set forth in the ADA Standards
for Accessible Design, originally published on July 26, 1991, and
republished as Appendix D to this part.
2004 ADAAG means the requirements set forth in appendices B and D
to 36 CFR part 1191 (2009).
2010 Standards means the 2010 ADA Standards for Accessible Design,
which consist of the 2004 ADAAG and the requirements contained in
subpart D of this part.
* * * * *
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 Sec. 36.208.
* * * * *
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.
* * * * *
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.
* * * * *
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[supreg] 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.
* * * * *
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.
* * * * *
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.
* * * * *

[[Page 56251]]

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 provided in Sec.
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).

Subpart B--General Requirements

0
3. Amend Sec. 36.208 by removing paragraph (b) and redesignating
paragraph (c) as paragraph (b) and by revising redesignated paragraph
(b) to read as follows:

Sec. 36.208 Direct threat.

* * * * *
(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.

0
4. Amend Sec. 36.211 by adding paragraph (c) to read as follows:

Sec. 36.211 Maintenance of accessible features.

* * * * *
(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.

Subpart C--Specific Requirements

0
5. Amend Sec. 36.302 as follows:
0
a. Revise paragraph (c)(2); and
0
b. Add paragraphs (c)(3) through (c)(9) and paragraphs (e) and (f) to
read as follows:

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

(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 Sec. 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.
* * * * *
(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;

[[Page 56252]]

(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 March 15, 2012.
(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 fewer 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

[[Page 56253]]

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.

0
6. Amend Sec. 36.303 as follows:
0
a. Revise paragraphs (b)(1), (b)(2), (c), and (d);
0
b. Redesignate paragraph (f) as paragraph (g); and
0
c. Add paragraph (f) to read as follows:

Sec. 36.303 Auxiliary aids and services.

* * * * *
(b) * * *
(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 (TTYs), 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;
* * * * *
(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

[[Page 56254]]

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 accessible 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.
* * * * *
(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.
* * * * *

0
7. Amend Sec. 36.304 as follows:
0
a. Revise paragraph (d)(1);
0
b. Redesignate paragraph (d)(2) as (d)(3);
0
c. Amend newly redesignated paragraph (d)(3) by removing the reference
to ``(d)(1)'' and adding ``(d)(1) and (d)(2)'' in its place;
0
d. Add paragraphs (d)(2) and (g)(4); and
0
e. Add an Appendix to paragraph (d) to read as follows:

Sec. 36.304 Removal of barriers.

* * * * *
(d) * * * (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 Sec. 36.402 and Sec. Sec. 36.404 through 36.406 of
this part for the element being altered. The path of travel
requirements of Sec. 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 March 15, 2012 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 March 15, 2012, 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 Sec.
36.406(a)(5).
(B) On or after March 15, 2012, 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 the
requirements set forth in the 2010 Standards. Noncomplying newly
constructed and altered elements may also be subject to the
requirements of Sec. 36.406(a)(5).
(iii) The safe harbor provided in Sec. 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 Sec. 36.406(a)(5). 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 Sec. 36.304(d)

Compliance Dates and Applicable Standards for Barrier Removal and Safe
Harbor
------------------------------------------------------------------------
Applicable
Date Requirement standards
------------------------------------------------------------------------
Before March 15, 2012......... Elements that do not 1991 Standards
comply with the or 2010
requirements for Standards.
those elements in the
1991 Standards must
be modified to the
extent readily
achievable.

[[Page 56255]]

Note: Noncomplying
newly constructed and
altered elements may
also be subject to
the requirements of
Sec. 36.406(a)(5).
On or after March 15, 2012.... Elements that do not 2010 Standards.
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
Sec. 36.406(a)(5).
Elements not altered after Elements that comply Safe Harbor.
March 15, 2012. with the requirements
for those elements in
the 1991 Standards do
not need to be
modified.
------------------------------------------------------------------------

* * * * *
(g) * * *
(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.

0
8. Revise Sec. 36.308 to read as follows:

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.

0
9. Amend Sec. 36.309 by adding paragraphs (b)(1)(iv) through (vi) to
read as follows:

Sec. 36.309 Examinations and courses.

* * * * *
(b)(1)* * *
(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 to 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.
* * * * *
10. Add Sec. 36.311 to read as follows:

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 Sec. 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

[[Page 56256]]

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.

Subpart D--New Construction and Alterations

0
11. Amend Sec. 36.403 by retaining the heading of paragraph (a),
designating the text of paragraph (a) as paragraph (a)(1), adding
paragraph (a)(2), and revising paragraph (f)(2)(iii) to read as
follows:

Sec. 36.403 Alterations: Path of travel.

(a) General. (1) * * *
(2) 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.
* * * * *
(f) * * *
(2) * * *
(iii) Costs associated with providing accessible telephones, such a
relocating the telephone to an accessible height, installing
amplification devices, or installing a text telephone (TTY);
* * * * *

0
12. Revise Sec. 36.405 to read as follows:

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.

0
13. Revise Sec. 36.406 to read as follows:

Sec. 36.406 Standards for new construction and alterations.

(a) Accessibility standards and compliance date. (1) New
construction and alterations subject to Sec. Sec. 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 September 15, 2010, or if no permit is required,
if the start of physical construction or alterations occurs before
September 15, 2010.
(2) New construction and alterations subject to Sec. Sec. 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 September 15,
2010 and before March 15, 2012, or if no permit is required, if the
start of physical construction or alterations occurs on or after
September 15, 2010 and before March 15, 2012.
(3) New construction and alterations subject to Sec. Sec. 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 March 15, 2012, or if no permit is required,
if the start of physical construction or alterations occurs on or after
March 15, 2012.
(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 Sec. Sec.
36.401 or 36.402 that were constructed or altered before March 15, 2012
and that do not comply with the 1991 Standards shall, before March 15,
2012, be made accessible in accordance with either the 1991 Standards
or the 2010 Standards.
(ii) Newly constructed or altered facilities or elements covered by
Sec. Sec. 36.401 or 36.402 that were constructed or altered before
March 15, 2012 and that do not comply with the 1991 Standards shall, on
or after March 15, 2012, be made accessible in accordance with the 2010
Standards.

Appendix to Sec. 36.406(a)

------------------------------------------------------------------------
Compliance dates for new construction
and alterations Applicable standards
------------------------------------------------------------------------
On or after January 26, 1993 and before 1991 Standards.
September 15, 2010.
On or after September 15, 2010 and 1991 Standards or 2010
before March 15, 2012. Standards.
On or after March 15, 2012............. 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 of the 2010
Standards.
(1) Guest rooms. Guest rooms with mobility features in places of
lodging subject to the transient lodging

[[Page 56257]]

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 Sec. 36.402 or the
alterations requirements in section 224.1.1 of the 2010 Standards.
(3) Facilities with residential dwelling 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) In assembly areas that are required to horizontally disperse
wheelchair spaces and companion seats by section 221.2.3.1 of the 2010
Standards and that have seating encircling, in whole or in part, a
field of play or performance, wheelchair spaces and companion seats are
dispersed 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) In stadium-style movie theaters, wheelchair spaces and
companion seats are located 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. 36.407 [Removed and Reserved]

0
14. Remove and reserve Sec. 36.407.

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

Sec. 36.603 [Removed]

0
15. Remove Sec. 36.603.

0
16. Redesignate Sec. 36.604 as Sec. 36.603 and revise it to read as
follows:

Sec. 36.603 Preliminary determination.

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.

0
17. Redesignate Sec. 36.605 as Sec. 36.604, revise the introductory
text to paragraph (a), and revise paragraphs (a)(2) and (b) to read as
follows:

Sec. 36.604 Procedure following preliminary determination of
equivalency.

(a) If the Assistant Attorney General makes a preliminary
determination of equivalency under Sec. 36.603, he or she

[[Page 56258]]

shall inform the submitting official, in writing, of that preliminary
determination. The Assistant Attorney General also shall--
* * * * *
(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.

0
18. Redesignate Sec. 36.606 as Sec. 36.605 and revise the first
sentence of paragraph (a) to read as follows:

Sec. 36.605 Procedure following preliminary denial of certification.

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

0
19. Redesignate Sec. 36.607 as Sec. 36.606 and add paragraph (d) to
read as follows:

Sec. 36.606 Effect of 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. 36.608 [Redesignated as Sec. 36.607]

0
20. Redesignate Sec. 36.608 as Sec. 36.607.

0
21. Redesignate Appendix A to part 36 as Appendix D to part 36 and add
Appendix A to part 36 to read as follows:

[[Page 56259]]

Appendix A to Part 36--Guidance on Revisions to ADA Regulation on
Nondiscrimination on the Basis of Disability by Public Accommodations
and Commercial Facilities

Note: This Appendix contains guidance providing a section-by-
section analysis of the revisions to 28 CFR part 36 published on
September 15, 2010.

Section-By-Section Analysis and Response to Public Comments

This section provides a detailed description of the Department's
changes to the title III regulation, the reasoning behind those
changes, and responses to public comments received on these topics.
The Section-by-Section Analysis follows the order of the title III
regulation itself, except that if the Department has not changed a
regulatory section, the unchanged section has not been mentioned.

Subpart A--General

Section 36.104 Definitions

``1991 Standards'' and ``2004 ADAAG''
The Department has included in the final rule new definitions of
both the ``1991 Standards'' and the ``2004 ADAAG.'' The term ``1991
Standards'' refers to the ADA Standards for Accessible Design,
originally published on July 26, 1991, and republished as Appendix D
to 28 CFR part 36. The term ``2004 ADAAG'' refers to ADA Chapter 1,
ADA Chapter 2, and Chapters 3 through 10 of the Americans with
Disabilities Act and the Architectural Barriers Act Accessibility
Guidelines, which were issued by the Access Board on July 23, 2004,
codified at 36 CFR 1191, app. B and D (2009), and which the
Department has adopted in this final rule. These terms are included
in the definitions section for ease of reference.

``2010 Standards''

The Department has added to the final rule a definition of the
term ``2010 Standards.'' The term ``2010 Standards'' refers to 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.

``Direct Threat''

The final rule moves the definition of direct threat from Sec.
36.208(b) to the definitions section at Sec. 36.104. This is an
editorial change. Consequently, Sec. 36.208(c) becomes Sec.
36.208(b) in the final rule.

``Existing Facility''

The 1991 title III regulation provided definitions for ``new
construction'' at Sec. 36.401(a) and ``alterations'' at Sec.
36.402(b). In contrast, the term ``existing facility'' was not
explicitly defined, although it is used in the statute and
regulations for titles II and III. See, e.g., 42 U.S.C.
12182(b)(2)(A)(iv); 28 CFR 35.150. It has been the Department's view
that newly constructed or altered facilities are also existing
facilities subject to title III's continuing barrier removal
obligation, and that view is made explicit in this rule.
The classification of facilities under the ADA is neither static
nor mutually exclusive. Newly constructed or altered facilities are
also existing facilities. A newly constructed facility remains
subject to the accessibility standards in effect at the time of
design and construction, with respect to those elements for which,
at that time, there were applicable ADA Standards. That same
facility, however, after construction, is also an existing facility,
and subject to the public accommodation's continuing obligation to
remove barriers where it is readily achievable to do so. The fact
that the facility is also an existing facility does not relieve the
public accommodation of its obligations under the new construction
requirements of this part. Rather, it means that in addition to the
new construction requirements, the public accommodation has a
continuing obligation to remove barriers that arise, or are deemed
barriers, only after construction. Such barriers include but are not
limited to the elements that are first covered in the 2010
Standards, as that term is defined in Sec. 36.104.
At some point, the same facility may undergo alterations, which
are subject to the alterations requirements in effect at that time.
This facility remains subject to its original new construction
standards for elements and spaces not affected by the alterations;
the facility is subject to the alterations requirements and
standards in effect at the time of the alteration for the elements
and spaces affected by the alteration; and, throughout, the facility
remains subject to the continuing barrier removal obligation.
The Department's enforcement of the ADA is premised on a broad
understanding of ``existing facility.'' The ADA contemplates that as
the Department's knowledge and understanding of accessibility
advances and evolves, this knowledge will be incorporated into and
result in increased accessibility in the built environment. Title
III's barrier removal provisions strike the appropriate balance
between ensuring that accessibility advances are reflected in the
built environment and mitigating the costs of those advances to
public accommodations. With adoption of the final rule, public
accommodations engaged in barrier removal measures will now be
guided by the 2010 Standards, defined in Sec. 36.104, and the safe
harbor in Sec. 36.304(d)(2).
The NPRM included the following proposed definition of
``existing facility'': ``[A] facility that has been constructed and
remains in existence on any given date.'' 73 FR 34508, 34552 (June
17, 2008). While the Department intended the proposed definition to
provide clarity with respect to public accommodations' continuing
obligation to remove barriers where it is readily achievable to do
so, some commenters pointed out arguable ambiguity in the language
and the potential for misapplication of the rule in practice.
The Department received a number of comments on this issue. The
commenters urged the Department to clarify that all buildings remain
subject to the standards in effect at the time of their
construction, that is, that a facility designed and constructed for
first occupancy between January 26, 1993, and the effective date of
the final rule is still considered ``new construction'' and that
alterations occurring between January 26, 1993, and the effective
date of the final rule are still considered ``alterations.''
The final rule includes clarifying language to ensure that the
Department's interpretation is accurately reflected. As established
by this rule, 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. Thus, this
definition reflects the Department's longstanding interpretation
that public accommodations have obligations in existing facilities
that are independent of but may coexist with requirements imposed by
new construction or alteration requirements in those same
facilities.

``Housing at a Place of Education''

The Department has added a new definition to Sec. 36.104,
``housing at a place of education,'' to clarify the types of
educational housing programs that are covered by this title. This
section defines ``housing at a place of education'' as ``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.''
This definition does not apply to social service programs that
combine residential housing with social services, such as a
residential job training program.

``Other Power-Driven Mobility Device'' and ``Wheelchair''

Because relatively few individuals with disabilities were using
nontraditional mobility devices in 1991, there was no pressing need
for the 1991 title III regulation to define the terms ``wheelchair''
or ``other power-driven mobility device,'' to expound on what would
constitute a reasonable modification in policies, practices, or
procedures under Sec. 36.302, or to set forth within that section
specific requirements for the accommodation of mobility devices.
Since the issuance of the 1991 title III regulation, however, the
choices of mobility devices available to individuals with
disabilities have increased dramatically. The Department has
received complaints about and has become aware of situations where
individuals with mobility disabilities have utilized devices that
are not designed primarily for use by an individual with a mobility
disability, including the Segway[supreg] Personal Transporter
(Segway[supreg] PT), golf cars, all-terrain vehicles (ATVs), and
other locomotion devices.
The Department also has received questions from public
accommodations and individuals with mobility disabilities concerning
which mobility devices must be accommodated and under what
circumstances. Indeed, there has been litigation concerning the
legal obligations of covered entities to accommodate individuals
with mobility disabilities who wish to use an electronic personal
assistance mobility device (EPAMD), such as the Segway[supreg] PT,
as a mobility device. The Department has participated in such
litigation as amicus curiae. See Ault v. Walt Disney World Co., No.
6:07-cv-1785-Orl-31KRS, 2009 WL

[[Page 56260]]

3242028 (M.D. Fla. Oct. 6, 2009). Much of the litigation has
involved shopping malls where businesses have refused to allow
persons with disabilities to use EPAMDs. See, e.g., McElroy v. Simon
Property Group, No. 08-404 RDR, 2008 WL 4277716 (D. Kan. Sept. 15,
2008) (enjoining mall from prohibiting the use of a Segway[supreg]
PT as a mobility device where an individual agrees to all of a
mall's policies for use of the device, except indemnification);
Shasta Clark, Local Man Fighting Mall Over Right to Use Segway, WATE
6 News, July 26, 2005, available at http://www.wate.com/Global/
story.asp?s=3643674 (last visited June 24, 2010).
In response to questions and complaints from individuals with
disabilities and covered entities concerning which mobility devices
must be accommodated and under what circumstances, the Department
began developing a framework to address the use of unique mobility
devices, concerns about their safety, and the parameters for the
circumstances under which these devices must be accommodated. As a
result, the Department's NPRM proposed two new approaches to
mobility devices. First, the Department proposed a two-tiered
mobility device definition that defined the term ``wheelchair''
separately from ``other power-driven mobility device.'' Second, the
Department proposed requirements to allow the use of devices in each
definitional category. In Sec. 36.311(a), the NPRM proposed that
wheelchairs and manually-powered mobility aids used by individuals
with mobility disabilities shall be permitted in any areas open to
pedestrian use. Section 36.311(b) of the NPRM proposed that a public
accommodation ``shall make reasonable modifications in its policies,
practices, and procedures to permit the use of other power-driven
mobility devices by individuals with disabilities, unless the public
accommodation can demonstrate that the use of the device is not
reasonable or that its use will result in a fundamental alteration
in the nature of the public accommodation's goods, services,
facilities, privileges, advantages, or accommodations.'' 73 FR
34508, 34556 (June 17, 2008).
The Department sought public comment with regard to whether
these steps would, in fact, achieve clarity on these issues. Toward
this end, the Department's NPRM asked several questions relating to
the definitions of ``wheelchair,'' ``other power-driven mobility
device,'' and ``manually-powered mobility aids''; the best way to
categorize different classes of mobility devices, the types of
devices that should be included in each category; and the
circumstances under which certain types of mobility devices must be
accommodated or may be excluded pursuant to the policy adopted by
the public accommodation.
Because the questions in the NPRM that concerned mobility
devices and their accommodation were interrelated, many of the
commenters' responses did not identify the specific question to
which they were responding. Instead, commenters grouped the
questions together and provided comments accordingly. Most
commenters spoke to the issues addressed in the Department's
questions in broad terms and using general concepts. As a result,
the responses to the questions posed are discussed below in broadly
grouped issue categories rather than on a question-by-question
basis.
Two-tiered definitional approach. Commenters supported the
Department's proposal to use a two-tiered definition of mobility
device. Commenters nearly universally said that wheelchairs always
should be accommodated and that they should never be subject to an
assessment with regard to their admission to a particular public
accommodation. In contrast, the vast majority of commenters
indicated they were in favor of allowing public accommodations to
conduct an assessment as to whether, and under which circumstances,
other power-driven mobility devices will be allowed on-site.
Many commenters also indicated their support for the two-tiered
approach in responding to questions concerning the definition of
``wheelchair'' and ``other power-driven mobility device.'' Nearly
every disability advocacy group said that the Department's two-
tiered approach strikes the proper balance between ensuring access
for individuals with disabilities and addressing fundamental
alteration and safety concerns held by public accommodations;
however, a minority of disability advocacy groups wanted other
power-driven mobility devices to be included in the definition of
``wheelchair.'' Most advocacy, nonprofit, and individual commenters
supported the concept of a separate definition for ``other power-
driven mobility device'' because a separate definition would
maintain existing legal protections for wheelchairs while
recognizing that some devices that are not designed primarily for
individuals with mobility disabilities have beneficial uses for
individuals with mobility disabilities. They also favored this
concept because it recognizes technological developments and that
innovative uses of varying devices may provide increased access to
individuals with mobility disabilities.
While two business associations indicated that they opposed the
concept of ``other power-driven mobility device'' in its entirety,
other business commenters expressed general and industry-specific
concerns about permitting their use. They indicated that such
devices create a host of safety, cost, and fraud issues that do not
exist with wheelchairs. On balance, however, business commenters
indicated that they support the establishment of a two-tiered
regulatory approach because defining ``other power-driven mobility
device'' separately from ``wheelchair'' means that businesses will
be able to maintain some measure of control over the admission of
the former. Virtually all of these commenters indicated that their
support for the dual approach and the concept of other power-driven
mobility devices was, in large measure, due to the other power-
driven mobility device assessment factors in Sec. 36.311(c) of the
NPRM.
By maintaining the two-tiered approach to mobility devices and
defining ``wheelchair'' separately from ``other power-driven
mobility device,'' the Department is able to preserve the protection
users of traditional wheelchairs and other manually-powered mobility
aids have had since the ADA was enacted, while also recognizing that
human ingenuity, personal choice, and new technologies have led to
the use of devices that may be more beneficial for individuals with
certain mobility disabilities.
Moreover, the Department believes the two-tiered approach gives
public accommodations guidance to follow in assessing whether
reasonable modifications can be made to permit the use of other
power-driven mobility devices on-site and to aid in the development
of policies describing the circumstances under which persons with
disabilities may use such devices. The two-tiered approach neither
mandates that all other power-driven mobility devices be
accommodated in every circumstance, nor excludes these devices from
all protection. This approach, in conjunction with the factor
assessment provisions in Sec. 36.311(b)(2), will serve as a
mechanism by which public accommodations can evaluate their ability
to accommodate other power-driven mobility devices. As will be
discussed in more detail below, the assessment factors in Sec.
36.311(b)(2) are specifically designed to provide guidance to public
accommodations regarding whether it is permissible to bar the use of
a specific other power-driven mobility device in a specific
facility. In making such a determination, a public accommodation
must consider the device's type, size, weight dimensions, and speed;
the facility's volume of pedestrian traffic; the facility's design
and operational characteristics; whether the device conflicts with
legitimate safety requirements; and whether the device poses a
substantial risk of serious harm to the immediate environment or
natural or cultural resources, or conflicts with Federal land
management laws or regulations. In addition, under Sec.
36.311(b)(i) if the public accommodation claims that it cannot make
reasonable modifications to its policies, practices, or procedures
to permit the use of other power-driven mobility devices by
individuals with disabilities, the burden of proof to demonstrate
that such devices cannot be operated in accordance with legitimate
safety requirements rests upon the public accommodation.
Categorization of wheelchair versus other power-driven mobility
devices. Implicit in the creation of the two-tiered mobility device
concept is the question of how to categorize which devices are
wheelchairs and which are other power-driven mobility devices.
Finding weight and size to be too restrictive, the vast majority of
advocacy, nonprofit, and individual commenters opposed using the
Department of Transportation's definition of ``common wheelchair''
to designate the mobility device's appropriate category. Business
commenters who generally supported using weight and size as the
method of categorization did so because of their concerns about
having to make physical changes to their facilities to accommodate
oversized devices. The vast majority of business commenters also
favored using the device's intended use to categorize which devices
constitute wheelchairs and which are other power-driven mobility
devices.

[[Page 56261]]

Furthermore, the intended-use determinant received a fair amount of
support from advocacy, nonprofit, and individual commenters, either
because they sought to preserve the broad accommodation of
wheelchairs or because they sympathized with concerns about
individuals without mobility disabilities fraudulently bringing
other power-driven mobility devices into places of public
accommodation.
Commenters seeking to have the Segway[supreg] PT included in the
definition of ``wheelchair'' objected to classifying mobility
devices on the basis of their intended use because they felt that
such a classification would be unfair and prejudicial to
Segway[supreg] PT users and would stifle personal choice,
creativity, and innovation. Other advocacy and nonprofit commenters
objected to employing an intended-use approach because of concerns
that the focus would shift to an assessment of the device, rather
than the needs or benefits to the individual with the mobility
disability. They were of the view that the mobility-device
classification should be based on its function--whether it is used
to address a mobility disability. A few commenters raised the
concern that an intended-use approach might embolden public
accommodations to assess whether an individual with a mobility
disability really needs to use the other power-driven mobility
device at issue or to question why a wheelchair would not provide
sufficient mobility. Those citing objections to the intended-use
determinant indicated it would be more appropriate to make the
categorization determination based on whether the device is being
used for a mobility disability in the context of the impact of its
use in a specific environment. Some of these commenters preferred
this approach because it would allow the Segway[supreg] PT to be
included in the definition of ``wheelchair.''
Some commenters were inclined to categorize mobility devices by
the way in which they are powered, such as battery-powered engines
versus fuel or combustion engines. One commenter suggested using
exhaust level as the determinant. Although there were only a few
commenters who would make the determination based on indoor or
outdoor use, there was nearly universal support for banning from
indoor use devices that are powered by fuel or combustion engines.
A few commenters thought it would be appropriate to categorize
the devices based on their maximum speed. Others objected to this
approach, stating that circumstances should dictate the appropriate
speed at which mobility devices should be operated--for example, a
faster speed may be safer when crossing streets than it would be for
sidewalk use--and merely because a device can go a certain speed
does not mean it will be operated at that speed.
The Department has decided to maintain the device's intended use
as the appropriate determinant for which devices are categorized as
``wheelchairs.'' However, because wheelchairs may be intended for
use by individuals who have temporary conditions affecting mobility,
the Department has decided that it is more appropriate to use the
phrase ``primarily designed'' rather than ``solely designed'' in
making such categorizations. The Department will not foreclose any
future technological developments by identifying or banning specific
devices or setting restrictions on size, weight, or dimensions.
Moreover, devices designed primarily for use by individuals with
mobility disabilities often are considered to be medical devices and
are generally eligible for insurance reimbursement on this basis.
Finally, devices designed primarily for use by individuals with
mobility disabilities are less subject to fraud concerns because
they were not designed to have a recreational component.
Consequently, rarely, if ever, is any inquiry or assessment as to
their appropriateness for use in a public accommodation necessary.
Definition of ``wheelchair.'' In seeking public feedback on the
NPRM's definition of ``wheelchair,'' the Department explained its
concern that the definition of ``wheelchair'' in section 508(c)(2)
of the ADA (formerly section 507(c)(2), July 26, 1990, 104 Stat.
372, 42 U.S.C. 12207, renumbered section 508(c)(2), Public Law 110-
325 section 6(a)(2), Sept. 25, 2008, 122 Stat. 3558), which pertains
to Federal wilderness areas, is not specific enough to provide clear
guidance in the array of settings covered by title III and that the
stringent size and weight requirements for the Department of
Transportation's definition of ``common wheelchair'' are not a good
fit in the context of most public accommodations. The Department
noted in the NPRM that it sought a definition of ``wheelchair'' that
would include manually-operated and power-driven wheelchairs and
mobility scooters (i.e., those that typically are single-user, have
three to four wheels, and are appropriate for both indoor and
outdoor pedestrian areas), as well as a variety of types of
wheelchairs and mobility scooters with individualized or unique
features or models with different numbers of wheels. The NPRM
defined a wheelchair as ``a device designed solely for use by an
individual with a mobility impairment for the primary purpose of
locomotion in typical indoor and outdoor pedestrian areas. A
wheelchair may be manually-operated or power-driven.'' 73 FR 34508,
34553 (June 17, 2008). Although the NPRM's definition of
``wheelchair'' excluded mobility devices that are not designed
solely for use by individuals with mobility disabilities, the
Department, noting that the use of the Segway[supreg] PT by
individuals with mobility disabilities is on the upswing, inquired
as to whether this device should be included in the definition of
``wheelchair.''
Most business commenters wished the definition of ``wheelchair''
had included size, weight, and dimension maximums. Ultimately,
however, they supported the definition because it excludes other
power-driven mobility devices and enables them to engage in an
assessment to determine whether a particular device can be allowed
as a reasonable modification. These commenters felt this approach
gave them some measure of control over whether, and under what
circumstances, other power-driven mobility devices may be used in
their facilities by individuals with mobility disabilities. Two
commenters noted that because many mobility scooters are oversized,
they are misplaced in the definition of ``wheelchair'' and belong
with other power-driven mobility devices. Another commenter
suggested using maximum size and weight requirements to allocate
which mobility scooters should be categorized as wheelchairs, and
which should be categorized as other power-driven mobility devices.
Many advocacy, nonprofit, and individual commenters indicated
that as long as the Department intends the scope of the term
``mobility impairments'' to include other disabilities that cause
mobility impairments (e.g., respiratory, circulatory, stamina,
etc.), they were in support of the language. Several commenters
indicated a preference for the definition of ``wheelchair'' in
section 508(c)(2) of the ADA. One commenter indicated a preference
for the term ``assistive device,'' as it is defined in the
Rehabilitation Act of 1973, over the term ``wheelchair.'' A few
commenters indicated that strollers should be added to the
preamble's list of examples of wheelchairs because parents of
children with disabilities frequently use strollers as mobility
devices until their children get older.
In the final rule, the Department has rearranged some wording
and has made some changes in the terminology used in the definition
of ``wheelchair,'' but essentially has retained the definition, and
therefore the rationale, that was set forth in the NPRM. Again, the
text of the ADA makes the definition of ``wheelchair'' contained in
section 508(c)(2) applicable only to the specific context of uses in
designated wilderness areas, and therefore does not compel the use
of that definition for any other purpose. Moreover, the Department
maintains that limiting the definition to devices suitable for use
in an ``indoor pedestrian area'' as provided for in section
508(c)(2) of the ADA would ignore the technological advances in
wheelchair design that have occurred since the ADA went into effect
and that the inclusion of the phrase ``indoor pedestrian area'' in
the definition of ``wheelchair'' would set back progress made by
individuals with mobility disabilities who, for many years now, have
been using devices designed for locomotion in indoor and outdoor
settings. The Department has concluded that same rationale applies
to placing limits on the size, weight, and dimensions of
wheelchairs.
With regard to the term ``mobility impairments,'' the Department
intended a broad reading so that a wide range of disabilities,
including circulatory and respiratory disabilities, that make
walking difficult or impossible, would be included. In response to
comments on this issue, the Department has revisited the issue and
has concluded that the most apt term to achieve this intent is
``mobility disability.''
In addition, the Department has decided that it is more
appropriate to use the phrase, ``primarily'' designed for use by
individuals with disabilities in the final rule, rather than,
``solely'' designed for use by individuals with disabilities--the
phrase, proposed in the NPRM. The Department believes that this

[[Page 56262]]

phrase more accurately covers the range of devices the Department
intends to fall within the definition of ``wheelchair.''
After receiving comments that the word ``typical'' is vague and
the phrase ``pedestrian areas'' is confusing to apply, particularly
in the context of similar, but not identical, terms used in the
proposed Standards, the Department decided to delete the term
``typical indoor and outdoor pedestrian areas'' from the final rule.
Instead, the final rule references ``indoor or * * * both indoor and
outdoor locomotion,'' to make clear that the devices that fall
within the definition of ``wheelchair'' are those that are used for
locomotion on indoor and outdoor pedestrian paths or routes and not
those that are intended exclusively for traversing undefined,
unprepared, or unimproved paths or routes. Thus, the final rule
defines the term ``wheelchair'' to mean ``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.''
Whether the definition of ``wheelchair'' includes the
Segway[supreg] PT. As discussed above, because individuals with
mobility disabilities are using the Segway[supreg] PT as a mobility
device, the Department asked whether it should be included in the
definition of ``wheelchair.'' The basic Segway[supreg] PT model is a
two-wheeled, gyroscopically-stabilized, battery-powered personal
transportation device. The user stands on a platform suspended three
inches off the ground by wheels on each side, grasps a T-shaped
handle, and steers the device similarly to a bicycle. Most
Segway[supreg] PTs can travel up to 12\1/2\ miles per hour, compared
to the average pedestrian walking speed of 3 to 4 miles per hour and
the approximate maximum speed for power-operated wheelchairs of 6
miles per hour. In a study of trail and other non-motorized
transportation users including EPAMDs, the Federal Highway
Administration (FHWA) found that the eye height of individuals using
EPAMDs ranged from approximately 69 to 80 inches. See Federal
Highway Administration, Characteristics of Emerging Road and Trail
Users and Their Safety (Oct. 14, 2004), available at http://
www.tfhrc.gov/safety/pubs/04103 (last visited June 24, 2010). Thus,
the Segway[supreg] PT can operate at much greater speeds than
wheelchairs, and the average user stands much taller than most
wheelchair users.
The Segway[supreg] PT has been the subject of debate among
users, pedestrians, disability advocates, State and local
governments, businesses, and bicyclists. The fact that the
Segway[supreg] PT is not designed primarily for use by individuals
with disabilities, nor used primarily by persons with disabilities,
complicates the question of to what extent individuals with
disabilities should be allowed to operate them in areas and
facilities where other power-driven mobility devices are not
allowed. Those who question the use of the Segway[supreg] PT in
pedestrian areas argue that the speed, size, and operating features
of the devices make them too dangerous to operate alongside
pedestrians and wheelchair users.
Comments regarding whether to include the Segway[supreg] PT in
the definition of ``wheelchair'' were, by far, the most numerous
received in the category of comments regarding wheelchairs and other
power-driven mobility devices. Significant numbers of veterans with
disabilities, individuals with multiple sclerosis, and those
advocating on their behalf made concise statements of general
support for the inclusion of the Segway[supreg] PT in the definition
of ``wheelchair.'' Two veterans offered extensive comments on the
topic, along with a few advocacy and nonprofit groups and
individuals with disabilities for whom sitting is uncomfortable or
impossible.
While there may be legitimate safety issues for EPAMD users and
bystanders in some circumstances, EPAMDs and other non-traditional
mobility devices can deliver real benefits to individuals with
disabilities. Among the reasons given by commenters to include the
Segway[supreg] PT in the definition of ``wheelchair'' were that the
Segway[supreg] PT is well-suited for individuals with particular
conditions that affect mobility including multiple sclerosis,
Parkinson's disease, chronic obstructive pulmonary disease,
amputations, spinal cord injuries, and other neurological
disabilities, as well as functional limitations, such as gait
limitation, inability to sit or discomfort in sitting, and
diminished stamina issues. Such individuals often find that EPAMDs
are more comfortable and easier to use than more traditional
mobility devices and assist with balance, circulation, and digestion
in ways that wheelchairs do not. See Rachel Metz, Disabled Embrace
Segway, New York Times, Oct. 14, 2004. Commenters specifically cited
pressure relief, reduced spasticity, increased stamina, and improved
respiratory, neurologic, and muscular health as secondary medical
benefits from being able to stand.
Other arguments for including the Segway[supreg] PT in the
definition of ``wheelchair'' were based on commenters' views that
the Segway[supreg] PT offers benefits not provided by wheelchairs
and mobility scooters, including its intuitive response to body
movement, ability to operate with less coordination and dexterity
than is required for many wheelchairs and mobility scooters, and
smaller footprint and turning radius as compared to most wheelchairs
and mobility scooters. Several commenters mentioned improved
visibility, either due to the Segway[supreg] PT's raised platform or
simply by virtue of being in a standing position. And finally, some
commenters advocated for the inclusion of the Segway[supreg] PT
simply based on civil rights arguments and the empowerment and self-
esteem obtained from having the power to select the mobility device
of choice.
Many commenters, regardless of their position on whether to
include the Segway[supreg] PT in the definition of ``wheelchair,''
noted that the Segway[supreg] PT's safety record is as good as, if
not better, than the record for wheelchairs and mobility scooters.
Most business commenters were opposed to the inclusion of the
Segway[supreg] PT in the definition of ``wheelchair'' but were
supportive of its inclusion as an ``other power-driven mobility
device.'' They raised industry- or venue-specific concerns about
including the Segway[supreg] PT in the definition of ``wheelchair.''
For example, civic centers, arenas, and theaters were concerned
about the impact on sight-line requirements if Segway[supreg] PT
users remain on their devices in a designated wheelchair seating
area; amusement parks expressed concern that rides have been
designed, purchased, and installed to enable wheelchair users to
transfer easily or to accommodate wheelchairs on the ride itself;
and retail stores mentioned size constraints in some stores. Nearly
all business commenters expressed concern--and perceived liability
issues--related to having to store or stow the Segway[supreg] PT,
particularly if it could not be stored in an upright position. These
commenters cited concerns about possible damage to the device,
injury to customers who may trip over it, and theft of the device as
a result of not being able to stow the Segway[supreg] PT securely.
Virtually every business commenter mentioned concerns about
rider safety, as well as concerns for pedestrians unexpectedly
encountering these devices or being hit or run over by these devices
in crowded venues where maneuvering space is limited. Their main
safety objection to the inclusion of the Segway[supreg] PT in the
definition of ``wheelchair'' was that the maximum speed at which the
Segway[supreg] PT can operate is far faster than that of motorized
wheelchairs. There was a universal unease among these commenters
with regard to relying on the judgment of the Segway[supreg] PT user
to exercise caution because its top speed is far in excess of a
wheelchair's top speed. Many other safety concerns were industry-
specific. For example, amusement parks were concerned that the
Segway[supreg] PT is much taller than children; that it is too quiet
to warn pedestrians, particularly those with low vision or who are
blind, of their presence; that it may keep moving after a rider has
fallen off or power system fails; and that it has a full-power
override which automatically engages when an obstacle is
encountered. Hotels and retail stores mentioned that maneuvering the
Segway[supreg] PT through their tight quarters would create safety
hazards.
Business commenters also expressed concern that if the
Segway[supreg] PT were included in the definition of ``wheelchair''
they would have to make physical changes to their facilities to
accommodate Segway[supreg] PT riders who stand much taller in these
devices than do users of wheelchairs. They also were concerned that
if the Segway[supreg]7 PT was included in the definition of
``wheelchair,'' they would have no ability to assess whether it is
appropriate to allow the entry of the Segway[supreg] PT into their
facilities the way they would have if the device is categorized as
an ``other power-driven mobility device.''
Many disability advocacy and nonprofit commenters did not
support the inclusion of the Segway[supreg] PT in the definition of
``wheelchair.'' Paramount to these commenters was the maintenance of
existing protections for wheelchair users. Because there was
unanimous agreement that wheelchair use rarely, if ever, may be
restricted, these commenters strongly favored

[[Page 56263]]

categorizing wheelchairs separately from the Segway[supreg] PT and
other power-driven mobility devices and applying the intended-use
determinant to assign the devices to either category. They indicated
that while they support the greatest degree of access in public
accommodations for all persons with disabilities who require the use
of mobility devices, they recognize that under certain circumstances
allowing the use of other power-driven mobility devices would result
in a fundamental alteration or run counter to legitimate safety
requirements necessary for the safe operation of a public
accommodation. While these groups supported categorizing the
Segway[supreg] PT as an ``other power-driven mobility device,'' they
universally noted that because the Segway[supreg] PT does not
present environmental concerns and is as safe to use as, if not
safer than, a wheelchair, it should be accommodated in most
circumstances.
The Department has considered all the comments and has concluded
that it should not include the Segway[supreg] PT in the definition
of ``wheelchair.'' The final rule provides that the test for
categorizing a device as a wheelchair or an other power-driven
mobility device is whether the device is designed primarily for use
by individuals with mobility disabilities. Mobility scooters are
included in the definition of ``wheelchair'' because they are
designed primarily for users with mobility disabilities. However,
because the current generation of EPAMDs, including the
Segway[supreg] PT, was designed for recreational users and not
primarily for use by individuals with mobility disabilities, the
Department has decided to continue its approach of excluding EPAMDs
from the definition of ``wheelchair'' and including them in the
definition of ``other power-driven mobility device.'' Although
EPAMDs, such as the Segway[supreg] PT, are not included in the
definition of a ``wheelchair,'' public accommodations must assess
whether they can make reasonable modifications to permit individuals
with mobility disabilities to use such devices on their premises.
The Department recognizes that the Segway[supreg] PT provides many
benefits to those who use them as mobility devices, including a
measure of privacy with regard to the nature of one's particular
disability, and believes that in the vast majority of circumstances,
the application of the factors described in Sec. 36.311 for
providing access to other-powered mobility devices will result in
the admission of the Segway[supreg] PT.
Treatment of ``manually-powered mobility aids.'' The
Department's NPRM did not define the term ``manually-powered
mobility aids.'' Instead, the NPRM included a non-exhaustive list of
examples in Sec. 36.311(a). The NPRM queried whether the Department
should maintain this approach to manually-powered mobility aids or
whether it should adopt a more formal definition.
Only a few commenters addressed ``manually-powered mobility
aids.'' Virtually all commenters were in favor of maintaining a non-
exhaustive list of examples of ``manually-powered mobility aids''
rather than adopting a definition of the term. Of those who
commented, a couple sought clarification of the term ``manually-
powered.'' One commenter suggested that the term be changed to
``human-powered.'' Other commenters requested that the Department
include ordinary strollers in the non-exhaustive list of manually-
powered mobility aids. Since strollers are not devices designed
primarily for individuals with mobility disabilities, the Department
does not consider them to be manually-powered mobility aids;
however, strollers used in the context of transporting individuals
with disabilities are subject to the same assessment required by the
ADA's reasonable modification standards at Sec. 36.302. The
Department believes that because the existing approach is clear and
understood easily by the public, no formal definition of the term
``manually-powered mobility aids'' is required.
Definition of ``other power-driven mobility device.'' The
Department's NPRM defined the term ``other power-driven mobility
device'' in Sec. 36.104 as ``any of a large range of devices
powered by batteries, fuel, or other engines--whether or not
designed solely for use by individuals with mobility impairments--
that are used by individuals with mobility impairments for the
purpose of locomotion, including golf cars, bicycles, electronic
personal assistance mobility devices (EPAMDs), or any mobility aid
designed to operate in areas without defined pedestrian routes.'' 73
FR 34508, 34552 (June 17, 2008).
Business commenters mostly were supportive of the definition of
``other power-driven mobility device'' because it gave them the
ability to develop policies pertaining to the admission of these
devices, but they expressed concern that individuals will feign
mobility disabilities so that they can use devices that are
otherwise banned in public accommodations. Advocacy, nonprofit, and
several individual commenters supported the definition of ``other
power-driven mobility device'' because it allows new technologies to
be added in the future, maintains the existing legal protections for
wheelchairs, and recognizes that some devices, particularly the
Segway[supreg] PT, which are not designed primarily for individuals
with mobility disabilities, have beneficial uses for individuals
with mobility disabilities.
Despite support for the definition of ``other power-driven
mobility device,'' however, most advocacy and nonprofit commenters
expressed at least some hesitation about the inclusion of fuel-
powered mobility devices in the definition. While virtually all of
these commenters noted that a blanket exclusion of any device that
falls under the definition of ``other power-driven mobility device''
would violate basic civil rights concepts, they also specifically
stated that certain devices, particularly off-highway vehicles,
cannot be permitted in certain circumstances. They also made a
distinction between the Segway[supreg] PT and other power-driven
mobility devices, noting that the Segway[supreg] PT should be
accommodated in most circumstances because it satisfies the safety
and environmental elements of the policy analysis. These commenters
indicated that they agree that other power-driven mobility devices
must be assessed, particularly as to their environmental impact,
before they are accommodated.
Business commenters were even less supportive of the inclusion
of fuel-powered devices in the other power-driven mobility devices
category. They sought a complete ban on fuel-powered devices because
they believe they are inherently dangerous and pose environmental
and safety concerns.
Although many commenters had reservations about the inclusion of
fuel-powered devices in the definition of other power-driven
mobility devices, the Department does not want the definition to be
so narrow that it would foreclose the inclusion of new technological
developments, whether powered by fuel or by some other means. It is
for this reason that the Department has maintained the phrase ``any
mobility device designed to operate in areas without defined
pedestrian routes'' in the final rule's definition of other power-
driven mobility devices. The Department believes that the
limitations provided by ``fundamental alteration'' and the ability
to impose legitimate safety requirements will likely prevent the use
of fuel and combustion engine-driven devices indoors, as well as in
outdoor areas with heavy pedestrian traffic. The Department notes,
however, that in the future technological developments may result in
the production of safe fuel-powered mobility devices that do not
pose environmental and safety concerns. The final rule allows
consideration to be given as to whether the use of a fuel-powered
device would create a substantial risk of serious harm to the
environment or natural or cultural resources, and to whether the use
of such a device conflicts with Federal land management laws or
regulations; this aspect of the final rule will further limit the
inclusion of fuel-powered devices where they are not appropriate.
Consequently, the Department has maintained fuel-powered devices in
the definition of ``other power-driven mobility devices.'' The
Department has also added language to the definition of ``other
power-driven mobility device'' to reiterate that the definition does
not apply to Federal wilderness areas, which are not covered by
title II of the ADA; the use of wheelchairs in such areas is
governed by section 508(c)(2) of the ADA, 42 U.S.C. 12207(c)(2).

``Place of Public Accommodation''

Definition of ``place of lodging.'' The NPRM stated that a
covered ``place of lodging'' is a facility that provides guest rooms
for sleeping for stays that are primarily short-term in nature
(generally two weeks or less), to which the occupant does not have
the right or intent to return to a specific room or unit after the
conclusion of his or her stay, and which operates under conditions
and with amenities similar to a hotel, motel, or inn, particularly
including factors such as: (1) An on-site proprietor and
reservations desk; (2) rooms available on a walk-up basis; (3) linen
service; and (4) a policy of accepting reservations for a room type
without guaranteeing a particular unit or room until check-in,
without a prior lease or security deposit. The NPRM stated that
timeshares and condominiums or corporate hotels that did not meet
this definition would not be covered by Sec. 36.406(c) of the
proposed regulation, but may be covered by the

[[Page 56264]]

requirements of the Fair Housing Act (FHAct).
In the NPRM, the Department sought comment on its definition of
``place of lodging,'' specifically seeking public input on whether
the most appropriate time period for identifying facilities used for
stays that primarily are short-term in nature should be set at 2
weeks or 30 days.
The vast majority of the comments received by the Department
supported the use of a 30-day limitation on places of lodging as
more consistent with building codes, local laws, and common real
estate practices that treat stays of 30 days or less as transient
rather than residential use. One commenter recommended using the
phrase ``fourteen days or less.'' Another commenter objected to any
bright line standard, stating that the difference between two weeks
and 30 days for purposes of title III is arbitrary, viewed in light
of conflicting regulations by the States. This commenter argued the
Department should continue its existing practice under title III of
looking to State law as one factor in determining whether a facility
is used for stays that primarily are short-term in nature.
The Department is persuaded by the majority of commenters to
adopt a 30-day guideline for the purposes of identifying facilities
that primarily are short-term in nature and has modified the section
accordingly. The 30-day guideline is intended only to determine when
the final rule's transient lodging provisions apply to a facility.
It does not alter an entity's obligations under any other applicable
statute. For example, the Department recognizes that the FHAct does
not employ a bright line standard for determining which facilities
qualify as residential facilities under that Act and that there are
circumstances where units in facilities that meet the definition of
places of lodging will be covered under both the ADA and the FHAct
and will have to comply with the requirements of both laws.
The Department also received comments about the factors used in
the NPRM's definition of ``place of lodging.'' One commenter
proposed modifications to the definition as follows: changing the
words ``guest rooms'' to ``accommodations for sleeping''; and adding
a fifth factor that states that ``the in-room decor, furnishings and
equipment being specified by the owner or operator of the lodging
operation rather than generally being determined by the owner of the
individual unit or room.'' The Department does not believe that
``guest room'' should be changed to ``accommodations for sleeping.''
Such a change would create confusion because the transient lodging
provisions in the 2004 ADAAG use the term ``guest rooms'' and not
``accommodations for sleeping.'' In addition, the Department
believes that it would be confusing to add a factor relating to who
dictates the in-room decor and furnishings in a unit or room,
because there may be circumstances where particular rental programs
require individual owners to use certain decor and furnishings as a
condition of participating in that program.
One commenter stated that the factors the Department has
included for determining whether a rental unit is a place of lodging
for the purposes of title III, and therefore a ``place of public
accommodation'' under the ADA, address only the way an establishment
appears to the public. This commenter recommended that the
Department also consider the economic relationships among the unit
owners, rental managers, and homeowners' associations, noting that
where revenues are not pooled (as they are in a hotel), the economic
relationships do not make it possible to spread the cost of
providing accessibility features over the entire business
enterprise. Another commenter argued that private ownership of
sleeping accommodations sets certain facilities apart from
traditional hotels, motels, and inns, and that the Department should
revise the definition of places of lodging to exempt existing places
of lodging that have sleeping accommodations separately owned by
individual owners (e.g., condominiums) from the accessible transient
lodging guest room requirements in sections 224 and 806 of the 2004
ADAAG, although the commenter agreed that newly constructed places
of lodging should meet those standards.
One commenter argued that the Department's proposed definition
of place of lodging does not reflect fully the nature of a timeshare
facility and one single definition does not fit timeshares, condo
hotels, and other types of rental accommodations. This commenter
proposed that the Department adopt a separate definition for
timeshare resorts as a subcategory of place of lodging. The
commenter proposed defining timeshare resorts as facilities that
provide the recurring right to occupancy for overnight
accommodations for the owners of the accommodations, and other
occupancy rights for owners exchanging their interests or members of
the public for stays that primarily are short-term in nature
(generally 30 consecutive days or less), where neither the owner nor
any other occupant has the right or intent to use the unit or room
on other than a temporary basis for vacation or leisure purposes.
This proposed definition also would describe factors for determining
when a timeshare resort is operating in a manner similar to a hotel,
motel, or inn, including some or all of the following: rooms being
available on a walk-in or call-in basis; housekeeping or linen
services being available; on-site management; and reservations being
accepted for a room type without guaranteeing any guest or owner use
of a particular unit or room until check-in, without a prior lease
or security deposit. Timeshares that do not meet this definition
would not be subject to the transient lodging standards.
The Department has considered these comments and has revised the
definition of ``place of accommodation'' in Sec. 36.104 to include
a revised subcategory (B), which more clearly defines the factors
that must be present for a facility that is not an inn, motel, or
hotel to qualify as a place of lodging. These factors include
conditions and amenities similar to an inn, motel, or hotel,
including on- or off-site management and reservations service, rooms
available on a walk-up or call-in basis, availability of
housekeeping or linen service, and accepting reservations for a room
type without guaranteeing a particular unit or room until check-in
without a prior lease or security deposit.
Although the Department understands some of the concerns about
the application of the ADA requirements to places of lodging that
have ownership structures that involve individually owned units, the
Department does not believe that the definitional section of the
regulation is the place to address these concerns and has addressed
them in Sec. 36.406(c)(2) and the accompanying discussion in
Appendix A.

``Qualified Interpreter''

In the NPRM, the Department proposed adding language to the
definition of ``qualified interpreter'' to clarify that the term
includes, but is not limited to, sign language interpreters, oral
interpreters, and cued-speech interpreters. As the Department
explained, not all interpreters are qualified for all situations.
For example, a qualified interpreter who uses American Sign Language
(ASL) is not necessarily qualified to interpret orally. In addition,
someone with only a rudimentary familiarity with sign language or
finger spelling is not qualified, nor is someone who is fluent in
sign language but unable to translate spoken communication into ASL
or to translate signed communication into spoken words.
As further explained, different situations will require
different types of interpreters. For example, an oral interpreter
who has special skill and training to mouth a speaker's words
silently for individuals who are deaf or hard of hearing may be
necessary for an individual who was raised orally and taught to read
lips or was diagnosed with hearing loss later in life and does not
know sign language. An individual who is deaf or hard of hearing may
need an oral interpreter if the speaker's voice is unclear, if there
is a quick-paced exchange of communication (e.g., in a meeting), or
when the speaker does not directly face the individual who is deaf
or hard of hearing. A cued-speech interpreter functions in the same
manner as an oral interpreter except that he or she also uses a hand
code or cue to represent each speech sound.
The Department received many comments regarding the proposed
modifications to the definition of ``qualified interpreter.'' Many
commenters requested that the Department include within the
definition a requirement that interpreters be certified,
particularly if they reside in a State that licenses or certifies
interpreters. Other commenters opposed a certification requirement
as unduly limiting, noting that an interpreter may well be qualified
even if that same interpreter is not certified. These commenters
noted the absence of nationwide standards or universally accepted
criteria for certification.
On review of this issue, the Department has decided against
imposing a certification requirement under the ADA. It is sufficient
under the ADA that the interpreter be qualified. With respect to the
proposed additions to the rule, most commenters supported the
expansion of the list of qualified interpreters, and some advocated
for the inclusion of other types of interpreters

[[Page 56265]]

on the list as well, such as deaf-blind interpreters, certified deaf
interpreters, and speech-to-speech interpreters. As these commenters
explained, deaf-blind interpreters are interpreters who have
specialized skills and training to interpret for individuals who are
deaf and blind. Certified deaf interpreters are deaf or hard of
hearing interpreters who work with hearing sign language
interpreters to meet the specific communication needs of deaf
individuals. Speech-to-speech interpreters have special skill and
training to interpret for individuals who have speech disabilities.
The list of interpreters in the definition of ``qualified
interpreter'' is illustrative, and the Department does not believe
it is necessary or appropriate to attempt to provide an exhaustive
list of qualified interpreters. Accordingly, the Department has
decided not to expand the proposed list. However, if a deaf and
blind individual needs interpreting services, an interpreter who is
qualified to handle the interpreting needs of that individual may be
required. The guiding criterion is that the public accommodation
must provide appropriate auxiliary aids and services to ensure
effective communication with the individual.
Commenters also suggested various definitions for the term
``cued-speech interpreters,'' and different descriptions of the
tasks they performed. After reviewing the various comments, the
Department has determined that it is more accurate and appropriate
to refer to such individuals as ``cued-language transliterators.''
Likewise, the Department has changed the term ``oral interpreters''
to ``oral transliterators.'' These two changes have been made to
distinguish between sign language interpreters, who translate one
language into another language (e.g., ASL to English and English to
ASL), from transliterators, who interpret within the same language
between deaf and hearing individuals. A cued-language transliterator
is an interpreter who has special skill and training in the use of
the Cued Speech system of handshapes and placements, along with non-
manual information, such as facial expression and body language, to
show auditory information visually, including speech and
environmental sounds. An oral transliterator is an interpreter who
has special skill and training to mouth a speaker's words silently
for individuals who are deaf or hard of hearing. While the
Department included definitions for ``cued-speech interpreter'' and
``oral interpreter'' in the regulatory text proposed in the NPRM,
the Department has decided that it is unnecessary to include such
definitions in the text of the final rule.
Many commenters questioned the proposed deletion of the
requirement that a qualified interpreter be able to interpret both
receptively and expressively, noting the importance of both these
skills. Commenters noted that this phrase was carefully crafted in
the original regulation to make certain that interpreters both (1)
are capable of understanding what a person with a disability is
saying and (2) have the skills needed to convey information back to
that individual. These are two very different skill sets and both
are equally important to achieve effective communication. For
example, in a medical setting, a sign language interpreter must have
the necessary skills to understand the grammar and syntax used by an
ASL user (receptive skills) and the ability to interpret complicated
medical information--presented by medical staff in English--back to
that individual in ASL (expressive skills). The Department agrees
and has put the phrase ``both receptively and expressively'' back in
the definition.
Several advocacy groups suggested that the Department make clear
in the definition of qualified interpreter that the interpreter may
appear either on-site or remotely using a video remote interpreting
(VRI) service. Given that the Department has included in this rule
both a definition of VRI services and standards that such services
must satisfy, such an addition to the definition of qualified
interpreter is appropriate.
After consideration of all relevant information submitted during
the public comment period, the Department has modified the
definition from that initially proposed in the NPRM. The final
definition now states that ``[q]ualified 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''

The 1991 title III regulation identified a qualified reader as
an auxiliary aid, but did not define the term. Based upon the
Department's investigation of complaints alleging that some entities
have provided ineffective readers, the Department proposed in the
NPRM to define ``qualified reader'' similarly to ``qualified
interpreter'' to ensure that public accommodations select qualified
individuals to read an examination or other written information in
an effective, accurate, and impartial manner. This proposal was
suggested in order to make clear to public accommodations that a
failure to provide a qualified reader to a person with a disability
may constitute a violation of the requirement to provide appropriate
auxiliary aids and services.
The Department received comments supporting the inclusion in the
regulation of a definition of a ``qualified reader.'' Some
commenters suggested the Department add to the definition a
requirement prohibiting the use of a reader whose accent, diction,
or pronunciation makes full comprehension of material being read
difficult. Another commenter requested that the Department include a
requirement that the reader ``will follow the directions of the
person for whom he or she is reading.'' Commenters also requested
that the Department define ``accurately'' and ``effectively'' as
used in this definition.
While the Department believes that the regulatory definition
proposed in the NPRM adequately addresses these concerns, the
Department emphasizes that a reader, in order to be ``qualified,''
must be skilled in reading the language and subject matter and must
be able to be easily understood by the individual with the
disability. For example, if a reader is reading aloud the questions
for a bar examination, that reader, in order to be qualified, must
know the proper pronunciation of all legal terminology used and must
be sufficiently articulate to be easily understood by the individual
with a disability for whom he or she is reading. In addition, the
terms ``effectively'' and ``accurately'' have been successfully used
and understood in the Department's existing definition of
``qualified interpreter'' since 1991 without specific regulatory
definitions. Instead, the Department has relied upon the common use
and understanding of those terms from standard English dictionaries.
Thus, the definition of ``qualified reader'' has not been changed
from that contained in the NPRM. The final rule defines a
``qualified reader'' to mean ``a person who is able to read
effectively, accurately, and impartially using any necessary
specialized vocabulary.''

``Service Animal''

Section 36.104 of the 1991 title III regulation defines a
``service animal'' as ``any guide dog, signal dog, or other animal
individually trained to do work or perform tasks for the benefit of
an individual with a disability, including, but not limited to,
guiding individuals with impaired vision, alerting individuals with
impaired hearing to intruders or sounds, providing minimal
protection or rescue work, pulling a wheelchair, or fetching dropped
items.'' Section 36.302(c)(1) of the 1991 title III regulation
requires that ``[g]enerally, a public accommodation shall modify
policies, practices, or procedures to permit the use of a service
animal by an individual with a disability.'' Section 36.302(c)(2) of
the 1991 title III regulation states that ``a public accommodation
[is not required] to supervise or care for a service animal.''
The Department has issued guidance and provided technical
assistance and publications concerning service animals since the
1991 regulations became effective. In the NPRM, the Department
proposed to modify the definition of service animal and asked for
public input on several issues related to the service animal
provisions of the 1991 title III regulation: whether the Department
should clarify the phrase ``providing minimal protection'' in the
definition or remove it; whether there are any circumstances where a
service animal ``providing minimal protection'' would be appropriate
or expected; whether certain species should be eliminated from the
definition of ``service animal,'' and, if so, which types of animals
should be excluded; whether ``common domestic animal'' should be
part of the definition; and whether a size or weight limitation
should be imposed for common domestic animals, even if the animal
satisfies the ``common domestic animal'' part of the NPRM
definition.
The Department received extensive comments on these issues, as
well as requests to clarify the obligations of public accommodations
to accommodate individuals with disabilities who use service
animals, and has modified the final rule in response. In the
interests of avoiding unnecessary repetition, the Department has

[[Page 56266]]

elected to discuss the issues raised in the NPRM questions about
service animals and the corresponding public comments in the
following discussion of the definition of ``service animal.''
The Department's final rule defines ``service animal'' as ``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.''
This definition has been designed to clarify a key provision of
the ADA. Many covered entities indicated that they are confused
regarding their obligations under the ADA with regard to individuals
with disabilities who use service animals. Individuals with
disabilities who use trained guide or service dogs are concerned
that if untrained or unusual animals are termed ``service animals,''
their own right to use guide or service dogs may become
unnecessarily restricted or questioned. Some individuals who are not
individuals with disabilities have claimed, whether fraudulently or
sincerely (albeit mistakenly), that their animals are service
animals covered by the ADA, in order to gain access to hotels,
restaurants, and other places of public accommodation. The
increasing use of wild, exotic, or unusual species, many of which
are untrained, as service animals has also added to the confusion.
Finally, individuals with disabilities who have the legal right
under the Fair Housing Act (FHAct) to use certain animals in their
homes as a reasonable accommodation to their disabilities have
assumed that their animals also qualify under the ADA. This is not
necessarily the case, as discussed below.
The Department recognizes the diverse needs and preferences of
individuals with disabilities protected under the ADA, and does not
wish to unnecessarily impede individual choice. Service animals play
an integral role in the lives of many individuals with disabilities,
and with the clarification provided by the final rule, individuals
with disabilities will continue to be able to use their service
animals as they go about their daily activities. The clarification
will also help to ensure that the fraudulent or mistaken use of
other animals not qualified as service animals under the ADA will be
deterred. A more detailed analysis of the elements of the definition
and the comments responsive to the service animal provisions of the
NPRM follows.
Providing minimal protection. The 1991 title III regulation
included language stating that ``minimal protection'' was a task
that could be performed by an individually trained service animal
for the benefit of an individual with a disability. In the
Department's ``ADA Business Brief on Service Animals'' (2002), the
Department interpreted the ``minimal protection'' language within
the context of a seizure (i.e., alerting and protecting a person who
is having a seizure). The Department received many comments in
response to the question of whether the ``minimal protection''
language should be clarified. Many commenters urged the removal of
the ``minimal protection'' language from the service animal
definition for two reasons: (1) The phrase can be interpreted to
allow any dog that is trained to be aggressive to qualify as a
service animal simply by pairing the animal with a person with a
disability; and (2) The phrase can be interpreted to allow any
untrained pet dog to qualify as a service animal, since many
consider the mere presence of a dog to be a crime deterrent, and
thus sufficient to meet the minimal protection standard. These
commenters argued, and the Department agrees, that these
interpretations were not contemplated under the original title III
regulation.
While many commenters stated that they believe that the
``minimal protection'' language should be eliminated, other
commenters recommended that the language be clarified, but retained.
Commenters favoring clarification of the term suggested that the
Department explicitly exclude the function of attack or exclude
those animals that are trained solely to be aggressive or
protective. Other commenters identified non-violent behavioral tasks
that could be construed as minimally protective, such as
interrupting self-mutilation, providing safety checks and room
searches, reminding the handler to take medications, and protecting
the handler from injury resulting from seizures or unconsciousness.
Several commenters noted that the existing direct threat
defense, which allows the exclusion of a service animal if the
animal exhibits unwarranted or unprovoked violent behavior or poses
a direct threat, prevents the use of ``attack dogs'' as service
animals. One commenter noted that the use of a service animal
trained to provide ``minimal protection'' may impede access to care
in an emergency, for example, where the first responder is unable or
reluctant to approach a person with a disability because the
individual's service animal is in a protective posture suggestive of
aggression.
Many organizations and individuals stated that in the general
dog training community, ``protection'' is code for attack or
aggression training and should be removed from the definition.
Commenters stated that there appears to be a broadly held
misconception that aggression-trained animals are appropriate
service animals for persons with post traumatic stress disorder
(PTSD). While many individuals with PTSD may benefit by using a
service animal, the work or tasks performed appropriately by such an
animal would not involve unprovoked aggression but could include
actively cuing the handler by nudging or pawing the handler to alert
to the onset of an episode and removing the individual from the
anxiety-provoking environment.
The Department recognizes that despite its best efforts to
provide clarification, the ``minimal protection'' language appears
to have been misinterpreted. While the Department maintains that
protection from danger is one of the key functions that service
animals perform for the benefit of persons with disabilities, the
Department recognizes that an animal individually trained to provide
aggressive protection, such as an attack dog, is not appropriately
considered a service animal. Therefore, the Department has decided
to modify the ``minimal protection'' language to read ``non-violent
protection,'' thereby excluding so-called ``attack dogs'' or dogs
with traditional ``protection training'' as service animals. The
Department believes that this modification to the service animal
definition will eliminate confusion, without restricting
unnecessarily the type of work or tasks that service animals may
perform. The Department's modification also clarifies that the
crime-deterrent effect of a dog's presence, by itself, does not
qualify as work or tasks for purposes of the service animal
definition.
Alerting to intruders. The phrase ``alerting to intruders'' is
related to the issues of minimal protection and the work or tasks an
animal may perform to meet the definition of a service animal. In
the original 1991 regulatory text, this phrase was intended to
identify service animals that alert individuals who are deaf or hard
of hearing to the presence of others. This language has been
misinterpreted by some to apply to dogs that are trained
specifically to provide aggressive protection, resulting in the
assertion that such training qualifies a dog as a service animal
under the ADA. The Department reiterates that public accommodations
are not required to admit any animal whose use poses a direct
threat. In addition, the Department has decided to remove the word
``intruders'' from the service animal definition and replace it with
the phrase ``the presence of people or sounds.'' The Department
believes this clarifies that so-called ``attack training'' or other
aggressive response types of training that cause a dog to provide an
aggressive response do not qualify a dog as a service animal under
the ADA.
Conversely, if an individual uses a breed of dog that is
perceived to be aggressive because of breed reputation, stereotype,
or the history or experience the observer may have with other dogs,
but the dog is under the control of the individual with a disability
and does not exhibit aggressive behavior, the public accommodation
cannot exclude the individual or the animal from the place of public
accommodation. The animal can only be removed if it engages in the
behaviors

[[Page 56267]]

mentioned in Sec. 36.302(c) (as revised in the final rule) or if
the presence of the animal constitutes a fundamental alteration to
the nature of the goods, services, facilities, and activities of the
place of public accommodation.
``Doing work'' or ``performing tasks.'' The NPRM proposed that
the Department maintain the requirement first articulated in the
1991 title III regulation that in order to qualify as a service
animal, the animal must ``perform tasks'' or ``do work'' for the
individual with a disability. The phrases ``perform tasks'' and ``do
work'' describe what an animal must do for the benefit of an
individual with a disability in order to qualify as a service
animal.
The Department received a number of comments in response to the
NPRM proposal urging the removal of the term ``do work'' from the
definition of a service animal. These commenters argued that the
Department should emphasize the performance of tasks instead. The
Department disagrees. Although the common definition of work
includes the performance of tasks, the definition of work is
somewhat broader, encompassing activities that do not appear to
involve physical action.
One service dog user stated that, in some cases, ``critical
forms of assistance can't be construed as physical tasks,'' noting
that the manifestations of ``brain-based disabilities,'' such as
psychiatric disorders and autism, are as varied as their physical
counterparts. The Department agrees with this statement but cautions
that unless the animal is individually trained to do something that
qualifies as work or a task, the animal is a pet or support animal
and does not qualify for coverage as a service animal. A pet or
support animal may be able to discern that the handler is in
distress, but it is what the animal is trained to do in response to
this awareness that distinguishes a service animal from an observant
pet or support animal.
The NPRM contained an example of ``doing work'' that stated ``a
psychiatric service dog can help some individuals with dissociative
identity disorder to remain grounded in time or place.'' 73 FR
34508, 34521 (June 17, 2008). Several commenters objected to the use
of this example, arguing that grounding was not a ``task'' and
therefore the example inherently contradicted the basic premise that
a service animal must perform a task in order to mitigate a
disability. Other commenters stated that ``grounding'' should not be
included as an example of ``work'' because it could lead to some
individuals claiming that they should be able to use emotional
support animals in public because the dog makes them feel calm or
safe. By contrast, one commenter with experience in training service
animals explained that grounding is a trained task based upon very
specific behavioral indicators that can be observed and measured.
These tasks are based upon input from mental health practitioners,
dog trainers, and individuals with a history of working with
psychiatric service dogs.
It is the Department's view that an animal that is trained to
``ground'' a person with a psychiatric disorder does work or
performs a task that would qualify it as a service animal as
compared to an untrained emotional support animal whose presence
affects a person's disability. It is the fact that the animal is
trained to respond to the individual's needs that distinguishes an
animal as a service animal. The process must have two steps:
Recognition and response. For example, if a service animal senses
that a person is about to have a psychiatric episode and it is
trained to respond, for example, by nudging, barking, or removing
the individual to a safe location until the episode subsides, then
the animal has indeed performed a task or done work on behalf of the
individual with the disability, as opposed to merely sensing an
event.
One commenter suggested defining the term ``task,'' presumably
to improve the understanding of the types of services performed by
an animal that would be sufficient to qualify the animal for
coverage. The Department believes that the common definition of the
word ``task'' is sufficiently clear and that it is not necessary to
add to the definitions section. However, the Department has added
examples of other kinds of work or tasks to help illustrate and
provide clarity to the definition. After careful evaluation of this
issue, the Department has concluded that the phrases ``do work'' and
``perform tasks'' have been effective during the past two decades to
illustrate the varied services provided by service animals for the
benefit of individuals with all types of disabilities. Thus, the
Department declines to depart from its longstanding approach at this
time.
Species limitations. When the Department originally issued its
title III regulation in the early 1990s, the Department did not
define the parameters of acceptable animal species. At that time,
few anticipated the variety of animals that would be promoted as
service animals in the years to come, which ranged from pigs and
miniature horses to snakes, iguanas, and parrots. The Department has
followed this particular issue closely, keeping current with the
many unusual species of animals represented to be service animals.
Thus, the Department has decided to refine further this aspect of
the service animal definition in the final rule.
The Department received many comments from individuals and
organizations recommending species limitations. Several of these
commenters asserted that limiting the number of allowable species
would help stop erosion of the public's trust, which has resulted in
reduced access for many individuals with disabilities who use
trained service animals that adhere to high behavioral standards.
Several commenters suggested that other species would be acceptable
if those animals could meet nationally recognized behavioral
standards for trained service dogs. Other commenters asserted that
certain species of animals (e.g., reptiles) cannot be trained to do
work or perform tasks, so these animals would not be covered.
In the NPRM, the Department used the term ``common domestic
animal'' in the service animal definition and excluded reptiles,
rabbits, farm animals (including horses, miniature horses, ponies,
pigs, and goats), ferrets, amphibians, and rodents from the service
animal definition. 73 FR 34508, 34553 (June 17, 2008). However, the
term ``common domestic animal'' is difficult to define with
precision due to the increase in the number of domesticated species.
Also, several State and local laws define a ``domestic'' animal as
an animal that is not wild.
The Department is compelled to take into account the practical
considerations of certain animals and to contemplate their
suitability in a variety of public contexts, such as restaurants,
grocery stores, hospitals, and performing arts venues, as well as
suitability for urban environments. The Department agrees with
commenters' views that limiting the number and types of species
recognized as service animals will provide greater predictability
for public accommodations as well as added assurance of access for
individuals with disabilities who use dogs as service animals. As a
consequence, the Department has decided to limit this rule's
coverage of service animals to dogs, which are the most common
service animals used by individuals with disabilities.
Wild animals, monkeys, and other nonhuman primates. Numerous
business entities endorsed a narrow definition of acceptable service
animal species, and asserted that there are certain animals (e.g.,
reptiles) that cannot be trained to do work or perform tasks. Other
commenters suggested that the Department should identify excluded
animals, such as birds and llamas, in the final rule. Although one
commenter noted that wild animals bred in captivity should be
permitted to be service animals, the Department has decided to make
clear that all wild animals, whether born or bred in captivity or in
the wild, are eliminated from coverage as service animals. The
Department believes that this approach reduces risks to health or
safety attendant with wild animals. Some animals, such as certain
nonhuman primates, including certain monkeys, pose a direct threat;
their behavior can be unpredictably aggressive and violent without
notice or provocation. The American Veterinary Medical Association
(AVMA) issued a position statement advising against the use of
monkeys as service animals, stating that ``[t]he AVMA does not
support the use of nonhuman primates as assistance animals because
of animal welfare concerns, and the potential for serious injury and
zoonotic [animal to human disease transmission] risks.'' AVMA
Position Statement, Nonhuman Primates as Assistance Animals (2005),
available at http://www.avma.org/issues/policy/nonhuman_
primates.asp (last visited June 24, 2010).
An organization that trains capuchin monkeys to provide in-home
services to individuals with paraplegia and quadriplegia was in
substantial agreement with the AVMA's views but requested a limited
recognition in the service animal definition for the capuchin
monkeys it trains to provide assistance for persons with
disabilities. The organization commented that its trained capuchin
monkeys undergo scrupulous veterinary examinations to ensure that
the animals pose no health risks, and are used by individuals with
disabilities exclusively in their homes. The organization
acknowledged

[[Page 56268]]

that the capuchin monkeys it trains are not necessarily suitable for
use in a place of public accommodation but noted that the monkeys
may need to be used in circumstances that implicate title III
coverage, e.g., in the event the handler had to leave home due to an
emergency, to visit a veterinarian, or for the initial delivery of
the monkey to the individual with a disability. The organization
noted that several State and local government entities have local
zoning, licensing, health, and safety laws that prohibit non-human
primates, and that these prohibitions would prevent individuals with
disabilities from using these animals even in their homes.
The organization argued that including capuchin monkeys under
the service animal umbrella would make it easier for individuals
with disabilities to obtain reasonable modifications of State and
local licensing, health, and safety laws that would permit the use
of these monkeys. The organization argued that this limited
modification to the service animal definition was warranted in view
of the services these monkeys perform, which enable many individuals
with paraplegia and quadriplegia to live and function with increased
independence.
The Department has carefully considered the potential risks
associated with the use of nonhuman primates as service animals in
places of public accommodation, as well as the information provided
to the Department about the significant benefits that trained
capuchin monkeys provide to certain individuals with disabilities in
residential settings. The Department has determined, however, that
nonhuman primates, including capuchin monkeys, will not be
recognized as service animals for purposes of this rule because of
their potential for disease transmission and unpredictable
aggressive behavior. The Department believes that these
characteristics make nonhuman primates unsuitable for use as service
animals in the context of the wide variety of public settings
subject to this rule. As the organization advocating the inclusion
of capuchin monkeys acknowledges, capuchin monkeys are not suitable
for use in public facilities.
The Department emphasizes that it has decided only that capuchin
monkeys will not be included in the definition of service animals
for purposes of its regulation implementing the ADA. This decision
does not have any effect on the extent to which public
accommodations are required to allow the use of such monkeys under
other Federal statutes, like the FHAct or the Air Carrier Access Act
(ACAA). For example, a public accommodation that also is considered
to be a ``dwelling'' may be covered under both the ADA and the
FHAct. While the ADA does not require such a public accommodation to
admit people with service monkeys, the FHAct may. Under the FHAct an
individual with a disability may have the right to have an animal
other than a dog in his or her home if the animal qualifies as a
``reasonable accommodation'' that is necessary to afford the
individual equal opportunity to use and enjoy a dwelling, assuming
that the use of the animal does not pose a direct threat. In some
cases, the right of an individual to have an animal under the FHAct
may conflict with State or local laws that prohibit all individuals,
with or without disabilities, from owning a particular species.
However, in this circumstance, an individual who wishes to request a
reasonable modification of the State or local law must do so under
the FHAct, not the ADA.
Having considered all of the comments about which species should
qualify as service animals under the ADA, the Department has
determined the most reasonable approach is to limit acceptable
species to dogs.
Size or weight limitations. The vast majority of commenters did
not support a size or weight limitation. Commenters were typically
opposed to a size or weight limit because many tasks performed by
service animals require large, strong dogs. For instance, service
animals may perform tasks such as providing balance and support or
pulling a wheelchair. Small animals may not be suitable for large
adults. The weight of the service animal user is often correlated
with the size and weight of the service animal. Others were
concerned that adding a size and weight limit would further
complicate the difficult process of finding an appropriate service
animal. One commenter noted that there is no need for a limit
because ``if, as a practical matter, the size or weight of an
individual's service animal creates a direct threat or fundamental
alteration to a particular public entity or accommodation, there are
provisions that allow for the animal's exclusion or removal.'' Some
common concerns among commenters in support of a size and weight
limit were that a larger animal may be less able to fit in various
areas with its handler, such as toilet rooms and public seating
areas, and that larger animals are more difficult to control.
Balancing concerns expressed in favor of and against size and
weight limitations, the Department has determined that such
limitations would not be appropriate. Many individuals of larger
stature require larger dogs. The Department believes it would be
inappropriate to deprive these individuals of the option of using a
service dog of the size required to provide the physical support and
stability these individuals may need to function independently.
Since large dogs have always served as service animals, continuing
their use should not constitute fundamental alterations or impose
undue burdens on public accommodations.
Breed limitations. A few commenters suggested that certain
breeds of dogs should not be allowed to be used as service animals.
Some suggested that the Department should defer to local laws
restricting the breeds of dogs that individuals who reside in a
community may own. Other commenters opposed breed restrictions,
stating that the breed of a dog does not determine its propensity
for aggression and that aggressive and non-aggressive dogs exist in
all breeds.
The Department does not believe that it is either appropriate or
consistent with the ADA to defer to local laws that prohibit certain
breeds of dogs based on local concerns that these breeds may have a
history of unprovoked aggression or attacks. Such deference would
have the effect of limiting the rights of persons with disabilities
under the ADA who use certain service animals based on where they
live rather than on whether the use of a particular animal poses a
direct threat to the health and safety of others. Breed restrictions
differ significantly from jurisdiction to jurisdiction. Some
jurisdictions have no breed restrictions. Others have restrictions
that, while well-meaning, have the unintended effect of screening
out the very breeds of dogs that have successfully served as service
animals for decades without a history of the type of unprovoked
aggression or attacks that would pose a direct threat, e.g., German
Shepherds. Other jurisdictions prohibit animals over a certain
weight, thereby restricting breeds without invoking an express breed
ban. In addition, deference to breed restrictions contained in local
laws would have the unacceptable consequence of restricting travel
by an individual with a disability who uses a breed that is
acceptable and poses no safety hazards in the individual's home
jurisdiction but is nonetheless banned by other jurisdictions.
Public accommodations have the ability to determine, on a case-by-
case basis, whether a particular service animal can be excluded
based on that particular animal's actual behavior or history--not
based on fears or generalizations about how an animal or breed might
behave. This ability to exclude an animal whose behavior or history
evidences a direct threat is sufficient to protect health and
safety.
Recognition of psychiatric service animals, but not ``emotional
support animals.'' The definition of ``service animal'' in the NPRM
stated the Department's longstanding position that emotional support
animals are not included in the definition of ``service animal.''
The proposed text provided that ``[a]nimals whose sole function is
to provide emotional support, comfort, therapy, companionship,
therapeutic benefits, or to promote emotional well-being are not
service animals.'' 73 FR 34508, 34553 (June 17, 2008).
Many advocacy organizations expressed concern and disagreed with
the exclusion of comfort and emotional support animals. Others have
been more specific, stating that individuals with disabilities may
need their emotional support animals in order to have equal access.
Some commenters noted that individuals with disabilities use animals
that have not been trained to perform tasks directly related to
their disability. These animals do not qualify as service animals
under the ADA. These are emotional support or comfort animals.
Commenters asserted that excluding categories such as
``comfort'' and ``emotional support'' animals recognized by laws
such as the FHAct or the ACAA is confusing and burdensome. Other
commenters noted that emotional support and comfort animals perform
an important function, asserting that animal companionship helps
individuals who experience depression resulting from multiple
sclerosis.
Some commenters explained the benefits emotional support animals
provide, including emotional support, comfort, therapy,
companionship, therapeutic benefits, and the promotion of emotional

[[Page 56269]]

well-being. They contended that without the presence of an emotional
support animal in their lives they would be disadvantaged and unable
to participate in society. These commenters were concerned that
excluding this category of animals will lead to discrimination
against and excessive questioning of individuals with non-visible or
non-apparent disabilities. Other commenters expressing opposition to
the exclusion of individually trained ``comfort'' or ``emotional
support'' animals asserted that the ability to soothe or de-escalate
and control emotion is ``work'' that benefits the individual with
the disability.
Many commenters requested that the Department carve out an
exception that permits current or former members of the military to
use emotional support animals. They asserted that a significant
number of service members returning from active combat duty have
adjustment difficulties due to combat, sexual assault, or other
traumatic experiences while on active duty. Commenters noted that
some current or former members of the military service have been
prescribed animals for conditions such as PTSD. One commenter stated
that service women who were sexually assaulted while in the military
use emotional support animals to help them feel safe enough to step
outside their homes. The Department recognizes that many current and
former members of the military have disabilities as a result of
service-related injuries that may require emotional support and that
such individuals can benefit from the use of an emotional support
animal and could use such animal in their home under the FHAct.
However, having carefully weighed the issues, the Department
believes that its final rule appropriately addresses the balance of
issues and concerns of both the individual with a disability and the
public accommodation. The Department also notes that nothing in this
part prohibits a public entity from allowing current or former
military members or anyone else with disabilities to utilize
emotional support animals if it wants to do so.
Commenters asserted the view that if an animal's ``mere
presence'' legitimately provides such benefits to an individual with
a disability and if those benefits are necessary to provide equal
opportunity given the facts of the particular disability, then such
an animal should qualify as a ``service animal.'' Commenters noted
that the focus should be on the nature of a person's disability, the
difficulties the disability may impose and whether the requested
accommodation would legitimately address those difficulties, not on
evaluating the animal involved. The Department understands this
approach has benefitted many individuals under the FHAct and
analogous State law provisions, where the presence of animals poses
fewer health and safety issues and where emotional support animals
provide assistance that is unique to residential settings. The
Department believes, however, that the presence of such animals is
not required in the context of public accommodations, such as
restaurants, hospitals, hotels, retail establishments, and assembly
areas.
Under the Department's previous regulatory framework, some
individuals and entities assumed that the requirement that service
animals must be individually trained to do work or perform tasks
excluded all individuals with mental disabilities from having
service animals. Others assumed that any person with a psychiatric
condition whose pet provided comfort to them was covered by the 1991
title III regulation. The Department reiterates that psychiatric
service animals that are trained to do work or perform a task for
individuals whose disability is covered by the ADA are protected by
the Department's present regulatory approach. Psychiatric service
animals can be trained to perform a variety of tasks that assist
individuals with disabilities to detect the onset of psychiatric
episodes and ameliorate their effects. Tasks performed by
psychiatric service animals may include reminding the handler to
take medicine, providing safety checks or room searches for persons
with PTSD, interrupting self-mutilation, and removing disoriented
individuals from dangerous situations.
The difference between an emotional support animal and a
psychiatric service animal is the work or tasks that the animal
performs. Traditionally, service dogs worked as guides for
individuals who were blind or had low vision. Since the original
regulation was promulgated, service animals have been trained to
assist individuals with many different types of disabilities.
In the final rule, the Department has retained its position on
the exclusion of emotional support animals from the definition of
``service animal.'' The definition states that ``[t]he provision of
emotional support, well-being, comfort, or companionship * * *
do[es] not constitute work or tasks for the purposes of this
definition.'' The Department notes, however, that the exclusion of
emotional support animals from coverage in the final rule does not
mean that individuals with psychiatric or mental disabilities cannot
use service animals that meet the regulatory definition. The final
rule defines service animal as follows: ``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.''
This language simply clarifies the Department's longstanding
position.
The Department's position is based on the fact that the title II
and title III regulations govern a wider range of public settings
than the housing and transportation settings for which the
Department of Housing and Urban Development (HUD) and the DOT
regulations allow emotional support animals or comfort animals. The
Department recognizes that there are situations not governed by the
title II and title III regulations, particularly in the context of
residential settings and transportation, where there may be a legal
obligation to permit the use of animals that do not qualify as
service animals under the ADA, but whose presence nonetheless
provides necessary emotional support to persons with disabilities.
Accordingly, other Federal agency regulations, case law, and
possibly State or local laws governing those situations may provide
appropriately for increased access for animals other than service
animals as defined under the ADA. Public officials, housing
providers, and others who make decisions relating to animals in
residential and transportation settings should consult the Federal,
State, and local laws that apply in those areas (e.g., the FHAct
regulations of HUD and the ACAA) and not rely on the ADA as a basis
for reducing those obligations.
Retain term ``service animal.'' Some commenters asserted that
the term ``assistance animal'' is a term of art and should replace
the term ``service animal''; however, the majority of commenters
preferred the term ``service animal'' because it is more specific.
The Department has decided to retain the term ``service animal'' in
the final rule. While some agencies, like HUD, use the terms
``assistance animal,'' ``assistive animal,'' or ``support animal,''
these terms are used to denote a broader category of animals than is
covered by the ADA. The Department has decided that changing the
term used in the final rule would create confusion, particularly in
view of the broader parameters for coverage under the FHAct, cf.
Preamble to HUD's Final Rule for Pet Ownership for the Elderly and
Persons with Disabilities, 73 FR 63834-38 (Oct. 27, 2008); HUD
Handbook No. 4350.3 Rev-1, Chapter 2, Occupancy Requirements of
Subsidized Multifamily Housing Programs (June 2007), available at
http://www.hud.gov/offices/adm/hudclips/handbooks/hsgh/4350.3 (last
visited June 24, 2010). Moreover, as discussed above, the
Department's definition of ``service animal'' in the final rule does
not affect the rights of individuals with disabilities who use
assistance animals in their homes under the FHAct or who use
``emotional support animals'' that are covered under the ACAA and
its implementing regulations. See 14 CFR 382.7 et seq.; see also
Department of Transportation, Guidance Concerning Service Animals in
Air Transportation, 68 FR 24874, 24877 (May 9, 2003) (discussing
accommodation of service animals and emotional support animals on
aircraft).

``Video Remote Interpreting (VRI) Services''

In the NPRM, the Department proposed adding ``Video Interpreting
Services (VIS)'' to the list of auxiliary aids available to provide
effective communication. In the preamble to the NPRM, VIS was
defined as ``a technology composed of a video phone, video monitors,
cameras, a high-speed Internet connection, and an interpreter. The
video phone provides video transmission to a video monitor that
permits the individual who is deaf or hard of hearing to view and
sign to a video interpreter (i.e., a live interpreter in another
location), who can see and sign to the individual through a camera
located on or near the monitor, while others can communicate by
speaking. The video monitor can display a split screen of two live
images, with the interpreter in one image and the individual who is
deaf or hard of hearing in the other image.'' 73 FR 34508, 34522
(June 17, 2008). Comments from advocacy organizations and
individuals unanimously requested that the Department use the term
``video remote interpreting (VRI),'' instead of

[[Page 56270]]

VIS, for consistency with Federal Communications Commission (FCC)
regulations, FCC Public Notice, DA-0502417 (Sept. 7, 2005), and with
common usage by consumers. The Department has made that change
throughout the regulation to avoid confusion and to make the
regulation more consistent with existing regulations.
Many commenters also requested that the Department distinguish
between VRI and ``video relay service (VRS).'' Both VRI and VRS use
a remote interpreter who is able to see and communicate with a deaf
person and a hearing person, and all three individuals may be
connected by a video link. VRI is a fee-based interpreting service
conveyed via videoconferencing where at least one person, typically
the interpreter, is at a separate location. VRI can be provided as
an on-demand service or by appointment. VRI normally involves a
contract in advance for the interpreter who is usually paid by the
covered entity.
VRS is a telephone service that enables persons with
disabilities to use the telephone to communicate using video
connections and is a more advanced form of relay service than the
traditional voice to text telephones (TTY) relay systems that were
recognized in the 1991 title III regulation. More specifically, VRS
is a video relay service using interpreters connected to callers by
video hook-up and is designed to provide telephone services to
persons who are deaf and use American Sign Language that are
functionally equivalent to those services provided to users who are
hearing. VRS is funded through the Interstate Telecommunications
Relay Services Fund and overseen by the FCC. See 47 CFR
64.601(a)(26). There are no fees for callers to use the VRS
interpreters and the video connection, although there may be
relatively inexpensive initial costs to the title III entities to
purchase the videophone or camera for on-line video connection, or
other equipment to connect to the VRS service. The FCC has made
clear that VRS functions as a telephone service and is not intended
to be used for interpreting services where both parties are in the
same room; the latter is reserved for VRI. The Department agrees
that VRS cannot be used as a substitute for in-person interpreters
or for VRI in situations that would not, absent one party's
disability, entail use of the telephone.
Many commenters strongly recommended limiting the use of VRI to
circumstances where it will provide effective communication.
Commenters from advocacy groups and persons with disabilities
expressed concern that VRI may not always be appropriate to provide
effective communication, especially in hospitals and emergency
rooms. Examples were provided of patients who are unable to see the
video monitor because they are semi-conscious or unable to focus on
the video screen; other examples were given of cases where the video
monitor is out of the sightline of the patient or the image is out
of focus; still other examples were given of patients who could not
see the image because the signal was interrupted, causing unnatural
pauses in the communication, or the image was grainy or otherwise
unclear. Many commenters requested more explicit guidelines on the
use of VRI and some recommended requirements for equipment
maintenance, high-speed, wide-bandwidth video links using dedicated
lines or wireless systems, and training of staff using VRI,
especially in hospital and health care situations. Several major
organizations requested a requirement to include the interpreter's
face, head, arms, hands, and eyes in all transmissions.
After consideration of the comments and the Department's own
research and experience, the Department has determined that VRI can
be an effective method of providing interpreting services in certain
circumstances, but not in others. For example, VRI should be
effective in many situations involving routine medical care, as well
as in the emergency room where urgent care is important, but no in-
person interpreter is available; however, VRI may not be effective
in situations involving surgery or other medical procedures where
the patient is limited in his or her ability to see the video
screen. Similarly, VRI may not be effective in situations where
there are multiple people in a room and the information exchanged is
highly complex and fast paced. The Department recognizes that in
these and other situations, such as where communication is needed
for persons who are deaf-blind, it may be necessary to summon an in-
person interpreter to assist certain individuals. To ensure that VRI
is effective in situations where it is appropriate, the Department
has established performance standards in Sec. 36.303(f).

Subpart B--General Requirements

Section 36.208(b) Direct Threat

The Department has revised the language of Sec. 36.208(b)
(formerly Sec. 36.208(c) in the 1991 title III regulation) to
include consideration of whether the provision of auxiliary aids or
services will mitigate the risk that an individual will pose a
direct threat to the health or safety of others. Originally, the
reference to auxiliary aids or services as a mitigating factor was
part of Sec. 36.208. However, that reference was removed from the
section when, for editorial purposes, the Department removed the
definition of ``direct threat'' from Sec. 36.208 and placed it in
Sec. 36.104. The Department has put the reference to auxiliary aids
or services as a mitigating factor back into Sec. 36.208(b) in
order to maintain consistency with the current regulation.

Section 36.211 Maintenance of Accessible Features

Section 36.211 of the 1991 title III regulation provides that a
public accommodation must maintain in operable working condition
those features of facilities and equipment that are required to be
readily accessible to and usable by individuals with disabilities.
28 CFR 36.211. In the NPRM, the Department clarified the application
of this provision and proposed one change to the section to address
the discrete situation in which the scoping requirements provided in
the 2010 Standards reduce the number of required elements below the
requirements of the 1991 Standards. In that discrete event, a public
accommodation may reduce such accessible features in accordance with
the requirements in the 2010 Standards.
The Department received only four comments on this proposed
amendment. None of the commenters opposed the change. In the final
rule, the Department has revised the section to make it clear that
if the 2010 Standards reduce either the technical requirements or
the number of required accessible elements below that required by
the 1991 Standards, then the public accommodation may reduce the
technical requirements or the number of accessible elements in a
covered facility in accordance with the requirements of the 2010
Standards. One commenter, an association of convenience stores,
urged the Department to expand the language of the section to
include restocking of shelves as a permissible activity for isolated
or temporary interruptions in service or access. It is the
Department's position that a temporary interruption that blocks an
accessible route, such as restocking of shelves, is already
permitted by existing Sec. 36.211(b), which clarifies that
``isolated or temporary interruptions in service or access due to
maintenance or repairs'' are permitted. Therefore, the Department
will not make any additional changes in the language of Sec. 36.211
other than those discussed in the preceding paragraph.

Subpart C--Specific Requirements

Section 36.302 Modifications in Policies, Practices, or Procedures

Section 36.302(c) Service Animals

Section 36.302(c)(1) of the 1991 title III regulation states
that ``[g]enerally, a public accommodation shall modify [its]
policies, practices, or procedures to permit the use of service
animals by an individual with a disability.'' Section 36.302(c)(2)
of the 1991 title III regulation states that ``[n]othing in this
part requires a public accommodation to supervise or care for a
service animal.'' The Department has decided to retain the scope of
the 1991 title III regulation while clarifying the Department's
longstanding policies and interpretations. Toward that end, the
final rule has been revised to include the Department's policy
interpretations as outlined in published technical assistance,
Commonly Asked Questions about Service Animals in Places of Business
(1996), available at http://www.ada.gov/qasrvc.htm, and ADA Guide
for Small Businesses (1999), available at http://www.ada.gov/
smbustxt.htm, and to add that a public accommodation may exclude a
service animal in certain circumstances where the service animal
fails to meet certain behavioral standards. The Department received
extensive comments in response to proposed Sec. 36.302(c) from
individuals, disability advocacy groups, organizations involved in
training service animals, and public accommodations. Those comments
and the Department's response are discussed below.
Exclusion of service animals. The 1991 regulatory provision in
Sec. 36.302(c) addresses reasonable modification and remains
unchanged in the final rule. However, based

[[Page 56271]]

on comments received and the Department's analysis, the Department
has decided to clarify those circumstances where otherwise eligible
service animals may be excluded by public accommodations.
In the NPRM, in Sec. 36.302(c)(2)(i), the Department proposed
that a public accommodation may ask an individual with a disability
to remove a service animal from the place of public accommodation if
``[t]he animal is out of control and the animal's handler does not
take effective action to control it.'' 73 FR 34508, 34553 (June 17,
2008). The Department has long held that a service animal must be
under the control of the handler at all times. Commenters
overwhelmingly were in favor of this language, but noted that there
are occasions when service animals are provoked to disruptive or
aggressive behavior by agitators or troublemakers, as in the case of
a blind individual whose service dog is taunted or pinched. While
all service animals are trained to ignore and overcome these types
of incidents, misbehavior in response to provocation is not always
unreasonable. In circumstances where a service animal misbehaves or
responds reasonably to a provocation or injury, the public
accommodation must give the handler a reasonable opportunity to gain
control of the animal. Further, if the individual with a disability
asserts that the animal was provoked or injured, or if the public
accommodation otherwise has reason to suspect that provocation or
injury has occurred, the public accommodation should seek to
determine the facts and, if provocation or injury occurred, the
public accommodation should take effective steps to prevent further
provocation or injury, which may include asking the provocateur to
leave the place of public accommodation. This language is unchanged
in the final rule.
The NPRM also proposed language at Sec. 36.302(c)(2)(ii) to
permit a public accommodation to exclude a service animal if the
animal is not housebroken (i.e., trained so that, absent illness or
accident, the animal controls its waste elimination) or the animal's
presence or behavior fundamentally alters the nature of the service
the public accommodation provides (e.g., repeated barking during a
live performance). Several commenters were supportive of this NPRM
language, but cautioned against overreaction by the public
accommodation in these instances. One commenter noted that animals
get sick, too, and that accidents occasionally happen. In these
circumstances, simple clean up typically addresses the incident.
Commenters noted that the public accommodation must be careful when
it excludes a service animal on the basis of ``fundamental
alteration,'' asserting for example, that a public accommodation
should not exclude a service animal for barking in an environment
where other types of noise, such as loud cheering or a child crying,
is tolerated. The Department maintains that the appropriateness of
an exclusion can be assessed by reviewing how a public accommodation
addresses comparable situations that do not involve a service
animal. The Department has retained in Sec. 36.302(c)(2) of the
final rule the exception requiring animals to be housebroken. The
Department has not retained the specific NPRM language stating that
animals can be excluded if their presence or behavior fundamentally
alters the nature of the service provided by the public
accommodation, because the Department believes that this exception
is covered by the general reasonable modification requirement
contained in Sec. 36.302(c)(1).
The NPRM also proposed in Sec. 36.302(c)(2)(iii) that a service
animal can be excluded where ``[t]he animal poses a direct threat to
the health or safety of others that cannot be eliminated by
reasonable modifications.'' 73 FR 34508, 34553 (June 17, 2008).
Commenters were universally supportive of this provision as it makes
express the discretion of a public accommodation to exclude a
service animal that poses a direct threat. Several commenters
cautioned against the overuse of this provision and suggested that
the Department provide an example of the rule's application. The
Department has decided not to include regulatory language
specifically stating that a service animal can be excluded if it
poses a direct threat. The Department believes that the direct
threat provision in Sec. 36.208 already provides this exception to
public accommodations.
Access to a public accommodation following the proper exclusion
of a service animal. The NPRM proposed that in the event a public
accommodation properly excludes a service animal, the public
accommodation must give the individual with a disability the
opportunity to obtain the goods and services of the public
accommodation without having the service animal on the premises.
Most commenters welcomed this provision as a common sense approach.
These commenters noted that they do not wish to preclude individuals
with disabilities from the full and equal enjoyment of the goods and
services simply because of an isolated problem with a service
animal. The Department has elected to retain this provision in Sec.
36.302(c)(2).
Other requirements. The NPRM also proposed that the regulation
include the following requirements: that the work or tasks performed
by the service animal must be directly related to the handler's
disability; that a service animal must be individually trained to do
work or perform a task, be housebroken, and be under the control of
the handler; and that a service animal must have a harness, leash,
or other tether. Most commenters addressed at least one of these
issues in their responses. Most agreed that these provisions are
important to clarify further the 1991 service animal regulation. The
Department has moved the requirement that the work or tasks
performed by the service animal must be related directly to the
handler's disability to the definition of ``service animal'' in
Sec. 36.104. In addition, the Department has modified the proposed
language relating to the handler's control of the animal with a
harness, leash, or other tether to state that ``[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).'' The Department has retained
the requirement that the service animal must be individually
trained, as well as the requirement that the service animal be
housebroken.
Responsibility for supervision and care of a service animal. The
1991 title III regulation, in Sec. 36.302(c)(2), states that
``[n]othing in this part requires a public accommodation to
supervise or care for a service animal.'' The NPRM modified this
language to state that ``[a] public accommodation is not responsible
for caring for or supervising a service animal.'' 73 FR 34508, 34553
(June 17, 2008). Most commenters did not address this particular
provision. The Department notes that there are occasions when a
person with a disability is confined to bed in a hospital for a
period of time. In such an instance, the individual may not be able
to walk or feed the service animal. In such cases, if the individual
has a family member, friend, or other person willing to take on
these responsibilities in the place of the individual with a
disability, the individual's obligation to be responsible for the
care and supervision of the service animal would be satisfied. The
language of this section is retained, with minor modifications, in
Sec. 36.302(c)(5) of the final rule.
Inquiries about service animals. The NPRM proposed language at
Sec. 36.302(c)(6) setting forth parameters about how a public
accommodation may determine whether an animal qualifies as a service
animal. The proposed section stated that a public accommodation may
ask if the animal is required because of a disability and what task
or work the animal has been trained to do but may not require proof
of service animal certification or licensing. Such inquiries are
limited to eliciting the information necessary to make a decision
without requiring disclosure of confidential disability-related
information that a public accommodation does not need.
This language is consistent with the policy guidance outlined in
two Department publications, Commonly Asked Questions about Service
Animals in Places of Business (1996), available at http://
www.ada.gov/qasrvc.htm, and ADA Guide for Small Businesses (1999),
available at http://www.ada.gov/smbustxt.htm.
Although some commenters contended that the NPRM service animal
provisions leave unaddressed the issue of how a public accommodation
can distinguish between a psychiatric service animal, which is
covered under the final rule, and a comfort animal, which is not,
other commenters noted that the Department's published guidance has
helped public accommodations to distinguish between service animals
and pets on the basis of an individual's response to these
questions. Accordingly, the Department has retained the NPRM
language incorporating its guidance concerning the permissible
questions into the final rule.
Some commenters suggested that a title III entity be allowed to
require current

[[Page 56272]]

documentation, no more than one year old, on letterhead from a
mental health professional stating the following: (1) That the
individual seeking to use the animal has a mental health-related
disability; (2) that having the animal accompany the individual is
necessary to the individual's mental health or treatment or to
assist the person otherwise; and (3) that the person providing the
assessment of the individual is a licensed mental health
professional and the individual seeking to use the animal is under
that individual's professional care. These commenters asserted that
this will prevent abuse and ensure that individuals with legitimate
needs for psychiatric service animals may use them. The Department
believes that this proposal would treat persons with psychiatric,
intellectual, and other mental disabilities less favorably than
persons with physical or sensory disabilities. The proposal would
also require persons with disabilities to obtain medical
documentation and carry it with them any time they seek to engage in
ordinary activities of daily life in their communities--something
individuals without disabilities have not been required to do.
Accordingly, the Department has concluded that a documentation
requirement of this kind would be unnecessary, burdensome, and
contrary to the spirit, intent, and mandates of the ADA.
Service animal access to areas of a public accommodation. The
NPRM proposed at Sec. 36.302(c)(7) that an individual with a
disability who uses a service animal has the same right of access to
areas of a public accommodation as members of the public, program
participants, and invitees. Commenters indicated that allowing
individuals with disabilities to go with their service animals into
the same areas as members of the public, program participants,
clients, customers, patrons, or invitees is accepted practice by
most places of public accommodation. The Department has included a
slightly modified version of this provision in Sec. 36.302(c)(7) of
the final rule.
The Department notes that under the final rule, a healthcare
facility must also permit a person with a disability to be
accompanied by a service animal in all areas of the facility in
which that person would otherwise be allowed. There are some
exceptions, however. The Department follows the guidance of the
Centers for Disease Control and Prevention (CDC) on the use of
service animals in a hospital setting. Zoonotic diseases can be
transmitted to humans through bites, scratches, direct contact,
arthropod vectors, or aerosols.
Consistent with CDC guidance, it is generally appropriate to
exclude a service animal from limited-access areas that employ
general infection-control measures, such as operating rooms and burn
units. See Centers for Disease Control and Prevention, Guidelines
for Environmental Infection Control in Health-Care Facilities:
Recommendations of CDC and the Healthcare Infection Control
Practices Advisory Committee (June 2003), available at http://
www.cdc.gov/hicpac/pdf/guidelines/eic_in_HCF_03.pdf (last visited
June 24, 2010). A service animal may accompany its handler to such
areas as admissions and discharge offices, the emergency room,
inpatient and outpatient rooms, examining and diagnostic rooms,
clinics, rehabilitation therapy areas, the cafeteria and vending
areas, the pharmacy, restrooms, and all other areas of the facility
where healthcare personnel, patients, and visitors are permitted
without taking added precautions.
Prohibition against surcharges for use of a service animal. In
the NPRM, the Department proposed to incorporate the previously
mentioned policy guidance, which prohibits the assessment of a
surcharge for the use of a service animal, into proposed Sec.
36.302(c)(8). Several commenters agreed that this provision makes
clear the obligation of a place of public accommodation to admit an
individual with a service animal without surcharges, and that any
additional costs imposed should be factored into the overall cost of
doing business and passed on as a charge to all participants, rather
than an individualized surcharge to the service animal user.
Commenters also noted that service animal users cannot be required
to comply with other requirements that are not generally applicable
to other persons. 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
animals. The Department has retained this language, with minor
modifications, in the final rule at Sec. 36.302(c)(8).
Training requirement. Certain commenters recommended the
adoption of formal training requirements for service animals. The
Department has rejected this approach and will not impose any type
of formal training requirements or certification process, but will
continue to require that service animals be individually trained to
do work or perform tasks for the benefit of an individual with a
disability. While some groups have urged the Department to modify
this position, the Department has determined that such a
modification would not serve the full array of individuals with
disabilities who use service animals, since individuals with
disabilities may be capable of training, and some have trained,
their service animal to perform tasks or do work to accommodate
their disability. A training and certification requirement would
increase the expense of acquiring a service animal and might limit
access to service animals for individuals with limited financial
resources.
Some commenters proposed specific behavior or training standards
for service animals, arguing that without such standards, the public
has no way to differentiate between untrained pets and service
animals. Many of the suggested behavior or training standards were
lengthy and detailed. The Department believes that this rule
addresses service animal behavior sufficiently by including
provisions that address the obligations of the service animal user
and the circumstances under which a service animal may be excluded,
such as the requirements that an animal be housebroken and under the
control of its handler.
Miniature horses. The Department has been persuaded by
commenters and the available research to include a provision that
would require public accommodations to make reasonable modifications
to policies, practices, or procedures to permit the use of a
miniature horse by a person 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. The traditional service
animal is a dog, which has a long history of guiding individuals who
are blind or have low vision, and over time dogs have been trained
to perform an even wider variety of services for individuals with
all types of disabilities. However, an organization that developed a
program to train miniature horses, modeled on the program used for
guide dogs, began training miniature horses in 1991.
Although commenters generally supported the species limitations
proposed in the NPRM, some were opposed to the exclusion of
miniature horses from the definition of a service animal. These
commenters noted that these animals have been providing assistance
to persons with disabilities for many years. Miniature horses were
suggested by some commenters as viable alternatives to dogs for
individuals with allergies, or for those whose religious beliefs
preclude the use of dogs. Another consideration mentioned in favor
of the use of miniature horses is the longer life span and strength
of miniature horses in comparison to dogs. Specifically, miniature
horses can provide service for more than 25 years while dogs can
provide service for approximately seven years, and, because of their
strength, miniature horses can provide services that dogs cannot
provide. Accordingly, use of miniature horses reduces the cost
involved to retire, replace, and train replacement service animals.
The miniature horse is not one specific breed, but may be one of
several breeds, with distinct characteristics that produce animals
suited to service animal work. These animals generally range in
height from 24 inches to 34 inches measured to the withers, or
shoulders, and generally weigh between 70 and 100 pounds. These
characteristics are similar to those of large breed dogs, such as
Labrador Retrievers, Great Danes, and Mastiffs. Similar to dogs,
miniature horses can be trained through behavioral reinforcement to
be ``housebroken.'' Most miniature service horse handlers and
organizations recommend that when the animals are not doing work or
performing tasks, the miniature horses should be kept outside in a
designated area instead of indoors in a house.
According to information provided by an organization that trains
service horses, these miniature horses are trained to provide a wide
array of services to their handlers, primarily guiding individuals
who are blind or have low vision, pulling wheelchairs, providing
stability and balance for individuals with disabilities that impair
the ability to walk, and supplying leverage that enables a person
with a mobility disability to get up after a fall. According to the
commenter, miniature horses are particularly effective for large
stature individuals. The animal can be trained to stand (and in some
cases, lie down) at the handler's feet in venues where space is at a
premium, such as assembly areas or inside some vehicles that

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provide public transportation. Some individuals with disabilities
have traveled by train and have flown commercially with their
miniature horses.
The miniature horse is not included in the definition of service
animal, which is limited to dogs. However, the Department has added
a specific provision at Sec. 36.302(c)(9) of the final rule
covering miniature horses. Under this provision, public
accommodations must 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. The public accommodation may take
into account a series of assessment factors in determining whether
to allow a miniature horse into a specific facility. These include
the type, size, and weight of the miniature horse, whether the
handler has sufficient control of the miniature horse, whether the
miniature horse is housebroken, and whether the miniature horse's
presence in a specific facility compromises legitimate safety
requirements that are necessary for safe operation. In addition,
paragraphs (c)(3)B-(8) of this section, which are applicable to
dogs, also apply to miniature horses.
Ponies and full-size horses are not covered by Sec.
36.302(c)(9). Also, because miniature horses can vary in size and
can be larger and less flexible than dogs, covered entities may
exclude this type of service animal if the presence of the miniature
horse, because of its larger size and lower level of flexibility,
results in a fundamental alteration to the nature of the services
provided.

Section 36.302(e) Hotel Reservations

Section 36.302 of the 1991 title III regulation requires public
accommodations to make reasonable modifications in policies,
practices, or procedures when such modifications are necessary to
afford access to any goods, services, facilities, privileges,
advantages, or accommodations, unless the entity can demonstrate
that making such modifications would fundamentally alter the nature
of such goods, services, facilities, privileges, advantages, or
accommodations. Hotels, timeshare resorts, and other places of
lodging are subject to this requirement and must make reasonable
modifications to reservations policies, practices, or procedures
when necessary to ensure that individuals with disabilities are able
to reserve accessible hotel rooms with the same efficiency,
immediacy, and convenience as those who do not need accessible guest
rooms.
Each year the Department receives many complaints concerning
failed reservations. Most of these complaints involve individuals
who have reserved an accessible hotel room only to discover upon
arrival that the room they reserved is either not available or not
accessible. Although problems with reservations services were not
addressed in the ANPRM, commenters independently noted an ongoing
problem with hotel reservations and urged the Department to provide
regulatory guidance. In response, the Department proposed specific
language in the NPRM to address hotel reservations. In addition, the
Department posed several questions regarding the current practices
of hotels and other reservations services including questions about
room guarantees and the holding and release of accessible rooms. The
Department also questioned whether public accommodations that
provide reservations services for a place or places of lodging but
do not own, lease (or lease to), or operate a place of lodging--
referred to in this discussion as ``third-party reservations
services''--should also be subject to the NPRM's proposals
concerning hotel reservations.
Although reservations issues were discussed primarily in the
context of traditional hotels, the new rule modifies the definition
of ``places of lodging'' to clarify the scope of the rule's coverage
of rental accommodations in timeshare properties, condominium
hotels, and mixed-use and corporate hotel facilities that operate as
places of public accommodation (as that term is now defined in Sec.
36.104), and the Department received detailed comments, discussed
below, regarding the application of reservations requirements to
this category of rental accommodations.
General rule on reservations. Section 36.302(e)(1) of the NPRM
required a public accommodation that owns, leases (or leases to), or
operates a place of lodging to:

Modify its policies, practices, or procedures to ensure that
individuals with disabilities can make reservations, including
reservations made by telephone, in-person, or through a third party,
for accessible guest rooms during the same hours and in the same
manner as individuals who do not need accessible rooms.
73 FR 34508, 34553 (June 17, 2008).
Most individual commenters and organizations that represent
individuals with disabilities strongly supported the requirement
that individuals with disabilities should be able to make
reservations for accessible guest rooms during the same hours and in
the same manner as individuals who do not need accessible rooms. In
many cases individuals with disabilities expressed frustration
because, while they are aware of improvements in architectural
access brought about as a result of the ADA, they are unable to take
advantage of these improvements because of shortcomings in current
hotel reservations systems. A number of these commenters pointed out
that it can be difficult or impossible to obtain information about
accessible rooms and hotel features and that even when information
is provided it often is found to be incorrect upon arrival. They
also noted difficulty reserving accessible rooms and the inability
to guarantee or otherwise ensure that the appropriate accessible
room is available when the guest arrives. The ability to obtain
information about accessible guest rooms, to make reservations for
accessible guest rooms in the same manner as other guests, and to be
assured of an accessible room upon arrival was of critical
importance to these commenters.
Other commenters, primarily hotels, resort developers, travel
agencies, and organizations commenting on their behalf, did not
oppose the general rule on reservations, but recommended that the
language requiring that reservations be made ``in the same manner''
be changed to require that reservations be made ``in a substantially
similar manner.'' These commenters argued that hotel reservations
are made in many different ways and through a variety of systems. In
general, they argued that current reservations database systems may
not contain sufficient information to permit guests, travel agents,
or other third-party reservations services to select the most
appropriate room without consulting directly with the hotel, and
that updating these systems might be expensive and time consuming.
They also noted that in some cases, hotels do not always
automatically book accessible rooms when requested to do so.
Instead, guests may select from a menu of accessibility and other
room options when making reservations. This information is
transmitted to the hotel's reservations staff, who then contact the
individual to verify the guest's accessibility needs. Only when such
verification occurs will the accessible room be booked.
The Department is not persuaded that individuals who need to
reserve accessible rooms cannot be served in the same manner as
those who do not, and it appears that there are hotels of all types
and sizes that already meet this requirement. Further, the
Department has been able to accomplish this goal in settlement
agreements resolving complaints about this issue. As stated in the
preamble to the NPRM, basic nondiscrimination principles mandate
that individuals with disabilities should be able to reserve hotel
rooms with the same efficiency, immediacy, and convenience as those
who do not need accessible guest rooms. The regulation does not
require reservations services to create new methods for reserving
hotel rooms or available timeshare units; instead, covered entities
must make the modifications needed to ensure that individuals who
need accessible rooms are able to reserve them in the same manner as
other guests. If, for example, hotel reservations are not final
until all hotel guests have been contacted by the hotel to discuss
the guest's needs, a hotel may follow the same process when
reserving accessible rooms. Therefore, the Department declines to
change this language, which has been moved to Sec. 36.302(e)(1)(i).
However, in response to the commenters who recommended a transition
period that would allow reservations services time to modify
existing reservations systems to meet the requirements of this rule,
Sec. 36.302(e)(3) now provides a 18-month transition period before
the requirements of Sec. 36.302(e)(1) will be enforced.
Hotels and organizations commenting on their behalf also
requested that the language be changed to eliminate any liability
for reservations made through third parties, arguing that they are
unable to control the actions of unrelated parties. The rule, both
as proposed and as adopted, requires covered public accommodations
to ensure that reservations made on their behalf by third parties
are made in a manner that results in parity between those who need
accessible rooms and those who do not.

[[Page 56274]]

Hotels and other places of lodging that use third-party
reservations services must make reasonable efforts to make
accessible rooms available through at least some of these services
and must provide these third-party services with information
concerning the accessible features of the hotel and the accessible
rooms. To the extent a hotel or other place of lodging makes
available such rooms and information to a third-party reservation
provider, but the third party fails to provide the information or
rooms to people with disabilities in accordance with this section,
the hotel or other place of lodging will not be responsible.
Identification of accessible features in hotels and guest rooms.
NPRM Sec. 36.302(e)(2) required public accommodations that provide
hotel reservations services to identify and describe the accessible
features in the hotels and guest rooms offered through that service.
This requirement is essential to ensure that individuals with
disabilities receive the information they need to benefit from the
services offered by the place of lodging. As a practical matter, a
public accommodation's designation of a guest room as ``accessible''
will not ensure necessarily that the room complies with all of the
1991 Standards. In older facilities subject to barrier removal
requirements, strict compliance with the 1991 Standards is not
required. Instead, public accommodations must remove barriers to the
extent that it is readily achievable to do so.
Further, hotel rooms that are in full compliance with current
standards may differ, and individuals with disabilities must be able
to ascertain which features--in new and existing facilities--are
included in the hotel's accessible guest rooms. For example, under
certain circumstances, an accessible hotel bathroom may meet
accessibility requirements with either a bathtub or a roll-in
shower. The presence or absence of particular accessible features
such as these may be the difference between a room that is usable by
a particular person with a disability and one that is not.
Individuals with disabilities strongly supported this
requirement. In addition to the importance of information about
specific access features, several commenters pointed out the
importance of knowing the size and number of beds in a room. Many
individuals with disabilities travel with family members, personal
care assistants, or other companions and require rooms with at least
two beds. Although most hotels provide this information when
generally categorizing the type or class of room (e.g., deluxe suite
with king bed), as described below, all hotels should consider the
size and number of beds to be part of the basic information they are
required to provide.
Comments made on behalf of reservations services expressed
concern that unless the word ``hotels'' is stricken from the text,
Sec. 36.302(e)(2) of the NPRM essentially would require
reservations systems to include a full accessibility report on each
hotel or resort property in its system. Along these lines,
commenters also suggested that the Department identify the specific
accessible features of hotel rooms that must be described in the
reservations system. For example, commenters suggested limiting
features that must be included to bathroom type (tub or roll-in
shower) and communications features.
The Department recognizes that a reservations system is not
intended to be an accessibility survey. However, specific
information concerning accessibility features is essential to
travelers with disabilities. Because of the wide variations in the
level of accessibility that travelers will encounter, the Department
cannot specify what information must be included in every instance.
For hotels that were built in compliance with the 1991 Standards, it
may be sufficient to specify that the hotel is accessible and, for
each accessible room, to describe the general type of room (e.g.,
deluxe executive suite), the size and number of beds (e.g., two
queen beds), the type of accessible bathing facility (e.g., roll-in
shower), and communications features available in the room (e.g.,
alarms and visual notification devices). Based on that information,
many individuals with disabilities will be comfortable making
reservations.
For older hotels with limited accessibility features,
information about the hotel should include, at a minimum,
information about accessible entrances to the hotel, the path of
travel to guest check-in and other essential services, and the
accessible route to the accessible room or rooms. In addition to the
room information described above, these hotels should provide
information about important features that do not comply with the
1991 Standards. For example, if the door to the ``accessible'' room
or bathroom is narrower than required, this information should be
included (e.g., door to guest room measures 30 inches clear). This
width may not meet current standards but may be adequate for some
wheelchair users who use narrower chairs. In many cases, older
hotels provide services through alternatives to barrier removal, for
example, by providing check-in or concierge services at a different,
accessible location. Reservations services for these entities should
include this information and provide a way for guests to contact the
appropriate hotel employee for additional information. To recognize
that the information and level of detail needed will vary based on
the nature and age of the facility, Sec. 36.302(e)(2) has been
moved to Sec. 36.302(e)(1)(ii) in the final rule and modified to
require reservations services to:
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. [Emphasis added]
As commenters representing hotels have described, once
reservations are made, some hotels may wish to contact the guest to
offer additional information and services. Or, many individuals with
disabilities may wish to contact the hotel or reservations service
for more detailed information. At that point, trained staff
(including staff located on-site at the hotel and staff located off-
site at a reservations center) should be available to provide
additional information such as the specific layout of the room and
bathroom, shower design, grab-bar locations, and other amenities
available (e.g., bathtub bench).
In the NPRM, the Department sought guidance concerning whether
this requirement should be applied to third-party reservations
services. Comments made by or on behalf of hotels, resort managers,
and other members of the lodging and resort industry pointed out
that, in most cases, these third parties do not have direct access
to this information and must obtain it from the hotel or other place
of lodging. Because third-party reservations services must rely on
the place of lodging to provide the requisite information and to
ensure that it is accurate and timely, the Department has declined
to extend this requirement directly to third-party reservations
services.
Hold and release of accessible guest rooms. The Department has
addressed the hold and release of accessible guest rooms in
settlement agreements and recognizes that current practices vary
widely. The Department is concerned about current practices by which
accessible guest rooms are released to the general public even
though the hotel is not sold out. In such instances, individuals
with disabilities may be denied an equal opportunity to benefit from
the services offered by the public accommodation, i.e., a hotel
guest room. In the NPRM, the Department requested information
concerning the current practices of hotels and third-party
reservations services with respect to (1) holding accessible rooms
for individuals with disabilities and (2) releasing accessible rooms
to individuals without disabilities.
Individuals with disabilities and organizations commenting on
their behalf strongly supported requiring accessible rooms to be
held back for rental by individuals with disabilities. In some cases
commenters supported holding back all accessible rooms until all
non-accessible rooms were rented. Others supported holding back
accessible rooms in each category of rooms until all other rooms of
that type were reserved. This latter position was also supported in
comments received on behalf of the lodging industry; commenters also
noted that this is the current practice of many hotels. In general,
holding accessible rooms until requested by an individual who needs
a room with accessible features or until it is the only available
room of its type was viewed widely as a sensible approach to
allocating scarce accessible rooms without imposing unnecessary
costs on hotels.
The Department agrees with this latter approach and has added
Sec. 36.302(e)(1)(iii), which requires covered entities to hold
accessible rooms 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. For example,
if there are 25 rooms of a given type and two of these rooms are
accessible, the reservations service is required to rent all 23 non-
accessible rooms before it is permitted to rent these two accessible
rooms to individuals without disabilities. If a one-of-a-kind room
is accessible, that room is available to the first party to request
it. The Department believes that this is the fairest approach
available

[[Page 56275]]

since it reserves accessible rooms for individuals who require them
until all non-accessible rooms of that type have been reserved, and
then provides equal access to any remaining rooms. It is also fair
to hotels because it does not require them to forego renting a room
that actually has been requested in favor of the possibility that an
individual with a disability may want to reserve it at a later date.
Requirement to block accessible guest room reservations. NPRM
Sec. 36.302(e)(3) required a public accommodation that owns, leases
(or leases to), or operates a place of lodging to guarantee
accessible guest rooms that are reserved through a reservations
service to the same extent that it guarantees rooms that are not
accessible. In the NPRM, the Department sought comment on the
current practices of hotels and third party reservations services
with respect to ``guaranteed'' hotel reservations and on the impact
of requiring a public accommodation to guarantee accessible rooms to
the extent it guarantees other rooms.
Comments received by the Department by and on behalf of both
individuals with disabilities and public accommodations that provide
reservations services made clear that, in many cases, when speaking
of room guarantees, parties who are not familiar with hotel
terminology actually mean to refer to policies for blocking and
holding specific hotel rooms. Several commenters explained that, in
most cases, when an individual makes ``reservations,'' hotels do not
reserve specific rooms; rather the individual is reserving a room
with certain features at a given price. When the hotel guest
arrives, he or she is provided with a room that has those features.
In most cases, this does not pose a problem because there are
many available rooms of a given type. However, in comparison,
accessible rooms are much more limited in availability and there may
be only one room in a given hotel that meets a guest's needs. As
described in the discussion on the identification of accessible
features in hotels and guest rooms, the presence or absence of
particular accessible features may be the difference between a room
that is usable by a particular person with a disability and one that
is not.
For that reason, the Department has added Sec. 36.302(e)(1)(iv)
to the final rule. Section 36.302(e)(1)(iv) requires covered
entities to 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 (to
eliminate double-booking, which is a common problem that arises when
rooms are made available to be reserved through more than one
reservations service). Of course, if a public accommodation
typically requires a payment or deposit from its patrons in order to
reserve a room, it may require the same payment or deposit from
individuals with disabilities before it reserves an accessible room
and removes it from all its reservations systems. These requirements
should alleviate the widely-reported problem of arriving at a hotel
only to discover that, although an accessible room was reserved, the
room available is not accessible or does not have the specific
accessible features needed. Many hotels already have a similar
process in place for other guest rooms that are unique or one-of-a-
kind, such as ``Presidential'' suites. The Department has declined
to extend this requirement directly to third-party reservations
services. Comments the Department received in response to the NPRM
indicate that most of the actions required to implement these
requirements primarily are within the control of the entities that
own the place of lodging or that manage it on behalf of its owners.
Guarantees of reservations for accessible guest rooms. The
Department recognizes that not all reservations are guaranteed, and
the rule does not impose an affirmative duty to guarantee
reservations. When a public accommodation does guarantee hotel or
other room reservations, it must provide the same guarantee for
accessible guest rooms as it makes for other rooms, except that it
must apply that guarantee to the specific room reserved and blocked,
even if in other situations, its guarantee policy only guarantees
that a room of a specific type will be available at the guaranteed
price. Without this reasonable modification to its guarantee policy,
any guarantee for accessible rooms would be meaningless. If, for
example, a hotel makes reservations for an accessible ``Executive
Suite'' but, upon arrival, offers its guest an inaccessible
Executive Suite that the guest is unable to enter, it would be
meaningless to consider the hotel's guarantee fulfilled. As with the
requirements for identifying, holding, and blocking accessible
rooms, the Department has declined to extend this requirement
directly to third-party reservations services because the
fulfillment of guarantees largely is beyond their power to control.
Application to rental units in timeshare, vacation communities,
and condo-hotels. Because the Department has revised the definition
of ``Places of Lodging'' in the final rule, the reservations
requirements now apply to guest rooms and other rental units in
timeshares, vacation communities, and condo-hotels where some or all
of the units are owned and controlled by individual owners and
rented out some portion of time to the public, as compared to
traditional hotels and motels that are owned, controlled, and rented
to the public by one entity. If a reservations service owns and
controls one or more of the guest rooms or other units in the rental
property (e.g., a developer who retains and rents out unsold
inventory), it is subject to the requirements set forth in Sec.
36.302(e).
Several commenters expressed concern about any rule that would
require accessible units that are owned individually to be removed
from the rental pool and rented last. Commenters pointed out that
this would be a disadvantage to the owners of accessible units
because they would be rented last, if at all. Further, certain
vacation property managers consider holding specific units back to
be a violation of their ethical responsibility to present all
properties they manage at an equal advantage. To address these
concerns, the Department has added Sec. 36.302(e)(2), which exempts
reservations for individual guest rooms and other units that are not
owned or substantially controlled by the entity that owns, leases,
or operates the overall facility from the requirement that
accessible guest rooms be held back from rental until all other
guest rooms of that type have been rented. Section 36.302(e)(2) also
exempts such rooms from requirements for blocking and guaranteeing
reserved rooms. In resort developments with mixed ownership
structures, such as a resort where some units are operated as hotel
rooms and others are owned and controlled individually, a
reservations service operated by the owner of the hotel portion may
apply the exemption only to the rooms that are not owned or
substantially controlled by the entity that owns, manages, or
otherwise controls the overall facility.
Other reservations-related comments made on behalf of these
entities reflected concerns similar to the general concerns
expressed with respect to traditional hotel properties. For example,
commenters noted that because of the unique nature of the timeshare
industry, additional flexibility is needed when making reservations
for accessible units. One commenter explained that reservations are
sometimes made through unusual entities such as exchange companies,
which are not public accommodations and which operate to trade
ownership interests of millions of individual owners. The commenter
expressed concern that developers or resort owners would be held
responsible for the actions of these exchange entities. If, as
described, the choice to list a unit with an exchange company is
made by the individual owner of the property and the exchange
company does not operate on behalf of the reservations service, the
reservations service is not liable for the exchange company's
actions.
As with hotels, the Department believes that within the 18-month
transition period these reservations services should be able to
modify their systems to ensure that potential guests with
disabilities who need accessible rooms can make reservations during
the same hours and in the same manner as those who do not need
accessible rooms.

Section 36.302(f) Ticketing

The 1991 title III regulation did not contain specific
regulatory language on ticketing. The ticketing policies and
practices of public accommodations, however, are subject to title
III's nondiscrimination provisions. Through the investigation of
complaints, enforcement actions, and public comments related to
ticketing, the Department became aware that some venue operators,
ticket sellers, and distributors were violating title III's
nondiscrimination mandate by not providing individuals with
disabilities the same opportunities to purchase tickets for
accessible seating as provided to spectators purchasing conventional
seats. In the NPRM, the Department proposed Sec. 36.302(f) to
provide explicit direction and guidance on discriminatory practices
for entities involved in the sale or distribution of tickets.
The Department received comments from advocacy groups, assembly
area trade associations, public accommodations, and individuals.
Many commenters supported the addition of regulatory language
pertaining to ticketing and urged the Department to retain

[[Page 56276]]

it in the final rule. Several commenters, however, questioned why
there were inconsistencies between the title II and title III
provisions and suggested that the same language be used for both
titles. The Department has decided to retain ticketing regulatory
language and to ensure consistency between the ticketing provisions
in title II and title III.
Because many in the ticketing industry view season tickets and
other multi-event packages differently from individual tickets, the
Department bifurcated some season ticket provisions from those
concerning single-event tickets in the NPRM. This structure,
however, resulted in some provisions being repeated for both types
of tickets but not for others even though they were intended to
apply to both types of tickets. The result was that it was not
entirely clear that some of the provisions that were not repeated
also were intended to apply to season tickets. The Department is
addressing the issues raised by these commenters using a different
approach. For the purposes of this section, a single event refers to
an individual performance for which tickets may be purchased. In
contrast, a series of events includes, but is not limited to,
subscription events, event packages, season tickets, or any other
tickets that may be purchased for multiple events of the same type
over the course of a specified period of time whose ownership right
reverts to the public accommodation at the end of each season or
time period. Series-of-events tickets that give their holders an
enhanced ability to purchase such tickets from the public
accommodation in seasons or periods of time that follow, such as a
right of first refusal or higher ranking on waiting lists for more
desirable seats, are subject to the provisions in this section. In
addition, the final rule merges together some NPRM paragraphs that
dealt with related topics and has reordered and renamed some of the
paragraphs that were in the NPRM.
Ticket sales. In the NPRM, the Department proposed, in Sec.
36.302(f)(1), a general rule that a public accommodation shall
modify its policies, practices, or procedures to ensure that
individuals with disabilities can purchase tickets for accessible
seating for an event or series of events in the same way as others
(i.e., during the same hours and through the same distribution
methods as other seating is sold). ``Accessible seating'' is defined
in Sec. 36.302(f)(1)(i) of the final rule to mean ``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.'' The defined term does not include designated
aisle seats. A ``wheelchair space'' refers to a space for a single
wheelchair and its occupant.
The NPRM proposed requiring that accessible seats be sold
through the ``same methods of distribution'' as non-accessible
seats. 73 FR 34508, 34554 (June 17, 2008). Comments from venue
managers and others in the business community, in general, noted
that multiple parties are involved in ticketing, and because
accessible seats may not be allotted to all parties involved at each
stage, such parties should be protected from liability. For example,
one commenter noted that a third-party ticket vendor, like
Ticketmaster, can only sell the tickets it receives from its client.
Because Sec. 36.302(f)(1) of the final rule requires venue
operators to make available accessible seating through the same
methods of distribution they use for their regular tickets, venue
operators that provide tickets to third-party ticket vendors are
required to provide accessible seating to the third-party ticket
vendor. This provision will enhance third-party ticket vendors'
ability to acquire and sell accessible seating for sale in the
future. The Department notes that once third-party ticket vendors
acquire accessible tickets, they are obligated to sell them in
accordance with these rules.
The Department also has received frequent complaints that
individuals with disabilities have not been able to purchase
accessible seating over the Internet, and instead have had to engage
in a laborious process of calling a customer service line, or
sending an email to a customer service representative and waiting
for a response. Not only is such a process burdensome, but it puts
individuals with disabilities at a disadvantage in purchasing
tickets for events that are popular and may sell out in minutes.
Because Sec. 36.302(f)(5) of the final rule authorizes venues to
release accessible seating in case of a sell-out, individuals with
disabilities effectively could be cut off from buying tickets unless
they also have the ability to purchase tickets in real time over the
Internet. The Department's new regulatory language is designed to
address this problem.
Several commenters representing assembly areas raised concerns
about offering accessible seating for sale over the Internet. They
contended that this approach would increase the incidence of fraud
since anyone easily could purchase accessible seating over the
Internet. They also asserted that it would be difficult
technologically to provide accessible seating for sale in real time
over the Internet, or that to do so would require simplifying the
rules concerning the purchase of multiple additional accompanying
seats. Moreover, these commenters argued that requiring an
individual purchasing accessible seating to speak with a customer
service representative would allow the venue to meet the patron's
needs most appropriately and ensure that wheelchair spaces are
reserved for individuals with disabilities who require wheelchair
spaces. Finally, these commenters argued that individuals who can
transfer effectively and conveniently from a wheelchair to a seat
with a movable armrest seat could instead purchase designated aisle
seats.
The Department considered these concerns carefully and has
decided to continue with the general approach proposed in the NPRM.
Although fraud is an important concern, the Department believes that
it is best combated by other means that would not have the effect of
limiting the ability of individuals with disabilities to purchase
tickets, particularly since restricting the purchase of accessible
seating over the Internet will, of itself, not curb fraud. In
addition, the Department has identified permissible means for
covered entities to reduce the incidence of fraudulent accessible
seating ticket purchases in Sec. 36.302(f)(8) of the final rule.
Several commenters questioned whether ticket Web sites
themselves must be accessible to individuals who are blind or have
low vision, and if so, what that requires. The Department has
consistently interpreted the ADA to cover Web sites that are
operated by public accommodations and stated that such sites must
provide their services in an accessible manner or provide an
accessible alternative to the Web site that is available 24 hours a
day, seven days a week. The final rule, therefore, does not impose
any new obligation in this area. The accessibility of Web sites is
discussed in more detail in the section entitled ``Other Issues.''
In Sec. 36.302(f)(2) of the NPRM, the Department also proposed
requiring public accommodations to make accessible seating available
during all stages of tickets sales including, but not limited to,
presales, promotions, lotteries, waitlists, and general sales. For
example, if tickets will be presold for an event that is open only
to members of a fan club, or to holders of a particular credit card,
then tickets for accessible seating must be made available for
purchase through those means. This requirement does not mean that
any individual with a disability would be able to purchase those
seats. Rather, it means that an individual with a disability who
meets the requirement for such a sale (e.g., who is a member of the
fan club or holds that credit card) will be able to participate in
the special promotion and purchase accessible seating. The
Department has maintained the substantive provisions of the NPRM's
Sec. Sec. 36.302(f)(1) and (f)(2) but has combined them in a single
paragraph at Sec. 36.302(f)(1)(ii) of the final rule so that all of
the provisions having to do with the manner in which tickets are
sold are located in a single paragraph.
Identification of available accessible seating. In the NPRM, the
Department proposed Sec. 36.302(f)(3), which, as modified and
renumbered Sec. 36.302(f)(2)(iii) in the final rule, requires a
facility to identify available accessible seating through seating
maps, brochures, or other methods if that information is made
available about other seats sold to the general public. This rule
requires public accommodations to provide information about
accessible seating to the same degree of specificity that it
provides information about general seating. For example, if a
seating map displays color-coded blocks pegged to prices for general
seating, then accessible seating must be similarly color-coded.
Likewise, if covered entities provide detailed maps that show exact
seating and pricing for general seating, they must provide the same
for accessible seating.
The NPRM did not specify a requirement to identify prices for
accessible seating. The final rule requires that if such information
is provided for general seating, it must be provided for accessible
seating as well.
In the NPRM, the Department proposed in Sec. 36.302(f)(4) that
a public accommodation, upon being asked, must inform persons with
disabilities and their companions of the locations of all unsold or
otherwise available seating. This provision is intended to prevent

[[Page 56277]]

the practice of ``steering'' individuals with disabilities to
certain accessible seating so that the facility can maximize
potential ticket sales by releasing unsold accessible seating,
especially in preferred or desirable locations, for sale to the
general public. The Department received no significant comment on
this proposal. The Department has retained this provision in the
final rule but has added it, with minor modifications, to Sec.
36.302(f)(2) as paragraph (i).
Ticket prices. In the NPRM, the Department proposed Sec.
36.302(f)(7) requiring that ticket prices for accessible seating be
set no higher than the prices for other seats in that seating
section for that event. The NPRM's provision also required that
accessible seating be made available at every price range, and if an
existing facility has barriers to accessible seating within a
particular price range, a proportionate amount of seating
(determined by the ratio of the total number of seats at that price
level to the total number of seats in the assembly area) must be
offered in an accessible location at that same price. Under this
rule, for example, if it is not readily achievable for a 20,000-seat
facility built in 1980 to place accessible seating in the $20-price
category, which is on the upper deck, it must place a proportionate
number of seats in an accessible location for $20. If the upper deck
has 2,000 seats, then the facility must place 10 percent of its
accessible seating in an accessible location for $20 provided that
it is part of a seating section where ticket prices are equal to or
more than $20--a facility may not place the $20-accessible seating
in a $10-seating section. The Department received no significant
comment on this rule, and it has been retained, as amended, in the
final rule in Sec. 36.302(f)(3).
Purchase of multiple tickets. In the NPRM, the Department
proposed Sec. 36.302(f)(9) to address one of the most common
ticketing complaints raised with the Department: that individuals
with disabilities are not able to purchase more than two tickets.
The Department proposed this provision to facilitate the ability of
individuals with disabilities to attend events with friends,
companions, or associates who may or may not have a disability by
enabling individuals with disabilities to purchase the maximum
number of tickets allowed per transaction to other spectators; by
requiring venues to place accompanying individuals in general
seating as close as possible to accessible seating (in the event
that a group must be divided because of the large size of the
group); and by allowing an individual with a disability to purchase
up to three additional contiguous seats per wheelchair space if they
are available at the time of sale. Section 36.302(f)(9)(ii) of the
NPRM required that a group containing one or more wheelchair users
must be placed together, if possible, and that in the event that the
group could not be placed together, the individuals with
disabilities may not be isolated from the rest of the group.
The Department asked in the NPRM whether this rule was
sufficient to effectuate the integration of individuals with
disabilities. Many advocates and individuals praised it as a welcome
and much-needed change, stating that the trade-off of being able to
sit with their family or friends was worth reducing the number of
seats available for individuals with disabilities. Some commenters
went one step further and suggested that the number of additional
accompanying seats should not be restricted to three.
Although most of the substance of the proposed provision on the
purchase of multiple tickets has been maintained in the final rule,
it has been renumbered as Sec. 36.302(f)(4), reorganized, and
supplemented. To preserve the availability of accessible seating for
other individuals with disabilities, the Department has not expanded
the rule beyond three additional contiguous seats. Section
36.302(f)(4)(i) of the final rule requires public accommodations to
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.
The requirement that the additional seats be ``contiguous with the
wheelchair space'' does not mean that each of the additional seats
must be in actual contact or have a border in common with the
wheelchair space; however, at least one of the additional seats
should be immediately adjacent to the wheelchair space. The
Department recognizes that it will often be necessary to use vacant
wheelchair spaces to provide for contiguous seating.
The Department has added paragraphs (4)(ii) and (4)(iii) to
clarify that in situations where there are insufficient unsold seats
to provide three additional contiguous seats per wheelchair space or
a ticket office restricts sales of tickets to a particular event to
less than four tickets per customer, the obligation to make
available three additional contiguous seats per wheelchair space
would be affected. For example, if at the time of purchase, there
are only two additional contiguous seats available for purchase
because the third has been sold already, then the ticket purchaser
would be entitled to two such seats. In this situation, the public
entity would be required to make up the difference by offering one
additional ticket for sale that is as close as possible to the
accessible seats. Likewise, if ticket purchases for an event are
limited to two per customer, a person who uses a wheelchair who
seeks to purchase tickets would be entitled to purchase only one
additional contiguous seat for the event.
The Department has also added paragraph (4)(iv) to clarify that
the requirement for three additional contiguous seats is not
intended to serve as a cap if the maximum number of tickets that may
be purchased by members of the general public exceeds the four
tickets an individual with a disability ordinarily would be allowed
to purchase (i.e., a wheelchair space and three additional
contiguous seats). If the maximum number of tickets that may be
purchased by members of the general public exceeds four, an
individual with a disability is to be allowed to purchase the
maximum number of tickets; however, additional tickets purchased by
an individual with a disability beyond the wheelchair space and the
three additional contiguous seats provided in Sec. 36.302(f)(4)(i)
do not have to be contiguous with the wheelchair space.
The NPRM proposed at Sec. 36.302(f)(9)(ii) that for group
sales, if a group includes one or more individuals who use a
wheelchair, then 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 the rest of the members of their group. The final rule retains
the NPRM language in paragraph (4)(v).
Hold and release of unsold accessible seating. The Department
recognizes that not all accessible seating will be sold in all
assembly areas for every event to individuals with disabilities who
need such seating and that public accommodations may have
opportunities to sell such seating to the general public. The
Department proposed in the NPRM a provision aimed at striking a
balance between affording individuals with disabilities adequate
time to purchase accessible seating and the entity's desire to
maximize ticket sales. In the NPRM, the Department proposed Sec.
36.302(f)(6), which allowed for the release of accessible seating
under the following circumstances: (i) When all seating in the
facility has been sold, excluding luxury boxes, club boxes, or
suites; (ii) when all seating in a designated area has been sold and
the accessible seating being released is in the same area; or (iii)
when all seating in a designated price range has been sold and the
accessible seating being released is within the same price range.
The Department's NPRM asked ``whether additional regulatory
guidance is required or appropriate in terms of a more detailed or
set schedule for the release of tickets in conjunction with the
three approaches described above. For example, does the proposed
regulation address the variable needs of assembly areas covered by
the ADA? Is additional regulatory guidance required to eliminate
discriminatory policies, practices and procedures related to the
sale, hold, and release of accessible seating? What considerations
should appropriately inform the determination of when unsold
accessible seating can be released to the general public?'' 73 FR
34508, 34527 (June 17, 2008).
The Department received comments both supporting and opposing
the inclusion of a hold-and-release provision. One side proposed
loosening the restrictions on the release of unsold accessible
seating. One commenter from a trade association suggested that
tickets should be released regardless of whether there is a sell-
out, and that these tickets should be released according to a set
schedule. Conversely, numerous individuals, advocacy groups, and at
least one public entity urged the Department to tighten the
conditions under which unsold tickets for accessible seating may be
released. These commenters suggested that venues should not be
permitted to release tickets during the first two weeks of sale, or
alternatively, that they should not be permitted to be released
earlier than 48 hours before a sold-out event. Many of these
commenters criticized the release of accessible seating under the
second and third prongs of Sec. 36.302(f)(6) in the NPRM (when
there is a sell-out in general seating in a

[[Page 56278]]

designated seating area or in a price range), arguing that it would
create situations where general seating would be available for
purchase while accessible seating would not be.
Numerous commenters--both from the industry and from advocacy
groups--asked for clarification of the term ``sell-out.'' Business
groups commented that industry practice is to declare a sell-out
when there are only ``scattered singles'' available--isolated seats
that cannot be purchased as a set of adjacent pairs. Many of those
same commenters also requested that ``sell-out'' be qualified with
the phrase ``of all seating available for sale'' since it is
industry practice to hold back from release tickets to be used for
groups connected with that event (e.g., the promoter, home team, or
sports league). They argued that those tickets are not available for
sale and any return of these tickets to the general inventory
happens close to the event date. Noting the practice of holding back
tickets, one advocacy group suggested that covered entities be
required to hold back accessible seating in proportion to the number
of tickets that are held back for later release.
The Department has concluded that it would be inappropriate to
interfere with industry practice by defining what constitutes a
``sell-out'' and that a public accommodation should continue to use
its own approach to defining a ``sell-out.'' If, however, a public
accommodation declares a sell-out by reference to those seats that
are available for sale, but it holds back tickets that it reasonably
anticipates will be released later, it must hold back a proportional
percentage of accessible seating to be released as well.
Adopting any of the alternatives proposed in the comments
summarized above would have upset the balance between protecting the
rights of individuals with disabilities and meeting venues' concerns
about lost revenue from unsold accessible seating. As a result, the
Department has retained Sec. 36.302(f)(6) renumbered as Sec.
36.302(f)(5) in the final rule. The Department has, however,
modified the regulation text to specify that accessible seating may
be released only 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.'' As stated in the
NPRM, the Department intended for this provision to allow, for
example, the release of accessible seating at the orchestra level
when all other seating at the orchestra level is sold. The
Department has added this language to the final rule at Sec.
36.302(f)(5)(B) to clarify that venues cannot designate or
redesignate seating areas for the purpose of maximizing the release
of unsold accessible seating. So, for example, a venue may not
determine on an ad hoc basis that a group of seats at the orchestra
level is a designated seating area in order to release unsold
accessible seating in that area.
The Department also has maintained the hold-and-release
provisions that appeared in the NPRM, but has added a provision to
address the release of accessible seating for series-of-events
tickets on a series-of-events basis. Many commenters asked the
Department whether unsold accessible seating may be converted to
general seating and released to the general public on a season-
ticket basis or longer when tickets typically are sold as a season-
ticket package or other long-term basis. Several disability rights
organizations and individual commenters argued that such a practice
should not be permitted, and, if it were, that conditions should be
imposed to ensure that individuals with disabilities have future
access to those seats.
The Department interprets the fundamental principle of the ADA
as a requirement to give individuals with disabilities equal, not
better, access to those opportunities available to the general
public. Thus, for example, a public accommodation that sells out its
facility on a season-ticket only basis is not required to leave
unsold its accessible seating if no persons with disabilities
purchase those season-ticket seats. Of course, public accommodations
may choose to go beyond what is required by reserving accessible
seating for individuals with disabilities (or releasing such seats
for sale to the general public) on an individual-game basis.
If a covered entity chooses to release unsold accessible seating
for sale on a season-ticket or other long-term basis, it must meet
at least two conditions. Under Sec. 36.302(f)(5)(iii) of the final
rule, public accommodations must leave flexibility for game-day
change-outs to accommodate ticket transfers on the secondary market.
And public accommodations must modify their ticketing policies so
that, in future years, individuals with disabilities will have the
ability to purchase accessible seating on the same basis as other
patrons (e.g., as season tickets). Put differently, releasing
accessible seating to the general public on a season-ticket or other
long-term basis cannot result in that seating being lost to
individuals with disabilities in perpetuity. If, in future years,
season tickets become available and persons with disabilities have
reached the top of the waiting list or have met any other
eligibility criteria for season ticket purchases, public
accommodations must ensure that accessible seating will be made
available to the eligible individuals. In order to accomplish this,
the Department has added Sec. 36.302(f)(5)(iii)(A) to require
public accommodations that release accessible season tickets to
individuals who do not have disabilities that require the features
of accessible seating to establish a process to prevent the
automatic reassignment of such ticket holders to accessible seating.
For example, a public accommodation could have in place a system
whereby accessible seating that was released because it was not
purchased by individuals with disabilities is not in the pool of
tickets available for purchase for the following season unless and
until the conditions for ticket release have been satisfied in the
following season. Alternatively, a public accommodation might
release tickets for accessible seating only when a purchaser who
does not need its features agrees that he or she has no guarantee of
or right to the same seats in the following season, or that if
season tickets are guaranteed for the following season, the
purchaser agrees that the offer to purchase tickets is limited to
non-accessible seats with, to the extent practicable, comparable
price, view, and amenities to the accessible seats such individuals
held in the prior year. The Department is aware that this rule may
require some administrative changes but believes that this process
will not create undue financial and administrative burdens. The
Department believes that this approach is balanced and beneficial.
It will allow public accommodations to sell all of their seats and
will leave open the possibility, in future seasons or series of
events, that persons who need accessible seating may have access to
it.
The Department also has added Sec. 36.302(f)(5)(iii)(B) to
address how season tickets or series-of-events tickets that have
attached ownership rights should be handled if the ownership right
returns to the public accommodation (e.g., when holders forfeit
their ownership right by failing to purchase season tickets or sell
their ownership right back to a public accommodation). If the
ownership right is for accessible seating, the public accommodation
is required to adopt a process that allows an eligible individual
with a disability who requires the features of such seating to
purchase the rights and tickets for such seating.
Nothing in the regulatory text prevents a public accommodation
from establishing a process whereby such ticket holders agree to be
voluntarily reassigned from accessible seating to another seating
area so that individuals with mobility disabilities or disabilities
that require the features of accessible seating and who become newly
eligible to purchase season tickets have an opportunity to do so.
For example, a public accommodation might seek volunteers to
relocate to another location that is at least as good in terms of
its location, price, and amenities or a public accommodation might
use a seat with forfeited ownership rights as an inducement to get a
ticket holder to give up accessible seating he or she does not need.
Ticket transfer. The Department received many comments asking
whether accessible seating has the same transfer rights as general
seats. The proposed regulation at Sec. 36.302(f)(5) required that
individuals with disabilities must be allowed to purchase season
tickets for accessible seating on the same terms and conditions as
individuals purchasing season tickets for general seating, including
the right--if it exists for other ticket-holders--to transfer
individual tickets to friends or associates. Some commenters pointed
out that the NPRM proposed explicitly allowing individuals with
disabilities holding season tickets to transfer tickets but did not
address the transfer of tickets purchased for individual events.
Several commenters representing assembly areas argued that persons
with disabilities holding tickets for an individual event should not
be allowed to sell or transfer them to third parties because such
ticket transfers would increase the risk of fraud or would make
unclear the obligation of the entity to accommodate secondary ticket
transfers. They argued that individuals holding accessible seating
should either be required to transfer their tickets to another
individual with a disability or return them to the facility for a
refund.

[[Page 56279]]

Although the Department is sympathetic to concerns about
administrative burden, curtailing transfer rights for accessible
seating when other ticket holders are permitted to transfer tickets
would be inconsistent with the ADA's guiding principle that
individuals with disabilities must have rights equal to others.
Thus, the Department has added language in the final rule in Sec.
36.302(f)(6) that requires that individuals with disabilities
holding accessible seating for any event have the same transfer
rights accorded other ticket holders for that event. Section
36.302(f)(6) also preserves the rights of individuals with
disabilities who hold tickets to accessible seats for a series of
events to transfer individual tickets to others, regardless of
whether the transferee needs accessible seating. This approach
recognizes the common practice of individuals splitting season
tickets or other multi-event ticket packages with friends,
colleagues, or other spectators to make the purchase of season
tickets affordable; individuals with disabilities should not be
placed in the burdensome position of having to find another
individual with a disability with whom to share the package.
This provision, however, does not require public accommodations
to seat an individual who holds a ticket to an accessible seat in
such seating if the individual does not need the accessible features
of the seat. A public accommodation may reserve the right to switch
these individuals to different seats if they are available, but a
public accommodation is not required to remove a person without a
disability who is using accessible seating from that seating, even
if a person who uses a wheelchair shows up with a ticket from the
secondary market for a non-accessible seat and wants accessible
seating.
Secondary ticket market. Section 36.302(f)(7) is a new provision
in the final rule that requires a public accommodation to modify its
policies, practices, or procedures to ensure that an individual with
a disability, who acquires a ticket in the secondary ticket market,
may use that ticket under the same terms and conditions as other
ticket holders who acquire a ticket in the secondary market for an
event or series of events. This principle was discussed in the NPRM
in connection with Sec. 36.302(f)(5), pertaining to season-ticket
sales. There, the Department asked for public comment regarding a
public accommodation's proposed obligation to accommodate the
transfer of accessible seating tickets on the secondary ticket
market to those who do not need accessible seating and vice versa.
The secondary ticket market, for the purposes of this rule,
broadly means any transfer of tickets after the public
accommodation's initial sale of tickets to individuals or entities.
It thus encompasses a wide variety of transactions, from ticket
transfers between friends to transfers using commercial exchange
systems. Many commenters noted that the distinction between the
primary and secondary ticket market has become blurred as a result
of agreements between teams, leagues, and secondary market sellers.
These commenters noted that the secondary market may operate
independently of the public accommodation, and parts of the
secondary market, such as ticket transfers between friends,
undoubtedly are outside the direct jurisdiction of the public
accommodation. To the extent that venues seat persons who have
purchased tickets on the secondary market, they must similarly seat
persons with disabilities who have purchased tickets on the
secondary market. In addition, some public accommodations may
acquire ADA obligations directly by formally entering the secondary
ticket market.
The Department's enforcement experience with assembly areas also
has revealed that venues regularly provide for and make last-minute
seat transfers. As long as there are vacant wheelchair spaces,
requiring venues to provide wheelchair spaces for patrons who
acquired inaccessible seats and need wheelchair spaces is an example
of a reasonable modification of a policy under title III of the ADA.
Similarly, a person who has a ticket for a wheelchair space but who
does not require its accessible features could be offered non-
accessible seating if such seating is available.
The Department's longstanding position that title III of the ADA
requires venues to make reasonable modifications in their policies
to allow individuals with disabilities who acquired non-accessible
tickets on the secondary ticket market to be seated in accessible
seating, where such seating is vacant, is supported by the only
Federal court to address this issue. See Independent Living
Resources v. Oregon Arena Corp., 1 F. Supp. 2d 1159, 1171 (D. Or.
1998). The Department has incorporated this position into the final
rule at Sec. 36.302(f)(7)(ii).
The NPRM contained two questions aimed at gauging concern with
the Department's consideration of secondary ticket market sales. The
first question asked whether a secondary purchaser who does not have
a disability and who buys an accessible seat should be required to
move if the space is needed for someone with a disability.
Many disability rights advocates answered that the individual
should move provided that there is a seat of comparable or better
quality available for him and his companion. Some venues, however,
expressed concerns about this provision, and asked how they are to
identify who should be moved and what obligations apply if there are
no seats available that are equivalent or better in quality.
The Department's second question asked whether there are
particular concerns about the obligation to provide accessible
seating, including a wheelchair space, to an individual with a
disability who purchases an inaccessible seat through the secondary
market.
Industry commenters contended that this requirement would create
a ``logistical nightmare,'' with venues scrambling to reseat patrons
in the short time between the opening of the venues' doors and the
commencement of the event. Furthermore, they argued that they might
not be able to reseat all individuals and that even if they were
able to do so, patrons might be moved to inferior seats (whether in
accessible or non-accessible seating). These commenters also were
concerned that they would be sued by patrons moved under such
circumstances.
These commenters seem to have misconstrued the rule. Covered
entities are not required to seat every person who acquires a ticket
for inaccessible seating but needs accessible seating, and are not
required to move any individual who acquires a ticket for accessible
seating but does not need it. Covered entities that allow patrons to
buy and sell tickets on the secondary market must make reasonable
modifications to their policies to allow persons with disabilities
to participate in secondary ticket transfers. The Department
believes that there is no one-size-fits-all rule that will suit all
assembly areas. In those circumstances where a venue has accessible
seating vacant at the time an individual with a disability who needs
accessible seating presents his ticket for inaccessible seating at
the box office, the venue must allow the individual to exchange his
ticket for an accessible seat in a comparable location if such an
accessible seat is vacant. Where, however, a venue has sold all of
its accessible seating, the venue has no obligation to provide
accessible seating to the person with a disability who purchased an
inaccessible seat on the secondary market. Venues may encourage
individuals with disabilities who hold tickets for inaccessible
seating to contact the box office before the event to notify them of
their need for accessible seating, even though they may not require
ticketholders to provide such notice.
The Department notes that public accommodations are permitted,
though not required, to adopt policies regarding moving patrons who
do not need the features of an accessible seat. If a public
accommodation chooses to do so, it might mitigate administrative
concerns by marking tickets for accessible seating as such, and
printing on the ticket that individuals who purchase such seats but
who do not need accessible seating are subject to being moved to
other seats in the facility if the accessible seating is required
for an individual with a disability. Such a venue might also develop
and publish a ticketing policy to provide transparency to the
general public and to put holders of tickets for accessible seating
who do not require it on notice that they may be moved.
Prevention of fraud in purchase of accessible seating. Assembly
area managers and advocacy groups have informed the Department that
the fraudulent purchase of accessible seating is a pressing concern.
Curbing fraud is a goal that public accommodations and individuals
with disabilities share. Steps taken to prevent fraud, however, must
be balanced carefully against the privacy rights of individuals with
disabilities. Such measures also must not impose burdensome
requirements upon, nor restrict the rights of, individuals with
disabilities.
In the NPRM, the Department struck a balance between these
competing concerns by proposing Sec. 36.302(f)(8), which prohibited
public accommodations from asking for proof of disability before the
purchase of accessible seating but provided guidance in two

[[Page 56280]]

paragraphs on appropriate measures for curbing fraud. Paragraph (i)
proposed allowing a public accommodation to ask individuals
purchasing single-event tickets for accessible seating whether they
are wheelchair users. Paragraph (ii) proposed allowing a public
accommodation to require individuals purchasing accessible seating
for season tickets or other multi-event ticket packages to attest in
writing that the accessible seating is for a wheelchair user.
Additionally, the NPRM proposed to permit venues, when they have
good cause to believe that an individual has fraudulently purchased
accessible seating, to investigate that individual.
Several commenters objected to this rule on the ground that it
would require a wheelchair user to be the purchaser of tickets. The
Department has reworded this paragraph to reflect that the
individual with a disability does not have to be the ticket
purchaser. The final rule allows third parties to purchase
accessible tickets at the request of an individual with a
disability.
Commenters also argued that other individuals with disabilities
who do not use wheelchairs should be permitted to purchase
accessible seating. Some individuals with disabilities who do not
use wheelchairs urged the Department to change the rule, asserting
that they, too, need accessible seating. The Department agrees that
such seating, although designed for use by a wheelchair user, may be
used by non-wheelchair users, if those persons are persons with a
disability who need to use accessible seating because of a mobility
disability or because their disability requires the use of the
features that accessible seating provides (e.g., individuals who
cannot bend their legs because of braces, or individuals who,
because of their disability, cannot sit in a straight-back chair).
Some commenters raised concerns that allowing venues to ask
questions to determine whether individuals purchasing accessible
seating are doing so legitimately would burden individuals with
disabilities in the purchase of accessible seating. The Department
has retained the substance of this provision in Sec. 36.302(f)(8)
of the final rule, but emphasizes that such questions should be
asked at the initial time of purchase. For example, if the method of
purchase is via the Internet, then the question(s) should be
answered by clicking a yes or no box during the transaction. The
public accommodation may warn purchasers that accessible seating is
for individuals with disabilities and that individuals purchasing
such tickets fraudulently are subject to relocation.
One commenter argued that face-to-face contact between the venue
and the ticket holder should be required in order to prevent fraud
and suggested that individuals who purchase accessible seating
should be required to pick up their tickets at the box office and
then enter the venue immediately. The Department has declined to
adopt that suggestion. It would be discriminatory to require
individuals with disabilities to pick up tickets at the box office
when other spectators are not required to do so. If the assembly
area wishes to make face-to-face contact with accessible seating
ticket holders to curb fraud, it may do so through its ushers and
other customer service personnel located within the seating area.
Some commenters asked whether it is permissible for assembly
areas to have voluntary clubs where individuals with disabilities
self-identify to the public accommodation in order to become a
member of a club that entitles them to purchase accessible seating
reserved for club members or otherwise receive priority in
purchasing accessible seating. The Department agrees that such clubs
are permissible, provided that a reasonable amount of accessible
seating remains available at all prices and dispersed at all
locations for individuals with disabilities who are non-members.

Section 36.303 Auxiliary Aids and Services

Section 36.303(a) of the 1991 title III regulation requires a
public accommodation to take such steps as may be necessary to
ensure that no individual with a disability is excluded, denied
services, segregated, or otherwise treated differently than other
individuals because of the absence of auxiliary aids and services,
unless the public accommodation can demonstrate that taking such
steps would fundamentally alter the nature of the goods, services,
facilities, advantages, or accommodations being offered or would
result in an undue burden. Implicit in this duty to provide
auxiliary aids and services is the underlying obligation of a public
accommodation to communicate effectively with customers, clients,
patients, companions, or participants who have disabilities
affecting hearing, vision, or speech. The Department notes that
Sec. 36.303(a) does not require public accommodations to provide
assistance to individuals with disabilities that is unrelated to
effective communication, although requests for such assistance may
be otherwise subject to the reasonable modifications or barrier
removal requirements.
The Department has investigated hundreds of complaints alleging
that public accommodations have failed to provide effective
communication, and many of these investigations have resulted in
settlement agreements and consent decrees. During the course of
these investigations, the Department has determined that public
accommodations sometimes misunderstand the scope of their
obligations under the statute and the regulation. Section 36.303 in
the final rule codifies the Department's longstanding policies in
this area, and includes provisions based on technological advances
and breakthroughs in the area of auxiliary aids and services that
have occurred since the 1991 title III regulation was published.
Video remote interpreting (VRI). Section 36.303(b)(1) sets out
examples of auxiliary aids and services. In the NPRM, the Department
proposed adding video remote services (hereafter referred to as
``video remote interpreting'' or ``VRI'') and the exchange of
written notes among the examples. The Department also proposed
amending the provision to reflect technological advances, such as
the wide availability of real-time capability in transcription
services and captioning.
VRI is defined in the final rule at Sec. 36.104 as ``an
interpreting service that uses video conference technology over
dedicated lines or wireless technology offering high-speed, wide-
bandwidth video connection or wireless connection that delivers
high-quality video images as provided in Sec. 36.303(f).'' The
Department notes that VRI generally consists of a videophone,
monitors, cameras, a high-speed video connection, and an interpreter
provided by the public accommodation pursuant to a contract for
services. The term's inclusion within the definition of ``qualified
interpreter'' makes clear that a public accommodation's use of VRI
satisfies its title III obligations only where VRI affords effective
communication. Comments from advocates and persons with disabilities
expressed concern that VRI may not always provide effective
communication, especially in hospitals and emergency rooms. Examples
were provided of patients who are unable to see the video monitor
because they are semi-conscious or unable to focus on the video
screen; other examples were given of cases where the video monitor
is out of the sightline of the patient or the image is out of focus;
still other examples were given of patients who cannot see the
screen because the signal is interrupted, causing unnatural pauses
in communication, or the image is grainy or otherwise unclear. Many
commenters requested more explicit guidelines on the use of VRI, and
some recommended requirements for equipment maintenance, dedicated
high-speed, wide-bandwidth video connections, and training of staff
using VRI, especially in hospital and health care situations.
Several major organizations requested a requirement to include the
interpreter's face, head, arms, hands, and eyes in all
transmissions.
The Department has determined that VRI can be an effective
method of providing interpreting service in certain situations,
particularly when a live interpreter cannot be immediately on the
scene. To ensure that VRI is effective, the Department has
established performance standards for VRI in Sec. 36.303(f). The
Department recognizes that reliance on VRI may not be effective in
certain situations, such as those involving the exchange of complex
information or involving multiple parties, and for some individuals,
such as for persons who are deaf-blind, and using VRI in those
circumstances would not satisfy a public accommodation's obligation
to provide effective communication.
Comments from several disability advocacy organizations and
individuals discouraged the Department from adding the exchange of
written notes to the list of available auxiliary aids in Sec.
36.303(b). The Department consistently has recognized that the
exchange of written notes may provide effective communication in
certain contexts. The NPRM proposed adding an explicit reference to
written notes because some title III entities do not understand that
exchange of written notes using paper and pencil may be an available
option in some circumstances. Advocates and persons with
disabilities requested explicit limits on the use of written notes
as a form of auxiliary aid because, they argued, most exchanges are
not simple, and handwritten notes do not afford effective

[[Page 56281]]

communication. One major advocacy organization, for example, noted
that the speed at which individuals communicate orally or use sign
language averages about 200 words per minute or more, and thus, the
exchange of notes may provide only truncated or incomplete
communication. For persons whose primary language is American Sign
Language (ASL), some commenters pointed out, using written English
in exchange of notes often is ineffective because ASL syntax and
vocabulary is dissimilar from English. By contrast, some commenters
from professional medical associations sought more specific guidance
on when notes are allowed, especially in the context of medical
offices and health care situations.
Exchange of notes likely will be effective in situations that do
not involve substantial conversation, for example, when blood is
drawn for routine lab tests or regular allergy shots are
administered. However, interpreters should be used when the matter
involves more complexity, such as in communication of medical
history or diagnoses, in conversations about medical procedures and
treatment decisions, or in communication of instructions for care at
home or elsewhere. The Department discussed in the NPRM the kinds of
situations in which use of interpreters or captioning is necessary.
Additional guidance on this issue can be found in a number of
agreements entered into with health care providers and hospitals
that are available on the Department's Web site at http://
www.ada.gov.
In addition, commenters requested that the Department include
``real-time'' before any mention of ``computer-aided'' or
``captioning'' technology to highlight the value of simultaneous
translation of any communication. The Department has added to the
final rule appropriate references to ``real-time'' to recognize this
aspect of effective communication. Lastly, in this provision and
elsewhere in the title III regulation, the Department has replaced
the term ``telecommunications devices for deaf persons (TDD)'' with
``text telephones (TTYs).'' As noted in the NPRM, TTY has become the
commonly accepted term and is consistent with the terminology used
by the Access Board in the 2004 ADAAG. Comments from advocates and
persons with disabilities expressed approval of the substitution of
TTY for TDD in the proposed regulation, but expressed the view that
the Department should expand the definition to ``voice, text, and
video-based telecommunications products and systems, including
TTY's, videophones, and captioned telephones, or equally effective
telecommunications systems.'' The Department has expanded its
definition of ``auxiliary aids and services'' in Sec. 36.303 to
include those examples in the final rule. Other additions proposed
in the NPRM, and retained in the final rule, include Brailled
materials and displays, screen reader software, magnification
software, optical readers, secondary auditory programs (SAP), and
accessible electronic and information technology.
As the Department noted in the preamble to the NPRM, the list of
auxiliary aids in Sec. 36.303(b) is merely illustrative. The
Department does not intend that every public accommodation covered
by title III must have access to every device or all new technology
at all times, as long as the communication provided is effective.
Companions who are individuals with disabilities. The Department
has added several new provisions to Sec. 36.303(c), but these
provisions do not impose new obligations on places of public
accommodation. Rather, these provisions simply codify the
Department's longstanding positions. Section 36.303(c)(1) now states
that ``[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.'' Section 36.303(c)(1)(i) defines ``companion''
as ``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.''
This provision makes clear that if the companion is someone with
whom the public accommodation normally would or should communicate,
then the public accommodation must provide appropriate auxiliary
aids and services to that companion to ensure effective
communication with the companion. This commonsense rule provides the
necessary guidance to public accommodations to implement properly
the nondiscrimination requirements of the ADA. Commenters also
questioned why, in the NPRM, the Department defined companion as ``a
family member, friend, or associate of a program participant * *
*,'' noting that the scope of a public accommodation's obligation is
not limited to ``program participants'' but rather includes all
individuals seeking access to, or participating in, the goods,
services, facilities, privileges, advantages, or accommodations of
the public accommodation. 73 FR 34508, 34554 (June 17, 2008). The
Department agrees and has amended the regulatory language
accordingly. Many commenters supported inclusion of companions in
the rule and requested that the Department clarify that a companion
with a disability may be entitled to effective communication from
the public accommodation, even though the individual seeking access
to, or participating in, the goods, services, facilities,
privileges, advantages, or accommodations of the public
accommodation is not an individual with a disability. Some
commenters asked the Department to make clear that if the individual
seeking access to or participating in the public accommodation's
program or services is an individual with a disability and the
companion is not, the public accommodation may not limit its
communication to the companion, instead of communicating directly
with the individual with a disability, when it would otherwise be
appropriate to communicate with the individual with the disability.
Most entities and individuals from the medical field objected to
the Department's proposal, suggesting that medical and health care
providers, and they alone, should determine to whom medical
information should be communicated and when auxiliary aids and
services should be provided to companions. Others asked that the
Department limit the public accommodation's obligation to
communicate effectively with a companion to situations where such
communication is necessary to serve the interests of the person who
is receiving the public accommodation's services. It also was
suggested that companions should receive auxiliary aids and services
only when necessary to ensure effective communication with the
person receiving the public accommodation's services, with an
emphasis on the particular needs of the patient requiring
assistance, not the patient's family or guardian.
Some in the medical community objected to the inclusion of any
regulatory language regarding companions, asserting that such
language is overbroad, seeks services for individuals whose presence
is neither required by the public accommodation nor necessary for
the delivery of the services or good, places additional burdens on
the medical community, and represents an uncompensated mandate. One
medical association commenter stated that such a mandate was
particularly burdensome in situations where a patient is fully and
legally capable of participating in the decision-making process and
needs little or no assistance in obtaining care and following
through on physician's instructions.
The final rule codifies the Department's longstanding
interpretation of the ADA, and clarifies that public accommodations
have effective communication obligations with respect to companions
who are individuals with disabilities even where the individual
seeking to participate in or benefit from what a public
accommodation offers does not have a disability. There are many
instances in which such an individual may not be an individual with
a disability but his or her companion is an individual with a
disability. The effective communication requirement applies equally
to that companion.
Effective communication with companions is particularly critical
in health care settings where miscommunication may lead to
misdiagnosis and improper or delayed medical treatment. The
Department has encountered confusion and reluctance by medical care
providers regarding the scope of their obligation with respect to
such companions. Effective communication with a companion is
necessary in a variety of circumstances. For example, a companion
may be legally authorized to make health care decisions on behalf of
the patient or may need to help the patient with information or
instructions given by hospital personnel. In addition, a companion
may be the patient's next of kin or health care surrogate with whom
hospital personnel need to communicate concerning the patient's
medical condition. Moreover, a companion could be designated by the
patient to communicate with hospital personnel about the patient's
symptoms, needs, condition, or medical history. Furthermore, the
companion could be a family member with whom

[[Page 56282]]

hospital personnel normally would communicate. It has been the
Department's longstanding position that public accommodations are
required to provide effective communication to companions when they
accompany patients to medical care providers for treatment.
The individual with a disability does not need to be present
physically to trigger the public accommodation's obligation to
provide effective communication to a companion. The controlling
principle regarding whether appropriate auxiliary aids and services
should be provided is whether the companion is an appropriate person
with whom the public accommodation should communicate. Examples of
such situations include back-to-school night or parent-teacher
conferences at a private school. If the faculty writes on the board
or otherwise displays information in a visual context during back-
to-school night, this information must be communicated effectively
to parents or guardians who are blind or have low vision. At a
parent-teacher conference, deaf parents or guardians are to be
provided with appropriate auxiliary aids and service to communicate
effectively with the teacher and administrators. Likewise, when a
deaf spouse attempts to communicate with private social service
agencies about the services necessary for the hearing spouse,
appropriate auxiliary aids and services must be provided to the deaf
spouse by the public accommodation to ensure effective
communication.
One medical association sought approval to impose a charge
against an individual with a disability, either the patient or the
companion, where that person had stated he or she needed an
interpreter for a scheduled appointment, the medical provider had
arranged for an interpreter to appear, and then the individual
requiring the interpreter did not show up for the scheduled
appointment. Section 36.301(c) of the 1991 title III regulation
prohibits the imposition of surcharges to cover the costs of
necessary auxiliary aids and services. As such, medical providers
cannot pass along to their patients with disabilities the cost of
obtaining an interpreter, even in situations where the individual
cancels his or her appointment at the last minute or is a ``no-
show'' for the scheduled appointment. The medical provider, however,
may charge for the missed appointment if all other patients are
subject to such a charge in the same circumstances.
Determining appropriate auxiliary aids. The type of auxiliary
aid the public accommodation provides is dependent on which
auxiliary aid is appropriate under the particular circumstances.
Section 36.303(c)(1)(ii) codifies the Department's longstanding
interpretation that 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. As the Department explained
in the NPRM, this provision lists factors the public accommodation
should consider in determining which type of auxiliary aids and
services are necessary. For example, an individual with a disability
who is deaf or hard of hearing may need a qualified interpreter to
discuss with hospital personnel a diagnosis, procedures, tests,
treatment options, surgery, or prescribed medication (e.g., dosage,
side effects, drug interactions, etc.). In comparison, an individual
who is deaf or hard of hearing who purchases an item in the hospital
gift shop may need only an exchange of written notes to achieve
effective communication.
The language in the first sentence of Sec. 36.303(c)(1)(ii) is
derived from the Department's Technical Assistance Manual. See
Department of Justice, Americans with Disabilities Act, ADA Title
III Technical Assistance Manual Covering Public Accommodations and
Commercial Facilities, III-4.3200, available at http://www.ada.gov/
taman3.html. There were few comments regarding inclusion of this
policy in the regulation itself, and those received were positive.
Many advocacy groups, particularly those representing blind
individuals and those with low vision, urged the Department to add
language in the final rule requiring the provision of accessible
material in a manner that is timely, accurate, and private. This,
they argued, would be especially important with regard to billing
information, other time-sensitive material, or confidential
information. The Department has added a provision in Sec.
36.303(c)(1)(ii) stating that in ``order to be effective, auxiliary
aids and services must be provided in accessible formats, in a
timely manner, and in such a way so as to protect the privacy and
independence of the individual with a disability.''
The second sentence of Sec. 36.303(c)(1)(ii) states that ``[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.'' Many commenters urged the Department to amend this
provision to require public accommodations to give primary
consideration to the expressed choice of an individual with a
disability. However, as the Department explained when it initially
promulgated the 1991 title III regulation, the Department believes
that Congress did not intend under title III to impose upon a public
accommodation the requirement that it give primary consideration to
the request of the individual with a disability. See 28 CFR part 36,
app. B at 726 (2009). The legislative history does, however,
demonstrate congressional intent to strongly encourage consulting
with persons with disabilities. Id. As the Department explained in
the 1991 preamble, ``the House Education and Labor Committee stated
that it `expects' that `public accommodation(s) will consult with
the individual with a disability before providing a particular
auxiliary aid or service.' (Education and Labor report at 107).''
Id.
The commenters who urged that primary consideration be given to
the individual with a disability noted, for example, that a public
accommodation would not provide effective communication by using
written notes where the individual requiring an auxiliary aid is in
severe pain, or by providing a qualified ASL interpreter when an
individual needs an oral interpreter instead. Both examples
illustrate the importance of consulting with the individual with a
disability in order to ensure that the communication provided is
effective. When a public accommodation ignores the communication
needs of the individual requiring an auxiliary aid or service, it
does so at its peril, for if the communication provided is not
effective, the public accommodation will have violated title III of
the ADA.
Consequently, the regulation strongly encourages the public
accommodation to engage in a dialogue with the individual with a
disability to determine what auxiliary aids and services are
appropriate under the circumstances. This dialogue should include a
communication assessment of the individual with a disability
initially, regularly, and as needed, because the auxiliary aids and
services necessary to provide effective communication to the
individual may fluctuate. For example, a deaf individual may go to a
private community health center with what is at first believed to be
a minor medical emergency, such as a sore knee, and the individual
with a disability and the community health center both may believe
that exchanging written notes will be effective; however, during
that individual's visit, it may be determined that the individual
is, in fact, suffering from an anterior cruciate ligament tear and
must have surgery to repair the torn ligament. As the situation
develops and the diagnosis and recommended course of action evolve
into surgery, an interpreter likely will be necessary. The community
health center has a continuing obligation to assess the auxiliary
aids and services it is providing, and should consult with
individuals with disabilities on a continuing basis to assess what
measures are required to ensure effective communication.
Similarly, the Department strongly encourages public
accommodations to keep individuals with disabilities apprised of the
status of the expected arrival of an interpreter or the delivery of
other requested or anticipated auxiliary aids and services. Also,
when the public accommodation decides not to provide the auxiliary
aids and services requested by an individual with a disability, the
public accommodation should provide that individual with the reason
for its decision.
Family members and friends as interpreters. Section
36.303(c)(2), which was proposed in the NPRM, has been included in
the final rule to make clear that a public accommodation shall not
require an individual with a disability to bring another individual
to interpret for him or her. The Department has added this
regulatory requirement to emphasize that when a public accommodation
is interacting with a person with a disability, it is the public
accommodation's responsibility to provide an interpreter to ensure
effective communication. It is not appropriate to require the person
with a disability to bring another individual to provide such
services.

[[Page 56283]]

Many commenters supported inclusion of this language in the new
rule. A representative from a cruise line association opined,
however, that if a guest chose to cruise without an interpreter or
companion, the ship would not be compelled to provide an interpreter
for the medical facility. On the contrary, when an individual with a
disability goes on a cruise, the cruise ship has an obligation to
provide effective communication, including, if necessary, a
qualified interpreter as defined in the rule.
Some representatives of pediatricians objected to this
provision, stating that parents of children with disabilities often
know best how to interpret their children's needs and health status
and relay that information to the child's physician, and to remove
that parent, or add a stranger into the examining room, may frighten
children. These commenters requested clarification in the regulation
that public accommodations should permit parents, guardians, or
caregivers of children with disabilities to accompany them in
medical settings to ensure effective communication. The regulation
does not prohibit parents, guardians, or caregivers from being
present or providing effective communication for children. Rather,
it prohibits medical professionals (and other public accommodations)
from requiring or forcing individuals with disabilities to bring
other individuals with them to facilitate communication so that the
public accommodation will not have to provide appropriate auxiliary
aids and services. The public accommodation cannot avoid its
obligation to provide an interpreter except under the circumstances
described in Sec. 36.303(c)(3)-(4).
A State medical association also objected to this provision,
opining that medical providers should have the authority to ask
patients to bring someone with them to provide interpreting services
if the medical provider determines that such a practice would result
in effective communication and that patient privacy and
confidentiality would be maintained. While the public accommodation
has the obligation to determine what type of auxiliary aids and
services are necessary to ensure effective communication, it cannot
unilaterally determine whether the patient's privacy and
confidentiality would be maintained.
Section 36.303(c)(3) of the final rule codifies the Department's
position that there are certain limited instances when a public
accommodation may rely on an accompanying adult to interpret or
facilitate communication: (1) In an emergency involving an imminent
threat to the safety or welfare of an individual or the public; or
(2) if the individual with a disability specifically requests it,
the accompanying adult agrees to provide the assistance, and
reliance on that adult for this assistance is appropriate under the
circumstances. In such instances, the public accommodation should
first offer to provide appropriate auxiliary aids and services free
of charge.
Commenters requested that the Department make clear that the
public accommodation cannot request, rely on, or coerce an
accompanying adult to provide effective communication for an
individual with a disability, and that only a voluntary offer of
assistance is acceptable. The Department states unequivocally that
consent of, and for, the accompanying adult to facilitate
communication must be provided freely and voluntarily both by the
individual with a disability and the accompanying adult--absent an
emergency involving an imminent threat to the safety or welfare of
an individual or the public. The public accommodation cannot coerce
or attempt to persuade another adult to provide effective
communication for the individual with a disability.
Several commenters asked that the Department make clear that
children are not to be used to provide effective communication for
family members and friends and that it is the responsibility of the
public accommodation to provide effective communication, stating
that interpreters often are needed in settings where it would not be
appropriate for children to be interpreting, such as those involving
medical issues, domestic violence, or other situations involving the
exchange of confidential or adult-related material. Children often
are hesitant to decline requests to provide communication services,
which puts them in a very difficult position vis-a-vis family
members and friends. The Department agrees. It is the Department's
position that a public accommodation shall not rely on a minor child
to facilitate communication with a family member, friend, or other
individual except in an emergency involving an imminent threat to
the safety or welfare of an individual or the public where no
interpreter is available. Accordingly, the Department has revised
the rule to state that ``[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.'' Sec. 36.303(c)(4). Sections 36.303(c)(3) and (c)(4)
have no application in circumstances where an interpreter would not
otherwise be required in order to provide effective communication
(e.g., in simple transactions such as purchasing movie tickets at a
theater).
The Department stresses that privacy and confidentiality must be
maintained but notes that covered entities, such as hospitals, that
are subject to the Privacy Rules, 45 CFR parts 160 and 164, of the
Health Insurance Portability and Accountability Act of 1996 (HIPAA),
Public Law 104-191, are permitted to disclose to a patient's
relative, close friend, or any other person identified by the
patient (such as an interpreter) relevant patient information if the
patient agrees to such disclosures. See 45 CFR parts 160 and 164.
The agreement need not be in writing. Covered entities should
consult the HIPAA Privacy Rules regarding other ways disclosures may
be made to such persons.
With regard to emergency situations, proposed Sec. 36.303(c)(3)
permitted reliance on an individual accompanying an individual with
a disability to interpret or facilitate communication in an
emergency involving a threat to the safety or welfare of an
individual or the public. Commenters requested that the Department
make clear that often a public accommodation can obtain appropriate
auxiliary aids and services in advance of an emergency, particularly
in anticipated emergencies, such as predicted dangerous weather, or
in certain medical situations, such as pending childbirth, by making
necessary pre-arrangements. These commenters did not want public
accommodations to be relieved of their responsibilities to provide
effective communication in emergency situations, noting that the
need for effective communication in emergencies is heightened. For
the same reason, several commenters requested a separate rule that
requires public accommodations to provide timely and effective
communication in the event of an emergency.
One group of commenters asked that the Department narrow the
regulation permitting reliance on a companion to interpret or
facilitate communication in emergency situations so that it is not
available to entities with responsibilities for emergency
preparedness and response. Some commenters noted that certain
exigent circumstances, such as those that exist during and, perhaps,
immediately after a major hurricane, temporarily may excuse public
accommodations of their responsibilities to provide effective
communication. However, they asked that the Department clarify that
these obligations are ongoing, and that as soon as such situations
begin to abate or become stabilized, the public accommodation must
provide effective communication.
The Department recognizes the need for effective communication
is critical in emergency situations. After due consideration of all
of these concerns raised by commenters, the Department has revised
Sec. 36.303(c) to narrow the exception permitting reliance on
individuals accompanying the individual with a disability during an
emergency to make it clear that it applies only to emergencies
involving an ``imminent threat to the safety or welfare of an
individual or the public * * *.'' Sec. 36.303(c)(3)-(4). The
Department wishes to emphasize, however, that application of this
exception is narrowly tailored to emergencies involving an imminent
threat to the safety or welfare of individuals or the public.
Arguably, all visits to an emergency room are by definition
emergencies. Likewise, an argument can be made that most situations
to which emergency workers respond involve, in one way or another, a
threat to the safety or welfare of an individual or the public. The
imminent threat exception in Sec. 36.303(c)(3)-(4) is not intended
to apply to typical and foreseeable emergency situations that are
part of the normal operations of these institutions. As such, a
public accommodation may rely on an accompanying individual to
interpret or facilitate communication under the Sec. 36.303(c)(3)-
(4) imminent threat exception only where there is a true emergency,
i.e., where any delay in providing immediate services to the
individual could have life-altering or life-ending consequences.
Telecommunications. In addition to the changes discussed in
Sec. 36.303(b) regarding

[[Page 56284]]

telecommunications, telephones, and text telephones, the Department
has adopted provisions in Sec. 36.303(d) of the final rule (which
also were included in the NPRM) requiring that public accommodations
must not disconnect or refuse to take calls from FCC-approved
telecommunications relay systems, including Internet-based relay
systems. Commenters from some State agencies, many advocacy
organizations, and individuals strongly urged the Department to
mandate such action because of the high proportion of TTY calls and
relay service calls to title III entities that are not completed
because of phone systems or employees not taking the calls. This
refusal presents a significant obstacle for persons using TTYs who
do business with public accommodations and denies persons with
disabilities telephone access for business that typically is handled
over the telephone.
Section 36.303(d)(1)(ii) of the NPRM added public telephones
equipped with volume control mechanisms and hearing aid-compatible
telephones to the examples of types of telephone equipment to be
provided. Commenters from the disability community and from
telecommunications relay service providers argued that requirements
for these particular features on telephones are obsolete not only
because the deaf and hard of hearing community uses video technology
more frequently than other types of telecommunication, but also
because all public coin phones have been hearing aid compatible
since 1983, pursuant to the Telecommunications for the Disabled Act
of 1982, 47 U.S.C. 610. The Hearing Aid Compatibility Act of 1988,
47 U.S.C. 610, extended this requirement to all wireline telephones
imported into or manufactured in the United States since 1989. In
1997, the FCC further required that all such phones also be equipped
with volume control. See 47 CFR 68.6. Given these existing statutory
obligations, the proposed language is unnecessary. Accordingly, the
Department has deleted that language from the final rule.
The Department understands that there are many new devices and
advances in technology that should be included in the definition of
available auxiliary aids and is including many of the
telecommunications devices and some new technology. While much of
this technology is not expensive and should be available to most
title III entities, there may be legitimate reasons why in a
particular situation some of these new and developing auxiliary aids
may not be available, may be prohibitively costly (thus supporting
an undue burden defense), or may otherwise not be suitable given
other circumstances related to the particular terrain, situation, or
functionality in specialized areas where security, among other
things, may be a factor limiting the appropriateness of the use of a
particular technology or device. The Department recognizes that the
available new technology may provide more effective communication
than existing technology and that providing effective communication
often will include use of new technology and video relay services,
as well as interpreters. However, the Department has not mandated
that title III entities make all technology or services available
upon demand in all situations. When a public accommodation provides
the opportunity to make outgoing phone calls on more than an
incidental-convenience basis, it shall make available accessible
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.
Video remote interpreting (VRI) services. In Sec. 36.303(f) of
the NPRM, the Department proposed the inclusion of four performance
standards for VRI (which the NPRM termed video interpreting services
(VIS)), for effective communication: (1) High-quality, clear, real-
time, full-motion video, and audio over a dedicated high-speed
Internet connection; (2) a clear, sufficiently large, and sharply
delineated picture of the participants' heads, arms, hands, and
fingers, regardless of their body position; (3) clear transmission
of voices; and (4) persons who are trained to set up and operate the
VIS quickly and efficiently.
Commenters generally approved of these proposed performance
standards, but recommended that some additional standards be
included in the final rule. For persons who are deaf with limited
vision, commenters requested that the Department include an explicit
requirement that interpreters wear high-contrast clothing with no
patterns that might distract from their hands as they are
interpreting, so that a person with limited vision could still see
the signs made by the interpreter. While the Department reiterates
the importance of such practices in the delivery of effective VRI as
well as in-person interpreting, the Department declines to adopt
such performance standards as part of this rule. In general,
professional interpreters already follow such practices, as the Code
of Professional Conduct for interpreters developed by the Registry
of Interpreter for the Deaf and the National Association of the Deaf
incorporates attire considerations into their standards of
professionalism and conduct. Moreover, as a result of this code,
many VRI agencies have adopted detailed dress standards that
interpreters hired by the agency must follow. Commenters also urged
explicit requirement of a clear image of the face and eyes of the
interpreter and others. Because the face includes the eyes, the
Department has amended Sec. 36.303(f)(2) of the final rule to
include a requirement that the interpreter's face be displayed.
Other commenters requested requirement of a wide-bandwidth video
connection for the VRI system, and the Department has included this
requirement in Sec. 36.303(f)(1) of the final rule.
ATMs. The 2010 Standards set out detailed requirements for ATMs,
including communication-related requirements to make ATMs usable by
individuals who are blind or have low vision. In the NPRM, the
Department discussed the application of a safe harbor to the
communication-related elements of ATMs. The NPRM explained that the
Department considers the communication-related elements of ATMs to
be auxiliary aids and services, to which the safe harbor for
elements built in compliance with the 1991 standards does not apply.
The Department received several comments regarding this issue.
Several commenters representing banks objected to the exclusion of
communication-related aspects of ATMs from the safe harbor
provision. They explained that the useful life of ATMs--on average
10 years--was longer than the Department noted; thus, without the
safe harbor, banks would be forced to retrofit many ATMs in order to
comply with the proposed regulation. Such retrofitting, they noted,
would be costly to the industry. A few representatives of the
disability community commented that communication-related aspects of
ATMs should be excluded from the safe harbor.
The Department consistently has taken the position that the
communication-related elements of ATMs are auxiliary aids and
services, rather than structural elements. See 28 CFR part 36, app.
B at 728 (2009). Thus, the safe harbor provision does not apply to
these elements. The Department believes that the limitations on the
effective communication requirements, which provide that a covered
entity does not have to take measures that would result in a
fundamental alteration of its program or would cause undue burdens,
provide adequate protection to covered entities that operate ATMs.
Captioning at sporting venues. In Sec. 36.303(g) of the NPRM,
the Department proposed that sports stadiums that have a capacity of
25,000 or more shall provide captioning for safety and emergency
information on scoreboards and video monitors. In addition, the
Department posed four questions about captioning of information,
especially safety and emergency information announcements, provided
over public address (PA) systems. The Department received many
detailed and divergent responses to each of the four questions and
the proposed regulatory text. Because comments submitted on the
Department's title II and title III proposals were intertwined,
because of the similarity of issues involved for title II entities
and title III entities, and in recognition of the fact that many
large sports stadiums are covered by both title II and title III as
joint operations of State or local government and one or more public
accommodations, the Department presents here a single consolidated
review and summary of the issues raised in comments.
The Department asked whether requiring captioning of safety and
emergency information made over the public address system in
stadiums seating fewer than 25,000 would create an undue burden for
smaller entities, and whether it would be feasible for small
stadiums to provide such captioning, or whether a larger threshold,
such as sports stadiums with a capacity of 50,000 or more, would be
appropriate.
There was a consensus among the commenters, including disability
advocates as well as venue owners and stadium designers and
operators, that using the stadium size or seating capacity should
not be the exclusive deciding factor for any obligation to provide
captioning for safety and emergency information broadcast over the
PA system. Most disability advocacy organizations and individuals
with

[[Page 56285]]

disabilities complained that using size or seating capacity as a
threshold for captioning safety and emergency information would
undermine the ``undue burden'' defense found in both titles II and
III. Many commenters provided examples of facilities such as
professional hockey arenas that seat less than 25,000 fans but that,
commenters argued, should be able to provide real-time captioning.
Other commenters suggested that some high school or college
stadiums, for example, may hold 25,000 fans or more and yet lack the
resources to provide real-time captioning. Many commenters noted
that real-time captioning would require use of trained
stenographers, and that most high school and college sports
facilities rely upon volunteers to operate scoreboards and PA
systems and they would not be qualified stenographers, especially in
case of an emergency. One national association noted that the
typical stenographer expense for a professional football game in
Washington, DC, is about $550 per game. Similarly, one trade
association representing venues estimated that the cost for a
professional stenographer at a sporting event runs between $500 and
$1,000 per game or event, the cost of which, they argued, would be
unduly burdensome in many cases. Some commenters posited that
schools that do not sell tickets to athletic events would be
challenged to meet such expenses, in contrast to major college
athletic programs and professional sports teams, which would be less
likely to prevail using an ``undue burden'' defense.
Some venue owners and operators and other covered entities also
argued that stadium size should not be the key consideration for
whether scoreboard captioning will be required. Instead, these
entities suggested that equipment already installed in the stadium,
including necessary electrical equipment and backup power supply,
should be the determining factor for whether captioning is mandated.
Many commenters argued that the requirement to provide captioning
should apply only to stadiums with scoreboards that meet the
National Fire Protection Association (NFPA) National Fire Alarm
Code. Commenters reported that NFPA 72 requires at least two
independent and reliable power supplies for emergency information
systems, including one source that is a generator or a battery
sufficient to run the system in the event the primary power fails.
Alternatively, some stadium designers and title II entities
commented that the requirement should arise when the facility has at
least one elevator providing firefighter emergency operation, along
with approval of authorities with responsibility for fire safety. An
organization concerned with fire safety codes commented that the
Department lacks the expertise to regulate on this topic. Other
commenters argued for flexibility in the requirements for providing
captioning and contended that any requirement should apply only to
stadiums constructed after the effective date of the regulation.
In the NPRM, the Department also asked whether the rule should
address the specific means of captioning equipment, whether
captioning should be provided through any effective means (e.g.,
scoreboards, line boards, handheld devices, or other means), or
whether some means, such as handheld devices, should be eliminated
as options. This question elicited many comments from advocates for
persons with disabilities as well as from covered entities. Advocacy
organizations and individuals with experience using handheld devices
argued that such devices do not provide effective communication.
These commenters noted that information is often delayed in the
transmission to such devices, making them hard to use when following
action on the playing field or in the event of an emergency when the
crowd is already reacting to aural information provided over the PA
system well before it is received on the handheld device.
Several venue owners and operators and others commented that
handheld technology offers advantages of flexibility and portability
so that it may be used successfully regardless of where in the
facility the user is located, even when not in the line of sight of
a scoreboard or other captioning system. Still other commenters
urged the Department not to regulate in such a way as to limit
innovation and use of such technology now and in the future. Cost
considerations were included in comments from some stadium designers
and venue owners and operators who reported that the cost of
providing handheld systems is far less than the cost of providing
real-time captioning on scoreboards, especially in facilities that
do not currently have the capacity to provide real-time captions on
existing equipment. Others noted that handheld technology is not
covered by fire and safety model codes, including the NFPA, and thus
would be more easily adapted into existing facilities if captioning
were required by the Department.
The Department also asked about requiring open captioning of all
public address announcements, rather than limiting the captioning
requirement to safety and emergency information. A variety of
advocates and persons with disabilities argued that all information
broadcast over a PA system should be captioned in real time at all
facilities in order to provide effective communication, and that a
requirement only to provide emergency and safety information would
not be sufficient. A few organizations representing persons with
disabilities commented that installation of new systems should not
be required, but that all systems within existing facilities that
are capable of providing captioning should provide captioning of
information to the maximum extent possible. Several organizations
for persons with disabilities commented that all facilities should
include in their safety planning measures a requirement that all
aurally provided information for patrons with communication
disabilities be captioned. Some advocates suggested that demand for
captions will only increase as the number of deaf and hard of
hearing persons grows with the aging of the general population and
with increasing numbers of veterans returning from war with
disabilities. Multiple commenters noted that the captioning would
benefit others as well as those with communication disabilities.
By contrast, venue owners and operators and others commented
that the action on the sports field is self-explanatory and does not
require captioning. These commenters objected to an explicit
requirement to provide real-time captioning for all information
broadcast on the PA system at a sporting event. Other commenters
objected to requiring captioning even for emergency and safety
information over the scoreboard rather than through some other
means. By contrast, venue operators, State government agencies, and
some model code groups, including the NFPA, commented that emergency
and safety information must be provided in an accessible format and
that public safety is a paramount concern. Other commenters argued
that the best method to deliver safety and emergency information
would be television monitors showing local TV broadcasts with
captions already mandated by the FCC. Some commenters posited that
the most reliable information about a major emergency would be
provided on the television news broadcasts. They argued that
television monitors may be located throughout the facility,
improving line of sight for patrons, some of whom might not be able
to see the scoreboard from their seats or elsewhere in the facility.
Some stadium designers, venue operators, and model code groups
pointed out that video monitors are not regulated by the NFPA or
other agencies, so that such monitors could be more easily provided.
Video monitors may receive transmissions from within the facility
and could provide real-time captions if there is the necessary
software and equipment to feed the captioning signal to a closed
video network within the facility. Several commenters suggested that
using monitors would be preferable to requiring captions on the
scoreboard if the regulation mandates real-time captioning. Some
venue owners and operators argued that retrofitting existing
stadiums with new systems could easily cost in the hundreds of
thousands of dollars per scoreboard or system. Some stadium
designers and others argued that captioning should be required only
in stadiums built after the effective date of the regulation. For
stadiums with existing systems that allow for real-time captioning,
one commenter posited that dedicating the system exclusively to
real-time captioning would lead to an annual loss of between two and
three million dollars per stadium in revenue from advertising
currently running in that space.
After carefully considering the wide range of public comments on
this issue, the Department has concluded that the final rule will
not provide additional requirements for effective communication or
emergency information provided at sports stadiums at this time. The
1991 title II and title III regulations and statutory requirements
are not in any way affected by this decision. The decision to
postpone rulemaking on this complex issue is based on a number of
factors, including the multiple layers of existing regulations by
various agencies and levels of government, and the wide array of
information, requests, and recommendations related to developing
technology offered by the public. The diversity of existing
information and communication systems and

[[Page 56286]]

other characteristics among sports stadiums also complicates the
regulation of captioning. The Department has concluded that further
consideration and review is prudent before it issues specific
regulatory requirements.
Movie captioning. In the NPRM, the Department stated that
options were being considered to require movie theater owners and
operators to exhibit movies that are captioned for patrons who are
deaf or hard of hearing. Captioning makes films accessible to
individuals whose hearing is too limited to benefit from assistive
listening devices. Both open and closed captioning are examples of
auxiliary aids and services required under the Department's 1991
title III regulation. See 28 CFR 36.303(b)(1). Open captions are
similar to subtitles in that the text is visible to everyone in the
theater, while closed captioning displays the written text of the
audio only to those individuals who request it.
In the NPRM, the Department also stated that options were being
considered to require movie theater owners and operators to exhibit
movies with video description,\3\ a technology that enables
individuals who are blind or have low vision to enjoy movies by
providing a spoken interpretation of key visual elements of a movie,
such as actions, settings, facial expressions, costumes, and scene
changes. The descriptions are narrated and recorded onto an
audiotape or disk that can be synchronized with the film as it is
projected. An audio recording is an example of an auxiliary aid and
service required under the Department's 1991 title III regulation.
See 28 CFR 36.303(b)(2).
---------------------------------------------------------------------------

\3\ In the NPRM, the Department referred to this technology as
``narrative description.'' 73 FR 34508, 34531 (June 17, 2008).
Several commenters informed the Department that the more accurate
and commonly understood term is ``video description,'' even though
the subject is movies, not video, and so the Department decided to
employ that term.
---------------------------------------------------------------------------

The NPRM stated that technological advances since the early
1990s have made open and closed captioning and video description for
movies more readily available and effective and noted that the
Department was considering options to require captioning and video
description for movies exhibited by public accommodations. The NPRM
also noted that the Department is aware that the movie industry is
transitioning, in whole or in part, to movies in digital format and
that movie theater owners and operators are beginning to purchase
digital projectors. The Department noted in the NPRM that movie
theater owners and operators with digital projectors may have
available to them different capabilities than those without digital
projectors. The Department sought comment regarding whether and how
to require captioning and video description while the film industry
makes this transition. In addition, the NPRM stated the Department's
concern about the potential cost to exhibit captioned movies, noting
that cost may vary depending upon whether open or closed captioning
is used and whether or not digital projectors are used, and stated
that the cost of captioning must stay within the parameters of the
undue burden requirement in 28 CFR 36.303(a). The Department further
noted that it understands the cost of video description equipment to
be less than that for closed captioning. The Department then stated
that it was considering the possibility of requiring public
accommodations to exhibit all new movies in captioned format and
with video description at every showing. The NPRM stated that the
Department would not specify the types of captioning required,
leaving such decisions to the discretion of the movie theater owners
and operators.
In the NPRM, the Department requested public comment as to
whether public accommodations should be required to exhibit all new
movies in captioned format at every showing, whether it would be
more appropriate to require captioning less frequently, and, if so,
with what frequency captioning should be provided. The Department
also inquired as to whether the requirement for captioning should be
tied to the conversion of movies from film to the use of a digital
format. The Department also asked for public comment regarding the
exhibition of all new movies with narrative description, whether it
would it be more appropriate to require narrative description less
frequently, and whether narrative description of movies should be
tied to the use of a digital format.
Representatives from the movie industry, a commenter from a non-
profit organization, and a disability rights advocacy group provided
information in their comments on the status of captioning and video
description technology today as well as an update on the transition
to digital cinema in the industry. A representative of major movie
producers and distributors commented that traditionally open
captions were created by ``burning'' the captions onto a special
print of a selected movie, which the studios would make available to
the exhibitors (movie theater owners and operators). Releases with
open captions typically would be presented at special screenings.
More recently, according to this commenter, alternative methods have
been developed for presenting movies with open captions, but their
common feature is that the captions are visible to all theater-
goers. Closed captioning is an innovation in technology that was
first made available in a feature film presentation in late 1997.
Closed captioning technology currently in use allows viewers to see
captions using a clear panel that is mounted in front of the
viewer's seat.\4\ According to commenters from the industry, the
panel reflects captions that are shown in reverse on an LED display
in the back of the theater, with captions appearing on or near the
movie image. Moviegoers may use this technology at any showing at a
theater that has been equipped with the technology, so that the
theater does not have to arrange limited special screenings.
---------------------------------------------------------------------------

\4\ Other closed captioning technologies for movies that have
been developed but are not in use at this time include hand-held
displays similar to a PDA (personal digital assistant); eyeglasses
fitted with a prism over one lens; and projected bitmap captions.
The PDA and eyeglass systems use a wireless transmitter to send the
captions to the display device.
---------------------------------------------------------------------------

Video description technology also has existed since 1997,
according to a commenter who works with the captioning and video
description industry. According to a movie industry commenter, video
description requires the creation of a separate script written by
specially trained writers called ``describers.'' As the commenter
explained, a describer initially listens to the movie without
watching it in order to approximate the experience of an audience
member who is blind or has low vision. Using software to map out the
pauses in the soundtrack, the describer writes a description in the
space available. After an initial script is written for video
description, it is edited and checked for timing, continuity,
accuracy, and a natural flow. A narrator then records the new script
to match the corresponding movie. This same industry commenter said
that video description currently is provided in theaters through
screens equipped with the same type of technology as that used for
closed captioning. As commenters explained, technologies in use
today deliver video descriptions via infrared or FM listening
systems to headsets worn by individuals who are blind or have low
vision.
According to the commenter representing major movie producers
and distributors, the percentage of motion pictures produced with
closed captioning by its member studios had grown to 88 percent of
total releases by 2007; the percentage of motion pictures produced
with open captioning by its member studios had grown to 78 percent
of total releases by 2007; and the percentage of motion pictures
provided with video description has ranged consistently between 50
percent and 60 percent of total releases. It is the movie producers
and distributors, not the movie theater owners and operators, who
determine what to caption and describe, the type of captioning to
use, and the content of the captions and video description script.
These same producers and distributors also assume the costs of
captioning and describing movies. Movie theater owners and operators
simply purchase the equipment to display the captions and play the
video description in their auditoria.
The transition to digital cinema, considered by the industry to
be one of the most profound advancements in motion picture
production and technology of the last 100 years, will provide
numerous advantages both for the industry and the audience.
According to one commenter, currently there are sufficient standards
and interim solutions to support captioning and video description
now in digital format. Additionally, movie studios are supporting
those efforts by providing accessibility tracks (captioning and
video description) in many digital cinema content packages.
Moreover, a group of industry commenters composed in pertinent part
of members of the motion picture industry, the central standards
organizations for this industry, and key digital equipment vendors,
noted that they are participating in a joint venture to establish
the remaining accessibility specifications and standards for access
audio tracks. Access audio tracks are supplemental sound audio
tracks for the hard of hearing and narrative audio tracks for
individuals who have vision disabilities. According to a commenter
and to industry documents, these standards were expected to

[[Page 56287]]

be in place by spring 2009. According to a commenter, at that time,
all of the major digital cinema equipment vendors were expected to
have support for a variety of closed caption display and video
description products. This same commenter stated that these
technologies will be supported by the studios that produce and
distribute feature films, by the theaters that show these films to
the public, and by the full complement of equipment in the
production, distribution, and display chain.
The initial investment for movie theater owners and operators to
convert to digital cinema is expensive. One industry commenter
estimated that converting theaters to digital projection costs
between $70,000 and $100,000 per screen and that maintenance costs
for digital projectors are estimated to run between $5,000 and
$10,000 a year--approximately five times as expensive as the
maintenance costs for film projectors. According to this same
commenter, while there has been progress in making the conversion,
only approximately 5,000 screens out of 38,794 nationwide have been
converted, and the cost to make the remaining conversions involves a
total investment of several billion dollars. According to another
commenter, predictions as to when more than half of all screens will
have been converted to digital projection are 10 years or more,
depending on the finances of the movie theater owners and operators,
the state of the economy, and the incentives supporting conversion.
That said, according to one commenter who represents movie theater
owners and operators, the majority of screens in the United States
were expected to enter into agreements by the end of 2008 to convert
to digital cinema. Most importantly, however, according to a few
commenters, the systems in place today for captioning and video
description will not become obsolete once a theater has converted to
digital cinema but still can be used by the movie theater owner and
operator to exhibit captions and video description. The only
difference for a movie theater owner or operator will be the way the
data is delivered to the captioning and video description equipment
in place in an auditorium.
Despite the current availability of movies that are captioned
and provide video description, movie theater owners and operators
rarely exhibit the captions or descriptions. According to several
commenters, less than 1 percent of all movies being exhibited in
theaters are shown with captions.
Individuals with disabilities, advocacy groups, the
representative from a non-profit, and representatives of State
governments, including 11 State attorneys general, overwhelmingly
supported issuance of a regulation requiring movie theater owners
and operators to exhibit captioned and video described movies at all
showings unless doing so would result in an undue burden or
fundamental alteration of the goods and services offered by the
public accommodation. In addition, this same group of commenters
urged that any such regulation should be made effective now, and
should not be tied to the conversion to digital cinema by the movie
theater owners and operators. In support of such arguments, these
commenters stated that the technology exists now to display movies
with captions and video descriptions, regardless of whether the
movie is exhibited on film or using digital cinema. Moreover, since
the technology in use for displaying captions and video descriptions
on film will be compatible with digital projection systems, they
argued, there is no need to postpone implementation of a captioning
or video description regulation until the conversion to digital has
been made. Furthermore, since the conversion to digital may take
years, commenters urged the Department to issue a regulation
requiring captioning and video description now, rather than several
years from now.
Advocacy groups and the 11 State attorneys general also
requested that any regulation include factors describing what
constitutes effective captioning and video description.
Recommendations included requiring that captioning be within the
same line of sight to the screen as the movie so that individuals
who are deaf or hard of hearing can watch the movie and read the
captions at the same time; that the captioning be accessible from
each seat; that the captions be of sufficient size and contrast to
the background so as to be readable easily; and that the recent
recommendations of the Telecommunications and Electronics and
Information Technology Advisory Committee Report to the Access Board
that captions be ``timely, accurate, complete, and efficient'' \5\
also be included.
---------------------------------------------------------------------------

\5\ Refreshed Accessibility Standards and Guidelines in
Telecommunications and Electronic and Information Technology (April
2008), available at http://www.access-board.gov/sec508/refresh/
report/ (last visited June 24, 2010).
---------------------------------------------------------------------------

The State attorneys general supported the Department's statement
in the NPRM that the Department did not anticipate specifying which
type of captioning to provide or what type of technology to use to
provide video description, but would instead leave that to the
discretion of the movie theater owners and operators. These State
attorneys general opined that such discretion in the selection of
the type of technology was consistent with the statutory and
regulatory scheme of the ADA and would permit any new regulation to
keep pace with future advancements in captioning and video
description technology. These same commenters stated that such
discretion may result in a mixed use of both closed captioning and
open captioning, affording more choices both for the movie theater
owners and operators and for individuals who are deaf or hard of
hearing.
The representatives from the movie theater industry strongly
urged the Department against issuing a regulation requiring
captioning or video description. These commenters argued that the
legislative history of the ADA expressly precluded regulating in the
area of captioning. (These same commenters were silent with regard
to video description on this issue.) The industry commenters also
argued that to require movie theater owners and operators to exhibit
captioned and video described movies would constitute a fundamental
alteration in the nature of the goods and services offered by the
movie theater owners and operators. In addition, some industry
commenters argued that any such regulation by the Department would
be inconsistent with the Access Board's guidelines. Also, these
commenters noted the progress that has been made in the industry in
making cinema more accessible even though there is no mandate to
caption or describe movies, and they questioned whether any mandate
is necessary. Finally, all the industry commenters argued that to
require captioning or video description in 100 percent of movie
theater screens for all showings would constitute an undue burden.
The comments have provided the Department with significant
information on the state of the movie industry with regard to the
availability of captioning and video description, the status of
closed captioning technology, and the status of the transition to
digital cinema. The Department also has given due consideration to
the comments it has received from individuals, advocacy groups,
governmental entities, and representatives of the movie industry.
Recently, the United States Court of Appeals for the Ninth Circuit
held that the ADA requires a chain of movie theaters to exhibit
movies with closed captioning and video description unless the
theaters can show that to do so would amount to a fundamental
alteration or undue burden. Arizona ex rel. Goddard v. Harkins
Amusement Enterprises, Inc., 603 F.3d 666 (9th Cir. 2010). However,
rather than issue specific regulatory text at this time, the
Department has determined that it should obtain additional
information regarding issues raised by commenters that were not
contemplated at the time of the 2008 NPRM, supplemental technical
information, and updated information regarding the current and
future status of the conversion to digital cinema by movie theater
owners and operators. To this end, the Department is planning to
engage in rulemaking relating specifically to movie captioning under
the ADA in the near future.

Section 36.304 Removal of Barriers

With the adoption of the 2010 Standards, an important issue that
the Department must address is the effect that the new (referred to
as ``supplemental'') and revised ADA Standards will have on the
continuing obligation of public accommodations to remove
architectural, transportation, and communication barriers in
existing facilities to the extent that it is readily achievable to
do so. See 42 U.S.C. 12182(b)(2)(A)(iv). This issue was not
addressed in the 2004 ADAAG because it was outside the scope of the
Access Board's statutory authority under the ADA and section 502 of
the Rehabilitation Act of 1973. See 29 U.S.C. 792(b)(3)(A)-(B)
(authorizing the Access Board to establish and maintain minimum
guidelines for the standards issued pursuant to the Architectural
Barriers Act of 1968 and titles II and III of the ADA).
Responsibility for implementing title III's requirement that public
accommodations eliminate barriers in existing facilities where such
removal is readily achievable rests solely with the Department. The
term ``existing facility'' is defined in Sec. 36.104 of the final
rule. This definition is discussed in more detail above.

[[Page 56288]]

See Appendix A discussion of definitions (Sec. 36.104).
The requirements for barrier removal by public accommodations
are established in the Department's title III regulation. 28 CFR
36.304. Under this regulation, the Department used the 1991
Standards as a guide to identify what constitutes an architectural
barrier, as well as the specifications that covered entities must
follow in making architectural changes to remove the barrier to the
extent that such removal is readily achievable. 28 CFR 36.304(d); 28
CFR part 36, app. A (2009). With adoption of the final rule, public
accommodations will now be guided by the 2010 Standards, defined in
Sec. 36.104 as the 2004 ADAAG and the requirements contained in
subpart D of 28 CFR part 36.
The 2010 Standards include technical and scoping specifications
for a number of elements that were not addressed specifically in the
1991 Standards; these new requirements were identified as
``supplemental requirements'' in the NPRM. The 2010 Standards also
include revisions to technical or scoping specifications for certain
elements that were addressed in the 1991 Standards, i.e., elements
for which there already were technical and scoping specifications.
Requirements for which there are revised technical or scoping
specifications in the 2010 Standards are referred to in the NPRM as
``incremental changes.''
The Department expressed concern that requiring barrier removal
for incremental changes might place unnecessary cost burdens on
businesses that already had removed barriers in existing facilities
in compliance with the 1991 Standards. With this rulemaking, the
Department sought to strike an appropriate balance between ensuring
that individuals with disabilities are provided access to facilities
and mitigating potential financial burdens from barrier removal on
existing places of public accommodation that satisfied their
obligations under the 1991 Standards.
In the NPRM, the Department proposed several potential additions
to Sec. 36.304(d) that might reduce such financial burdens. First,
the Department proposed a safe harbor for elements in existing
facilities that were compliant with the 1991 Standards. Under this
approach, an element that is not altered after the effective date of
the 2010 Standards and that complies with the scoping and technical
requirements for that element in the 1991 Standards would not be
required to undergo modification to comply with the 2010 Standards
to satisfy the ADA's barrier removal obligations. The public
accommodation would thus be deemed to have met its barrier removal
obligation with respect to that element.
The Department received many comments on this issue during the
60-day public comment period. After consideration of all relevant
information presented on the issue, it is the Department's view that
this element-by-element safe harbor provision should be retained in
the final rule. This issue is discussed further below.
Second, the NPRM proposed several exceptions and exemptions from
certain supplemental requirements to mitigate the barrier removal
obligations of existing play areas and recreation facilities under
the 2004 ADAAG. These proposals elicited many comments from both the
business and disability communities. After consideration of all
relevant information presented on the issue, it is the Department's
view that these exceptions and exemptions should not be retained in
the final rule. The specific proposals and comments, and the
Department's conclusions, are discussed below.
Third, the NPRM proposed a new safe harbor approach to readily
achievable barrier removal as applied to qualified small businesses.
This proposed small business safe harbor was based on suggestions
from small business advocacy groups that requested clearer guidance
on the barrier removal obligations for small businesses. According
to these groups, the Department's traditional approach to barrier
removal disproportionately affects small businesses. They argued
that most small businesses owners neither are equipped to understand
the ADA Standards nor can they afford the architects, consultants,
and attorneys that might provide some level of assurance of
compliance with the ADA. For these same reasons, these commenters
contended, small business owners are vulnerable to litigation,
particularly lawsuits arising under title III, and often are forced
to settle because the ADA Standards' complexity makes inadvertent
noncompliance likely, even when a small business owner is acting in
good faith, or because the business cannot afford the costs of
litigation.
To address these and similar concerns, the NPRM proposed a level
of barrier removal expenditures at which qualified small businesses
would be deemed to have met their readily achievable barrier removal
obligations for certain tax years. This safe harbor would have
provided some protection from litigation because compliance could be
assessed easily. Such a rule, the Department believed, also could
further accessibility, because qualified small businesses would have
an incentive to incorporate barrier removal into short- and long-
term planning. The Department recognized that a qualified small
business safe harbor would be a significant change to the
Department's title III enforcement scheme. Accordingly, the
Department sought comment on whether such an approach would further
the aims underlying the statute's barrier removal provisions, and,
if so, the appropriate parameters of the provision.
After consideration of the many comments received on this issue,
the Department has decided not to include a qualified small business
safe harbor in the final rule. This decision is discussed more fully
below.
Element-by-element safe harbor for public accommodations. Public
accommodations have a continuing obligation to remove certain
architectural, communications, and transportation barriers in
existing facilities to the extent readily achievable. 42 U.S.C.
12182(b)(2)(A)(iv). Because the Department uses the ADA Standards as
a guide to identifying what constitutes an architectural barrier,
the 2010 Standards, once they become effective, will provide a new
reference point for assessing an entity's barrier removal
obligations. The 2010 Standards introduce technical and scoping
specifications for many elements that were not included in the 1991
Standards. Accordingly, public accommodations will have to consider
these supplemental requirements when evaluating whether there are
covered barriers in existing facilities, and, if so, remove them to
the extent readily achievable. Also included in the 2010 Standards
are revised technical and scoping requirements for elements that
were addressed in the 1991 Standards. These incremental changes were
made to address technological changes that have occurred since the
promulgation of the 1991 Standards, to reflect additional study by
the Access Board, and to harmonize ADAAG requirements with the model
codes.
In the NPRM, the Department sought input on a safe harbor in
proposed Sec. 36.304(d)(2) intended to address concerns about the
practical effects of the incremental changes on public
accommodations' readily achievable barrier removal obligations. The
proposed element-by-element safe harbor provided that in existing
facilities elements that are, as of the effective date of the 2010
Standards, fully compliant with the applicable technical and scoping
requirements in the 1991 Standards, need not be modified or
retrofitted to meet the 2010 Standards, until and unless those
elements are altered. The Department posited that it would be an
inefficient use of resources to require covered entities that have
complied with the 1991 Standards to retrofit already compliant
elements when the change might only provide a minimal improvement in
accessibility. In addition, the Department was concerned that
covered entities would have a strong disincentive for voluntary
compliance if every time the applicable standards were revised
covered entities would be required once again to modify elements to
keep pace with new requirements. The Department recognized that
revisions to some elements might confer a significant benefit on
some individuals with disabilities and because of the safe harbor
these benefits would be unavailable until the facility undergoes
alterations.
The Department received many comments on this issue from the
business and disability communities. Business owners and operators,
industry groups and trade associations, and business advocacy
organizations strongly supported the element-by-element safe harbor.
By contrast, disability advocacy organizations and individuals
commenting on behalf of the disability community were opposed to
this safe harbor with near unanimity.
Businesses and business groups agreed with the concerns outlined
by the Department in the NPRM, and asserted that the element-by-
element safe harbor is integral to ensuring continued good faith
compliance efforts by covered entities. These commenters argued that
the financial cost and business disruption resulting from
retrofitting elements constructed or previously modified to comply
with 1991 Standards would be detrimental to nearly all businesses
and not

[[Page 56289]]

readily achievable for most. They contended that it would be
fundamentally unfair to place these entities in a position where,
despite full compliance with the 1991 Standards, the entities would
now, overnight, be vulnerable to barrier removal litigation. They
further contended that public accommodations will have little
incentive to undertake large barrier removal projects or incorporate
barrier removal into long-term planning if there is no assurance
that the actions taken and money spent for barrier removal would
offer some protection from litigation. One commenter also pointed
out that the proposed safe harbor would be consistent with practices
under other Federal accessibility standards, including the Uniform
Federal Accessibility Standards (UFAS) and the ADAAG.
Some business commenters urged the Department to expand the
element-by-element safe harbor to include supplemental requirements.
These commenters argued that imposing the 2010 Standards on existing
facilities will provide a strong incentive for such facilities to
eliminate some elements entirely, particularly where the element is
not critical to the public accommodation's business or operations
(e.g., play areas in fast food restaurants) or the cost of
retrofitting is significant. Some of these same commenters urged the
Department to include within the safe harbor those elements not
covered by the 1991 Standards, but which an entity had built in
compliance with State or local accessibility laws. Other commenters
requested safe harbor protection where a business had attempted
barrier removal prior to the establishment of technical and scoping
requirements for a particular element (e.g., play area equipment) if
the business could show that the element now covered by the 2010
Standards was functionally accessible.
Other commenters noted ambiguity in the NPRM as to whether the
element-by-element safe harbor applies only to elements that comply
fully with the 1991 Standards, or also encompasses elements that
comply with the 1991 Standards to the extent readily achievable.
Some commenters proposed that the safe harbor should exist in
perpetuity--that an element subject to a safe harbor at one point in
time also should be afforded the same protection with respect to all
future revisions to the ADA Standards (as with many building codes).
These groups contended that allowing permanent compliance with the
1991 Standards will ensure readily accessible and usable facilities
while also mitigating the need for expensive and time-consuming
documentation of changes and maintenance.
A number of commenters inquired about the effect of the element-
by-element safe harbor on elements that are not in strict compliance
with the 1991 Standards, but conform to the terms of settlement
agreements or consent decrees resulting from private litigation or
Federal enforcement actions. These commenters noted that litigation
or threatened litigation often has resulted in compromise among
parties as to what is readily achievable. Business groups argued
that facilities that have made modifications subject to those
negotiated agreements should not be subject to the risk of further
litigation as a result of the 2010 Standards.
Lastly, some business groups that supported the element-by-
element safe harbor nevertheless contended that a better approach
would be to separate barrier removal altogether from the 2010
Standards, such that the 2010 Standards would not be used to
determine whether access to an existing facility is impeded by
architectural barriers. These commenters argued that application of
the 2010 Standards to barrier removal obligations is contrary to the
ADA's directive that barrier removal is required only where ``easily
accomplishable and able to be carried out without much difficulty or
expense,'' 42 U.S.C. 12181(9).
Nearly all commenters from the disability community objected to
the proposed element-by-element safe harbor. These commenters
asserted that the adoption of this safe harbor would permit and
sanction the retention of outdated access standards even in cases
where retrofitting to the 2010 Standards would be readily
achievable. They argued that title III's readily achievable defense
is adequate to address businesses' cost concerns, and rejected the
premise that requiring businesses to retrofit currently compliant
elements would be an inefficient use of resources where readily
achievable to do so. The proposed regulations, these commenters
asserted, incorporate advances in technology, design, and
construction, and reflect congressional and societal understanding
that accessibility is not a static concept and that the ADA is a
civil rights law intended to maximize accessibility. Additionally,
these commenters noted that since the 2004 revision of the ADAAG
will not be the last, setting a precedent of safe harbors for
compliant elements will have the effect of preserving and protecting
layers of increasingly outdated accessibility standards.
Many commenters objected to the Department's characterization of
the requirements subject to the safe harbor as reflecting only
incremental changes and asserted that many of these incremental
changes will result in significantly enhanced accessibility at
little cost. The requirement concerning side-reach ranges was
highlighted as an example of such requirements. Commenters from the
disability community argued that the revised maximum side-reach
range (from 54 inches to 48 inches) will result in a substantial
increase in accessibility for many persons with disabilities--
particularly individuals of short stature, for whom the revised
reach range represents the difference between independent access to
many features and dependence--and that the revisions should be made
where readily achievable to do so. Business commenters, on the other
hand, contended that application of the safe harbor to this
requirement is critical because retrofitting items, such as light
switches and thermostats often requires work (e.g., rewiring,
patching, painting, and re-wallpapering), that would be extremely
burdensome for entities to undertake. These commenters argued that
such a burden is not justified where many of the affected entities
already have retrofitted to meet the 1991 Standards.
Some commenters that were opposed to the element-by-element safe
harbor proposed that an entity's past efforts to comply with the
1991 Standards might appropriately be a factor in the readily
achievable analysis. Several commenters proposed a temporary 5-year
safe harbor that would provide reassurance and stability to covered
entities that have recently taken proactive steps for barrier
removal, but would also avoid the problems of preserving access
deficits in perpetuity and creating multiple standards as subsequent
updates are adopted.
After consideration of all relevant information presented on
this issue during the comment period, the Department has decided to
retain the proposed element-by-element safe harbor. Title III's
architectural-barrier provisions place the most significant
requirements of accessibility on new construction and alterations.
The aim is to require businesses to make their facilities fully
accessible at the time they are first constructing or altering those
facilities, when burdens are less and many design elements will
necessarily be in flux, and to impose a correspondingly lesser duty
on businesses that are not changing their facilities. The Department
believes that it would be consistent with this statutory structure
not to change the requirements for design elements that were
specifically addressed in our prior standards for those facilities
that were built or altered in full compliance with those standards.
The Department similarly believes it would be consistent with the
statutory scheme not to change the requirements for design elements
that were specifically addressed in our prior standards for those
existing facilities that came into full compliance with those
standards. Accordingly, the final rule at Sec. 36.304(d)(2)(i)
provides that elements that have not been altered in existing
facilities on or after March 15, 2012 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. The safe harbor adopted is consistent in principle with
the proposed provision in the NPRM, and reflects the Department's
determination that this approach furthers the statute's barrier
removal provisions and promotes continued good-faith compliance by
public accommodations.
The element-by-element safe harbor adopted in this final rule is
a narrow one. The Department recognizes that this safe harbor will
delay, in some cases, the increased accessibility that the
incremental changes would provide and that for some individuals with
disabilities the impact may be significant. This safe harbor,
however, is not a blanket exemption for every element in existing
facilities. Compliance with the 1991 Standards is determined on an
element-by-element basis in each existing facility.
Section 36.304(d)(2)(ii)(A) provides that prior to the
compliance date of the rule March 15, 2012, noncompliant elements
that have not been altered are obligated to be modified to the
extent readily achievable to comply with the requirements set forth
in the 1991 Standards or the 2010 Standards.

[[Page 56290]]

Section 36.304(d)(2)(ii)(B) provides that after the date the 2010
Standards take effect (18 months after publication of the rule),
noncompliant elements that have not been altered 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 Sec.
36.406(a)(5).
The Department has not expanded the scope of the element-by-
element safe harbor beyond those elements subject to the incremental
changes. The Department has added Sec. 36.304(d)(2)(iii),
explicitly clarifying that existing elements subject to supplemental
requirements for which scoping and technical specifications are
provided for the first time in the 2010 Standards (e.g., play area
requirements) are not covered by the safe harbor and, therefore,
must be modified to comply with the 2010 Standards to the extent
readily achievable. Section 36.304(d)(2)(iii) also identifies the
elements in the 2010 Standards that are not eligible for the
element-by-element safe harbor. The safe harbor also does not apply
to the accessible routes not previously scoped in the 1991
standards, such as those required to connect the boundary of each
area of sport activity, including soccer fields, basketball courts,
baseball fields, running tracks, skating rinks, and areas
surrounding a piece of gymnastic equipment. See Advisory note to
section F206.2.2 of the 2010 Standards. The resource and fairness
concerns underlying the element-by-element safe harbor are not
implicated by barrier removal involving supplemental requirements.
Public accommodations have not been subject previously to technical
and scoping specifications for these supplemental requirements.
Thus, with respect to supplemental requirements, the existing
readily achievable standard best maximizes accessibility in the
built environment without imposing unnecessary burdens on public
accommodations.
The Department also has declined to expand the element-by-
element safe harbor to cover existing elements subject to
supplemental requirements that also may have been built in
compliance with State or local accessibility laws. Measures taken to
remove barriers under a Federal accessibility provision logically
must be considered in regard to Federal standards, in this case the
2010 Standards. This approach is based on the Department's
determination that reference to ADA Standards for barrier removal
will promote certainty, safety, and good design while still
permitting slight deviations through readily achievable alternative
methods. The Department continues to believe that this approach
provides an appropriate and workable framework for implementation of
title III's barrier removal provisions. Because compliance with
State or local accessibility codes is not a reliable indicator of
effective access for purposes of the ADA Standards, the Department
has decided not to include reliance on such codes as part of the
safe harbor provision.
Only elements compliant with the 1991 Standards are eligible for
the safe harbor. Thus, where a public accommodation attempted
barrier removal but full compliance with the 1991 Standards was not
readily achievable, the modified element does not fall within the
scope of the safe harbor provision. A public accommodation at any
point in time must remove barriers to the extent readily achievable.
For existing elements, for which removal is not readily achievable
at any given time, the public accommodation must provide its goods,
services, facilities, privileges, advantages, or accommodations
through alternative methods that are readily achievable. See 42
U.S.C. 12182(b)(2)(A)(iv), (v).
One-time evaluation and implementation of the readily achievable
standard is not the end of the public accommodation's barrier-
removal obligation. Public accommodations have a continuing
obligation to reevaluate barrier removal on a regular basis. For
example, if a public accommodation identified barriers under the
1991 Standards but did not remove them because removal was not
readily achievable based on cost considerations, it has a continuing
obligation to remove these barriers if the economic considerations
for the public accommodation change. The fact that the public
accommodation has been providing its goods or services through
alternative methods does not negate the continuing obligation to
assess whether removal of the barrier at issue has become readily
achievable. Public accommodations should incorporate consideration
of their continuing barrier removal obligations in both short-term
and long-term business planning.
The Department notes that commenters across the board expressed
concern with recordkeeping burdens implicated by the element-by-
element safe harbor. Businesses noted the additional costs and
administrative burdens associated with identifying elements that
fall within the element-by-element safe harbor, as well as tracking,
documenting, and maintaining data on installation dates. Disability
advocates expressed concern that varying compliance standards will
make enforcement efforts more difficult, and urged the Department to
clarify that title III entities bear the burden of proof regarding
entitlement to safe harbor protection. The Department emphasizes
that public accommodations wishing to benefit from the element-by-
element safe harbor must demonstrate their safe harbor eligibility.
The Department encourages public accommodations to take appropriate
steps to confirm and document the compliance of existing elements
with the 1991 Standards. Finally, while the Department has decided
not to adopt in this rulemaking the suggestion by some commenters to
make the protection afforded by the element-by-element safe harbor
temporary, the Department believes this proposal merits further
consideration. The Department, therefore, will continue to evaluate
the efficacy and appropriateness of a safe harbor expiration or
sunset provision.
Application to specific scenarios raised in comments. In
response to the NPRM, the Department received a number of comments
that raised issues regarding application of the element-by-element
safe harbor to particular situations. Business commenters requested
guidance on whether the replacement for a broken or malfunctioning
element that is covered by the 1991 Standards would have to comply
with the 2010 Standards. These commenters expressed concern that in
some cases replacement of a broken fixture might necessitate moving
a number of other accessible fixtures (such as in a bathroom) in
order to comply with the fixture and space requirements of the 2010
Standards. Others questioned the effect of the new standards where
an entity replaces an existing element currently protected by the
safe harbor provision for water or energy conservation reasons. The
Department intends to address these types of scenarios in technical
guidance.
Effective date for barrier removal. Several commenters expressed
concern that the NPRM did not propose a transition period for
applying the 2004 ADAAG to barrier removal in existing facilities in
cases where the safe harbors do not apply. These commenters argued
that for newly covered elements, they needed time to hire attorneys
and consultants to assess the impact of the new requirements,
determine whether they need to make additional retrofits, price
those retrofits, assess whether the change actually is ``readily
achievable,'' obtain approval for the removal from owners who must
pay for the changes, obtain permits, and then do the actual work.
The commenters recognized that there may be some barrier removal
actions that require little planning, but stated that other actions
cost significantly more and require more budgeting, planning, and
construction time.
Barrier removal has been an ongoing requirement that has applied
to public accommodations since the original regulation took effect
on January 26, 1992. The final rule maintains the existing
regulatory provision that barrier removal does not have to be
undertaken unless it is ``readily achievable.'' The Department has
provided in Sec. 36.304(d)(2)(ii)(B) that public accommodations are
not required to apply the 2010 Standards to barrier removal until 18
months after the publication date of this rule. It is the
Department's view that 18 months is a sufficient amount of time for
application of the 2010 Standards to barrier removal for those
elements not subject to the safe harbor. This is also consistent
with the compliance date the Department has specified for applying
the 2010 Standards to new construction and alterations.
Reduced scoping for play areas and other recreation facilities.
Play areas. The Access Board published final guidelines for play
areas in October 2000. 65 FR 62498 (Oct. 18, 2000). The guidelines
include requirements for ground-level and elevated play components,
accessible routes connecting the components, accessible ground
surfaces, and maintenance of those surfaces. They have been
referenced in Federal playground construction and safety guidelines
and in some State and local codes and have been used voluntarily
when many play areas across the country have been altered or
constructed.
In adopting the 2004 ADAAG (which includes the play area
guidelines published in 2000), the Department acknowledges both

[[Page 56291]]

the importance of integrated, full access to play areas for children
and parents with disabilities as well as the need to avoid placing
an untenable fiscal burden on businesses. Consequently, the
Department asked seven questions in the NPRM related to existing
play areas. Two questions related to safe harbors: one on the
appropriateness of a general safe harbor for existing play areas and
another on public accommodations that have complied with State or
local standards specific to play areas. The others related to
reduced scoping, limited exemptions, and whether there is a
``tipping point'' at which the costs of compliance with supplemental
requirements would be so burdensome that a public accommodation
would shut down a program rather than comply with the new
requirements. In the nearly 100 comments received on title III play
areas, the majority of commenters strongly opposed all safe harbors,
exemptions, and reductions in scoping, and questioned the
feasibility of determining a tipping point. A smaller number of
commenters advocated for a safe harbor from compliance with the 2004
ADAAG play area requirements along with reduced scoping and
exemptions for both readily achievable barrier removal and
alterations.
Commenters were split as to whether the Department should exempt
owners and operators of public accommodations from compliance with
the supplemental requirements for play areas and recreation
facilities and instead continue to determine accessibility in these
facilities on a case-by-case basis under existing law. Many
commenters were of the view that the exemption was not necessary
because concerns of financial burden are addressed adequately by the
defenses inherent in the standard for what constitutes readily
achievable barrier removal. A number of commenters found the
exemption inappropriate because no standards for play areas
previously existed. Commenters also were concerned that a safe
harbor applicable only to play areas and recreation facilities (but
not to other facilities operated by a public accommodation) would
create confusion, significantly limit access for children and
parents with disabilities, and perpetuate the discrimination and
segregation individuals with disabilities face in the important
social arenas of play and recreation--areas where little access has
been provided in the absence of specific standards. Many commenters
suggested that instead of an exemption, the Department should
provide guidance on barrier removal with respect to play areas and
other recreation facilities.
Several commenters supported the exemption, mainly on the basis
of the cost of barrier removal. More than one commenter noted that
the most expensive aspect of barrier removal on existing play areas
is the surfaces for the accessible routes and use zones. Several
commenters expressed the view that where a play area is ancillary to
a public accommodation (e.g., in quick service restaurants or
shopping centers), the play area should be exempt from compliance
with the supplemental requirements because barrier removal would be
too costly, and as a result, the public accommodation might
eliminate the area.
The Department has been persuaded that the ADA's approach to
barrier removal, the readily achievable standard, provides the
appropriate balance for the application of the 2010 Standards to
existing play areas. Thus, in existing playgrounds, public
accommodations will be required to remove barriers to access where
these barriers can be removed without much difficulty or expense.
The NPRM asked if there are State and local standards
specifically regarding play and recreation area accessibility and
whether facilities currently governed by, and in compliance with,
such State and local standards or codes should be subject to a safe
harbor from compliance with similar applicable requirements in the
2004 ADAAG. The Department also requested comments on whether it
would be appropriate for the Access Board to consider the
implementation of guidelines that would extend such a safe harbor to
play and recreation areas undertaking alterations. In response, no
comprehensive State or local codes were identified, and commenters
generally noted that because the 2004 ADAAG contained comprehensive
accessibility requirements for these unique areas, public
accommodations should not be afforded a safe harbor from compliance
with them when altering play and recreation areas. The Department is
persuaded by these comments that there is insufficient basis to
apply a safe harbor for readily achievable barrier removal or
alterations for play areas built in compliance with State or local
laws.
In the NPRM, the Department requested that public accommodations
identify a ``tipping point'' at which the costs of compliance with
the supplemental requirements for existing play areas would be so
burdensome that the entity simply would shut down the playground. In
response, no tipping point was identified. Some commenters noted,
however, that the scope of the requirements may create the choice
between wholesale replacement of play areas and discontinuance of
some play areas, while others speculated that some public
accommodations may remove play areas that are merely ancillary
amenities rather than incur the cost of barrier removal under the
2010 Standards. The Department has decided that the comments did not
establish any clear tipping point and therefore that no regulatory
response is appropriate in this area.
The NPRM also asked for comment about the potential effect of
exempting existing play areas of less than 1,000 square feet in size
from the requirements applicable to play areas. Many trade and
business associations favored exempting these small play areas, with
some arguing that where the play areas are only ancillary amenities,
the cost of barrier removal may dictate that they be closed down.
Some commenters sought guidance on the definition of a 1,000-square-
foot play area, seeking clarification that seating and bathroom
spaces associated with a play area are not included in the size
definition. Disability rights advocates, by contrast, overwhelmingly
opposed this exemption, arguing that these play areas may be some of
the few available in a community; that restaurants and day care
facilities are important places for socialization between children
with disabilities and those without disabilities; that integrated
play is important to the mission of day care centers and that many
day care centers and play areas in large cities, such as New York
City, have play areas that are less than 1,000 square feet in size;
and that 1,000 square feet was an arbitrary size requirement.
The Department agrees that children with disabilities are
entitled to access to integrated play opportunities. However, the
Department is aware that small public accommodations are concerned
about the costs and efforts associated with barrier removal. The
Department has given careful consideration as to how best to
insulate small entities from overly burdensome costs and
undertakings and has concluded that the existing readily achievable
standard, not a separate exemption, is an effective and employable
method by which to protect these entities. Under the existing
readily achievable standard, small public accommodations would be
required to comply only with the scoping and technical requirements
of the 2010 Standards that are easily accomplishable and able to be
carried out without much difficulty or expense. Thus, concerns about
prohibitive costs and efforts clearly are addressed by the existing
readily achievable standard. Moreover, as evidenced by comments
inquiring as to how 1,000-square-foot play areas are to be measured
and complaining that the 1,000-square-foot cut-off is arbitrary, the
exemption posited in the NPRM would have been difficult to apply.
Finally, a separate exemption would have created confusion as to
whether, or when, to apply the exemption or the readily achievable
standard. Consequently, the Department has decided that an
exemption, separate and apart from the readily achievable standard,
is not appropriate or necessary for small private play areas.
In the NPRM, the Department requested public comment as to
whether existing play areas should be permitted to substitute
additional ground-level play components for the elevated play
components that they otherwise would have been required to make
accessible. Most commenters opposed this substitution because the
guidelines as well as considerations of ``readily achievable barrier
removal'' inherently contain the flexibility necessary for a variety
of situations. Such commenters also noted that the Access Board
adopted extensive guidelines with ample public input, including
significant negotiation and balancing of costs. In addition,
commenters advised that including additional ground level play
components might result in higher costs because more accessible
route surfaces might be required. A limited number of commenters
favored substitution. The Department is persuaded by these comments
that the proposed substitution of elements may not be beneficial.
The current rules applicable to readily achievable barrier removal
will be used to determine the number and type of accessible elements
appropriate for a specific facility.
In the NPRM, the Department requested public comment on whether
it would be

[[Page 56292]]

appropriate for the Access Board to consider issuing guidelines for
alterations to play and recreation facilities that would permit
reduced scoping of accessible components or substitution of ground
level play components in lieu of elevated play components. The
Department received little input on this issue, and most commenters
disfavored the suggestion. One commenter that supported this
approach conjectured that it would encourage public accommodations
to maintain and improve their playgrounds as well as provide more
accessibility. The Department is persuaded that it is not necessary
to ask the Access Board to revisit this issue.
The NPRM also asked whether only one play area of each type
should be required to comply at existing sites with multiple play
areas and whether there are other select requirements applicable to
play areas in the 2004 ADAAG for which the Department should
consider exemptions or reduced scoping. Some commenters were opposed
to the concept of requiring compliance at one play area of each type
at a site with multiple play areas, citing lack of choice and
ongoing segregation of children and adults with disabilities. Other
commenters who supported an exemption and reduced scoping for
alterations noted that the play equipment industry has adjusted to,
and does not take issue with, the provisions of the 2004 ADAAG;
however, they asked for some flexibility in the barrier removal
requirements as applied to play equipment, arguing that augmentation
of the existing equipment and installation of accessible play
surfacing equates to wholesale replacement of the play equipment.
The Department is persuaded that the current rules applicable to
readily achievable barrier removal should be used to decide which
play areas must comply with the supplemental requirements presented
in the 2010 Standards.
Swimming pools, wading pools, saunas, and steam rooms. Section
36.304(d)(3)(ii) in the NPRM specified that for measures taken to
comply with the barrier removal requirements, existing swimming
pools with at least 300 linear feet of swimming pool wall would need
to provide only one accessible means of entry that complies with
section 1009.2 or section 1009.3 of the 2004 ADAAG, instead of the
two means required for new construction. Commenters opposed the
Department's reducing the scoping from that required in the 2004
ADAAG. The following were among the factors cited in comments: that
swimming is a common therapeutic form of exercise for many
individuals with disabilities; that the cost of a swimming pool lift
or other options for pool access is readily achievable and can be
accomplished without much difficulty or expense; and that the
readily achievable standard already provides public accommodations
with a means to reduce their scoping requirements. A few commenters
cited safety concerns resulting from having just one accessible
means of access, and stated that because pools typically have one
ladder for every 75 linear feet of pool wall, they should have more
than one accessible means of egress. Other commenters either
approved or did not oppose providing one accessible means of access
for larger pools so long as a lift was used.
Section 36.304(d)(4)(ii) of the NPRM proposed to exempt existing
swimming pools with fewer than 300 linear feet of swimming pool wall
from the obligation to provide an accessible means of entry. Most
commenters strongly opposed this provision, arguing that aquatic
activity is a safe and beneficial form of exercise that is
particularly appropriate for individuals with disabilities. Many
argued that the readily achievable standard for barrier removal is
available as a defense and is preferable to creating an exemption
for pool operators for whom providing an accessible means of entry
would be readily achievable. Commenters who supported this provision
apparently assumed that providing an accessible means of entry would
be readily achievable and that therefore the exemption is needed so
that small pool operators do not have to provide an accessible means
of entry.
The Department has carefully considered all the information
available to it as well as the comments submitted on these two
proposed exemptions for swimming pools owned or operated by title
III entities. The Department acknowledges that swimming provides
important therapeutic, exercise, and social benefits for many
individuals with disabilities and is persuaded that exemption of the
vast majority of privately owned or operated pools from the 2010
Standards is neither appropriate nor necessary. The Department
agrees with the commenters that title III already contains
sufficient limitations on private entities' obligations to remove
barriers. In particular, the Department agrees that those public
accommodations that can demonstrate that making particular existing
swimming pools accessible in accordance with the 2010 Standards is
not readily achievable are sufficiently protected from excessive
compliance costs. Thus, the Department has eliminated proposed Sec.
36.304(d)(3)(ii) and (d)(4)(ii) from the final rule.
Proposed Sec. 36.304(d)(4)(iii) would have exempted existing
saunas and steam rooms that seat only two individuals from the
obligation to remove barriers. This provision generated far fewer
comments than the provisions for swimming pools. People who
commented were split fairly evenly between those who argued that the
readily achievable standard for barrier removal should be applied to
all existing saunas and steam rooms and those who argued that all
existing saunas and steam rooms, regardless of size, should be
exempt from any barrier removal obligations. The Department
considered these comments and has decided to eliminate the exemption
for existing saunas and steam rooms that seat only two people. Such
an exemption for saunas and steam rooms that seat only two people is
unnecessary because the readily achievable standard provides
sufficient protection against barrier removal that is overly
expensive or too difficult. Moreover, the Department believes
barrier removal likely will not be readily achievable for most of
these small saunas because the nature of their prefabricated forms,
which include built-in seats, make it either technically infeasible
or too difficult or expensive to remove barriers. Consequently a
separate exemption for saunas and steam rooms would have been
superfluous. Finally, employing the readily achievable standard for
small saunas and steam rooms is consistent with the Department's
decisions regarding the proposed exemptions for play areas and
swimming pools.
Several commenters also argued in favor of a specific exemption
for existing spas. The Department notes that the technically
infeasible and readily achievable defenses are applicable equally to
existing spas and declines to adopt such an exemption.
The Department also solicited comment on the possibility of
exempting existing wading pools from the obligation to remove
barriers where readily achievable. Most commenters stated that
installing a sloped entry in an existing wading pool is not likely
to be feasible. Because covered entities are not required to
undertake modifications that are not readily achievable or that
would be technically infeasible, the Department believes that the
rule as drafted provides sufficient protection from unwarranted
expense to the operators of small existing wading pools. Other
existing wading pools, particularly those large wading pools found
in facilities such as water parks, must be assessed on a case-by-
case basis. Therefore, the Department has not included an exemption
for wading pools in its final rule.
The Department received several comments recommending that
existing wave pools be exempt from barrier removal requirements. The
commenters pointed out that existing wave pools often have a sloped
entry, but do not have the handrails, level landings, or edge
protection required for accessible entry. Because pool bottom slabs
are structural, they could be subject to catastrophic failure if the
soil pressure stability or the under slab dewatering are not
maintained during the installation of these accessibility features
in an already-constructed pool. They also argue that the only safe
design scenario is to design the wheelchair ramp, pool lift, or
transfer access in a side cove where the mean water level largely is
unaffected by the wave action, and that this additional construction
to an existing wave pool is not readily achievable. If located in
the main pool area, the handrails, stanchions, and edge protection
for sloped entry will become underwater hazards when the wave action
is pushing onto pool users, and the use of a pool lift will not be
safe without a means of stabilizing the person against the forces of
the waves while using the lift. They also pointed out that a
wheelchair would pose a hazard to all wave pool users, in that the
wave action might push other pool users into the wheelchair or push
the wheelchair into other pool users. The wheelchair would have to
be removed from the pool after the user has entered (and has
transferred to a flotation device if needed). The commenters did not
specify if these two latter concerns are applicable to all wave
pools or only to those with more aggressive wave action. The
Department has decided that the issue of modifications to wave pools
is best addressed on a case-by-case basis, and therefore, this rule
does not contain barrier removal exemptions applicable to wave
pools.

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The Department also received comments suggesting that it is not
appropriate to require two accessible means of entry to wave pools,
lazy rivers, sand bottom pools, and other water amusements that have
only one point of entry. The Department agrees. The 2010 Standards
(at section 242.2, Exception 2) provide that only one means of entry
is required for wave pools, lazy rivers, sand bottom pools, and
other water amusement where user access is limited to one area.
Other recreation facilities. In the NPRM, the Department asked
about a number of issues relating to recreation facilities, such as
team or player seating areas, areas of sport activity, exercise
machines, boating facilities, fishing piers and platforms, golf
courses, and miniature golf courses. The Department asked for public
comment on the costs and benefits of applying the 2004 ADAAG to
these spaces and facilities. The discussion of the comments received
by the Department on these issues and the Department's response to
those comments can be found in either the section entitled ``Other
Issues'' of Appendix A to this final rule.
Safe harbor for qualified small businesses. Section 36.304(d)(5)
of the NPRM would have provided that a qualified small business
would meet its obligation to remove architectural barriers where
readily achievable for a given year if, during that tax year, the
entity spent at least 1 percent of its gross revenue in the
preceding tax year on measures undertaken in compliance with barrier
removal requirements. Proposed Sec. 36.304(d)(5) has been omitted
from the final rule.
The qualified small business safe harbor was proposed in
response to small business advocates' requests for clearer guidance
on when barrier removal is, and is not, readily achievable.
According to these groups, the Department's approach to readily
achievable barrier removal disproportionately affects small business
for the following reasons: (1) Small businesses are more likely to
operate in older buildings and facilities; (2) the 1991 Standards
are too numerous and technical for most small business owners to
understand and determine how they relate to State and local building
or accessibility codes; and (3) small businesses are vulnerable to
title III litigation and often are compelled to settle because they
cannot afford the litigation costs involved in proving that an
action is not readily achievable.
The 2010 Standards go a long way toward meeting the concern of
small businesses with regard to achieving compliance with both
Federal and State accessibility requirements, because the Access
Board harmonized the 2004 ADAAG with the model codes that form the
basis of most State and local accessibility codes. Moreover, the
element-by-element safe harbor will ensure that unless and until a
small business engages in alteration of affected elements, the small
business will not have to retrofit elements that were constructed in
compliance with the 1991 Standards or, with respect to elements in
an existing facility, that were retrofitted to the 1991 Standards in
conjunction with the business's barrier removal obligation prior to
the rule's compliance date.
In proposing an additional safe harbor for small businesses, the
Department had sought to promulgate a rule that would provide small
businesses a level of certainty in short-term and long-term planning
with respect to barrier removal. This in turn would benefit
individuals with disabilities in that it would encourage small
businesses to consider and incorporate barrier removal in their
yearly budgets. Such a rule also would provide some protection,
through diminished litigation risks, to small businesses that
undertake significant barrier removal projects.
As proposed in the NPRM, the qualified small business safe
harbor would provide that a qualified small business has met its
readily achievable barrier removal obligations for a given year if,
during that tax year, the entity has spent at least 1 percent of its
gross revenue in the preceding tax year on measures undertaken to
comply with title III barrier removal requirements. (Several small
business advocacy organizations pointed out an inconsistency between
the Department's description of the small business safe harbor in
the Section-by-Section Analysis for Sec. 36.304 and the proposed
regulatory text for that provision. The proposed regulatory text
sets out the correct parameters of the proposed rule. The Department
does not believe that the error substantively affected the comments
on this issue. Some commenters noted the discrepancy and commented
on both; others commented more generally on the proposal, so the
discrepancy was not relevant.) The Department noted that the
efficacy of any proposal for a small business safe harbor would turn
on the following two determinations: (1) The definition of a
qualified small business, and (2) the formula for calculating what
percentage of revenue is sufficient to satisfy the readily
achievable presumption.
As proposed in Sec. 36.104 in the NPRM, a ``qualified small
business'' is a business entity defined as a small business concern
under the regulations promulgated by the Small Business
Administration (SBA) pursuant to the Small Business Act. See 15
U.S.C. 632; 13 CFR part 121. The Department noted that under section
3(a)(2)(C) of the Small Business Act, Federal departments and
agencies are prohibited from prescribing a size standard for
categorizing a business concern as a small business unless the
department or agency has been authorized specifically to do so or
has proposed a size standard in compliance with the criteria set
forth in the SBA regulations, has provided an opportunity for public
notice and comment on the proposed standard, and has received
approval from the Administrator of the SBA to use the standard. See
15 U.S.C. 632(a)(2)(C). The Department further noted that Federal
agencies or departments promulgating regulations relating to small
businesses usually use SBA size criteria, and they otherwise must be
prepared to justify how they arrived at a different standard and why
the SBA's regulations do not satisfy the agency's program
requirements. See 13 CFR 121.903. The ADA does not define ``small
business'' or specifically authorize the Department to prescribe
size standards.
In the NPRM, the Department indicated its belief that the size
standards developed by the SBA are appropriate for determining which
businesses subject to the ADA should be eligible for the small
business safe harbor provisions, and proposed to adopt the SBA's
size standards to define small businesses for purposes of the
qualified small business safe harbor. The SBA's small business size
standards define the maximum size that a concern, together with all
of its affiliates, may be if it is to be eligible for Federal small
business programs or to be considered a small business for the
purpose of other Federal agency programs. Concerns primarily engaged
in the same kind of economic activity are classified in the same
industry regardless of their types of ownership (such as sole
proprietorship, partnership, or corporation). Approximately 1200
industries are described in detail in the North American Industry
Classification System--United States, 2007. For most businesses, the
SBA has established a size standard based on average annual
receipts. The majority of places of public accommodation will be
classified as small businesses if their average annual receipts are
less than $6.5 million. However, some will qualify with higher
annual receipts. The SBA small business size standards should be
familiar to many if not most small businesses, and using these
standards in the ADA regulation would provide some certainty to
owners, operators, and individuals because the SBA's current size
standards can be changed only after notice and comment rulemaking.
The Department explained in the NPRM that the choice of gross
revenue as the basis for calculating the safe harbor threshold was
intended to avoid the effect of differences in bookkeeping practices
and to maximize accessibility consistent with congressional intent.
The Department recognized, however, that entities with similar gross
revenue could have very different net revenue, and that this
difference might affect what is readily achievable for a particular
entity. The Department also recognized that adopting a small
business safe harbor would effect a marked change to the
Department's current position on barrier removal. Accordingly, the
Department sought public comment on whether a presumption should be
adopted whereby qualifying small businesses are presumed to have
done what is readily achievable for a given year if, during that tax
year, the entity spent at least 1 percent of its gross revenue in
the preceding tax year on barrier removal, and on whether 1 percent
is an appropriate amount or whether gross revenue would be the
appropriate measure.
The Department received many comments on the proposed qualified
small business safe harbor. From the business community, comments
were received from individual business owners and operators,
industry and trade groups, and advocacy organizations for business
and industry. From the disability community, comments were received
from individuals, disability advocacy groups, and nonprofit
organizations involved in providing services for persons with
disabilities or involved in disability-related fields. The
Department has considered all relevant matter submitted on this
issue during the 60-day public comment period.
Small businesses and industry groups strongly supported a
qualified small business

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safe harbor of some sort, but none supported the structure proposed
by the Department in the NPRM. All felt strongly that clarifications
and modifications were needed to strengthen the provision and to
provide adequate protection from litigation.
Business commenters' objections to the proposed qualified small
business safe harbor fell generally into three categories: (1) That
gross revenue is an inappropriate and inaccurate basis for
determining what is readily achievable by a small business since it
does not take into account expenses that may result in a small
business operating at a loss; (2) that courts will interpret the
regulation to mean that a small business must spend 1 percent of
gross revenue each year on barrier removal, i.e., that expenditure
of 1 percent of gross revenue on barrier removal is always ``readily
achievable''; and (3) that a similar misinterpretation of the 1
percent gross revenue concept, i.e., that 1 percent of gross revenue
is always ``readily achievable,'' will be applied to public
accommodations that are not small businesses and that have
substantially larger gross revenue. Business groups also expressed
significant concern about the recordkeeping burdens they viewed as
inherent in the Department's proposal.
Across the board, business commenters objected to the
Department's proposed use of gross revenue as the basis for
calculating whether the small business safe harbor has been met. All
contended that 1 percent of gross revenue is too substantial a
trigger for safe harbor protection and would result in barrier
removal burdens far exceeding what is readily achievable or ``easily
accomplishable and able to be carried out without much difficulty or
expense.'' 42 U.S.C. 12181(9). These commenters further pointed out
that gross revenue and receipts vary considerably from industry to
industry depending on the outputs sold in each industry, and that
the use of gross revenue or receipts would therefore result in
arbitrary and inequitable burdens on those subject to the rule.
These commenters stated that the readily achievable analysis, and
thus the safe harbor threshold, should be premised on a business's
net revenue so that operating expenses are offset before determining
what amount might be available for barrier removal. Many business
commenters contended that barrier removal is not readily achievable
if an entity is operating at a loss, and that a spending formula
premised on net revenue can reflect more accurately businesses'
ability to engage in barrier removal.
There was no consensus among the business commenters as to a
formula that would reflect more accurately what is readily
achievable for small businesses with respect to barrier removal.
Those that proposed alternative formulas offered little in the way
of substantive support for their proposals. One advocacy
organization representing a large cross-section of small businesses
provided some detail on the gross and net revenue of various
industry types and sizes in support of its position that for nearly
all small businesses, net revenue is a better indicator of a
business's financial ability to spend money on barrier removal. The
data also incidentally highlighted the importance and complexity of
ensuring that each component in a safe harbor formula accurately
informs and contributes to the ultimate question of what is and is
not readily achievable for a small business.
Several business groups proposed that a threshold of 0.5 percent
(or one-half of 1 percent) of gross revenue, or 2.5 percent of net
revenue, spent on ADA compliance might be a workable measure of what
is ``readily achievable'' for small businesses. Other groups
proposed 3 to 5 percent of net revenue as a possible measure.
Several commenters proposed affording small businesses an option of
using gross or net revenue to determine safe harbor eligibility.
Another commenter proposed premising the safe harbor threshold on a
designated percentage of the amount spent on renovation in a given
year. Others proposed averaging gross or net revenue over a number
of years to account for cyclical changes in economic and business
environments. Additionally, many proposed that an entity should be
able to roll over expenditures in excess of the safe harbor for
inclusion in safe harbor analysis in subsequent years, to facilitate
barrier removal planning and encourage large-scale barrier removal
measures.
Another primary concern of many businesses and business groups
is that the 1 percent threshold for safe harbor protection would
become a de facto ``floor'' for what is readily achievable for any
small business entity. These commenters urged the Department to
clarify that readily achievable barrier removal remains the
standard, and that in any given case, an entity retains the right to
assert that barrier removal expenditures below the 1 percent
threshold are not readily achievable. Other business groups worried
that courts would apply the 1 percent calculus to questions of
barrier removal by businesses too large to qualify for the small
business safe harbor. These commenters requested clarification that
the rationale underlying the Department's determination that a
percentage of gross revenue can appropriately approximate readily
achievable barrier removal for small businesses does not apply
outside the small business context.
Small businesses and business groups uniformly requested
guidance as to what expenses would be included in barrier removal
costs for purposes of determining whether the safe harbor threshold
has been met. These commenters contended that any and all expenses
associated with ADA compliance--e.g., consultants, architects,
engineers, staff training, and recordkeeping--should be included in
the calculation. Some proposed that litigation-related expenses,
including defensive litigation costs, also should be accounted for
in a small business safe harbor. Additionally, several commenters
urged the Department to issue a small business compliance guide with
detailed guidance and examples regarding application of the readily
achievable barrier removal standard and the safe harbor. Some
commenters felt that the Department's regulatory efforts should be
focused on clarifying the readily achievable standard rather than on
introducing a safe harbor based on a set spending level.
Businesses and business groups expressed concern that the
Department's proposed small business safe harbor would not alleviate
small business vulnerability to litigation. Individuals and advocacy
groups were equally concerned that the practical effect of the
Department's proposal likely would be to accelerate or advance the
initiation of litigation. These commenters pointed out that an
individual encountering barriers in small business facilities will
not know whether the entity is noncompliant or entitled to safe
harbor protection. Safe harbor eligibility can be evaluated only
after review of the small business's barrier removal records and
financial records. Individuals and advocacy groups argued that the
Department should not promulgate a rule by which individuals must
file suit to obtain the information needed to determine whether a
lawsuit is appropriate in a particular case, and that, therefore,
the rule should clarify that small businesses are required to
produce such documentation to any individual upon request.
Several commenters noted that a small business safe harbor based
on net, rather than gross, revenue would complicate exponentially
its efficacy as an affirmative defense, because accounting practices
and asserted expenses would be subject to discovery and dispute. One
business advocacy group representing a large cross-section of small
businesses noted that some small business owners and operators
likely would be uncomfortable with producing detailed financial
information, or could be prevented from using the safe harbor
because of inadvertent recordkeeping deficiencies.
Individuals, advocacy groups, and nonprofit organizations
commenting on behalf of the disability community uniformly and
strongly opposed a safe harbor for qualified small businesses,
saying it is fundamentally at odds with the intent of Congress and
the plain language of the ADA. These commenters contended that the
case-specific factors underlying the statute's readily achievable
standard cannot be reconciled with a formulaic accounting approach,
and that a blanket formula inherently is less fair, less flexible,
and less effective than the current case-by-case determination for
whether an action is readily achievable. Moreover, they argued, a
small business safe harbor for readily achievable barrier removal is
unnecessary because the statutory standard explicitly provides that
a business need only spend what is readily achievable--an amount
that may be more or less than 1 percent of revenue in any given
year.
Several commenters opined that the formulaic approach proposed
by the Department overlooks the factors that often prove most
conducive and integral to readily achievable barrier removal--
planning and prioritization. Many commenters expressed concern that
the safe harbor creates an incentive for business entities to forego
large-scale barrier removal in favor of smaller, less costly removal
projects, regardless of the relative access the measures might
provide. Others commented that an emphasis on a formulaic amount
rather than readily achievable barrier removal might result in

[[Page 56295]]

competition among types of disabilities as to which barriers get
removed first, or discrimination against particular types of
disabilities if barrier removal for those groups is more expensive.
Many commenters opposed to the small business safe harbor
proposed clarifications and limiting rules. A substantial number of
commenters were strongly opposed to what they perceived as a vastly
overbroad and overly complicated definition of ``qualified small
business'' for purposes of eligibility for the safe harbor, and
urged the Department to limit the qualified small business safe
harbor to those businesses eligible for the ADA small business tax
credit under section 44 of the Tax Code. Some commenters from the
disability community contended that the spending level that triggers
the safe harbor should be cumulative, to reflect the continuing
nature of the readily achievable barrier obligation and to preclude
a business from erasing years of unjustifiable inaction or
insufficient action by spending up to the safe harbor threshold for
one year. These commenters also sought explicit clarification that
the small business safe harbor is an affirmative defense.
A number of commenters proposed that a business seeking to use
the qualified small business safe harbor should be required to have
a written barrier removal plan that contains a prioritized list of
significant access barriers, a schedule for removal, and a
description of the methods used to identify and prioritize barriers.
These commenters argued that only spending consistent with the plan
should count toward the qualified small business threshold.
After consideration of all relevant matter presented, the
Department has concluded that neither the qualified small business
safe harbor proposed in the NPRM nor any of the alternatives
proposed by commenters will achieve the Department's intended
results. Business and industry commenters uniformly objected to a
safe harbor based on gross revenue, argued that 1 percent of gross
revenue was out of reach for most, if not all, small businesses, and
asserted that a safe harbor based on net revenue would better
capture whether and to what extent barrier removal is readily
achievable for small businesses. Individuals and disability advocacy
groups rejected a set formula as fundamentally inconsistent with the
case-specific approach reflected in the statute.
Commenters on both sides noted ambiguity as to which ADA-related
costs appropriately should be included in the calculation of the
safe harbor threshold, and expressed concern about the practical
effect of the proposed safe harbor on litigation. Disability
organizations expressed concern that the proposal might increase
litigation because individuals with disabilities confronted with
barriers in places of public accommodation would not be able to
independently assess whether an entity is noncompliant or is, in
fact, protected by the small business safe harbor. The Department
notes that the concerns about enforcement-related complexity and
expense likely would increase exponentially with a small business
safe harbor based on net revenue.
The Department continues to believe that promulgation of a small
business safe harbor would be within the scope of the Attorney
General's mandate under 42 U.S.C. 12186(b) to issue regulations to
carry out the provisions of title III. Title III defines ``readily
achievable'' to mean ``easily accomplishable and able to be carried
out without much difficulty or expense,'' 42 U.S.C. 12181(9), and
sets out factors to consider in determining whether an action is
readily achievable. While the statutory factors reflect that whether
an action is readily achievable is a fact-based determination, there
is no inherent inconsistency with the Department's proposition that
a formula based on revenue and barrier removal expenditure could
accurately approximate the high end of the level of expenditure that
can be considered readily achievable for a circumscribed subset of
title III entities defined, in part, by their maximum annual average
receipts. Moreover, the Department's obligation under the SBREFA to
consider alternative means of compliance for small businesses, see 5
U.S.C. 603(c), further supports the Department's conclusion that a
well-targeted formula is a reasonable approach to implementation of
the statute's readily achievable standard. While the Department
ultimately has concluded that a small business safe harbor should
not be included in the final rule, the Department continues to
believe that it is within the Department's authority to develop and
implement such a safe harbor.
As noted above, the business community strongly objected to a
safe harbor premised on gross revenue, on the ground that gross
revenue is an unreliable indicator of an entity's ability to remove
barriers, and urged the Department to formulate a safe harbor based
on net revenue. The Department's proposed use of gross revenue was
intended to offer a measure of certainty for qualified small
businesses while ensuring that those businesses continue to meet
their ongoing obligation to remove architectural barriers where
doing so is readily achievable.
The Department believes that a qualified small business safe
harbor based on net revenue would be an unreliable indicator of what
is readily achievable and would be unworkable in practice.
Evaluation of what is readily achievable for a small business cannot
rest solely on a business's net revenue because many decisions about
expenses are inherently subjective, and in some cases a net loss may
be more beneficial (in terms of taxes, for example) than a small net
profit. The Department does not read the ADA's readily achievable
standard to mean necessarily that architectural barrier removal is
to be, or should be, a business's last concern, or that a business
can claim that every barrier removal obligation is not readily
achievable. Therefore, if a qualified small business safe harbor
were to be premised on net revenue, assertion of the affirmative
defense would trigger discovery and examination of the business's
accounting methods and the validity or necessity of offsetting
expenses. The practical benefits and legal certainty intended by the
NPRM would be lost.
Because there was little to no support for the Department's
proposed use of gross revenue and no workable alternatives are
available at this time, the Department will not adopt a small
business safe harbor in this final rule. Small business public
accommodations are subject to the barrier removal requirements set
out in Sec. 36.304 of the final rule. In addition, the Department
plans to provide small businesses with more detailed guidance on
assessing and meeting their barrier removal obligations in a small
business compliance guide.

Section 36.308 Seating in Assembly Areas

In the 1991 rule, Sec. 36.308 covered seating obligations for
public accommodations in assembly areas. It was bifurcated into (a)
existing facilities and (b) new construction and alterations. The
new construction and alterations provision, Sec. 36.308(b), merely
stated that assembly areas should be built or altered in accordance
with the applicable provisions in the 1991 Standards. Section
36.308(a), by contrast, provided detailed guidelines on what barrier
removal was required.
The Department explained in the preamble to the 1991 rule that
Sec. 36.308 provided specific rules on assembly areas to ensure
that wheelchair users, who typically were relegated to inferior
seating in the back of assembly areas separate from their friends
and family, would be provided access to seats that were integrated
and equal in quality to those provided to the general public.
Specific guidance on assembly areas was desirable because they are
found in many different types of places of public accommodation,
ranging from opera houses (places of exhibition or entertainment) to
private university lecture halls (places of education), and include
assembly areas that range in size from small movie theaters of 100
or fewer seats to 100,000-seat sports stadiums.
In the NPRM, the Department proposed to update Sec. 36.308(a)
by incorporating some of the applicable assembly area provisions
from the 2010 Standards. Upon further review, however, the
Department has determined that the need to provide special guidance
for assembly areas in a separate section no longer exists, except
for specialty seating areas, as discussed below. Since enactment of
the ADA, the Department has interpreted the 1991 Standards as a
guide for determining the existence of barriers. Courts have
affirmed this interpretation. See, e.g., Colorado Cross Disability
Coalition v. Too, Inc., 344 F. Supp. 2d 707 (D. Colo. 2004); Access
Now, Inc. v. AMH CGH, Inc., 2001 WL 1005593 (S.D. Fla. 2001);
Pascuiti v. New York Yankees, 87 F. Supp. 2d 221 (S.D.N.Y. 1999).
The 2010 Standards now establish detailed guidance for newly
constructed and altered assembly areas, which is provided in Sec.
36.406(f), and these Standards will serve as a new guide for barrier
removal. Accordingly, the former Sec. 36.308(a) has been replaced
in the final rule. Assembly areas will benefit from the same safe
harbor provisions applicable to barrier removal in all places of
public accommodations as provided in Sec. 36.304(d)(2) of the final
rule.
The Department has also decided to remove proposed Sec.
36.308(c)(2) from the final rule. This provision would have required
assembly areas with more than 5,000 seats to provide five wheelchair
spaces with at least

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three designated companion seats for each of those five wheelchair
spaces. The Department agrees with commenters who asserted that
group seating already is addressed more appropriately in ticketing
under Sec. 36.302(f).
The Department has determined that proposed Sec. 36.308(c)(1),
addressing specialty seating in assembly areas, should remain as
Sec. 36.308 in the final rule with additional language. This
paragraph is designed to ensure that individuals with disabilities
have an opportunity to access specialty seating areas that entitle
spectators to distinct services or amenities not generally available
to others. This provision is not, as several commenters mistakenly
thought, designed to cover luxury boxes and suites. Those areas have
separate requirements outlined in section 221 of the 2010 Standards.
Section 36.308 requires only that accessible seating be provided
in each area with distinct services or amenities. To the extent a
covered entity provides multiple seating areas with the same
services and amenities, each of those areas would not be distinct
and thus all of them would not be required to be accessible. For
example, if a facility has similar dining service in two areas, both
areas would not need to be made accessible; however, if one dining
service area is open to families, while the other is open only to
individuals over the age of 21, both areas would need to be made
accessible. Factors distinguishing specialty seating areas generally
are dictated by the type of facility or event, but may include, for
example, such distinct services and amenities as access to wait
staff for in-seat food or beverage service; availability of catered
food or beverages for pre-game, intermission, or post-game events;
restricted access to lounges with special amenities, such as couches
or flat-screen televisions; or access to team personnel or
facilities for team-sponsored events (e.g., autograph sessions,
sideline passes, or facility tours) not otherwise available to other
spectators.
The NPRM required public accommodations to locate wheelchair
seating spaces and companion seats in each specialty seating area
within the assembly area. The Department has added language in the
final rule stating that public accommodations that cannot place
wheelchair seating spaces and companion seats in each specialty area
because it is not readily achievable to do so may meet their
obligation by providing specialty services or amenities to
individuals with disabilities and their companions at other
designated accessible locations at no additional cost. For example,
if a theater that only has barrier removal obligations provides wait
service to spectators in the mezzanine, and it is not readily
achievable to place accessible seating there, it may meet its
obligation by providing wait service to patrons with disabilities
who use wheelchairs and their companions at other designated
accessible locations at no additional cost. This provision does not
obviate the obligation to comply with applicable requirements for
new construction and alterations, including dispersion of accessible
seating.

Section 36.309 Examinations and Courses

Section 36.309(a) sets forth the general rule that any private
entity that offers examinations or courses relating 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. In the NPRM preamble and proposed
regulatory amendment and in this final rule, the Department relied
on its history of enforcement efforts, research, and body of
knowledge of testing and modifications, accommodations, and aids in
detailing steps testing entities should take to ensure that persons
with disabilities receive appropriate modifications, accommodations,
or auxiliary aids in examination and course settings as required by
the ADA. The Department received comments from disability rights
groups, organizations that administer tests, State governments,
professional associations, and individuals on the language appearing
in the NPRM preamble and amended regulation and has carefully
considered these comments.
The Department initially set out the parameters of appropriate
documentation requests relating to examinations and courses covered
by this section in the 1991 preamble at 28 CFR part 36, stating that
``requests for documentation must be reasonable and must be limited
to the need for the modification or aid requested.'' See 28 CFR part
36, app. B at 735 (2009). Since that time, the Department, through
its enforcement efforts pursuant to section 309, has addressed
concerns that requests by testing entities for documentation
regarding the existence of an individual's disability and need for a
modification or auxiliary aid or service were often inappropriate
and burdensome. The Department proposed language stating that while
it may be appropriate for a testing entity to request that an
applicant provide documentation supporting the existence of a
disability and the need for a modification, accommodation, or
auxiliary aid or service, the request by the testing entity for such
documentation must be reasonable and limited. The NPRM proposed that
testing entities should narrowly tailor requests for documentation,
limiting those requests to materials that will allow the testing
entities to ascertain the nature of the disability and the
individual's need for the requested modification, accommodation, or
auxiliary aid or service. This proposal codified the 1991 rule's
preamble language regarding testing entities' requests for
information supporting applicants' requests for testing
modifications or accommodations.
Overall, most commenters supported this addition to the
regulation. These commenters generally agreed that documentation
sought by testing entities to support requests for modifications and
testing accommodations should be reasonable and tailored. Commenters
noted, for example, that the proposal to require reasonable and
tailored documentation requests ``is not objectionable. Indeed, it
largely tracks DOJ's long-standing informal guidance that `requests
for documentation must be reasonable and limited to the need for the
modification or aid requested.' ''
Commenters including disability rights groups, State
governments, professional associations, and individuals made it
clear that, in addition to the proposed regulatory change, other
significant problems remain for individuals with disabilities who
seek necessary modifications to examinations and courses. These
problems include detailed questions about the nature of
documentation materials submitted by candidates, testing entities'
questioning of documentation provided by qualified professionals
with expertise in the particular disability at issue, and lack of
timeliness in determining whether to provide requested
accommodations or modifications. Several commenters expressed
enthusiasm for the preamble language addressing some of these
issues, and some of these commenters recommended the incorporation
of portions of this preamble language into the regulatory text. Some
testing entities expressed concerns and uncertainty about the
language in the preamble and sought clarifications about its
meaning. These commenters focused most of their attention on the
following language from the NPRM preamble:

Generally, a testing entity should accept without further
inquiry documentation provided by a qualified professional who has
made an individualized assessment of the applicant. Appropriate
documentation may include a letter from a qualified professional or
evidence of a prior diagnosis, or accommodation, or classification,
such as eligibility for a special education program. When an
applicant's documentation is recent and demonstrates a consistent
history of a diagnosis, there is no need for further inquiry into
the nature of the disability. A testing entity should consider an
applicant's past use of a particular auxiliary aid or service.

73 FR 34508, 34539 (June 17, 2008).

Professional organizations, State governments, individuals, and
disability rights groups fully supported the Department's preamble
language and recommended further modification of the regulations to
encompass the issues raised in the preamble. A disability rights
group recommended that the Department incorporate the preamble
language into the regulations to ensure that ``documentation demands
are strictly limited in scope and met per se when documentation of
previously provided accommodations or aids is provided.'' One
professional education organization noted that many testing
corporations disregard the documented diagnoses of qualified
professionals, and instead substitute their own, often unqualified
diagnoses of individuals with disabilities. Commenters confirmed
that testing entities sometimes ask for unreasonable information
that is either impossible, or extremely onerous, to provide. A
disability rights organization supported the Department's proposals
and noted that private testing companies impose burdensome
documentation requirements upon applicants with disabilities seeking
accommodations and that complying with

[[Page 56297]]

the documentation requests is frequently so difficult, and
negotiations over the requests so prolonged, that test applicants
ultimately forgo taking the test. Another disability rights group
urged the Department to ``expand the final regulatory language to
ensure that regulations accurately provide guidance and support the
comments made about reducing the burden of documenting the diagnosis
and existence of a disability.''
Testing entities, although generally supportive of the proposed
regulatory amendment, expressed concern regarding the Department's
proposed preamble language. The testing entities provided the
Department with lengthy comments in which they suggested that the
Department's rationale delineated in the preamble potentially could
limit them from gathering meaningful and necessary documentation to
determine whether, in any given circumstance, a disability is
presented, whether modifications are warranted, and which
modifications would be most appropriate. Some testing entities
raised concerns about individuals skewing testing results by falsely
claiming or feigning disabilities as an improper means of seeking
advantage on an examination. Several testing entities raised
concerns about and sought clarification regarding the Department's
use of certain terms and concepts in the preamble, including
``without further inquiry,'' ``appropriate documentation,''
``qualified professional,'' ``individualized assessment,'' and
``consider.'' These entities discussed the preamble language at
length, noting that testing entities need to be able to question
some aspects of testing applicants' documentation or to request
further documentation from some candidates when the initial
documentation is unclear or incomplete. One testing entity expressed
concern that the Department's preamble language would require the
acceptance of a brief note on a doctor's prescription pad as
adequate documentation of a disability and the need for an
accommodation. One medical examination organization stated that the
Department's preamble language would result in persons without
disabilities receiving accommodations and passing examinations as
part of a broad expansion of unwarranted accommodations, potentially
endangering the health and welfare of the general public. Another
medical board ``strenuously objected'' to the ``without further
inquiry'' language. Several of the testing entities expressed
concern that the Department's preamble language might require
testing companies to accept documentation from persons with
temporary or questionable disabilities, making test scores less
reliable, harming persons with legitimate entitlements, and
resulting in additional expense for testing companies to accommodate
more test takers.
It remains the Department's view that, when testing entities
receive documentation provided by a qualified professional who has
made an individualized assessment of an applicant that supports the
need for the modification, accommodation, or aid requested, they
shall generally accept such documentation and provide the
accommodation.
Several commenters sought clarifications on what types of
documentation are acceptable to demonstrate the existence of a
disability and the need for a requested modification, accommodation,
or aid. The Department believes that appropriate documentation may
vary depending on the nature of the disability and the specific
modification or aid requested, and accordingly, testing entities
should consider a variety of types of information submitted.
Examples of types of information to consider include recommendations
of qualified professionals familiar with the individual, results of
psycho-educational or other professional evaluations, an applicant's
history of diagnosis, participation in a special education program,
observations by educators, or the applicant's past use of testing
accommodations. If an applicant has been granted accommodations
post-high school by a standardized testing agency, there is no need
for reassessment for a subsequent examination.
Some commenters expressed concern regarding the use of the term
``letter'' in the proposed preamble sentence regarding appropriate
documentation. The NPRM preamble language stated that
``[a]ppropriate documentation may include a letter from a qualified
professional or evidence of a prior diagnosis, accommodation, or
classification, such as eligibility for a special education
program.'' 73 FR 34508, 34539 (June 17, 2008). Some testing entities
posited that the preamble language would require them to accept a
brief letter from a doctor or even a doctor's note on a prescription
pad indicating ``I've been treating (student) for ADHD and he/she is
entitled to extend time on the ACT.'' The Department's reference in
the NPRM preamble to letters from physicians or other professionals
was provided in order to offer examples of some types of acceptable
documentation that may be considered by testing entities in
evaluating the existence of an applicant's disability and the need
for a certain modification, accommodation, or aid. No one piece of
evidence may be dispositive in make a testing accommodation
determination. The significance of a letter or other communication
from a doctor or other qualified professional would depend on the
professional's relationship with the candidate and the specific
content of the communication, as well as how the letter fits in with
the totality of the other factors used to determine testing
accommodations under this rule. Similarly, an applicant's failure to
provide results from a specific test or evaluation instrument should
not of itself preclude approval of requests for modifications,
accommodations, or aids if the documentation provided by the
applicant, in its entirety, is sufficient to demonstrate that the
individual has a disability and requires a requested modification,
accommodation, or aid on the relevant examination. This issue is
discussed in more detail below.
One disability rights organization noted that requiring a 25-
year old who was diagnosed in junior high school with a learning
disability and accommodated ever since ``to produce elementary
school report cards to demonstrate symptomology before the age of
seven is unduly burdensome.'' The same organization commented that
requiring an individual with a long and early history of disability
to be assessed within three years of taking the test in question is
similarly burdensome, stating that ``[t]here is no scientific
evidence that learning disabilities abate with time, nor that
Attention Deficits abate with time * * *.'' This organization noted
that there is no justification for repeatedly subjecting people to
expensive testing regimens simply to satisfy a disbelieving
industry. This is particularly true for adults with, for example,
learning disabilities such as dyslexia, a persistent condition
without the need for retesting once the diagnosis has been
established and accepted by a standardized testing agency.
Some commenters from testing entities sought clarification
regarding who may be considered a ``qualified professional.''
Qualified professionals are licensed or otherwise properly
credentialed and possess expertise in the disability for which
modifications or accommodations are sought. For example, a
podiatrist would not be considered to be a qualified professional to
diagnose a learning disability or support a request for testing
accommodations on that basis. Types of professionals who might
possess the appropriate credentials and expertise are doctors
(including psychiatrists), psychologists, nurses, physical
therapists, occupational therapists, speech therapists, vocational
rehabilitation specialists, school counselors, and licensed mental
health professionals. Additionally, while testing applicants should
present documentation from qualified professionals with expertise in
the pertinent field, it also is critical that testing entities that
review documentation submitted by prospective examinees in support
of requests for testing modifications or accommodations ensure that
their own reviews are conducted by qualified professionals with
similarly relevant expertise.
Commenters also sought clarification of the term individualized
assessment. The Department's intention in using this term is to
ensure that documentation provided on behalf of a testing candidate
is not only provided by a qualified professional, but also reflects
that the qualified professional has individually and personally
evaluated the candidate as opposed to simply considering scores from
a review of documents. This is particularly important in the
learning disabilities context, where proper diagnosis requires face-
to-face evaluation. Reports from experts who have personal
familiarity with the candidate should take precedence over those
from, for example, reviewers for testing agencies, who have never
personally met the candidate or conducted the requisite assessments
for diagnosis and treatment.
Some testing entities objected to the NPRM preamble's use of the
phrase ``without further inquiry.'' The Department's intention here
is to address the extent to which testing entities should accept
documentation provided by an applicant when the testing entity is
determining the need for modifications, accommodations, or auxiliary
aids or services. The Department's view is that applicants who
submit appropriate documentation, e.g., documentation that is

[[Page 56298]]

based on the careful individual consideration of the candidate by a
professional with expertise relating to the disability in question,
should not be subjected to unreasonably burdensome requests for
additional documentation. While some testing commenters objected to
this standard, it reflects the Department's longstanding position.
When an applicant's documentation demonstrates a consistent history
of a diagnosis of a disability, and is prepared by a qualified
professional who has made an individualized evaluation of the
applicant, there is little need for further inquiry into the nature
of the disability and generally testing entities should grant the
requested modification, accommodation, or aid.
After a careful review of the comments, the Department has
decided to maintain the proposed regulatory language on the scope of
appropriate documentation in Sec. 36.309(b)(1)(iv). The Department
has also added new regulatory language at Sec. 36.309(b)(1)(v) that
provides that testing entities shall give 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
(IDEA) or a plan providing services pursuant to section 504 of the
Rehabilitation Act of 1973, as amended (often referred to as a
Section 504 Plan). These additions to the regulation are necessary
because the Department's position on the bounds of appropriate
documentation contained in Appendix B, 28 CFR part 36, app. B
(2009), has not been implemented consistently and fully by
organizations that administer tests.
The new regulatory language clarifies that an applicant's past
use of a particular modification, accommodation, or auxiliary aid or
service in a similar testing setting or pursuant to an IEP or
Section 504 Plan provides critical information in determining those
examination modifications that would be applicable in a given
circumstance. The addition of this language and the appropriate
weight to be accorded it is seen as important by the Department
because the types of accommodations provided in both these
circumstances are typically granted in the context of individual
consideration of a student's needs by a team of qualified and
experienced professionals. Even though these accommodations
decisions form a common sense and logical basis for testing entities
to rely upon, they are often discounted and ignored by testing
entities.
For example, considerable weight is warranted when a student
with a Section 504 Plan in place since middle school that includes
the accommodations of extra time and a quiet room for testing is
seeking these same accommodations from a testing entity covered by
section 309 of the Act. In this example, a testing entity receiving
such documentation should clearly grant the request for
accommodations. A history of test accommodations in secondary
schools or in post-secondary institutions, particularly when
determined through the rigors of a process required and detailed by
Federal law, is as useful and instructive for determining whether a
specific accommodation is required as accommodations provided in
standardized testing situations.
It is important to note, however, that the inclusion of this
weight does not suggest that individuals without IEPs or Section 504
Plans are not also entitled to receive testing accommodations.
Indeed, it is recommended that testing entities must consider the
entirety of an applicant's history to determine whether that
history, even without the context of a IEP or Section 504 Plan,
indicates a need for accommodations. In addition, many students with
learning disabilities have made use of informal, but effective
accommodations. For example, such students often receive
undocumented accommodations such as time to complete tests after
school or at lunchtime, or being graded on content and not form or
spelling of written work. Finally, testing entities shall also
consider that because private schools are not subject to the IDEA,
students at private schools may have a history of receiving
accommodations in similar settings that are not pursuant to an IEP
or Section 504 Plan.
Some testing entities sought clarification that they should only
be required to consider particular use of past modifications,
accommodations, auxiliary aids or services received by testing
candidates for prior testing and examination settings. These
commenters noted that it would be unhelpful to consider the
classroom accommodations for a testing candidate, as those
accommodations would not typically apply in a standardized test
setting. The Department's history of enforcement in this area has
demonstrated that a recent history of past accommodations is
critical to an understanding of the applicant's disability and the
appropriateness of testing accommodations.
The Department also incorporates the NPRM preamble's ``timely
manner'' concept into the new regulatory language at Sec.
36.309(b)(1)(vi). Under this provision, testing entities are
required to respond in a timely manner to requests for testing
accommodations in order to ensure equal opportunity for persons with
disabilities. Testing entities are to ensure that their established
process for securing testing accommodations provides applicants with
a reasonable opportunity to supplement the testing entities'
requests for additional information, if necessary, and still be able
to take the test in the same testing cycle. A disability rights
organization commented that testing entities should not subject
applicants to unreasonable and intrusive requests for information in
a process that should provide persons with disabilities effective
modifications in a timely manner, fulfilling the core objective of
title III to provide equal access. Echoing this perspective, several
disability rights organizations and a State government commenter
urged that testing entities should not make unreasonably burdensome
demands for documentation, particularly where those demands create
impediments to receiving accommodations in a timely manner. Access
to examinations should be offered to persons with disabilities in as
timely a manner as it is offered to persons without disabilities.
Failure by a testing entity to act in a timely manner, coupled with
seeking unnecessary documentation, could result in such an extended
delay that it constitutes a denial of equal opportunity or equal
treatment in an examination setting for persons with disabilities.

Section 36.311 Mobility Devices

Section 36.311 of the NPRM clarified the scope and circumstances
under which covered entities are legally obligated to accommodate
various ``mobility devices.'' Section 36.311 set forth specific
requirements for the accommodation of mobility devices, including
wheelchairs, manually-powered mobility aids, and other power-driven
mobility devices.
In both the NPRM and the final rule, Sec. 36.311(a) states the
general rule that in any areas open to pedestrians, public
accommodations shall permit individuals with mobility disabilities
to use wheelchairs and manually-powered mobility aids, including
walkers, crutches, canes, braces, or similar devices. Because
mobility scooters satisfy the definition of ``wheelchair'' (i.e.,
``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''), the
reference to them in Sec. 36.311(a) of the final rule has been
omitted to avoid redundancy.
Most business commenters expressed concern that permitting the
use of other power-driven mobility devices by individuals with
mobility disabilities would make such devices akin to wheelchairs
and would require them to make physical changes to their facilities
to accommodate their use. This concern is misplaced. If a facility
complies with the applicable design requirements in the 1991
Standards or the 2010 Standards, the public accommodation will not
be required to exceed those standards to accommodate the use of
wheelchairs or other power-driven mobility devices that exceed those
requirements.
Legal standard for other power-driven mobility devices. The NPRM
version of Sec. 36.311(b) provided that a public accommodation
``shall make reasonable modifications in its policies, practices,
and procedures to permit the use of other power-driven mobility
devices by individuals with disabilities, unless the public
accommodation can demonstrate that the use of the device is not
reasonable or that its use will result in a fundamental alteration
in the nature of the public accommodation's goods, services,
facilities, privileges, advantages, or accommodations.'' 73 FR
34508, 34556 (June 17, 2008). In other words, public accommodations
are by default required to permit the use of other power-driven
mobility devices; the burden is on them to prove the existence of a
valid exception.
Most commenters supported the notion of assessing whether the
use of a particular device is reasonable in the context of a
particular venue. Commenters, however, disagreed about the meaning
of the word ``reasonable'' as it is used in Sec. 36.311(b) of the

[[Page 56299]]

NPRM. Virtually every business and industry commenter took the use
of the word ``reasonable'' to mean that a general reasonableness
standard would be applied in making such an assessment. Advocacy and
nonprofit groups almost universally objected to the use of a general
reasonableness standard with regard to the assessment of whether a
particular device should be allowed at a particular venue. They
argued that the assessment should be based on whether reasonable
modifications could be made to allow a particular device at a
particular venue, and that the only factors that should be part of
the calculus that results in the exclusion of a particular device
are undue burden, direct threat, and fundamental alteration.
A few commenters opposed the proposed provision requiring public
accommodations to assess whether reasonable modifications can be
made to allow other power-driven mobility devices, preferring
instead that the Department issue guidance materials so that public
accommodations would not have to incur the cost of such analyses.
Another commenter noted a ``fox guarding the hen house''-type of
concern with regard to public accommodations developing and
enforcing their own modification policy.
In response to comments received, the Department has revised
Sec. 36.311(b) to provide greater clarity regarding the development
of legitimate safety requirements regarding other power-driven
mobility devices. The Department has not retained the proposed NPRM
language stating that an other power-driven mobility device can be
excluded if a public accommodation can demonstrate that the use of
the device is not reasonable or that its use fundamentally alters
the nature of the goods, services, facilities, privileges,
advantages, or accommodations offered by the public accommodation
because the Department believes that these exceptions are covered by
the general reasonable modification requirement contained in Sec.
36.302.
Assessment factors. Section 36.311(c) of the NPRM required
public accommodations to ``establish policies to permit the use of
other power-driven mobility devices'' and articulated four factors
upon which public accommodations must base decisions as to whether a
modification is reasonable to allow the use of a class of other
power-driven mobility devices by individuals with disabilities in
specific venues (e.g., doctors' offices, parks, commercial
buildings, etc.). 73 FR 34508, 34556 (June 17, 2008).
The Department has relocated and modified the NPRM text that
appeared in Sec. 36.311(c) to new paragraph Sec. 36.311(b)(2) to
clarify what factors the public accommodation shall use in
determining whether a particular other power-driven mobility device
can be allowed in a specific facility as a reasonable modification.
Section 36.311(b)(2) now states that ``[i]n determining whether a
particular other power-driven mobility device can be allowed in a
specific facility as a reasonable modification under (b)(1), a
public accommodation shall consider'' certain enumerated factors.
The assessment factors are designed to assist public accommodations
in determining whether allowing the use of a particular other power-
driven mobility device in a specific facility is reasonable. Thus,
the focus of the analysis must be on the appropriateness of the use
of the device at a specific facility, rather than whether it is
necessary for an individual to use a particular device.
The NPRM proposed the following specific assessment factors: (1)
The dimensions, weight, and operating speed of the mobility device
in relation to a wheelchair; (2) the potential risk of harm to
others by the operation of the mobility device; (3) the risk of harm
to the environment or natural or cultural resources or conflict with
Federal land management laws and regulations; and (4) the ability of
the public accommodation to stow the mobility device when not in
use, if requested by the user.
Factor 1 was designed to help public accommodations assess
whether a particular device was appropriate, given its particular
physical features, for a particular location. Virtually all
commenters said the physical features of the device affected their
view of whether a particular device was appropriate for a particular
location. For example, while many commenters supported the use of an
other power-driven mobility device if the device were a
Segway[supreg] PT, because of environmental and health concerns they
did not offer the same level of support if the device were an off-
highway vehicle, all-terrain vehicle (ATV), golf car, or other
device with a fuel-powered or combustion engine. Most commenters
noted that indicators such as speed, weight, and dimension really
were an assessment of the appropriateness of a particular device in
specific venues and suggested that factor 1 say this more
specifically.
The term ``in relation to a wheelchair'' in the NPRM's factor 1
apparently created some concern that the same legal standards that
apply to wheelchairs would be applied to other power-driven mobility
devices. The Department has omitted the term ``in relation to a
wheelchair'' from Sec. 36.311(b)(2)(i) to clarify that if a
facility that is in compliance with the applicable provisions of the
1991 Standards or the 2010 Standards grants permission for an other
power-driven mobility device to go on-site, it is not required to
exceed those standards to accommodate the use of other power-driven
mobility devices.
In response to requests that NPRM factor 1 state more
specifically that it requires an assessment of an other power-driven
mobility device's appropriateness under particular circumstances or
in particular venues, the Department has added several factors and
more specific language. In addition, although the NPRM made
reference to the operation of other power-driven mobility devices in
``specific venues,'' the Department's intent is captured more
clearly by referencing ``specific facility'' in paragraph (b)(2).
The Department also notes that while speed is included in factor 1,
public accommodations should not rely solely on a device's top speed
when assessing whether the device can be accommodated; instead,
public accommodations should also consider the minimum speeds at
which a device can be operated and whether the development of speed
limit policies can be established to address concerns regarding the
speed of the device. Finally, since the ability of the public
accommodation to stow the mobility device when not in use is an
aspect of its design and operational characteristics, the text
proposed as factor 4 in the NPRM has been incorporated in paragraph
(b)(2)(iii).
The NPRM's version of factor 2 provided that the ``potential
risk of harm to others by the operation of the mobility device'' is
one of the determinants in the assessment of whether other power-
driven mobility devices should be excluded from a site. With this
language, the Department intended to incorporate the safety standard
found in Sec. 36.301(b), which provides that public accommodations
may ``impose legitimate safety requirements that are necessary for
safe operation'' into the assessment. However, several commenters
indicated that they read this language, particularly the phrase
``potential risk of harm'' to mean that the Department had adopted a
concept of risk analysis different from that which is in the
existing standards. The Department did not intend to create a new
standard and has changed the language in paragraphs (b)(1) and
(b)(2) to clarify the applicable standards, thereby avoiding the
introduction of new assessments of risk beyond those necessary for
the safe operation of the public accommodation.
While all applicable affirmative defenses are available to
public accommodations in the establishment and execution of their
policies regarding other power-driven mobility devices, the
Department did not explicitly incorporate the direct threat defense
into the assessment factors because Sec. 36.301(b) provides public
accommodations the appropriate framework with which to assess
whether legitimate safety requirements that may preclude the use of
certain other power-driven mobility devices are necessary for the
safe operation of the public accommodation. In order to be
legitimate, the safety requirement must be based on actual risks and
not mere speculation regarding the device or how it will be
operated. Of course, public accommodations may enforce legitimate
safety rules established for the operation of other-power driven
mobility devices (e.g., reasonable speed restrictions). Finally,
NPRM factor 3 concerning environmental resources and conflicts of
law has been relocated to paragraph (b)(2)(v).
As a result of these comments and requests, NPRM factors 1, 2,
3, and 4 have been revised and renumbered within paragraph
36.311(b)(2) in the final rule.
Several commenters requested that the Department provide
guidance materials or more explicit concepts of which considerations
might be appropriate for inclusion in a policy that allows the use
of other power-driven mobility devices. A public accommodation that
has determined that reasonable modifications can be made in its
policies, practices, or procedures to allow the use of other power-
driven mobility devices should develop a policy that clearly states
the circumstances under which the use of other power-driven mobility
devices by individuals with a mobility disability will be permitted.
It also should include clear,

[[Page 56300]]

concise statements of specific rules governing the operation of such
devices. Finally, the public accommodation should endeavor to
provide individuals with disabilities who use other power-driven
mobility devices with advanced notice of its policy regarding the
use of such devices and what rules apply to the operation of these
devices.
For example, the U.S. General Services Administration (GSA) has
developed a policy allowing the use of the Segway[supreg] PT and
other EPAMDs in all Federal buildings under GSA's jurisdiction. See
General Services Administration, Interim Segway[supreg] Personal
Transporter Policy (Dec. 3, 2007), available at http://www.gsa.gov/
graphics/pbs/Interim_Segway_Policy_121007.pdf (last visited June
24, 2010). The GSA policy defines the policy's scope of coverage by
setting out what devices are and are not covered by the policy. The
policy also sets out requirements for safe operation, such as a
speed limit, prohibits the use of EPAMDs on escalators, and provides
guidance regarding security screening of these devices and their
operators.
A public accommodation that determines that it can make
reasonable modifications to permit the use of an other power-driven
mobility device by an individual with a mobility disability might
include in its policy the procedure by which claims that the other
power-driven mobility device is being used for a mobility disability
will be assessed for legitimacy (i.e., a credible assurance that the
device is being used for a mobility disability, including a verbal
representation by the person with a disability that is not
contradicted by observable fact, or the presentation of a disability
parking space placard or card, or State-issued proof of disability);
the type or classes of other power-driven mobility devices are
permitted to be used by individuals with mobility disabilities; the
size, weight, and dimensions of the other power-driven mobility
devices that are permitted to be used by individuals with mobility
disabilities; the speed limit for the other power-driven mobility
devices that are permitted to be used by individuals with mobility
disabilities; the places, times, or circumstances under which the
use of the other power-driven mobility devices is or will be
restricted or prohibited; safety, pedestrian, and other rules
concerning the use of the other power-driven mobility devices;
whether, and under which circumstances, storage for the other power-
driven mobility devices will be made available; and how and where
individuals with a mobility disability can obtain a copy of the
other power-driven mobility device policy.
Public accommodations also might consider grouping other power-
driven mobility devices by type (e.g., EPAMDs, golf cars, gasoline-
powered vehicles, and other devices). For example, an amusement park
may determine that it is reasonable to allow individuals with
disabilities to use EPAMDs in a variety of outdoor programs and
activities, but that it would not be reasonable to allow the use of
golf cars as mobility devices in similar circumstances. At the same
time, the entity may address its concerns about factors such as
space limitations by disallowing use of EPAMDs by members of the
general public who do not have mobility disabilities.
The Department anticipates that in many circumstances, public
accommodations will be able to develop policies that will allow the
use of other power-driven mobility devices by individuals with
mobility disabilities without resulting in a fundamental alteration
of a public accommodation's goods, services, facilities, privileges,
advantages, or accommodations. Consider the following examples:

Example 1: Although individuals who do not have mobility
disabilities are prohibited from operating EPAMDs at a theme park,
the park has developed a policy allowing individuals with mobility
disabilities to use EPAMDs as their mobility device at the park. The
policy states that EPAMDs are allowed in all areas of the theme park
that are open to pedestrians as a reasonable modification to its
general policy on EPAMDs. The public accommodation has determined
that the facility provides adequate space for a taller device, such
as an EPAMD, and that it does not fundamentally alter the nature of
the theme park's goods and services. The theme park's policies do,
however, require that EPAMDs be operated at a safe speed limit. A
theme park employee may inquire at the ticket gate whether the
device is needed due to the user's disability or may request the
presentation of a valid, State-issued, disability parking placard
(though presentation of such a placard is not necessary), or other
State-issued proof of disability or a credible assurance that the
use of the EPAMD is for the individual's mobility disability. The
park employee also may inform an individual with a disability using
an EPAMD that the theme park's policy requires that it be operated
at or below the park's designated speed limit.
Example 2: A shopping mall has developed a policy whereby EPAMDs
may be operated by individuals with mobility disabilities in the
common pedestrian areas of the mall if the operator of the device
agrees to the following: to operate the device no faster than the
speed limit set by the policy; to use the elevator, not the
escalator, to transport the EPAMD to different levels; to yield to
pedestrian traffic; not to leave the device unattended unless it can
stand upright and has a locking system; to refrain from using the
device temporarily if the mall manager determines that the volume of
pedestrian traffic is such that the operation of the device would
interfere with legitimate safety requirements; and to present the
mall management office with a valid, State-issued, disability
parking placard (though presentation of such a placard is not
necessary), or State-issued proof of disability, as a credible
assurance that the use of the EPAMD is for the individual's mobility
disability, upon entry to the mall.

Inquiry into the use of other power-driven mobility device.
Section 36.311(d) of the NPRM provided that a ``public accommodation
may ask a person using a power-driven mobility device if the
mobility device is required because of the person's disability. A
public accommodation shall not ask a person using a mobility device
questions about the nature and extent of the person's disability.''
73 FR 34508, 34556 (June 17, 2008).
While business commenters did not take issue with applying this
standard to individuals who use wheelchairs, they were not satisfied
with the application of this standard to other power-driven mobility
devices. Business commenters expressed concern about people feigning
mobility disabilities to be able to use other power-driven mobility
devices in public accommodations in which their use is otherwise
restricted. These commenters felt that a mere inquiry into whether
the device is being used for a mobility disability was an
insufficient mechanism by which to detect fraud by other power-
driven mobility device users who do not have mobility disabilities.
These commenters believed they should be given more latitude to make
inquiries of other power-driven mobility device users claiming a
mobility disability than they would be given for wheelchair users.
They sought the ability to establish a policy or method by which
public accommodations may assess the legitimacy of the mobility
disability. They suggested some form of certification, sticker, or
other designation. One commenter suggested a requirement that a
sticker bearing the international symbol for accessibility be placed
on the device or that some other identification be required to
signal that the use of the device is for a mobility disability.
Other suggestions included displaying a disability parking placard
on the device or issuing EPAMDs, like the Segway[supreg] PT, a
permit that would be similar to permits associated with parking
spaces reserved for those with disabilities.
Advocacy, nonprofit, and several individual commenters balked at
the notion of allowing any inquiry beyond whether the device is
necessary for a mobility disability and encouraged the Department to
retain the NPRM's language on this topic. Other commenters, however,
were empathetic with commenters who had concerns about fraud. At
least one Segway[supreg] PT advocate suggested it would be
permissible to seek documentation of the mobility disability in the
form of a simple sign or permit.
The Department has sought to find common ground by balancing the
needs of businesses and individuals with mobility disabilities
wishing to use other power-driven mobility devices with the
Department's longstanding, well-established policy of not allowing
public accommodations or establishments to require proof of a
mobility disability. There is no question that public accommodations
have a legitimate interest in ferreting out fraudulent
representations of mobility disabilities, especially given the
recreational use of other power-driven mobility devices and the
potential safety concerns created by having too many such devices in
a specific facility at one time. However, the privacy of individuals
with mobility disabilities and respect for those individuals are
also vitally important.
Neither Sec. 36.311(d) of the NPRM nor Sec. 36.311(c) of the
final rule permits inquiries into the nature of a person's mobility

[[Page 56301]]

disability. However, the Department does not believe it is
unreasonable or overly intrusive for an individual with a mobility
disability seeking to use an other power-driven mobility device to
provide a credible assurance to verify that the use of the other
power-driven mobility device is for a mobility disability. The
Department sought to minimize the amount of discretion and
subjectivity exercised by public accommodations in assessing whether
an individual has a mobility disability and to allow public
accommodations to verify the existence of a mobility disability. The
solution was derived from comments made by several individuals who
said they have been admitted with their Segway[supreg] PTs into
public entities and public accommodations that ordinarily do not
allow these devices on-site when they have presented or displayed
State-issued disability parking placards. In the examples provided
by commenters, the parking placards were accepted as verification
that the Segway[supreg] PTs were being used as mobility devices.
Because many individuals with mobility disabilities avail
themselves of State programs that issue disability parking placards
or cards and because these programs have penalties for fraudulent
representations of identity and disability, utilizing the parking
placard system as a means to establish the existence of a mobility
disability strikes a balance between the need for privacy of the
individual and fraud protection for the public accommodation.
Consequently, the Department has decided to include regulatory text
in Sec. 36.311(c)(2) of the final rule that requires public
accommodations to accept the presentation of a valid, State-issued
disability parking placard or card, or State-issued proof of
disability, as verification that an individual uses the other power-
driven mobility device for his or her 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. Public accommodations are required to accept a valid, State-
issued disability parking placard or card, or State-issued proof of
disability, as a credible assurance, but they cannot demand or
require the presentation of a valid disability placard or card, or
State-issued proof of disability, as a prerequisite for use of an
other power-driven mobility device, because not all persons with
mobility disabilities have such means of proof. If an individual
with a mobility disability does not have such a placard or card, or
State-issued proof of disability, he or she may present other
information that would serve as a credible assurance of the
existence of a mobility disability.
In lieu of a valid, State-issued disability parking placard or
card, or State-issued proof of disability, a verbal representation,
not contradicted by observable fact, shall be accepted as a credible
assurance that the other power-driven mobility device is being used
because of a mobility disability. This does not mean, however, that
a mobility disability must be observable as a condition for allowing
the use of an other power-driven mobility device by an individual
with a mobility disability, but rather that if an individual
represents that a device is being used for a mobility disability and
that individual is observed thereafter engaging in a physical
activity that is contrary to the nature of the represented
disability, the assurance given is no longer credible and the
individual may be prevented from using the device.
Possession of a valid, State-issued disability parking placard
or card or a verbal assurance does not trump a public
accommodation's valid restrictions on the use of other power-driven
mobility devices. Accordingly, a credible assurance that the other
power-driven mobility device is being used because of a mobility
disability is not a guarantee of entry to a public accommodation
because notwithstanding such a credible assurance, use of the device
in a particular venue may be at odds with the legal standard in
Sec. 36.311(b)(1) or with one or more of the Sec. 36.311(b)(2)
factors. Only after an individual with a disability has satisfied
all of the public accommodation's policies regarding the use of
other power-driven mobility devices does a credible assurance become
a factor in allowing the use of the device. For example, if an
individual seeking to use an other power-driven mobility device
fails to satisfy any of the public accommodation's stated policies
regarding the use of other power-driven mobility devices, the fact
that the individual legitimately possesses and presents a valid,
State-issued disability parking placard or card, or State-issued
proof of disability, does not trump the policy and require the
public accommodation to allow the use of the device. In fact, in
some instances, the presentation of a legitimately held placard or
card, or State-issued proof of disability, will have no relevance or
bearing at all on whether the other power-driven mobility device may
be used, because the public accommodation's policy does not permit
the device in question on-site under any circumstances (e.g.,
because its use would create a substantial risk of serious harm to
the immediate environment or natural or cultural resources). Thus,
an individual with a mobility disability who presents a valid
disability placard or card, or State-issued proof of disability,
will not be able to use an ATV as an other power-driven mobility
device in a mall or a restaurant if the mall or restaurant has
adopted a policy banning their use for any or all of the above-
mentioned reasons.
However, an individual with a mobility disability who has
complied with a public accommodation's stated policies cannot be
refused use of the other power-driven mobility device if he or she
has provided a credible assurance that the use of the device is for
a mobility disability.

Subpart D--New Construction and Alterations

Subpart D establishes the title III requirements applicable to
new construction and alterations. The Department has amended this
subpart to adopt the 2004 ADAAG, set forth the effective dates for
implementation of the 2010 Standards, and make related revisions as
described below.

Section 36.403 Alterations: Path of Travel

In the NPRM, the Department proposed one change to Sec. 36.403
on alterations and path of travel by adding a path of travel safe
harbor. Proposed Sec. 36.403(a)(1) stated that if a private entity
has constructed or altered required elements of a path of travel in
accordance with the 1991 Standards, the private entity is not
required to retrofit such elements to reflect incremental changes in
the 2010 Standards solely because of an alteration to a primary
function area served by that path of travel.
A substantial number of commenters objected to the Department's
creation of a safe harbor for alterations to required elements of a
path of travel that comply with the current 1991 Standards. These
commenters argued that if a public accommodation already is in the
process of altering its facility, there should be a legal
requirement that individuals with disabilities are entitled to
increased accessibility provided by the 2004 ADAAG for path of
travel work. These commenters also stated that they did not believe
there was a statutory basis for ``grandfathering'' facilities that
comply with the 1991 Standards. Another commenter argued that the
updates incorporated into the 2004 ADAAG provide very substantial
improvements for access, and that since there already is a 20
percent cost limit on the amount that can be expended on path of
travel alterations, there is no need for a further limitation.
Some commenters supported the safe harbor as lessening the
economic costs of implementing the 2004 ADAAG for existing
facilities. One commenter also stated that without the safe harbor,
entities that already have complied with the 1991 Standards will
have to make and pay for compliance twice, as compared to those
entities that made no effort to comply in the first place. Another
commenter asked that the safe harbor be revised to include pre-ADA
facilities that have been made compliant with the 1991 Standards to
the extent ``readily achievable'' or, in the case of alterations,
``to the maximum extent feasible,'' but that are not in full
compliance with the 1991 Standards.
The final rule retains the safe harbor for required elements of
a path of travel to altered primary function areas for private
entities that already have complied with the 1991 Standards with
respect to those required elements. As discussed with respect to
Sec. 36.304, the Department believes that this safe harbor strikes
an appropriate balance between ensuring that individuals with
disabilities are provided access to buildings and facilities and
mitigating potential financial burdens on existing places of public
accommodation that are undertaking alterations subject to the 2010
Standards. This safe harbor is not a blanket exemption for
facilities. If a private entity undertakes an alteration to a
primary function area, only the required elements of a path of
travel to that area that already comply with the 1991 Standards are
subject to the safe harbor. If a private entity undertakes an
alteration to a primary function area and the required

[[Page 56302]]

elements of a path of travel to the altered area do not comply with
the 1991 Standards, then the private entity must bring those
elements into compliance with the 2010 Standards.

Section 36.405 Alterations: Historic Preservation

In the 1991 rule, the Department provided guidance on making
alterations to buildings or facilities that are eligible for listing
in the National Register of Historic Places under the National
Historic Preservation Act or that are designated as historic under
State or local law. That provision referenced the 1991 Standards.
Because those cross-references to the 1991 Standards are no longer
applicable, it is necessary in this final rule to provide new
regulatory text. No substantive change in the Department's approach
in this area is intended by this revision.

Section 36.406 Standards for New Construction and Alterations

Applicable standards. Section 306 of the ADA, 42 U.S.C. 12186,
directs the Attorney General to issue regulations to implement title
III that are consistent with the guidelines published by the Access
Board. As described in greater detail elsewhere in this Appendix,
the Department is a statutory member of the Access Board and was
involved significantly in the development of the 2004 ADAAG.
Nonetheless, the Department has reviewed the standards and has
determined that additional regulatory provisions are necessary to
clarify how the Department will apply the 2010 Standards to places
of lodging, social service center establishments, housing at a place
of education, assembly areas, and medical care facilities. Those
provisions are contained in Sec. 36.406(c)-(g). Each of these
provisions is discussed below.
Section 36.406(a) adopts the 2004 ADAAG as part of the 2010
Standards and establishes the compliance date and triggering events
for the application of those standards to both new construction and
alterations. Appendix B of this final rule (Analysis and Commentary
on the 2010 ADA Standards for Accessible Design) provides a
description of the major changes in the 2010 Standards (as compared
to the 1991 ADAAG) and a discussion of the public comments that the
Department received on specific sections of the 2004 ADAAG. A number
of commenters asked the Department to revise certain provisions in
the 2004 ADAAG in a manner that would reduce either the required
scoping or specific technical accessibility requirements. As
previously stated, the ADA requires the Department to adopt
standards consistent with the guidelines adopted by the Access
Board. The Department will not adopt any standards that provide less
accessibility than is provided under the guidelines contained in the
2004 ADAAG because the guidelines adopted by the Access Board are
``minimum guidelines.'' 42 U.S.C. 12186(c).
In the NPRM, the Department specifically proposed amending Sec.
36.406(a) by dividing it into two sections. Proposed Sec.
36.406(a)(1) specified that new construction and alterations subject
to this part shall comply with the 1991 Standards if physical
construction of the property commences less than six months after
the effective date of the rule. Proposed Sec. 36.406(a)(2)
specified that new construction and alterations subject to this part
shall comply with the proposed standards if physical construction of
the property commences six months or more after the effective date
of the rule. The Department also proposed deleting the advisory
information now published in a table at Sec. 36.406(b).
Compliance date. When the ADA was enacted, the compliance dates
for various provisions were delayed in order to provide time for
covered entities to become familiar with their new obligations.
Titles II and III of the ADA generally became effective on January
26, 1992, six months after the regulations were published. See 42
U.S.C. 12131 note; 42 U.S.C. 12181 note. New construction under
title II and alterations under either title II or title III had to
comply with the design standards on that date. See 42 U.S.C. 12131
note; 42 U.S.C. 12183(a)(2). For new construction under title III,
the requirements applied to facilities designed and constructed for
first occupancy after January 26, 1993--18 months after the 1991
Standards were published by the Department. See 42 U.S.C.
12183(a)(1).
The Department received numerous comments on the issue of
effective date, many of them similar to those received in response
to the ANPRM. A substantial number of commenters advocated a minimum
of 18 months from publication of the final rule to the effective
date for application of the standards to new construction,
consistent with the time period used for implementation of the 1991
Standards. Many of these commenters argued that the 18-month period
was necessary to minimize the likelihood of having to redesign
projects already in the design and permitting stages at the time
that the final rule is published. According to these commenters,
large projects take several years from design to occupancy, and can
be subject to delays from obtaining zoning, site approval, third-
party design approval (i.e., architectural review), and governmental
permits. To the extent the new standards necessitate changes in any
previous submissions or permits already issued, businesses might
have to expend significant funds and incur delays due to redesign
and resubmission.
Some commenters also expressed concern that a six-month period
would be hard to implement given that many renovations are planned
around retail selling periods, holidays, and other seasonal
concerns. For example, hotels plan renovations during their slow
periods, retail establishments avoid renovations during the major
holiday selling periods, and businesses in certain parts of the
country cannot do any major construction during parts of the winter.
Some commenters argued that chain establishments need additional
time to redesign their ``master facility'' designs for replication
at multiple locations, taking into account both the new standards
and applicable State and local accessibility requirements.
Other commenters argued for extending the effective date from
six months to a minimum of 12 months for many of the same reasons,
and one commenter argued that there should be a tolling of the
effective date for those businesses that are in the midst of the
permitting process if the necessary permits are delayed due to legal
challenges or other circumstances outside the business's control.
Several commenters took issue with the Department's
characterization of the 2004 ADAAG and the 1991 Standards as two
similar rules. These commenters argued that many provisions in the
2004 ADAAG represent a ``substantial and significant'' departure
from the 1991 Standards and that it will take a great deal of time
and money to identify all the changes and implement them. In
particular, they were concerned that small businesses lacked the
internal resources to respond quickly to the new changes and that
they would have to hire outside experts to assist them. One
commenter expressed concern that regardless of familiarity with the
2004 ADAAG, since the 2004 ADAAG standards are organized in an
entirely different manner from the 1991 Standards, and contain, in
the commenter's view, extensive changes, it will make the shift from
the old to the new standards quite complicated.
Several commenters also took issue with the Department's
proffered rationale that by adopting a six-month effective date, the
Department was following the precedent of other Federal agencies
that have adopted the 2004 ADAAG for facilities whose accessibility
they regulate. These commenters argued that the Department's title
III regulation applies to a much broader range and number of
facilities and programs than the other Federal agencies (i.e.,
Department of Transportation and the General Services
Administration) and that those agencies regulate accessibility
primarily in either governmental facilities or facilities operated
by quasi-governmental authorities.
Several commenters representing the travel, vacation, and golf
industries argued that the Department should adopt a two-year
effective date for new construction. In addition to many of the
arguments made by commenters in support of an 18-month effective
date, these commenters also argued that a two-year time frame would
allow States with DOJ-certified building codes to have the time to
amend their codes to meet the 2004 ADAAG so that design
professionals can work from compatible codes and standards.
Several commenters recommended treating alterations differently
than new construction, arguing for a one-year effective date for
alterations. Another commenter representing building officials
argued that a minimum of a six-month phase-in for alterations was
sufficient, since a very large percentage of alteration projects
``are of a scale that they should be able to accommodate the phase-
in.''
In contrast, many commenters argued that the proposed six-month
effective date should be retained in the final rule.
The Department has been persuaded by concerns raised by some of
the commenters that the six month compliance date proposed in the
NPRM for application of the 2010 Standards may be too short for
certain projects that are already in the midst of the

[[Page 56303]]

design and permitting process. The Department has determined that
for new construction and alterations, compliance with the 2010
Standards will not be required until 18 months from the date the
final rule is published. This is consistent with the amount of time
given when the 1991 regulation was published. Since many State and
local building codes contain provisions that are consistent with
2004 ADAAG, the Department has decided that public accommodations
that choose to comply with the 2010 Standards as defined in Sec.
36.104 before the compliance date will still be considered in
compliance with the ADA. However, public accommodations that choose
to comply with the 2010 Standards in lieu of the 1991 Standards
prior to the compliance date described in this rule must choose one
or the other standard, and may not rely on some of the requirements
contained in one standard and some of the requirements contained in
the other standard.
Triggering event. In the NPRM, the Department proposed using the
start of physical construction as the triggering event for applying
the proposed standards to new construction under title III. This
triggering event parallels that for the alterations provisions
(i.e., the date on which construction begins), and would apply
clearly across all types of covered public accommodations. The
Department also proposed that for prefabricated elements, such as
modular buildings and amusement park rides and attractions, or
installed equipment, such as ATMs, the start of construction means
the date on which the site preparation begins. Site preparation
includes providing an accessible route to the element.
The Department's NPRM sought public comment on how to define the
start of construction and the practicality of applying commencement
of construction as a triggering event. The Department also requested
input on whether the proposed definition of the start of
construction was sufficiently clear and inclusive of different types
of facilities. The Department also sought input about facilities
subject to title III for which commencement of construction would be
ambiguous or problematic.
The Department received numerous comments recommending that the
Department adopt a two-pronged approach to defining the triggering
event. In those cases where permits are required, the Department
should use ``date of permit application'' as the effective date
triggering event, and if no permit is required, the Department
should use ``start of construction.'' A number of these commenters
argued that the date of permit application is appropriate because
the applicant would have to consider the applicable State and
Federal accessibility standards in order to submit the designs
usually required with the application. Moreover, the date of permit
application is a typical triggering event in other code contexts,
such as when jurisdictions introduce an updated building code. Some
commenters expressed concern that using the date of ``start of
construction'' was problematic because the date can be affected by
factors that are outside the control of the owner. For example, an
owner can plan construction to start before the new standards take
effect and therefore use the 1991 Standards in the design. If
permits are not issued in a timely manner, then the construction
could be delayed until after the effective date, and then the
project would have to be redesigned. This problem would be avoided
if the permit application date was the triggering event. Two
commenters expressed concern that the term ``start of construction''
is ambiguous, because it is unclear whether start of construction
means the razing of structures on the site to make way for a new
facility or means site preparation, such as regrading or laying the
foundation.
One commenter recommended using the ``signing date of a
construction contract,'' and an additional commenter recommended
that the new standards apply only to ``buildings permitted after the
effective date of the regulations.''
One commenter stated that for facilities that fall outside the
building permit requirements (ATMs, prefabricated saunas, small
sheds), the triggering event should be the date of installation,
rather than the date the space for the facility is constructed.
The Department is persuaded by the comments to adopt a two-
pronged approach to defining the triggering event for new
construction and alterations. The final rule states that in those
cases where permits are required, the triggering event shall be the
date when the last application for a building permit application 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, the date when the last
application for a building permit or permit extension is received by
the State, county, or local government. If no permits are required,
then the triggering event shall be the ``start of physical
construction or alterations.'' The Department has also added
clarifying language related to the term ``start of physical
construction or alterations'' to make it clear that ``start of
physical construction or alterations'' is not intended to mean the
date of ceremonial groundbreaking or the date a structure is razed
to make it possible for construction of a facility to take place.
Amusement rides. Section 234 of the 2010 Standards provides
accessibility guidelines for newly designed and constructed
amusement rides. The amusement ride provisions do not provide a
``triggering event'' for new construction or alteration of an
amusement ride. An industry commenter requested that the triggering
event of ``first use'' as noted in the Advisory note to section
234.1 of the 2004 ADAAG be included in the final rule. The Advisory
note provides that ``[a] custom designed and constructed ride is new
upon its first use, which is the first time amusement park patrons
take the ride.'' The Department declines to treat amusement rides
differently than other types of new construction and alterations and
under the final rule, they are subject to Sec. 36.406(a)(3). Thus,
newly constructed and altered amusement rides shall comply with the
2010 Standards if the start of physical construction or the
alteration is on or after 18 months from the publication date of
this rule. The Department also notes that section 234.4.2 of the
2010 Standards only applies where the structural or operational
characteristics of an amusement ride are altered. It does not apply
in cases where the only change to a ride is the theme.
Noncomplying new construction and alterations. The element-by-
element safe harbor referenced in Sec. 36.304(d)(2) has no effect
on new or altered elements in existing facilities that were subject
to the 1991 Standards on the date that they were constructed or
altered, but do not comply with the technical and scoping
specifications for those elements in the 1991 Standards. Section
36.406(a)(5) of the final rule sets forth the rules for noncompliant
new construction or alterations in facilities that were subject to
the requirements of this part. Under those provisions, noncomplying
new construction and alterations constructed or altered after the
effective date of the applicable ADA requirements and before March
15, 2012 shall, before March 15, 2012, be made accessible in
accordance with either the 1991 Standards or the 2010 Standards.
Noncomplying new construction and alterations constructed or altered
after the effective date of the applicable ADA requirements and
before March 15, 2012, shall, on or after March 15, 2012, be made
accessible in accordance with the 2010 Standards.

Section 36.406(b) Application of Standards to Fixed Elements

The final rule contains a new Sec. 36.406(b) that clarifies
that the requirements established by this section, including those
contained in the 2004 ADAAG, prescribe the requirements necessary to
ensure that fixed or built-in elements in new or altered facilities
are accessible to individuals with disabilities. Once the
construction or alteration of a facility has been completed, all
other aspects of programs, services, and activities conducted in
that facility are subject to the operational requirements
established elsewhere in this final rule. Although the Department
has often chosen to use the requirements of the 1991 Standards as a
guide to determining when and how to make equipment and furnishings
accessible, those coverage determinations fall within the
discretionary authority of the Department.
The Department is also clarifying that the advisory notes,
appendix notes, and figures that accompany the 1991 and 2010
Standards do not establish separately enforceable requirements
unless otherwise specified in the text of the standards. This
clarification has been made to address concerns expressed by ANPRM
commenters who mistakenly believed that the advisory notes in the
2004 ADAAG established requirements beyond those established in the
text of the guidelines (e.g., Advisory 504.4 suggests, but does not
require, that covered entities provide visual contrast on stair
tread nosings to make them more visible to individuals with low
vision). The Department received no comments on this provision in
the NPRM.

[[Page 56304]]

Section 36.406(c) Places of Lodging

In the NPRM, the Department proposed a new definition for public
accommodations that are ``places of lodging'' and a new Sec.
36.406(c) to clarify the scope of coverage for places of public
accommodation that meet this definition. For many years the
Department has received inquiries from members of the public seeking
clarification of ADA coverage of rental accommodations in
timeshares, condominium hotels, and mixed-use and corporate hotel
facilities that operate as places of public accommodation (as that
term is now defined in Sec. 36.104). These facilities, which have
attributes of both residential dwellings and transient lodging
facilities, have become increasingly popular since the ADA's
enactment in 1990 and make up the majority of new hotel construction
in some vacation destinations. The hybrid residential and lodging
characteristics of these new types of facilities, as well as their
ownership characteristics, complicate determinations of ADA
coverage, prompting questions from both industry and individuals
with disabilities. While the Department has interpreted the ADA to
encompass these hotel-like facilities when they are used to provide
transient lodging, the regulation previously has specifically not
addressed them. In the NPRM, the Department proposed a new Sec.
36.406(c), entitled ``Places of Lodging,'' which was intended to
clarify that places of lodging, including certain timeshares,
condominium hotels, and mixed-use and corporate hotel facilities,
shall comply with the provisions of the proposed standards,
including, but not limited to, the requirements for transient
lodging in sections 224 and 806 of the 2004 ADAAG.
The Department's NPRM sought public input on this proposal. The
Department received a substantial number of comments on these issues
from industry representatives, advocates for persons with
disabilities, and individuals. A significant focus of these comments
was on how the Department should define and regulate vacation rental
units in timeshares, vacation communities, and condo-hotels where
the units are owned and controlled by individual owners and rented
out some portion of time to the public, as compared to traditional
hotels and motels that are owned, controlled, and rented to the
public by one entity.
Scoping and technical requirements applicable to ``places of
lodging.'' In the NPRM, the Department asked for public comment on
its proposal in Sec. 36.406(c) to apply to places of lodging the
scoping and technical requirements for transient lodging, rather
than the scoping and technical requirements for residential dwelling
units.
Commenters generally agreed that the transient lodging
requirements should apply to places of lodging. Several commenters
stated that the determination as to which requirements apply should
be made based on the intention for use at the time of design and
construction. According to these commenters, if units are intended
for transient rentals, then the transient lodging standards should
apply, and if they are intended to be used for residential purposes,
the residential standards should apply. Some commenters agreed with
the application of transient lodging standards to places of lodging
in general, but disagreed about the characterization of certain
types of facilities as covered places of lodging.
The Department agrees that the scoping and technical standards
applicable to transient lodging should apply to facilities that
contain units that meet the definition of ``places of lodging.''
Scoping for timeshare or condominium hotels. In the NPRM, the
Department sought comment on the appropriate basis for determining
scoping for a timeshare or condominium-hotel. A number of commenters
indicated that scoping should be based on the usage of the facility.
Only those units used for short-term stays should be counted for
application of the transient lodging standards, while units sold as
residential properties should be treated as residential units not
subject to the ADA. One commenter stated that scoping should be
based on the maximum number of sleeping units available for public
rental. Another commenter pointed out that unlike traditional hotels
and motels, the number of units available for rental in a facility
or development containing individually owned units is not fixed over
time. Owners have the right to participate in a public rental
program some, all, or none of the time, and individual owner
participation changes from year to year.
The Department believes that the determination for scoping
should be based on the number of units in the project that are
designed and constructed with the intention that their owners may
participate in a transient lodging rental program. The Department
cautions that it is not the number of owners that actually exercise
their right to participate in the program that determines the
scoping. Rather it is the units that could be placed into an on-site
or off-site transient lodging rental program. In the final rule, the
Department has added a provision to Sec. 36.406(c)(3), which states
that units intended to be used exclusively for residential purposes
that are contained in facilities that also meet the definition of
place of lodging are not covered by the transient lodging standards.
Title III of the ADA does not apply to units designed and
constructed with the intention that they be rented or sold as
exclusively residential units. Such units are covered by the Fair
Housing Act (FHAct), which contains requirements for certain
features of accessible and adaptable design both for units and for
public and common use areas. All units designed and constructed with
the intention that they may be used for both residential and
transient lodging purposes are covered by the ADA and must be
counted for determining the required number of units that must meet
the transient lodging standards in the 2010 Standards. Public use
and common use areas in facilities containing units subject to the
ADA also must meet the 2010 Standards. In some developments, units
that may serve as residential units some of the time and rental
units some of the time will have to meet both the FHAct and the ADA
requirements. For example, all of the units in a vacation
condominium facility whose owners choose to rent to the public when
they are not using the units themselves would be counted for the
purposes of determining the appropriate number of units that must
comply with the 2010 Standards. In a newly constructed condominium
that has three floors with units dedicated to be sold solely as
residential housing and three floors with units that may be used as
residences or hotel units, only the units on the three latter floors
would be counted for applying the 2010 Standards. In a newly
constructed timeshare development containing 100 units, all of which
may be made available to the public through an exchange or rental
program, all 100 units would be counted for purposes of applying the
2010 Standards.
One commenter also asked the Department for clarification of how
to count individually owned ``lock-off units.'' Lock-off units are
units that are multi-bedroom but can be ``locked off'' into two
separate units, each having individual external access. This
commenter requested that the Department state in the final rule that
individually owned lock-off units do not constitute multiple guest
rooms for purposes of calculating compliance with the scoping
requirements for accessible units, since for the most part the lock-
off units are used as part of a larger accessible unit, and portions
of a unit not locked off would constitute both an accessible one-
bedroom unit or an accessible two-bedroom unit with the lock-off
unit.
It is the Department's view that lock-off units that are
individually owned that can be temporarily converted into two units
do not constitute two separate guest rooms for purposes of
calculating compliance with the scoping requirements.
One commenter asked the Department how developers should scope
units where buildings are constructed in phases over a span of
years, recommending that the scoping be based on the total number of
units expected to be constructed at the project and not on a
building-by-building basis or on a phase-by-phase basis. The
Department does not think scoping should be based on planned number
of units, which may or may not be actually constructed over a period
of years. However, the Department recognizes that resort
developments may contain buildings and facilities that are of all
sizes from single-unit cottages to facilities with hundreds of
units. The Department believes it would be appropriate to allow
designers, builders, and developers to aggregate the units in
facilities with 50 or fewer units that are subject to a single
permit application and that are on a common site or that are
constructed at the same time for the purposes of applying the
scoping requirements in table 224.2. Facilities with more than 50
units should be scoped individually in accordance with the table.
The regulation has been revised to reflect this application of the
scoping requirements.
One commenter also asked the Department to use the title III
regulation to declare that timeshares subject to the transient
lodging standards are exempt from the design and construction
requirements of the FHAct. The coverage of the FHAct is set by
Congress and interpreted by regulations issued by the Department of
Housing and Urban

[[Page 56305]]

Development. The Department has no authority to exempt anyone from
coverage of the FHAct.
Application of ADA to places of lodging that contain
individually owned units. The Department believes that regardless of
ownership structure for individual units, rental programs (whether
they are on- or off-site) that make transient lodging guest rooms
available to the public must comply with the general
nondiscrimination requirements of the ADA. In addition, as provided
in Sec. 36.406(c), newly constructed facilities that contain
accommodations intended to be used for transient lodging purposes
must comply with the 2010 Standards.
In the NPRM, the Department asked for public comment on several
issues related to ensuring the availability of accessible units in a
rental program operated by a place of lodging. The Department sought
input on how it could address a situation in which a new or
converted facility constructs the required number of accessible
units, but the owners of those units choose not to participate in
the rental program; whether the facility has an obligation to
encourage or require owners of accessible units to participate in
the rental program; and whether the facility developer, the
condominium association, or the hotel operator has an obligation to
retain ownership or control over a certain number of accessible
units to avoid this problem.
In the NPRM, the Department sought public input on how to
regulate scoping for a timeshare or condominium-rental facility that
decides, after the sale of units to individual owners, to begin a
rental program that qualifies the facility as a place of lodging,
and how the condominium association, operator, or developer should
determine which units to make accessible.
A number of commenters expressed concerns about the ability of
the Department to require owners of accessible units to participate
in the rental program, to require developers, condo associations, or
homeowners associations to retain ownership of accessible units, and
to impose accessibility requirements on individual owners who choose
to place inaccessible units into a rental program after purchase.
These commenters stated that individuals who purchase accessible
vacation units in condominiums, individual vacation homes, and
timeshares have ownership rights in their units and may choose
lawfully to make their units available to the public some, all, or
none of the time. Commenters advised the Department that the
Securities and Exchange Commission takes the position that if
condominium units are offered in connection with participation in a
required rental program for any part of the year, require the use of
an exclusive rental agent, or impose conditions otherwise
restricting the occupancy or rental of the unit, then that offering
will be viewed as an offering of securities in the form of an
investment (rather than a real estate offering). SEC Release No. 33-
5347, Guidelines as to the Applicability of the Federal Securities
Laws to Offers and Sales of Condominiums or Units in a Real Estate
Development (Jan. 4, 1973). Consequently, most condominium
developers do not impose such restrictions at the time of sale.
Moreover, owners who choose to rent their units as a short-term
vacation rental can select any rental or management company to lease
and manage their unit, or they may rent them out on their own. They
also may choose never to lease those units. Thus, there are no
guarantees that at any particular time, accessible units will be
available for rental by the public. According to this commenter,
providing incentives for owners of accessible units to place their
units in the rental program will not work, because it does not
guarantee the availability of the requisite number of rooms
dispersed across the development, and there is not any reasonable,
identifiable source of funds to cover the costs of such incentives.
A number of commenters also indicated that it potentially is
discriminatory as well as economically infeasible to require that a
developer hold back the accessible units so that the units can be
maintained in the rental program year-round. One commenter pointed
out that if a developer did not sell the accessible condominiums or
timeshares in the building inventory, the developer would be subject
to a potential ADA or FHAct complaint because persons with
disabilities who wanted to buy accessible units rather than rent
them each year would not have the option to purchase them. In
addition, if a developer held back accessible units, the cost of
those units would have to be spread across all the buyers of the
inaccessible units, and in many cases would make the project
financially infeasible. This would be especially true for smaller
projects. Finally, this commenter argued that requiring units to be
part of the common elements that are owned by all of the individual
unit owners is infeasible because the common ownership would result
in pooled rental income, which would transform the owners into
participants in a rental pool, and thus turn the sale of the
condominiums into the sale of securities under SEC Release 33-5347.
Several commenters noted that requiring the operator of the
rental program to own the accessible units is not feasible either
because the operator of the rental program would have to have the
funds to invest in the purchase of all of the accessible units, and
it would not have a means of recouping its investment. One commenter
stated that in Texas, it is illegal for on-site rental programs to
own condominium units. Another commenter noted that such a
requirement might lead to the loss of on-site rental programs,
leaving owners to use individual third-party brokers, or rent the
units privately. One commenter acknowledged that individual owners
cannot be required to place their units in a rental pool simply to
offer an accessible unit to the public, since the owners may be
purchasing units for their own use. However, this commenter
recommended that owners who choose to place their units in a rental
pool be required to contribute to a fund that would be used to
renovate units that are placed in the rental pool to increase the
availability of accessible units. One commenter argued that the
legal entity running the place of lodging has an obligation to
retain control over the required number of accessible units to
ensure that they are available in accordance with title III.
A number of commenters also argued that the Department has no
legal authority to require individual owners to engage in barrier
removal where an existing development adds a rental program. One
commenter stated that Texas law prohibits the operator of on-site
rental program from demanding that alterations be made to a
particular unit. In addition, under Texas law, condominium
declarations may not require some units and not others to make
changes, because that would lead to unequal treatment of units and
owners, which is not permissible.
One commenter stated that since it was not possible for
operators of rental programs offering privately owned condominiums
to comply with accessible scoping, the Department should create
exemptions from the accessible scoping, especially for existing
facilities. In addition, this commenter stated that if an operator
of an on-site rental program were to require renovations as a
condition of participation in the rental program, unit owners might
just rent their units through a different broker or on their own, in
which case such requirements would not apply.
A number of commenters argued that if a development decides to
create a rental program, it must provide accessible units. Otherwise
the development would have to ensure that units are retrofitted. A
commenter argued that if an existing building is being converted,
the Department should require that if alterations of the units are
performed by an owner or developer prior to sale of the units, then
the alterations requirements should apply, in order to ensure that
there are some accessible units in the rental pool. This commenter
stated that because of the proliferation of these type of
developments in Hawaii, mandatory alteration is the only way to
guarantee the availability of accessible units in the long run. In
this commenter's view, since conversions almost always require
makeover of existing buildings, this will not lead to a significant
expense.
The Department agrees with the commenters that it would not be
feasible to require developers to hold back or purchase accessible
units for the purposes of making them available to the public in a
transient lodging rental program, nor would it be feasible to
require individual owners of accessible units to participate in
transient lodging rental programs.
The Department recognizes that places of lodging are developed
and financed under myriad ownership and management structures and
agrees that there will be circumstances where there are legal
barriers to requiring compliance with either the alterations
requirements or the requirements related to barrier removal. The
Department has added an exception to Sec. 36.406(c), providing that
in existing facilities that meet the definition of 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, the units are not subject to
the alterations requirement, even where the owner rents the

[[Page 56306]]

unit out to the public through a transient lodging rental program.
In addition, the Department has added an exception to the barrier
removal requirements at Sec. 36.304(g) providing that in existing
facilities that meet the definition of 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, the units are not subject to the barrier removal
requirement. The Department notes, however, that there are legal
relationships for some timeshares and cooperatives where the
ownership interests do not convey control over the physical features
of units. In those cases, it may be the case that the facility has
an obligation to meet the alterations or barrier removal
requirements or to maintain accessible features.

Section 36.406(d) Social Service Center Establishments

In the NPRM, the Department proposed a new Sec. 36.406(d)
requiring group homes, halfway houses, shelters, or similar social
service center establishments that provide temporary sleeping
accommodations or residential dwelling units to comply with the
provisions of the 2004 ADAAG that apply to residential facilities,
including, but not limited to, the provisions in sections 233 and
809.
The NPRM explained that this proposal was based on two important
changes in the 2004 ADAAG. First, for the first time, residential
dwelling units are explicitly covered in the 2004 ADAAG in section
233. Second, the 2004 ADAAG eliminates the language contained in the
1991 Standards addressing scoping and technical requirements for
homeless shelters, group homes, and similar social service center
establishments. Currently, such establishments are covered in
section 9.5 of the transient lodging section of the 1991 Standards.
The deletion of section 9.5 creates an ambiguity of coverage that
must be addressed.
The NPRM explained the Department's belief that transferring
coverage of social service center establishments from the transient
lodging standards to the residential facilities standards would
alleviate conflicting requirements for social service providers. The
Department believes that a substantial percentage of social service
providers are recipients of Federal financial assistance from the
Department of Housing and Urban Development (HUD). The Department of
Health and Human Services (HHS) also provides financial assistance
for the operation of shelters through the Administration for
Children and Families programs. As such, they are covered both by
the ADA and section 504. UFAS is currently the design standard for
new construction and alterations for entities subject to section
504. The two design standards for accessibility--the 1991 Standards
and UFAS--have confronted many social service providers with
separate, and sometimes conflicting, requirements for design and
construction of facilities. To resolve these conflicts, the
residential facilities standards in the 2004 ADAAG have been
coordinated with the section 504 requirements. The transient lodging
standards, however, are not similarly coordinated. The deletion of
section 9.5 of the 1991 Standards from the 2004 ADAAG presented two
options: (1) Require coverage under the transient lodging standards,
and subject such facilities to separate, conflicting requirements
for design and construction; or (2) require coverage under the
residential facilities standards, which would harmonizes the
regulatory requirements under the ADA and section 504. The
Department chose the option that harmonizes the regulatory
requirements: coverage under the residential facilities standards.
In the NPRM, the Department expressed concern that the
residential facilities standards do not include a requirement for
clear floor space next to beds similar to the requirement in the
transient lodging standards; as a result, the Department proposed
adding a provision that would require certain social service center
establishments that provide sleeping rooms with more than 25 beds to
ensure that a minimum of 5 percent of the beds have clear floor
space in accordance with section 806.2.3 of the 2004 ADAAG.
The Department requested information from providers who operate
homeless shelters, transient group homes, halfway houses, and other
social service center establishments, and from the clients of these
facilities who would be affected by this proposed change. In the
NPRM, the Department asked to what extent conflicts between the ADA
and section 504 have affected these facilities and what the effect
would be of applying the residential dwelling unit requirements to
these facilities, rather than the requirements for transient lodging
guest rooms.
Many of the commenters supported applying the residential
facilities requirements to social service center establishments
stating that even though the residential facilities requirements are
less demanding, in some instances, the existence of one clear
standard will result in an overall increased level of accessibility
by eliminating the confusion and inaction that are sometimes caused
by the current existence of multiple requirements. One commenter
stated that the residential facilities guidelines were more
appropriate because individuals housed in social service center
establishments typically stay for a prolonged period of time, and
guests of a transient lodging facility typically are not housed to
participate in a program or receive services.
One commenter opposed to the proposed section argued for the
application of the transient lodging standards to all social service
center establishments except those that were ``intended as a
person's place of abode,'' referencing the Department's question
related to the definition of place of lodging in the title III NPRM.
A second commenter stated that the use of transient lodging
guidelines would lead to greater accessibility.
The Department continues to be concerned about alleviating the
challenges for social service providers that are also subject to
section 504 and that would likely be subject to conflicting
requirements if the transient lodging standard were applied. Thus,
the Department has retained the requirement that social service
center establishments comply with the residential dwelling
standards. The Department did not receive comments regarding adding
a requirement for bathing options, such as a roll-in shower, in
social service center establishments operated by public
accommodations. The Department did, however, receive comments in
support of adding such a requirement regarding public entities under
title II. The Department believes that social service center
establishments that provide emergency shelter to large transient
populations should be able to provide bathing facilities that are
accessible to persons with mobility disabilities who need roll-in
showers. Because of the transient nature of the population of these
large shelters, it will not be feasible to modify bathing facilities
in a timely manner when faced with a need to provide a roll-in
shower with a seat when requested by an overnight visitor. As a
result, the Department has added a requirement that social service
center establishments with sleeping accommodations for more than 50
individuals must 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 must be provided for each group. This
supplemental requirement to the residential facilities standards is
in addition to the supplemental requirement that was proposed in the
NPRM for clear floor space in sleeping rooms with more than 25 beds.
The Department also notes that while dwelling units at some
social service center establishments are also subject to FHAct
design and construction requirements that require certain features
of adaptable and accessible design, FHAct units do not provide the
same level of accessibility that is required for residential
facilities under the 2010 Standards. The FHAct requirements, where
also applicable, should not be considered a substitute for the 2010
Standards. Rather, the 2010 Standards must be followed in addition
to the FHAct requirements.
The Department also notes that while in the NPRM the Department
used the term ``social service establishment,'' the final rule uses
the term ``social service center establishment.'' The Department has
made this editorial change so that the final rule is consistent with
the terminology used in the ADA. See 42 U.S.C. 12181(7)(K).

Section 36.406(e) Housing at a Place of Education

The Department of Justice and the Department of Education share
responsibility for regulation and enforcement of the ADA in
postsecondary educational settings, including architectural
features. Housing types in educational settings range from
traditional residence halls and dormitories to apartment or
townhouse-style residences. In

[[Page 56307]]

addition to title III of the ADA, universities and schools that are
recipients of Federal financial assistance also are subject to
section 504, which contains its own accessibility requirements
currently through the application of UFAS. Residential housing,
including housing in an educational setting, is also covered by the
FHAct, which requires newly constructed multifamily housing to
include certain features of accessible and adaptable design. Covered
entities subject to the ADA must always be aware of, and comply
with, any other Federal statutes or regulations that govern the
operation of residential properties.
Although the 1991 Standards mention dormitories as a form of
transient lodging, they do not specifically address how the ADA
applies to dormitories and other types of residential housing
provided in an educational setting. The 1991 Standards also do not
contain any specific provisions for residential facilities, allowing
covered entities to elect to follow the residential standards
contained in UFAS. Although the 2004 ADAAG contains provisions for
both residential facilities and transient lodging, the guidelines do
not indicate which requirements apply to housing provided in an
educational setting, leaving it to the adopting agencies to make
that choice. After evaluating both sets of standards, the Department
concluded that the benefits of applying the transient lodging
standards outweighed the benefits of applying the residential
facilities standards. Consequently, in the NPRM, the Department
proposed a new Sec. 36.406(e) that provided that residence halls or
dormitories operated by or on behalf of places of education shall
comply with the provisions of the proposed standards for transient
lodging, including, but not limited to, the provisions in sections
224 and 806 of the 2004 ADAAG.
Private universities and schools covered by title III as public
accommodations are required to make their programs and activities
accessible to persons with disabilities. The housing facilities that
they provide have varied characteristics. College and university
housing facilities typically provide housing for up to one academic
year, but may be closed during school vacation periods. In the
summer, they often are used for short-term stays of one to three
days, a week, or several months. Graduate and faculty housing often
is provided year-round in the form of apartments, which may serve
individuals or families with children. These housing facilities are
diverse in their layout. Some are double-occupancy rooms with a
shared toilet and bathing room, which may be inside or outside the
unit. Others may contain cluster, suite, or group arrangements where
several rooms are located inside a defined unit with bathing,
kitchen, and similar common facilities. In some cases, these suites
are indistinguishable in features from traditional apartments.
Universities may build their own housing facilities or enter into
agreements with private developers to build, own, or lease housing
to the educational institution or to its students. Academic housing
may be located on the campus of the university or may be located in
nearby neighborhoods.
Throughout the school year and the summer, academic housing can
become program areas in which small groups meet, receptions and
educational sessions are held, and social activities occur. The
ability to move between rooms--both accessible rooms and standard
rooms--in order to socialize, to study, and to use all public use
and common use areas is an essential part of having access to these
educational programs and activities. Academic housing also is used
for short-term transient educational programs during the time
students are not in regular residence and may be rented out to
transient visitors in a manner similar to a hotel for special
university functions.
The Department was concerned that applying the new construction
requirements for residential facilities to educational housing
facilities could hinder access to educational programs for students
with disabilities. Elevators generally are not required under the
2004 ADAAG residential facilities standards unless they are needed
to provide an accessible route from accessible units to public use
and common use areas, while under the 2004 ADAAG as it applies to
other types of facilities, multistory private facilities must have
elevators unless they meet very specific exceptions. In addition,
the residential facilities standards do not require accessible roll-
in showers in bathrooms, while the transient lodging requirements
require some of the accessible units to be served by bathrooms with
roll-in showers. The transient lodging standards also require that a
greater number of units have accessible features for persons with
communication disabilities. The transient lodging standards provide
for installation of the required accessible features so that they
are available immediately, but the residential facilities standards
allow for certain features of the unit to be adaptable. For example,
only reinforcements for grab bars need to be provided in residential
dwellings, but the actual grab bars must be installed under the
transient lodging standards. By contrast, the residential facilities
standards do require certain features that provide greater
accessibility within units, such as usable kitchens and an
accessible route throughout the dwelling. The residential facilities
standards also require 5 percent of the units to be accessible to
persons with mobility disabilities, which is a continuation of the
same scoping that is currently required under UFAS and is therefore
applicable to any educational institution that is covered by section
504. The transient lodging standards require a lower percentage of
accessible sleeping rooms for facilities with large numbers of rooms
than is required by UFAS. For example, if a dormitory has 150 rooms,
the transient lodging standards would require 7 accessible rooms,
while the residential standards would require 8. In a large
dormitory with 500 rooms, the transient lodging standards would
require 13 accessible rooms, and the residential facilities
standards would require 25. There are other differences between the
two sets of standards, including requirements for accessible
windows, alterations, kitchens, an accessible route throughout a
unit, and clear floor space in bathrooms allowing for a side
transfer.
In the NPRM, the Department requested public comment on how to
scope educational housing facilities, and it asked whether the
residential facilities requirements or the transient lodging
requirements in the 2004 ADAAG would be more appropriate for housing
at places of education and asked how the different requirements
would affect the cost of building new dormitories and other student
housing. See 73 FR 34508, 34545 (June 17, 2008).
The Department received several comments on this issue under
title III. One commenter stated that the Department should adopt the
residential facilities standards for housing at a place of
education. In the commenter's view, the residential facilities
standards are congruent with overlapping requirements imposed by
HUD, and the residential facilities requirements would ensure
dispersion of accessible features more effectively. This commenter
also argued that while the increased number of required accessible
units for residential facilities as compared to transient lodging
may increase the cost of construction or alteration, this cost would
be offset by a reduced need later to adapt rooms if the demand for
accessible rooms exceeds the supply. The commenter also encouraged
the Department to impose a visitability (accessible doorways and
necessary clear floor space for turning radius) requirement for both
the residential facilities and transient lodging requirements to
allow students with mobility impairments to interact and socialize
in a fully integrated fashion. Another commenter stated that while
dormitories should be treated like residences as opposed to
transient lodging, the Department should ensure that ``all floors
are accessible,'' thus ensuring community integration and
visitability. Another commenter argued that housing at a place of
education is comparable to residential housing, and that most of the
housing types used by schools do not have the same amenities and
services or function like transient lodging and should not be
treated as such.
Several commenters focused on the length of stay at this type of
housing and suggested that if the facilities are subject to
occupancy for greater than 30 days, the residential standards should
apply. Another commenter supported the Department's adoption of the
transient lodging standards, arguing this will provide greater
accessibility and therefore increase opportunities for students with
disabilities to participate. One commenter, while supporting the use
of transient lodging standards in this area, argued that the
Department also should develop regulations relating to the usability
of equipment in housing facilities by persons who are blind or
visually impaired. Another commenter argued that the Department
should not impose the transient lodging requirements on K-12 schools
because the cost of adding elevators can be prohibitive, and because
there are safety concerns related to evacuating students in
wheelchairs living on floors above the ground floor in emergencies
causing elevator failures.
The Department has considered the comments recommending the use
of the

[[Page 56308]]

residential facilities standards and acknowledges that they require
certain features that are not included in the transient lodging
standards and that should be required for housing provided at a
place of education. In addition, the Department notes that since
educational institutions often use their academic housing facilities
as short-term transient lodging in the summers, it is important that
accessible features be installed at the outset. It is not realistic
to expect that the educational institution will be able to adapt a
unit in a timely manner in order to provide accessible
accommodations to someone attending a one-week program during the
summer.
The Department has determined that the best approach to this
type of housing is to continue to require the application of
transient lodging standards but, at the same time, to add several
requirements drawn from the residential facilities standards related
to accessible turning spaces and work surfaces in kitchens, and the
accessible route throughout the unit. This will ensure the
maintenance of the transient lodging standard requirements related
to access to all floors of the facility, roll-in showers in
facilities with more than 50 sleeping rooms, and other important
accessibility features not found in the residential facilities
standards, but also will ensure usable kitchens and access to all
the rooms in a suite or apartment.
The Department has added a new definition to Sec. 36.104,
``Housing at a Place of Education,'' and has revised Sec. 36.406(e)
to reflect the accessible features that now will be required in
addition to the requirements set forth under the transient lodging
standards. The Department also recognizes that some educational
institutions provide some residential housing on a year-round basis
to graduate students and staff that is comparable to private rental
housing but contains no facilities for educational programming.
Section 36.406(e)(3) exempts from the transient lodging standards
apartments or townhouse facilities that are provided with a lease on
a year-round basis exclusively to graduate students or faculty and
that do not contain any public use or common use areas available for
educational programming; instead, such housing must comply with the
requirements for residential facilities in sections 233 and 809 of
the 2010 Standards.
The regulatory text uses the term ``sleeping room'' in lieu of
the term ``guest room,'' which is the term used in the transient
lodging standards. The Department is using this term because it
believes that for the most part, it provides a better description of
the sleeping facilities used in a place of education than ``guest
room.'' The final rule states in Sec. 36.406(e) that the Department
intends the terms to be used interchangeably in the application of
the transient lodging standards to housing at a place of education.

Section 36.406(f) Assembly Areas

In the NPRM, the Department proposed Sec. 36.406(f) to
supplement the assembly area requirements of the 2004 ADAAG, which
the Department is adopting as part of the 2010 Standards. The NPRM
proposed at Sec. 36.406(f)(1) to require wheelchair spaces and
companion seating locations to be dispersed to all levels of the
facility that are served by an accessible route. The Department
received no significant comments on this paragraph and has decided
to adopt the proposed language with minor modifications.
Section 36.406(f)(1) ensures that there is greater dispersion of
wheelchair spaces and companion seats throughout stadiums, arenas,
and grandstands than would otherwise be required by sections 221 and
802 of the 2004 ADAAG. In some cases, the accessible route may not
be the same route that other individuals use to reach their seats.
For example, if other patrons reach their seats on the field by an
inaccessible route (e.g., by stairs), but there is an accessible
route that complies with section 206.3 of the 2004 ADAAG that could
be connected to seats on the field, wheelchair spaces and companion
seats must be placed on the field even if that route is not
generally available to the public.
Regulatory language that was included in the 2004 ADAAG
advisory, but that did not appear in the NPRM, has been added by the
Department in Sec. 36.406(f)(2). Section 36.406(f)(2) now requires
an assembly area that has seating encircling, in whole or in part, a
field of play or performance area, such as an arena or stadium, to
place wheelchair spaces and companion seats around the entire
facility. This rule, which is designed to prevent a public
accommodation from placing wheelchair spaces and companion seats on
one side of the facility only, is consistent with the Department's
enforcement practices and reflects its interpretation of section
4.33.3 of the 1991 Standards.
In the NPRM, the Department proposed Sec. 36.406(f)(2), which
prohibits wheelchair spaces and companion seating locations from
being ``located on (or obstructed by) temporary platforms * * *.''
73 FR 34508, 34557 (June 17, 2008). Through its enforcement actions,
the Department discovered that some venues place wheelchair spaces
and companion seats on temporary platforms that, when removed,
reveal conventional seating underneath, or cover the wheelchair
spaces and companion seats with temporary platforms on top of which
they place risers of conventional seating. These platforms cover
groups of conventional seats and are used to provide groups of
wheelchair seats and companion seats.
Several commenters requested an exception to the prohibition of
the use of temporary platforms for public accommodations that sell
most of their tickets on a season-ticket or other multi-event basis.
Such commenters argued that they should be able to use temporary
platforms because they know, in advance, that the patrons sitting in
certain areas for the whole season do not need wheelchair spaces and
companion seats. The Department declines to adopt such an exception.
As it explained in detail in the NPRM, the Department believes that
permitting the use of movable platforms that seat four or more
wheelchair users and their companions have the potential to reduce
the number of available wheelchair seating spaces below the level
required, thus reducing the opportunities for persons who need
accessible seating to have the same choice of ticket prices and
amenities that are available to other patrons in the facility. In
addition, use of removable platforms may result in instances where
last minute requests for wheelchair and companion seating cannot be
met because entire sections of accessible seating will be lost when
a platform is removed. See 73 FR 34508, 34546 (June 17, 2008).
Further, use of temporary platforms allows facilities to limit
persons who need accessible seating to certain seating areas, and to
relegate accessible seating to less desirable locations. The use of
temporary platforms has the effect of neutralizing dispersion and
other seating requirements (e.g., line of sight) for wheelchair
spaces and companion seats. Cf. Independent Living Resources v.
Oregon Arena Corp., 1 F. Supp. 2d 1159, 1171 (D. Or. 1998) (holding
that while a public accommodation may ``infill'' wheelchair spaces
with removable seats when the wheelchair spaces are not needed to
accommodate individuals with disabilities, under certain
circumstances ``[s]uch a practice might well violate the rule that
wheelchair spaces must be dispersed throughout the arena in a manner
that is roughly proportionate to the overall distribution of
seating''). In addition, using temporary platforms to convert unsold
wheelchair spaces to conventional seating undermines the flexibility
facilities need to accommodate secondary ticket market exchanges as
required by Sec. 36.302(f)(7) of the final rule.
As the Department explained in the NPRM, however, this provision
was not designed to prohibit temporary seating that increases
seating for events (e.g., placing temporary seating on the floor of
a basketball court for a concert). Consequently, the final rule, at
Sec. 36.406(f)(3), has been amended to clarify that if an entire
seating section is on a temporary platform for a particular event,
then wheelchair spaces and companion seats may also be in that
seating section. However, adding a temporary platform to create
wheelchair spaces and companion seats that are otherwise dissimilar
from nearby fixed seating and then simply adding a small number of
additional seats to the platform would not qualify as an ``entire
seating section'' on the platform. In addition, Sec. 36.406(f)(3)
clarifies that facilities may fill in wheelchair spaces with
removable seats when the wheelchair spaces are not needed by persons
who use wheelchairs.
The Department has been responsive to assembly areas' concerns
about reduced revenues due to unused accessible seating.
Accordingly, the Department has reduced scoping requirements
significantly--by almost half in large assembly areas--and
determined that allowing assembly areas to in-fill unsold wheelchair
spaces with readily removable temporary individual seats
appropriately balances their economic concerns with the rights of
individuals with disabilities. See section 221.1 of the 2010
Standards.
For stadium-style movie theaters, in Sec. 36.406(f)(4) of the
NPRM the Department

[[Page 56309]]

proposed requiring placement of wheelchair seating spaces and
companion seats on a riser or cross-aisle in the stadium section of
the theater that satisfies at least one of the following criteria:
(1) It is located within the rear 60 percent of the seats provided
in the auditorium; or (2) It is located within the area of the
auditorium where the vertical viewing angles are between the 40th
and 100th percentile of vertical viewing angles for all seats in
that theater as ranked from the first row (1st percentile) to the
back row (100th percentile). The vertical viewing angle is the angle
between a horizontal line perpendicular to the seated viewer's eye
to the screen and a line from the seated viewer's eye to the top of
the screen.
The Department proposed this bright-line rule for two reasons:
(1) the movie theater industry petitioned for such a rule; and (2)
the Department has acquired expertise in the design of stadium-style
theaters during its litigation with several major movie theater
chains. See United States. v. AMC Entertainment, Inc., 232 F.
Supp.2d 1092 (C.D. Cal. 2002), rev'd in part, 549 F.3d 760 (9th Cir.
2008); United States v. Cinemark USA, Inc., 348 F.3d 569 (6th Cir.
2003). Two industry commenters--at least one of whom otherwise
supported this rule--requested that the Department explicitly state
that this rule does not apply retroactively to existing theaters.
Although this provision on its face applies to new construction and
alterations, these commenters were concerned that the rule could be
interpreted to apply retroactively because of the Department's
statements in the NPRM and ANPRM that this bright line rule,
although newly articulated, is not a new standard but ``merely
codifi[es] longstanding Department requirement[s],'' 73 FR 34508,
34534 (June 17, 2008), and does not represent a ``substantive change
from the existing line-of-sight requirements'' of section 4.33.3 of
the 1991 Standards, 69 FR 58768, 58776 (Sept. 30, 2004).
Although the Department intends for Sec. 36.406(f)(4) of this
rule to apply prospectively to new construction and alterations,
this rule is not a departure from, and is consistent with, the line-
of-sight requirements in the 1991 Standards. The Department has
always interpreted the line-of-sight requirements in the 1991
Standards to require viewing angles provided to patrons who use
wheelchairs to be comparable to those afforded to other spectators.
Section 36.406(f)(4) merely represents the application of these
requirements to stadium-style movie theaters.
One commenter from a trade association sought clarification
whether Sec. 36.406(f)(4) applies to stadium-style theaters with
more than 300 seats, and argued that it should not since dispersion
requirements apply in those theaters. The Department declines to
limit this rule to stadium-style theaters with 300 or fewer seats;
stadium-style theaters of all sizes must comply with this rule. So,
for example, stadium-style theaters that must vertically disperse
wheelchair spaces and companion seats must do so within the
parameters of this rule.
The NPRM included a provision that required assembly areas with
more than 5,000 seats to provide at least five wheelchair spaces
with at least three companion seats for each of those five
wheelchair spaces. The Department agrees with commenters who
asserted that group seating is better addressed through ticketing
policies rather than design and has deleted that provision from this
section of the final rule.

Section 36.406(g) Medical Care Facilities

In the 1991 title III regulation, there was no provision
addressing the dispersion of accessible sleeping rooms in medical
care facilities. The Department is aware, however, of problems that
individuals with disabilities face in receiving full and equal
medical care when accessible sleeping rooms are not adequately
dispersed. When accessible rooms are not fully dispersed, a person
with a disability is often placed in an accessible room in an area
that is not medically appropriate for his or her condition, and is
thus denied quick access to staff with expertise in that medical
specialty and specialized equipment. While the Access Board did not
establish specific design requirements for dispersion in the 2004
ADAAG, in response to extensive comments in support of dispersion it
added an advisory note, Advisory 223.1 General, encouraging
dispersion of accessible rooms within the facility so that
accessible rooms are more likely to be proximate to appropriate
qualified staff and resources.
In the NPRM, the Department sought additional comment on the
issue, asking whether it should require medical care facilities,
such as hospitals, to disperse their accessible sleeping rooms, and
if so, by what method (by specialty area, floor, or other criteria).
All of the comments the Department received on this issue supported
dispersing accessible sleeping rooms proportionally by specialty
area. These comments from individuals, organizations, and a building
code association, argued that it would not be difficult for
hospitals to disperse rooms by specialty area, given the high level
of regulation to which hospitals are subject and the planning that
hospitals do based on utilization trends. Further, comments suggest
that without a requirement, it is unlikely that hospitals would
disperse the rooms. In addition, concentrating accessible rooms in
one area perpetuates segregation of individuals with disabilities,
which is counter to the purpose of the ADA.
The Department has decided to require medical care facilities to
disperse their accessible sleeping rooms in a manner that is
proportionate by type of medical specialty. This does not require
exact mathematical proportionality, which at times would be
impossible. However, it does require that medical care facilities
disperse their accessible rooms by medical specialty so that persons
with disabilities can, to the extent practical, stay in an
accessible room within the wing or ward that is appropriate for
their medical needs. The language used in this rule (``in a manner
that is proportionate by type of medical specialty'') is more
specific than that used in the NPRM (``in a manner that enables
patients with disabilities to have access to appropriate specialty
services'') and adopts the concept of proportionality proposed by
the commenters. Accessible rooms should be dispersed throughout all
medical specialties, such as obstetrics, orthopedics, pediatrics,
and cardiac care.

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

Subpart F contains procedures implementing section
308(b)(1)(A)(ii) of the ADA, which provides that on the application
of a State or local jurisdiction, the Attorney General may certify
that a State or local building code or similar ordinance meets or
exceeds the minimum accessibility requirements of the Act. In
enforcement proceedings, this certification will constitute
rebuttable evidence that the law or code meets or exceeds the ADA's
requirements. In its NPRM, the Department proposed three changes in
subpart F that would streamline the process for public entities
seeking certification, all of which are adopted in this final rule.
First, the Department proposed deleting the existing Sec.
36.603, which establishes the obligations of a submitting authority
that is seeking certification of its code, and issue in its place
informal regulatory guidance regarding certification submission
requirements. Due to the deletion of Sec. 36.603, Sec. Sec. 36.604
through 36.608 are renumbered, and Sec. 36.603 in the final rule is
modified to indicate that the Assistant Attorney General for the
Civil Rights Division (Assistant Attorney General) shall make a
preliminary determination of equivalency after ``receipt and review
of all information relevant to a request filed by a submitting
official for certification of a code.'' Second, the Department
proposed that the requirement in renumbered Sec. 36.604 (previously
Sec. 36.605) that an informal hearing be held in Washington, DC, if
the Assistant Attorney General makes a preliminary determination of
equivalency be changed to a requirement that the hearing be held in
the State or local jurisdiction charged with administration and
enforcement of the code. Third, the Department proposed adding
language to renumbered Sec. 36.606 (previously Sec. 36.607) to
explain the effect of the 2010 Standards on the codes of State or
local jurisdictions that were determined in the past to meet or
exceed the 1991 Standards. Once the 2010 Standards take effect,
certifications issued under the 1991 Standards would not have any
future effect, and States and local jurisdictions with codes
certified under the 1991 Standards would need to reapply for
certification under the 2010 Standards. With regard to elements of
existing buildings and facilities constructed in compliance with a
code when a certification of equivalency was in effect, the final
rule requires that in any enforcement action this compliance would
be treated as rebuttable evidence of compliance with the standards
then in effect. The new provision added to Sec. 36.606 may also
have implications in determining an entity's eligibility for the
element-by-element safe harbor.
No substantive comments were received regarding the Department's
proposed changes in subpart F, and no other changes have been made
to this subpart in the final rule. The

[[Page 56310]]

Department did receive several comments addressing other issues
raised in the NPRM that are related to subpart F. Because the 2010
Standards include specific design requirements for recreation
facilities and play areas that may be new to many title III
facilities, the Department sought comments in the NPRM about how the
certification review process would be affected if the State or local
jurisdiction allocates the authority to implement the new
requirements to State or local agencies that are not ordinarily
involved in administering building codes. One commenter, an
association of building owners and managers, suggested that because
of the increased scope of the 2010 Standards, it is likely that
parts of covered elements in the new standards will be under the
jurisdiction of multiple State or local agencies. In light of these
circumstances, the commenter recommended that the Department allow
State or local agencies to seek certification even if only one State
or local regulatory agency requests certification. For example, if a
State agency that regulates buildings seeks certification of its
building code, it should be able to do so, even if another State
agency that regulates amusement rides and miniature golf courses
does not seek certification.
The Department's discussion of this issue in the NPRM
contemplated that all of a State or local government's accessibility
requirements for title III facilities would be the subject of a
request for certification. Any other approach would require the
Department to certify only part of a State or local government's
accessibility requirements as compared to the entirety of the
revised ADA standards. As noted earlier, the Attorney General is
authorized by section 308(b)(1)(A)(ii) of the ADA to certify that a
State or local building code meets or exceeds the ADA's minimum
accessibility requirements, which are contained in this regulation.
The Department has concluded that this is a decision that must be
made on a case-by-case basis because of the wide variety of
enforcement schemes adopted by the States. Piecemeal certification
of laws or codes that do not contain all of the minimum
accessibility requirements could fail to satisfy the Attorney
General's responsibility to ensure that a State or local building
code meets or exceeds the minimum accessibility requirements of the
Act before granting certification. However, the Department wants to
permit State and local code administrators to have maximum
flexibility, so the Department will leave open the possibility for
case-by-case review to determine if a State has successfully met the
burden of demonstrating that its accessibility codes or other laws
meet or exceed the ADA requirements.
The commenter representing building owners and managers also
urged the Department to extend the proposed effective date for the
final rule. The commenter explained that a six-month phase-in period
is inadequate for States to begin and complete a code amendment
process. The commenter asserted that the inadequate phase-in period
will place entities undertaking new construction and alterations,
particularly in those States with certified codes, in a difficult
position because State officials will continue to enforce previously
certified State or local accessibility requirements that may be in
conflict with the new 2010 Standards. The Department received
numerous comments on the issue of the effective date, many of them
similar to the concerns expressed above, in response to both the
NPRM and the ANPRM. See Appendix A discussion of compliance dates
for new construction and alterations (Sec. 36.406). The Department
has been persuaded by the concerns raised by many commenters
addressing the time and costs related to the design process for both
new construction and alterations, and has determined that for new
construction and alterations, compliance with the 2010 Standards
will not be required until 18 months from the date the final rule is
published. For more information on the issue of the compliance date,
refer to subpart D--New Construction and Alterations.
One commenter, an association of theater owners, recommended
that the Department establish a training program for State building
inspectors for those States that receive certification to ensure
more consistent ADA compliance and to facilitate the review of
builders' architectural plans. The commenter also recommended that
State building inspectors, once trained, review architectural plans,
and after completion and inspection of facilities, be authorized to
certify that the inspected building or facility meets both the
certified State and the Federal accessibility requirements. Although
supportive of the idea of additional training for State and local
building code officials regarding ADA compliance, the Department
believes that the approach suggested by the commenter of allowing
State and local code officials to determine if a covered facility is
in compliance with Federal accessibility requirements is not
consistent with or permissible under the statutory enforcement
scheme established by the ADA. As the Department stated in the NPRM,
certification of State and local codes serves, to some extent, to
mitigate the absence of a Federal mechanism for conducting at the
national level a review of all architectural plans and inspecting
all covered buildings under construction to ensure compliance with
the ADA. In this regard, certification operates as a bridge between
the obligation to comply with the 1991 Standards in new construction
and alterations, and the administrative schemes of State and local
governments that regulate the design and construction process. By
ensuring consistency between State or local codes and Federal
accessibility standards, certification has the additional benefit of
streamlining the regulatory process, thereby making it easier for
those in the design and construction industry to satisfy both State
and Federal requirements. The Department notes, however, that
although certification has the potential to increase compliance with
the ADA, this result, however desirable, is not guaranteed. The ADA
contemplated that there could be enforcement actions brought even in
States with certified codes, and it provided some protection in
litigation to builders who adhered to the provisions of the code
certified to be ADA-equivalent. The Department's certification
determinations make it clear that to get the benefit of
certification, a facility must comply with the applicable code
requirements--without relying on waivers or variances. The certified
code, however, remains within the authority of the adopting State or
local jurisdiction to interpret and enforce: Certification does not
transform a State's building code into Federal law. Nor can
certification alone authorize State and local building code
officials implementing a certified code to do more than they are
authorized to do under State or local law, and these officials
cannot acquire authority through certification to render binding
interpretations of Federal law. Therefore, the Department, while
understanding the interest in obtaining greater assurance of
compliance with the ADA through the interpretation and enforcement
of a certified code by local code officials, declined in the NPRM to
confer on local officials the authority not granted to them under
the ADA to certify the compliance of individual facilities. The
Department in the final rule finds no reason to alter its position
on this issue in response to the comments that were received.
The commenter representing theater owners also urged the
Department to provide a safe harbor to facilities constructed in
compliance with State or local building codes certified under the
1991 Standards. With regard to elements of facilities constructed in
compliance with a certified code prior to the effective date of the
2010 Standards, and during the period when a certification of
equivalency was in effect, the Department noted in the NPRM that its
approach would be consistent with the approach to the safe harbor
discussed in subpart C, Sec. 36.304 of the NPRM, with respect to
elements in existing facilities constructed in compliance with the
1991 Standards. For example, elements in existing facilities in
States with codes certified under the 1991 Standards would be
eligible for a safe harbor if they were constructed in compliance
with an ADA-certified code. In this scenario, compliance with the
certified code would be treated as evidence of compliance with the
1991 Standards for purposes of determining the application of the
safe harbor provision to those elements. For more information on
safe harbor, refer to subpart C, Sec. 36.304 of the final rule.
One commenter, an advocacy group for the blind, suggested that,
similar to the procedures for certifying a State or local building
code, the Department should establish a program to certify an
entity's obligation to make its goods and services accessible to
persons with sensory disabilities. The Department believes that this
commenter was suggesting that covered entities should be able to
request that the Department review their business operations to
determine if they have met their ADA obligations. As noted earlier,
subpart F contains procedures implementing section 308(b)(1)(A)(ii)
of the ADA, which provides that on the application of a State or
local jurisdiction, the Attorney General may certify that a State or
local building code or similar ordinance meets or exceeds the
minimum accessibility requirements of the ADA. The

[[Page 56311]]

only mechanism through which the Department is authorized to ensure
a covered entity's compliance with the ADA is the enforcement scheme
established under section 308(b)(1)(A)(i) of the ADA. The Department
notes, however, that title III of the ADA and its implementing
regulation, which includes the standards for accessible design,
already require existing, altered, and newly constructed places of
public accommodation, such as retail stores, hotels, restaurants,
movie theaters, and stadiums, to make their facilities readily
accessible to and usable by individuals with disabilities, which
includes individuals with sensory disabilities, so that individuals
with disabilities have a full and equal opportunity to enjoy the
benefits of a public accommodation's goods, services, facilities,
privileges and advantages.

Other Issues

Questions Posed in the NPRM Regarding Costs and Benefits of
Complying With the 2010 Standards

In the NPRM, the Department requested comments on various cost
and benefit issues related to eight requirements in the Department's
Initial RIA, that were projected to have incremental costs that
exceeded monetized benefits by more than $100 million when using the
1991 Standards as a comparative baseline, i.e., side reach, water
closet clearances in single-user toilet rooms with in-swinging
doors, stairs, elevators, location of accessible routes to stages,
accessible attorney areas and witness stands, assistive listening
systems, and accessible teeing grounds, putting greens, and weather
shelters at golf courses. 73 FR 34508, 34512 (June 17, 2008). The
Department was particularly concerned about how these costs applied
to alterations. The Department noted that pursuant to the ADA, the
Department does not have statutory authority to modify the 2004
ADAAG and is required instead to issue regulations implementing the
ADA that are consistent with the Board's guidelines. In that regard,
the Department also requested comment about whether any of these
eight elements in the 2010 Standards should be returned to the
Access Board for further consideration, in particular as applied to
alterations. Many of the comments received by the Department in
response to these questions addressed both titles II and III. As a
result, the Department's discussion of these comments and its
response are collectively presented for both titles.
Side reach. The 1991 Standards at section 4.2.6 establish a
maximum side-reach height of 54 inches. The 2010 Standards at
section 308.3.1 reduce that maximum height to 48 inches. The 2010
Standards also add exceptions for certain elements to the scoping
requirement for operable parts.
The vast majority of comments the Department received were in
support of the lower side-reach maximum of 48 inches in the 2010
Standards. Most of these comments, but not all, were received from
individuals of short stature, relatives of individuals of short
stature, or organizations representing the interests of persons with
disabilities, including individuals of short stature. Comments from
individuals with disabilities and disability advocacy groups stated
that the 48-inch side reach would permit independence in performing
many activities of daily living for individuals with disabilities,
including individuals of short stature, persons who use wheelchairs,
and persons who have limited upper body strength. In this regard,
one commenter who is a business owner pointed out that as a person
of short stature there were many occasions when he was unable to
exit a public restroom independently because he could not reach the
door handle. The commenter said that often elevator control buttons
are out of his reach, and, if he is alone, he often must wait for
someone else to enter the elevator so that he can ask that person to
press a floor button for him. Another commenter, who is also a
person of short stature, said that he has on several occasions
pulled into a gas station only to find that he was unable to reach
the credit card reader on the gas pump. Unlike other customers who
can reach the card reader, swipe their credit or debit cards, pump
their gas, and leave the station, he must use another method to pay
for his gas. Another comment from a person of short stature pointed
out that as more businesses take steps to reduce labor costs--a
trend expected to continue--staffed booths are being replaced with
automatic machines for the sale, for example, of parking tickets and
other products. He observed that the ``ability to access and operate
these machines becomes ever more critical to function in society,''
and, on that basis, urged the Department to adopt the 48-inch side-
reach requirement. Another individual commented that persons of
short stature should not have to carry with them adaptive tools in
order to access building or facility elements that are out of their
reach, any more than persons in wheelchairs should have to carry
ramps with them in order to gain access to facilities.
Many of the commenters who supported the revised side-reach
requirement pointed out that lowering the side-reach requirement to
48 inches would avoid a problem sometimes encountered in the built
environment when an element was mounted for a parallel approach at
54 inches, only to find afterwards that a parallel approach was not
possible. Some commenters also suggested that lowering the maximum
unobstructed side reach to 48 inches would reduce confusion among
design professionals by making the unobstructed forward and side-
reach maximums the same (the unobstructed forward reach in both the
1991 and 2010 Standards is 48 inches maximum). These commenters also
pointed out that the ICC/ANSI A117.1 Standard, which is a private
sector model accessibility standard, has included a 48-inch maximum
high side-reach requirement since 1998. Many jurisdictions have
already incorporated this requirement into their building codes,
which these commenters believed would reduce the cost of compliance
with the 2010 Standards. Because numerous jurisdictions have already
adopted the 48-inch side-reach requirement, the Department's failure
to adopt the 48-inch side-reach requirement in the 2010 Standards,
in the view of many commenters, would result in a significant
reduction in accessibility, and would frustrate efforts that have
been made to harmonize private sector model construction and
accessibility codes with Federal accessibility requirements. Given
these concerns, they overwhelmingly opposed the idea of returning
the revised side-reach requirement to the Access Board for further
consideration.
The Department also received comments in support of the 48-inch
side-reach requirement from an association of professional
commercial property managers and operators and from State
governmental entities. The association of property managers pointed
out that the revised side-reach requirement provided a reasonable
approach to ``regulating elevator controls and all other operable
parts'' in existing facilities in light of the manner in which the
safe harbor, barrier removal, and alterations obligations will
operate in the 2010 Standards. One governmental entity, while fully
supporting the 48-inch side-reach requirement, encouraged the
Department to adopt an exception to the lower reach range for
existing facilities similar to the exception permitted in the ICC/
ANSI A117.1 Standard. In response to this latter concern, the
Department notes that under the safe harbor, existing facilities
that are in compliance with the 1991 Standards, which required a 54-
inch side-reach maximum, would not be required to comply with the
lower side-reach requirement, unless there is an alteration. See
Sec. 36.304(d)(2)(i).
A number of commenters expressed either concern with, or
opposition to, the 48-inch side-reach requirement and suggested that
it be returned to the Access Board for further consideration. These
commenters included trade and business associations, associations of
retail stores, associations of restaurant owners, retail and
convenience store chains, and a model code organization. Several
businesses expressed the view that the lower side-reach requirement
would discourage the use of their products and equipment by most of
the general public. In particular, concerns were expressed by a
national association of pay phone service providers regarding the
possibility that pay telephones mounted at the lower height would
not be used as frequently by the public to place calls, which would
result in an economic burden on the pay phone industry. The
commenter described the lower height required for side reach as
creating a new ``barrier'' to pay phone use, which would reduce
revenues collected from pay phones and, consequently, further
discourage the installation of new pay telephones. In addition, the
commenter expressed concern that phone service providers would
simply decide to remove existing pay phones rather than incur the
costs of relocating them at the lower height. With regard to this
latter concern, the commenter misunderstood the manner in which the
safe harbor and barrier removal obligations under Sec. 36.304 will
operate in the revised title III regulation for elements that comply
with the 1991 Standards. The Department does not anticipate that
wholesale relocation of pay telephones in existing facilities will
be required under the final rule where the telephones in existing
facilities already are in

[[Page 56312]]

compliance with the 1991 Standards. If the pay phones comply with
the 1991 Standards, the adoption of the 2010 Standards does not
require retrofitting of these elements to reflect incremental
changes in the 2010 Standards. See Sec. 36.304(d)(2). However, pay
telephones that were required to meet the 1991 Standards as part of
new construction or alterations, but do not in fact comply with
those standards, will need to be brought into compliance with the
2010 Standards as of 18 months from the publication date of this
final rule. See Sec. 36.406(a)(5).
The Department does not agree with the concerns expressed by the
commenter about reduced revenues from pay phones mounted at lower
heights. The Department believes that while given the choice some
individuals may prefer to use a pay phone that is at a higher
height, the availability of some phones at a lower height will not
deter individuals from making needed calls.
The 2010 Standards will not require every pay phone to be
installed or moved to a lowered height. The table accompanying
section 217.2 of the 2010 Standards makes clear that where one or
more telephones are provided on a floor, level, or an exterior site,
only one phone per floor, level, or exterior site must be placed at
an accessible height. Similarly, where there is one bank of phones
per floor, level, or exterior site, only one phone per floor, level,
or exterior site must be accessible. And if there are two or more
banks of phones per floor, level, or exterior site, only one phone
per bank must be placed at an accessible height.
Another comment in opposition to the lower reach range
requirement was submitted on behalf of a chain of convenience stores
with fuel stops. The commenter expressed the concern that the 48-
inch side reach ``will make it uncomfortable for the majority of the
public,'' including persons of taller stature who would need to
stoop to use equipment such as fuel dispensers mounted at the lower
height. The commenter offered no objective support for the
observation that a majority of the public would be rendered
uncomfortable if, as required in the 2010 Standards, at least one of
each type of fuel dispenser at a facility was made accessible in
compliance with the lower reach range. Indeed, the Department
received no comments from any individuals of tall stature expressing
concern about accessible elements or equipment being mounted at the
48-inch height.
Several retail, convenience store, restaurant, and amusement
park commenters expressed concern about the burden the lower side-
reach requirement would place on their businesses in terms of self-
service food stations and vending areas if the 48-inch requirement
were applied retroactively. The cost of lowering counter height, in
combination with the lack of control businesses exercise over
certain prefabricated service or vending fixtures, outweighed, they
argued, any benefits to persons with disabilities. For this reason,
they suggested the lower side-reach requirement be referred back to
the Access Board.
These commenters misunderstood the safe harbor and barrier
removal obligations that will be in effect under the 2010 Standards.
Those existing self-service food stations and vending areas that
already are in compliance with the 1991 Standards will not be
required to satisfy the 2010 Standards unless they engage in
alterations. With regard to prefabricated vending machines and food
service components that will be purchased and installed in
businesses after the 2010 Standards become effective, the Department
expects that companies will design these machines and fixtures to
comply with the 2010 Standards in the future, as many have already
done in the 10 years since the 48-inch side-reach requirement has
been a part of the model codes and standards used by many
jurisdictions as the basis for their construction codes.
A model code organization commented that the lower side-reach
requirement would create a significant burden if it required
entities to lower the mounting height for light switches,
environmental controls, and outlets when an alteration did not
include the walls where these elements were located, such as when
``an area is altered or as a path of travel obligation.'' The
Department believes that the final rule adequately addresses those
situations about which the commenter expressed concern by not
requiring the relocation of existing elements, such as light
switches, environmental controls, and outlets, unless they are
altered. Moreover, under Sec. 36.403 of the 1991 rule, costs for
altering the path of travel to an altered area of primary function
that exceed 20 percent of the overall costs of the alteration will
continue to be deemed disproportionate.
The Department has determined that the revised side-reach
requirement should not be returned to the Access Board for further
consideration based in large part on the views expressed by a
majority of the commenters regarding the need for, and importance
of, the lower side-reach requirement to ensure access for persons
with disabilities.
Alterations and water closet clearances in single-user toilet
rooms with in-swinging doors. The 1991 Standards allow a lavatory to
be placed a minimum of 18 inches from the water closet centerline
and a minimum of 36 inches from the side wall adjacent to the water
closet, which precludes side transfers. The 1991 Standards do not
allow an in-swinging door in a toilet or bathing room to overlap the
required clear floor space at any accessible fixture. To allow
greater transfer options, section 604.3.2 of the 2010 Standards
prohibits lavatories from overlapping the clear floor space at water
closets, except in certain residential dwelling units. Section
603.2.3 of the 2010 Standards maintains the prohibition on doors
swinging into the clear floor space or clearance required for any
fixture, except that they permit the doors of toilet or bathing
rooms to swing into the required turning space, provided that there
is sufficient clearance space for the wheelchair outside the door
swing. In addition, in single-user toilet or bathing rooms,
exception 2 of section 603.2.3 of the 2010 Standards permits the
door to swing into the clear floor space of an accessible fixture if
a clear floor space that measures at least 30 inches by 48 inches is
available outside the arc of the door swing.
The majority of commenters believed that this requirement would
increase the number of toilet rooms accessible to individuals with
disabilities who use wheelchairs or mobility scooters, and will make
it easier for them to transfer. A number of commenters stated that
there was no reason to return this provision to the Access Board.
Numerous commenters noted that this requirement is already included
in other model accessibility standards and many State and local
building codes and that the adoption of the 2010 Standards is an
important part of harmonization efforts.
Other commenters, mostly trade associations, opposed this
requirement, arguing that the added cost to the industry outweighs
any increase in accessibility. Two commenters stated that these
proposed requirements would add two feet to the width of an
accessible single-user toilet room; however, another commenter said
the drawings in the proposed regulation demonstrated that there
would be no substantial increase in the size of the toilet room.
Several commenters stated that this requirement would require moving
plumbing fixtures, walls, or doors at significant additional
expense. Two commenters wanted the permissible overlap between the
door swing and clearance around any fixture eliminated. One
commenter stated that these new requirements will result in fewer
alterations to toilet rooms to avoid triggering the requirement for
increased clearances, and suggested that the Department specify that
repairs, maintenance, or minor alterations would not trigger the
need to provide increased clearances. Another commenter requested
that the Department exempt existing guest room bathrooms and single-
user toilet rooms that comply with the 1991 Standards from complying
with the increased clearances in alterations.
After careful consideration of these comments, the Department
believes that the revised clearances for single-user toilet rooms
will allow safer and easier transfers for individuals with
disabilities, and will enable a caregiver, aide, or other person to
accompany an individual with a disability into the toilet room to
provide assistance. The illustrations in Appendix B to this final
rule, ``Analysis and Commentary on the 2010 ADA Standards for
Accessible Design,'' describe several ways for public entities and
public accommodations to make alterations while minimizing
additional costs or loss of space. Further, in any isolated
instances where existing structural limitations may entail loss of
space, the public entity and public accommodation may have a
technical infeasibility defense for that alteration. The Department
has, therefore, decided not to return this requirement to the Access
Board.
Alterations to stairs. The 1991 Standards only require interior
and exterior stairs to be accessible when they provide access to
levels that are not connected by an elevator, ramp, or other
accessible means of vertical access. In contrast, section 210.1 of
the 2010 Standards requires all newly constructed stairs that are
part of a means of egress to be accessible. However, exception 2 of
section 210.1 of the 2010 Standards provides that in alterations,
stairs between levels connected by an accessible route need not be
accessible, except that handrails shall be provided. Most

[[Page 56313]]

commenters were in favor of this requirement for handrails in
alterations, and stated that adding handrails to stairs during
alterations was not only feasible and not cost prohibitive, but also
provided important safety benefits. One commenter stated that making
all points of egress accessible increased the number of people who
could use the stairs in an emergency. A majority of the commenters
did not want this requirement returned to the Access Board for
further consideration.
The International Building Code (IBC), which is a private sector
model construction code, contains a similar provision, and most
jurisdictions enforce a version of the IBC as their building code,
thereby minimizing the impact of this provision on public entities
and public accommodations. The Department believes that by requiring
only the addition of handrails to altered stairs where levels are
connected by an accessible route, the costs of compliance for public
entities and public accommodations are minimized, while safe egress
for individuals with disabilities is increased. Therefore, the
Department has decided not to return this requirement to the Access
Board.
Alterations to elevators. Under the 1991 Standards, if an
existing elevator is altered, only that altered elevator must comply
with the new construction requirements for accessible elevators to
the maximum extent feasible. It is therefore possible that a bank of
elevators controlled by a single call system may contain just one
accessible elevator, leaving an individual with a disability with no
way to call an accessible elevator and thus having to wait
indefinitely until an accessible elevator happens to respond to the
call system. In the 2010 Standards, when an element in one elevator
is altered, section 206.6.1 will require the same element to be
altered in all elevators that are programmed to respond to the same
call button as the altered elevator. Almost all commenters favored
the proposed requirement. This requirement, according to these
commenters, is necessary so a person with a disability need not wait
until an accessible elevator responds to his or her call. One
commenter suggested that elevator owners also could comply by
modifying the call system so the accessible elevator could be
summoned independently. One commenter suggested that this
requirement would be difficult for small businesses located in older
buildings, and one commenter suggested that this requirement be sent
back to the Access Board.
After considering the comments, the Department agrees that this
requirement is necessary to ensure that when an individual with a
disability presses a call button, an accessible elevator will
arrive. The IBC contains a similar provision, and most jurisdictions
enforce a version of the IBC as their building code, minimizing the
impact of this provision on public entities and public
accommodations. Public entities and small businesses located in
older buildings need not comply with this requirement where it is
technically infeasible to do so. Further, as pointed out by one
commenter, modifying the call system so the accessible elevator can
be summoned independently is another means of complying with this
requirement in lieu of altering all other elevators programmed to
respond to the same call button. Therefore, the Department has
decided not to return this requirement to the Access Board.
Location of accessible routes to stages. The 1991 Standards, at
section 4.33.5, require an accessible route to connect the
accessible seating and the stage, as well as other ancillary spaces
used by performers. The 2010 Standards, at section 206.2.6, provide
in addition that where a circulation path directly connects the
seating area and the stage, the accessible route must connect
directly the accessible seating and the stage, and, like the 1991
Standards, an accessible route must connect the stage with the
ancillary spaces used by performers.
In the NPRM, the Department asked operators of auditoria about
the extent to which auditoria already provide direct access to
stages and whether there were planned alterations over the next 15
years that included accessible direct routes to stages. The
Department also asked how to quantify the benefits of this
requirement for persons with disabilities, and invited commenters to
provide illustrative anecdotal experiences about the requirement's
benefits.
The Department received many comments regarding the costs and
benefits of this requirement. Although little detail was provided,
many industry and governmental entity commenters anticipated that
the costs of this requirement would be great and that it would be
difficult to implement. They noted that premium seats may have to be
removed and that load-bearing walls may have to be relocated. These
commenters suggested that the significant costs would deter
alterations to the stage area for a great many auditoria. Some
commenters suggested that ramps to the front of the stage may
interfere with means of egress and emergency exits. Several
commenters requested that the requirement apply to new construction
only, and one industry commenter requested an exemption for stages
used in arenas or amusement parks where there is no audience
participation or where the stage is a work area for performers only.
One commenter requested that the requirement not apply to temporary
stages.
The final rule does not require a direct accessible route to be
constructed where a direct circulation path from the seating area to
the stage does not exist. Consequently, those commenters who
expressed concern about the burden imposed by the revised
requirement (i.e., where the stage is constructed with no direct
circulation path connecting the general seating and performing area)
should note that the final rule will not require the provision of a
direct accessible route under these circumstances. The final rule
applies to permanent stages, as well as ``temporary stages,'' if
there is a direct circulation path from the seating area to the
stage. However, the Department recognizes that in some
circumstances, such as an alteration to a primary function area, the
ability to provide a direct accessible route to a stage may be
costly or technically infeasible, and the auditorium owner is not
precluded by the revised requirement from asserting defenses
available under the regulation. In addition, the Department notes
that since section 4.33.5 of the 1991 Standards requires an
accessible route to a stage, the safe harbor will apply to existing
facilities whose stages comply with the 1991 Standards.
Several governmental entities supported accessible auditoria and
the revised requirement. One governmental entity noted that its
State building code already required direct access, that it was
possible to provide direct access, and that creative solutions had
been found to do so.
Many advocacy groups and individual commenters strongly
supported the revised requirement, discussing the acute need for
direct access to stages, as such access has an impact on a great
number of people at important life events, such as graduations and
awards ceremonies, at collegiate and competitive performances and
other school events, and at entertainment events that include
audience participation. Many commenters expressed the belief that
direct access is essential for integration mandates to be satisfied,
and that separate routes are stigmatizing and unequal. The
Department agrees with these concerns.
Commenters described the impact felt by persons in wheelchairs
who are unable to access the stage at all when others are able to do
so. Some of these commenters also discussed the need for the
performers and production staff who use wheelchairs to have direct
access to the stage, and they provided a number of examples that
illustrated the importance of the rule proposed in the NPRM.
Personal anecdotes were provided in comments and at the Department's
public hearing on the NPRM. One mother spoke passionately and
eloquently about the unequal treatment experienced by her daughter,
who uses a wheelchair, at awards ceremonies and band concerts. Her
daughter was embarrassed and ashamed to be carried by her father
onto a stage at one band concert. When the venue had to be changed
for another concert to an accessible auditorium, the band director
made sure to comment that he was unhappy with the switch. Rather
than endure the embarrassment and indignities, her child dropped out
of band the following year.
Another father commented about how he was unable to speak from
the stage at a PTA meeting at his child's school. Speaking from the
floor limited his line of sight and his participation. Several
examples were provided of children who could not participate on
stage during graduation, awards programs, or special school events,
such as plays and festivities. One student did not attend his
college graduation because he would not be able to get on stage.
Another student was unable to participate in the class Christmas
programs or end-of-year parties unless her father could attend and
lift her onto the stage. These commenters did not provide a method
to quantify the benefits that would accrue by having direct access
to stages. One commenter stated, however, that ``the cost of dignity
and respect is without measure.''
Many industry commenters and governmental entities suggested
that the

[[Page 56314]]

requirement be sent back to the Access Board for further
consideration. One industry commenter mistakenly noted that some
international building codes do not incorporate the requirement and
that, therefore, there is a need for further consideration. However,
the Department notes that both the 2003 and 2006 editions of the IBC
include scoping provisions that are almost identical to this
requirement and that these editions of the model code are the most
frequently used. Many individuals and advocacy group commenters
requested that the requirement be adopted without further delay.
These commenters spoke of the acute need for direct access to stages
and the amount of time it would take to resubmit the requirement to
the Access Board. Several commenters noted that the 2004 ADAAG
tracks recent model codes, and that there is thus no need for
further consideration. The Department agrees that no further delay
is necessary and therefore has decided it will not return the
requirement to the Access Board for further consideration.
Assistive listening systems. The 1991 Standards at sections
4.33.6 and 4.33.7 require assistive listening systems (ALS) in
assembly areas and prescribe general performance standards for ALS
systems. In the NPRM, the Department proposed adopting the technical
specifications in the 2004 ADAAG for ALS that are intended to ensure
better quality and effective delivery of sound and information for
persons with hearing impairments, especially those using hearing
aids. The Department noted in the NPRM that since 1991, advancements
in ALS and the advent of digital technology have made these systems
more amenable to uniform standards, which, among other things,
should ensure that a certain percentage of required ALS systems are
hearing-aid compatible. 73 FR 34508, 34513 (June 17, 2008). The 2010
Standards at section 219 provide scoping requirements and at section
706 address receiver jacks, hearing aid compatibility, sound
pressure level, signal-to-noise ratio, and peak clipping level. The
Department requested comments specifically from arena and assembly
area administrators on the cost and maintenance issues associated
with ALS, and asked generally about the costs and benefits of ALS,
and asked whether, based upon the expected costs of ALS, the issue
should be returned to the Access Board for further consideration.
Commenters from advocacy organizations noted that persons who
develop significant hearing loss often discontinue their normal
routines and activities, including meetings, entertainment, and
large group events, due to a sense of isolation caused by the
hearing loss or embarrassment. Individuals with longstanding hearing
loss may never have participated in group activities for many of the
same reasons. Requiring ALS may allow individuals with disabilities
to contribute to the community by joining in government and public
events, and through increased economic activity associated with
community activities and entertainment. Making public events and
entertainment accessible to persons with hearing loss also brings
families and other groups that include persons with hearing loss
into more community events and activities, thus exponentially
increasing the benefit from ALS.
Many commenters noted that when a person has significant hearing
loss, that person may be able to hear and understand information in
a quiet situation with the use of hearing aids or cochlear implants;
however, as background noise increases and the distance between the
source of the sound and the listener grows, and especially where
there is distortion in the sound, an ALS becomes essential for basic
comprehension and understanding. Commenters noted that among the 31
million Americans with hearing loss, and with a projected increase
to over 78 million Americans with hearing loss by 2030, the benefit
from ALS is huge and growing. Advocates for persons with
disabilities and individuals commented that they appreciated the
improvements in the 2004 ADAAG standards for ALS, including
specifications for the ALS systems and performance standards. They
noted that providing neckloops that translate the signal from the
ALS transmitter to a frequency that can be heard on a hearing aid or
cochlear implant are much more effective than separate ALS system
headsets, which sometimes create feedback, often malfunction, and
may create distractions for others seated nearby. Comments from
advocates and users of ALS systems consistently noted that the
Department's regulation should, at a minimum, be consistent with the
2004 ADAAG. Although there were requests for adjustments in the
scoping requirements from advocates seeking increased scoping
requirements, and from large venue operators seeking fewer
requirements, there was no significant concern expressed by
commenters about the technical specifications for ALS in the 2004
ADAAG.
Some commenters from trade associations and large venue owners
criticized the scoping requirements as too onerous, and one
commenter asked for a remand to the Access Board for new scoping
rules. However, one State agency commented that the 2004 ADAAG
largely duplicates the requirements in the 2006 IBC and the 2003
ANSI codes, which means that entities that comply with those
standards would not incur additional costs associated with ADA
compliance.
According to one State office of the courts, the costs to
install either an infrared system or an FM system at average-sized
facilities, including most courtrooms covered by title II, would be
between $500 and $2,000, which the agency viewed as a small price in
comparison to the benefits of inclusion. Advocacy organizations
estimated wholesale costs of ALS systems at about $250 each, and
individual neckloops to link the signal from the ALS transmitter to
hearing aids or cochlear implants at less than $50 per unit. Many
commenters pointed out that if a facility already is using induction
neckloops, it would already be in compliance already and would not
have any additional installation costs. One major city commented
that annual maintenance is about $2,000 for the entire system of
performance venues in the city. A trade association representing
very large venues estimated annual maintenance and upkeep expenses,
including labor and replacement parts, to be at most about $25,000
for a very large professional sports stadium.
One commenter suggested that the scoping requirements for ALS in
the 2004 ADAAG were too stringent and that the Department should
refer them back to the Access Board for further review and
consideration. Others commented that the requirement for new ALS
systems should mandate multichannel receivers capable of receiving
audio description for persons who are blind, in addition to a
channel for amplification for persons who are hard of hearing. Some
commenters suggested that the Department should require a set
schedule and protocol of mandatory maintenance. Department
regulations already require maintenance of accessible features at
Sec. 36.211(a) of the title III regulation, which obligates a title
III entity to maintain ALS in good working order. The Department
recognizes that maintenance of ALS is key to its usability.
Necessary maintenance will vary dramatically from venue to venue
based upon a variety of factors including frequency of use, number
of units, quality of equipment, and other items. Accordingly, the
Department has determined that it is not appropriate to mandate
details of maintenance, but notes that failure to maintain ALS would
violate Sec. 36.211(a) of this rule.
The NPRM asked whether the Department should return the issue of
ALS requirements to the Access Board for further review. The
Department has received substantial feedback on the technical and
scoping requirements for ALS and is convinced that these
requirements are reasonable--especially in light of the fact that
the requirements largely duplicate those in the 2006 IBC and the
2003 ANSI codes already adopted in many States--and that the
benefits justify the requirements. In addition, the Department
believes that the new specifications will make ALS work more
effectively for more persons with disabilities, which, together with
a growing population of new users, will increase demand for ALS,
thus mooting criticism from some large venue operators about
insufficient demand. Thus, the Department has determined that it is
unnecessary to refer this issue back to the Access Board for
reconsideration.
Accessible teeing grounds, putting greens, and weather shelters.
The Department's NPRM sought public input on the proposed
requirements for accessible golf courses. These requirements
specifically relate to accessible routes within the boundaries of
the courses, as well as the accessibility of golfing elements (e.g.,
teeing grounds, putting greens, weather shelters).
In the NPRM, the Department sought information from the owners
and operators of golf courses, both public and private, on the
extent to which their courses already have golf car passages, and,
if so, whether they intended to avail themselves of the proposed
accessible route exception for golf car passages. 73 FR 34508, 34513
(June 17, 2008).
Most commenters expressed support for the adoption of an
accessible route requirement that includes an exception permitting
golf car passage as all or part of

[[Page 56315]]

an accessible route. Comments in favor of the proposed standard came
from golf course owners and operators, individuals, organizations,
and disability rights groups, while comments opposing adoption of
the golf course requirements generally came from golf courses and
organizations representing the golf course industry.
The majority of commenters expressed the general viewpoint that
nearly all golf courses provide golf cars and have either well-
defined paths or permit golf cars to drive on the course where paths
are not present--and thus meet the accessible route requirement.
Several commenters disagreed with the assumption in the Initial RIA
that virtually every tee and putting green on an existing course
would need to be regraded in order to provide compliant accessible
routes. According to one commenter, many golf courses are relatively
flat with little slope, especially those heavily used by
recreational golfers. This commenter concurred with the Department
that it is likely that most existing golf courses have a golf car
passage to tees and greens, thereby substantially minimizing the
cost of bringing an existing golf course into compliance with the
proposed standards. One commenter reported that golf course access
audits found that the vast majority of public golf courses would
have little difficulty in meeting the proposed golf course
requirements. In the view of some commenters, providing access to
golf courses would increase golf participation by individuals with
disabilities.
The Department also received many comments requesting
clarification of the term ``golf car passage.'' For example, one
commenter requesting clarification of the term ``golf car passage''
argued that golf courses typically do not provide golf car paths or
pedestrian paths onto the actual teeing grounds or greens, many of
which are higher or lower than the car path. This commenter argued
that if golf car passages were required to extend onto teeing
grounds and greens in order to qualify for an exception, then some
golf courses would have to substantially regrade teeing grounds and
greens at a high cost.
After careful consideration of the comments, the Department has
decided to adopt the 2010 Standards specific to golf facilities. The
Department believes that in order for individuals with mobility
disabilities to have an opportunity to play golf that is equal to
golfers without disabilities, it is essential that golf courses
provide an accessible route or accessible golf car passage to
connect accessible elements and spaces within the boundary of the
golf course, including teeing grounds, putting greens, and weather
shelters.

Public Comments on Other NPRM Issues

Equipment and furniture. Equipment and furniture are covered
under the Department's ADA regulations, including under the
provision requiring modifications in policies, practices, and
procedures and the provision requiring barrier removal. See 28 CFR
36.302, 36.304. The Department has not issued specific regulatory
guidance on equipment and furniture, but proposed such regulations
in 1991. The Department decided not to establish specific equipment
requirements at that time because the requirements could be
addressed under other sections of the regulation and because there
were no appropriate accessibility standards applicable to many types
of equipment at that time. See 28 CFR part 36, app. B (2009)
(``Proposed Section 36.309 Purchase of Furniture and Equipment'').
In the NPRM, the Department announced its intention not to
regulate equipment, proposing instead to continue with the current
approach. The Department received numerous comments objecting to
this decision and urging the Department to issue equipment and
furniture regulations. Based on these comments, the Department has
decided that it needs to revisit the issuance of equipment and
furniture regulations, and it intends to do so in future rulemaking.
Among the commenters' key concerns, many from the disability
community objected to the Department's earlier decision not to issue
equipment regulations, especially for medical equipment. These
groups recommended that the Department list by name certain types of
medical equipment that must be accessible, including exam tables
(that lower to 15 inches above the floor or lower), scales, medical
and dental chairs, and radiologic equipment (including mammography
equipment). These commenters emphasized that the provision of
medically-related equipment and furniture also should be
specifically regulated since they are not included in the 2004 ADAAG
(while depositories, change machines, fuel dispensers, and ATMs are)
and because of their crucial role in the provision of healthcare.
Commenters described how the lack of accessible medical equipment
negatively affects the health of individuals with disabilities. For
example, some individuals with mobility disabilities do not get
thorough medical care because their health providers do not have
accessible examination tables or scales.
Commenters also said that the Department's stated plan to assess
the financial impact of free-standing equipment on businesses was
not necessary, as any regulations could include a financial-
balancing test. Other commenters representing persons who are blind
or have low vision urged the Department to mandate accessibility for
a wide range of equipment--including household appliances (stoves,
washers, microwaves, and coffee makers), audiovisual equipment
(stereos and DVD players), exercise machines, vending equipment,
ATMs, computers at Internet cafes or hotel business centers,
reservations kiosks at hotels, and point-of-sale devices--through
speech output and tactile labels and controls. They argued that
modern technology allows such equipment to be made accessible at
minimal cost. According to these commenters, the lack of such
accessibility in point-of-sale devices is particularly problematic
because it forces blind individuals to provide personal or sensitive
information (such as personal identification numbers) to third
parties, which exposes them to identity fraud. Because the ADA does
not apply directly to the manufacture of products, the Department
lacks the authority to issue design requirements for equipment
designed exclusively for use in private homes. See Department of
Justice, Americans with Disabilities Act, ADA Title III Technical
Assistance Manual Covering Public Accommodations and Commercial
Facilities, III-4.4200, available at http://www.ada.gov/taman3.html.
To the extent that equipment intended for such use is used by a
covered entity to facilitate a covered service or activity, that
covered entity must make the equipment accessible to the extent that
it can. See id.: 28 CFR part 36, app. B (2009) (``Proposed Section
36.309 Purchase of Furniture and Equipment'').
Some commenters urged the Department to require swimming pool
operators to provide aquatic wheelchairs for the use of persons with
disabilities when the swimming pool has a sloped entry. If there is
a sloped entry, a person who uses a wheelchair would require a
wheelchair designed for use in the water in order to gain access to
the pool since taking a personal wheelchair into water would rust
and corrode the metal on the chair and damage any electrical
components of a power wheelchair. Providing an aquatic wheelchair
made of non-corrosive materials and designed for access into the
water will protect the water from contamination and avoid damage to
personal wheelchairs or other mobility aids.
Additionally, many commenters urged the Department to regulate
the height of beds in accessible hotel guest rooms and to ensure
that such beds have clearance at the floor to accommodate a
mechanical lift. These commenters noted that in recent years, hotel
beds have become higher as hotels use thicker mattresses, thereby
making it difficult or impossible for many individuals who use
wheelchairs to transfer onto hotel beds. In addition, many hotel
beds use a solid-sided platform base with no clearance at the floor,
which prevents the use of a portable lift to transfer an individual
onto the bed. Consequently, individuals who bring their own lift to
transfer onto the bed cannot independently get themselves onto the
bed. Some commenters suggested various design options that might
avoid these situations.
The Department intends to provide specific guidance relating to
both hotel beds and aquatic wheelchairs in a future rulemaking. For
the present, the Department reminds covered entities that they have
the obligation to undertake reasonable modifications to their
current policies and procedures and to undertake barrier removal or
provide alternatives to barrier removal to make their facilities
accessible to persons with disabilities. In many cases, providing
aquatic wheelchairs or adjusting hotel bed heights may be necessary
to comply with those requirements.
Commenters from the business community objected to the lack of
clarity from the NPRM as to which equipment must be accessible and
how to make it accessible. Several commenters urged the Department
to clarify that equipment located in a public accommodation need not
meet the technical specifications of ADAAG so long as the service
provided by the equipment can be provided by alternative means, such
as an

[[Page 56316]]

employee. For example, the commenters suggested that a self-service
check-in kiosk in a hotel need not comply with the reach range
requirement so long as a guest can check in at the front desk
nearby. Several commenters argued that the Department should not
require that point-of-sale devices be accessible to individuals who
are blind or have low vision (although complying with accessible
route and reach range was acceptable), especially until the
Department adopts specific standards governing such access.
The Department has decided not to add specific scoping or
technical requirements for equipment and furniture in this final
rule. Other provisions of the regulation, including those requiring
reasonable modifications of policies, practices, or procedures,
readily achievable barrier removal, and effective communication will
require the provision of accessible equipment in appropriate
circumstances. Because it is clear that many commenters want the
Department to provide additional specific requirements for
accessible equipment, the Department plans to initiate a rulemaking
to address these issues in the near future.
Accessible golf cars. An accessible golf car means a device that
is designed and manufactured to be driven on all areas of a golf
course, is independently usable by individuals with mobility
disabilities, has a hand-operated brake and accelerator, carries
golf clubs in an accessible location, and has a seat that both
swivels and raises to put the golfer in a standing or semi-standing
position. The 1991 regulation contained no language specifically
referencing accessible golf cars. After considering the comments
addressing the ANPRM's proposed requirement that golf courses make
at least one specialized golf car available for the use of
individuals with disabilities, and the safety of accessible golf
cars and their use on golf course greens, the Department stated in
the NPRM that it would not issue regulations specific to golf cars.
The Department received many comments in response to its
decision to propose no new regulation specific to accessible golf
cars. The majority of commenters urged the Department to require
golf courses to provide accessible golf cars. These comments came
from individuals, disability advocacy and recreation groups, a
manufacturer of accessible golf cars, and representatives of local
government. Comments supporting the Department's decision not to
propose a new regulation came from golf course owners, associations,
and individuals.
Many commenters argued that while the existing title III
regulation covered the issue, the Department should nonetheless
adopt specific regulatory language requiring golf courses to provide
accessible golf cars. Some commenters noted that many local
governments and park authorities that operate public golf courses
have already provided accessible golf cars. Experience indicates
that such golf cars may be used without damaging courses. Some
argued that having accessible golf cars would increase golf course
revenue by enabling more golfers with disabilities to play the game.
Several commenters requested that the Department adopt a regulation
specifically requiring each golf course to provide one or more
accessible golf cars. Other commenters recommended allowing golf
courses to make ``pooling'' arrangements to meet demands for such
cars. A few commenters expressed support for using accessible golf
cars to accommodate golfers with and without disabilities.
Commenters also pointed out that the Departments of the Interior and
Defense have already mandated that golf courses under their
jurisdictional control must make accessible golf cars available
unless it can be demonstrated that doing so would change the
fundamental nature of the game.
While an industry association argued that at least two models of
accessible golf cars meet the specifications recognized in the
field, and that accessible golf cars cause no more damage to greens
or other parts of golf courses than players standing or walking
across the course, other commenters expressed concerns about the
potential for damage associated with the use of accessible golf
cars. Citing safety concerns, golf organizations recommended that an
industry safety standard be developed.
Although the Department declines to add specific scoping or
technical requirements for golf cars to this final rule, the
Department expects to address requirements for accessible golf cars
in future rulemaking. In the meantime, the Department believes that
golfers with disabilities who need accessible golf cars are
protected by other existing provisions in the title III regulation,
including those requiring reasonable modifications of policies,
practices, or procedures, and readily achievable barrier removal.
Web site accessibility. Many commenters expressed disappointment
that the NPRM did not specifically require title III-covered
entities to make their Web sites, through which they offer goods and
services, accessible to individuals with disabilities. Commenters
urged the Department to require specifically that entities that
provide goods or services on the Internet make their Web sites
accessible, regardless of whether or not these entities also have a
``bricks and mortar'' location. The commenters explained that such
clarification was needed because of the current ambiguity caused by
court decisions as to whether web-only businesses are covered under
title III. Commenters argued that the cost of making Web sites
accessible through Web site design is minimal, yet critical, to
enabling individuals with disabilities to benefit from the goods and
services an entity offers through its Web site. The Internet has
become an essential tool for many Americans and, when accessible,
provides individuals with disabilities great independence.
Commenters recommended that, at a minimum, the Department require
covered entities to meet the Electronic and Information Technology
Accessibility Standards issued pursuant to section 508. Under
section 508 of the Rehabilitation Act of 1973, Federal agencies are
required to make their Web sites accessible. 29 U.S.C. 794(d); 36
CFR Part 1194.
The Department agrees that the ability to access the goods and
services offered on the Internet through the Web sites of public
accommodations is of great importance to individuals with
disabilities, particularly those who are blind or who have low
vision. When the ADA was enacted in 1990, the Internet was unknown
to most of the public. Today, the Internet plays a critical role in
daily life for personal, civic, commercial, and business purposes.
In light of the growing importance of eBcommerce, ensuring
nondiscriminatory access to the goods and services offered through
the Web sites of covered entities can play a significant role in
fulfilling the goals of the ADA.
Although the language of the ADA does not explicitly mention the
Internet, the Department has taken the position that title III
covers access to Web sites of public accommodations. The Department
has issued guidance on the ADA as applied to the Web sites of public
entities, which includes the availability of standards for Web site
accessibility. See Accessibility of State and Local Government
Websites to People with Disabilities (June 2003), available at
www.ada.gov/websites2.htm. As the Department stated in that
publication, an agency (and similarly a public accommodation) with
an inaccessible Web site also may meet its legal obligations by
providing an accessible alternative for individuals to enjoy its
goods or services, such as a staffed telephone information line.
However, such an alternative must provide an equal degree of access
in terms of hours of operation and range of options and programs
available. For example, if retail goods or bank services are posted
on an inaccessible Web site that is available 24 hours a day, 7 days
a week to individuals without disabilities, then the alternative
accessible method must also be available 24 hours a day, 7 days a
week. Additional guidance is available in the Web Content
Accessibility Guidelines (WCAG), available at http://www.w3.org/TR/
WAI-WEBCONTENT (last visited June 24, 2010), which are developed and
maintained by the Web Accessibility Initiative, a subgroup of the
World Wide Web Consortium (W3C[supreg]).
The Department did not issue proposed regulations as part of its
NPRM, and thus is unable to issue specific regulatory language on
Web site accessibility at this time. However, the Department expects
to engage in rulemaking relating to Web site accessibility under the
ADA in the near future.
Multiple chemical sensitivities. The Department received
comments from a number of individuals asking the Department to add
specific language to the final rule addressing the needs of
individuals with chemical sensitivities. These commenters expressed
concern that the presence of chemicals interferes with their ability
to participate in a wide range of activities. These commenters also
urged the Department to add multiple chemical sensitivities to the
definition of a disability.
The Department has determined not to include specific provisions
addressing multiple chemical sensitivities in the final rule. In
order to be viewed as a disability under the ADA, an impairment must
substantially limit one or more major life activities. An
individual's major life

[[Page 56317]]

activities of respiratory or neurological functioning may be
substantially limited by allergies or sensitivity to a degree that
he or she is a person with a disability. When a person has this type
of disability, a covered entity may have to make reasonable
modifications in its policies and practices for that person.
However, this determination is an individual assessment and must be
made on a case-by-case basis.

0
22. Redesignate Appendix B to part 36 as Appendix C to part 36 and add
Appendix B to part 36 to read as follows:

Appendix B to Part 36--Analysis and Commentary on the 2010 ADA
Standards for Accessible Design

Appendix B to Part 36

Analysis and Commentary on the 2010 ADA Standards for Accessible
Design

The following is a discussion of substantive changes in the
scoping and technical requirements for new construction and
alterations resulting from the adoption of new ADA Standards for
Accessible Design (2010 Standards) in the final rules for title II
(28 CFR part 35) and title III (28 CFR part 36) of the Americans
with Disabilities Act (ADA). The full text of the 2010 Standards is
available for review at http://www.ada.gov.
In the Department's revised ADA title II regulation, 28 CFR
35.104 Definitions, the Department defines the term ``2010
Standards'' to mean the 2010 ADA Standards for Accessible Design.
The 2010 Standards consist of the 2004 ADA Accessibility Guidelines
(ADAAG) and the requirements contained in 28 CFR 35.151.
In the Department's revised ADA title III regulation, 28 CFR
36.104 Definitions, the Department defines the term ``2010
Standards'' to mean the 2010 ADA Standards for Accessible Design.
The 2010 Standards consist of the 2004 ADA Accessibility Guidelines
(ADAAG) and the requirements contained in 28 CFR part 36 subpart D.
This summary addresses selected substantive changes between the
1991 ADA Standards for Accessible Design (1991 Standards) codified
at 28 CFR part 36, app. A (2009) and the 2010 Standards.
Editorial changes are not discussed. Scoping and technical
requirements are discussed together, where appropriate, for ease of
understanding the requirements. In addition, this document addresses
selected public comments received by the Department in response to
its September 2004 Advance Notice of Proposed Rulemaking (ANPRM) and
its June 2008 Notice of Proposed Rulemaking (NPRM).
The ANPRM and NPRM issued by the Department concerning the
proposed 2010 Standards stated that comments received by the Access
Board in response to its development of the ADAAG upon which the
2010 Standards are based would be considered in the development of
the final Standards. Therefore, the Department will not restate here
all of the comments and responses to them issued by the Access
Board. The Department is supplementing the Access Board's comments
and responses with substantive comments and responses here. Comments
and responses addressed by the Access Board that also were
separately submitted to the Department will not be restated in their
entirety here.

Section-by-Section Analysis With Public Comments

Application and Administration

102 Dimensions for Adults and Children

Section 2.1 of the 1991 Standards stated that the specifications
were based upon adult dimensions and anthropometrics. The 1991
Standards did not provide specific requirements for children's
elements or facilities.
Section 102 of the 2010 Standards states that the technical
requirements are based on adult dimensions and anthropometrics. In
addition, technical requirements are also provided based on
children's dimensions and anthropometrics for drinking fountains,
water closets and other elements located in toilet compartments,
lavatories and sinks, dining surfaces, and work surfaces.

103 Equivalent Facilitation

This section acknowledges that nothing in these requirements
prevents the use of designs, products, or technologies as
alternatives to those prescribed, provided that the alternatives
result in substantially equivalent or greater accessibility and
usability.
A commenter encouraged the Department to include a procedure for
determining equivalent facilitation. The Department believes that
the responsibility for determining and demonstrating equivalent
facilitation properly rests with the covered entity. The purpose of
allowing for equivalent facilitation is to encourage flexibility and
innovation while still ensuring access. The Department believes that
establishing potentially cumbersome bureaucratic provisions for
reviewing requests for equivalent facilitation is inappropriate.

104 Conventions

Dimensions. Section 104.1 of the 2010 Standards notes that
dimensions not stated as a ``maximum'' or ``minimum'' are absolute.
Section 104.1.1 of the 2010 Standards provides that all dimensions
are subject to conventional industry tolerances except where the
requirement is stated as a range with specific minimum and maximum
end points. A commenter stated that the 2010 Standards restrict the
application of construction tolerances only to those few
requirements that are expressed as an absolute dimension.
This is an incorrect interpretation of sections 104.1 and
104.1.1 of the 2010 Standards. Construction and manufacturing
tolerances apply to absolute dimensions as well as to dimensions
expressed as a maximum or minimum. When the requirement states a
specified range, such as in section 609.4 where grab bars must be
installed between 33 inches and 36 inches above the finished floor,
that range provides an adequate tolerance. Advisory 104.1.1 gives
further guidance about tolerances.
Section 104.2 of the 2010 Standards provides that where the
required number of elements or facilities to be provided is
determined by calculations of ratios or percentages and remainders
or fractions result, the next greater whole number of such elements
or facilities shall be provided. Where the determination of the
required size or dimension of an element or facility involves ratios
or percentages, rounding down for values less than one-half is
permissible.
A commenter stated that it is customary in the building code
industry to round up rather than down for values less than one-half.
As noted here, where the 2010 Standards provide for scoping, any
resulting fractional calculations will be rounded to the next whole
number. The Department is retaining the portion of section 104.2
that permits rounding down for values less than one-half where the
determination of the required size or dimension of an element or
facility involves ratios or percentages. Such practice is standard
with the industry, and is in keeping with model building codes.

105 Referenced Standards

Section 105 lists the industry requirements that are referenced
in the 2010 Standards. This section also clarifies that where there
is a difference between a provision of the 2010 Standards and the
referenced requirements, the provision of the 2010 Standards
applies.

106 Definitions

Various definitions have been added to the 2010 Standards and
some definitions have been deleted.
One commenter asked that the term public right-of-way be
defined; others asked that various terms and words defined by the
1991 Standards, but which were eliminated from the 2010 Standards,
plus other words and terms used in the 2010 Standards, be defined.
The Department believes that it is not necessary to add
definitions to this text because section 106.3 of the 2010 Standards
provides that the meanings of terms not specifically defined in the
2010 Standards, in the Department's ADA regulations, or in
referenced standards are to be defined by collegiate dictionaries in
the sense that the context implies. The Department believes that
this provision adequately addresses these commenters' concerns.

Scoping and Technical Requirements

202 Existing Buildings and Facilities

Alterations. Under section 4.1.6(1)(c) of the 1991 Standards if
alterations to single elements, when considered together, amount to
an alteration of a room or space in a building or facility, the
entire room or space would have to be made accessible. This
requirement was interpreted to mean that if a covered entity chose
to alter several elements in a room there would come a point when so
much work had been done that it would be considered that the entire
room or space would have to be made accessible. Under section 202.3
of the 2010 Standards entities can alter as many elements within a
room or space as they like without triggering a requirement to make
the entire room or space accessible based on the alteration of
individual elements. This does not, however, change the requirement
that if the intent was to alter the entire room or space, the entire

[[Page 56318]]

room or space must be made accessible and comply with the applicable
requirements of Chapter 2 of the 2010 Standards.
Alterations to Primary Function Areas. Section 202.4 restates a
current requirement under title III, and therefore represents no
change for title III facilities or for those title II facilities
that have elected to comply with the 1991 Standards. However, under
the revised title II regulation, state and local government
facilities that have previously elected to comply with the Uniform
Federal Accessibility Standards (UFAS) instead of the 1991 Standards
will no longer have that option, and thus will now be subject to the
path of travel requirement. The path of travel requirement provides
that when a primary function area of an existing facility is
altered, the path of travel to that area (including restrooms,
telephones, and drinking fountains serving the area) must also be
made accessible, but only to the extent that the cost of doing so
does not exceed twenty percent (20%) of the cost of the alterations
to the primary function area. The UFAS requirements for a
substantial alteration, though different, may have covered some of
the items that will now be covered by the path of travel
requirement.
Visible Alarms in Alterations to Existing Facilities. The 1991
Standards, at sections 4.1.3(14) and 4.1.6(1)(b), and sections 202.3
and 215.1 of the 2010 Standards require that when existing elements
and spaces of a facility are altered, the alterations must comply
with new construction requirements. Section 215.1 of the 2010
Standards adds a new exception to the scoping requirement for
visible alarms in existing facilities so that visible alarms must be
installed only when an existing fire alarm system is upgraded or
replaced, or a new fire alarm system is installed.
Some commenters urged the Department not to include the
exception and to make visible alarms a mandatory requirement for all
spaces, both existing and new. Other commenters said that the
exception will make the safety of individuals with disabilities
dependent upon the varying age of existing fire alarm systems. Other
commenters suggested that including this requirement, even with the
exception, will result in significant cost to building owners and
operators.
The Department believes that the language of the exception to
section 215.1 of the 2010 Standards strikes a reasonable balance
between the interests of individuals with disabilities and those of
the business community. If undertaken at the time a system is
installed, whether in a new facility or in a planned system upgrade,
the cost of adding visible alarms is reasonable. Over time, existing
facilities will become fully accessible to individuals who are deaf
or hard of hearing, and will add minimal costs to owners and
operators.

203 General Exceptions

Limited Access Spaces and Machinery Spaces. The 1991 Standards,
at section 4.1.1, contain an exception that exempts ``non-
occupiable'' spaces that have limited means of access, such as
ladders or very narrow passageways, and that are visited only by
service personnel for maintenance, repair, or occasional monitoring
of equipment, from all accessibility requirements. Sections 203.4
and 203.5 of the 2010 Standards expand this exception by removing
the condition that the exempt spaces be ``non-occupiable,'' and by
separating the other conditions into two independent exceptions: one
for spaces with limited means of access, and the other for machinery
spaces. More spaces are exempted by the exception in the 2010
Standards.

203, 206 and 215 Employee Work Areas

Common Use Circulation Paths in Employee Work Areas. The 1991
Standards at section 4.1.1(3), and the 2010 Standards at section
203.9, require employee work areas in new construction and
alterations only to be designed and constructed so that individuals
with disabilities can approach, enter, and exit the areas. Section
206.2.8 of the 2010 Standards requires accessible common use
circulation paths within employee work areas unless they are subject
to exceptions in sections 206.2.8, 403.5, 405.5, and 405.8. The ADA,
42 U.S.C. 12112 (b)(5)(A) and (B), requires employers to make
reasonable accommodations in the workplace for individuals with
disabilities, which may include modifications to work areas when
needed. Providing increased access in the facility at the time of
construction or alteration will simplify the process of providing
reasonable accommodations when they are needed.
The requirement for accessible common use circulation paths will
not apply to existing facilities pursuant to the readily achievable
barrier removal requirement. The Department has consistently taken
the position that barrier removal requirements do not apply to areas
used exclusively by employees because the purpose of title III is to
ensure that access is provided to clients and customers. See
Appendix B to the 1991 regulation implementing title III, 28 CFR
part 36.
Several exceptions to section 206.2.8 of the 2010 Standards
exempt common use circulation paths in employee work areas from the
requirements of section 402 where it may be difficult to comply with
the technical requirements for accessible routes due to the size or
function of the area:
Employee work areas, or portions of employee work
areas, that are less than 300 square feet and are elevated 7 inches
or more above the ground or finish floor, where elevation is
essential to the function of the space, are exempt.
Common use circulation paths within employee work areas
that are less than 1,000 square feet and are defined by permanently
installed partitions, counters, casework, or furnishings are exempt.
Kitchens in quick service restaurants, cocktail bars, and the
employee side of service counters are frequently covered by this
exception.
Common use circulation paths within exterior employee
work areas that are fully exposed to the weather are exempt. Farms,
ranches, and outdoor maintenance facilities are covered by this
exception.
The 2010 Standards in sections 403.5 and 405.8 also contain
exceptions to the technical requirements for accessible routes for
circulation paths in employee work areas:
Machinery and equipment are permitted to reduce the
clear width of common use circulation paths where the reduction is
essential to the function of the work performed. Machinery and
equipment that must be placed a certain way to work properly, or for
ergonomics or to prevent workplace injuries are covered by this
exception.
Handrails are not required on ramps, provided that they
can be added in the future.
Commenters stated that the requirements set out in the 2010
Standards for accessible common use circulation paths in employee
work areas are inappropriate, particularly in commercial kitchens,
storerooms, and behind cocktail bars where wheelchairs would not be
easily accommodated. These commenters further urged the Department
not to adopt a requirement that circulation paths in employee work
areas be at least 36 inches wide, including those at emergency
exits.
These commenters misunderstand the scope of the provision.
Nothing in the 2010 Standards requires all circulation paths in non-
exempt areas to be accessible. The Department recognizes that
building codes and fire and life safety codes, which are adopted by
all of the states, require primary circulation paths in facilities,
including employee work areas, to be at least 36 inches wide for
purposes of emergency egress. Accessible routes also are at least 36
inches wide. Therefore, the Department anticipates that covered
entities will be able to satisfy the requirement to provide
accessible circulation paths by ensuring that their required primary
circulation paths are accessible.
Individual employee work stations, such as a grocery checkout
counter or an automobile service bay designed for use by one person,
do not contain common use circulation paths and are not required to
comply. Other work areas, such as stockrooms that typically have
narrow pathways between shelves, would be required to design only
one accessible circulation path into the stockroom. It would not be
necessary to make each circulation path in the room accessible. In
alterations it may be technically infeasible to provide accessible
common use circulation paths in some employee work areas. For
example, in a stock room of a department store significant existing
physical constraints, such as having to move walls to avoid the loss
of space to store inventory, may mean that it is technically
infeasible (see section 106.5 ``Defined Terms'' of the 2010
Standards) to make even the primary common use circulation path in
that stock room wide enough to be accessible. In addition, the 2010
Standards include exceptions for common use circulation paths in
employee work areas where it may be difficult to comply with the
technical requirements for accessible routes due to the size or
function of the areas. The Department believes that these exceptions
will provide the flexibility necessary to ensure that this
requirement does not interfere with legitimate business operations.
Visible Alarms. Section 215.3 of the 2010 Standards provides
that where employee work areas in newly constructed facilities have
audible alarm coverage they are

[[Page 56319]]

required to have wiring systems that are capable of supporting
visible alarms that comply with section 702 of the 2010 Standards.
The 1991 Standards, at section 4.1.1(3), require visible alarms to
be provided where audible fire alarm systems are provided, but do
not require areas used only by employees as work areas to be
equipped with accessibility features. As applied to office
buildings, the 1991 Standards require visible alarms to be provided
in public and common use areas such as hallways, conference rooms,
break rooms, and restrooms, where audible fire alarm systems are
provided.
Commenters asserted that the requirements of section 215.3 of
the 2010 Standards would be burdensome to meet. These commenters
also raised concerns that all employee work areas within existing
buildings and facilities must be equipped with accessibility
features.
The commenters' concerns about section 215.3 of the 2010
Standards represent a misunderstanding of the requirements
applicable to employee work areas.
Newly constructed buildings and facilities merely are required
to provide wiring so that visible alarm systems can be added as
needed to accommodate employees who are deaf or hard of hearing.
This is a minimal requirement without significant impact.
The other issue in the comments represents a misunderstanding of
the Department's existing regulatory requirements. Employee common
use areas in covered facilities (e.g., locker rooms, break rooms,
cafeterias, toilet rooms, corridors to exits, and other common use
spaces) were required to be accessible under the 1991 Standards;
areas in which employees actually perform their jobs are required to
enable a person using a wheelchair or mobility device to approach,
enter, and exit the area. The 2010 Standards require increased
access through the accessible common use circulation path
requirement, but neither the 1991 Standards nor the 2010 Standards
require employee work stations to be accessible. Access to specific
employee work stations is governed by title I of the ADA.

205 and 309 Operable Parts

Section 4.1.3, and more specifically sections 4.1.3(13), 4.27.3,
and 4.27.4 of the 1991 Standards, require operable parts on
accessible elements, along accessible routes, and in accessible
rooms and spaces to comply with the technical requirements for
operable parts, including height and operation. The 1991 Standards,
at section 4.27.3, contain an exception, ``* * * where the use of
special equipment dictates otherwise or where electrical and
communications systems receptacles are not normally intended for use
by building occupants,'' from the technical requirement for the
height of operable parts. Section 205.1 of the 2010 Standards
divides this exception into three exceptions covering operable parts
intended only for use by service or maintenance personnel,
electrical or communication receptacles serving a dedicated use, and
floor electrical receptacles. Operable parts covered by these new
exceptions are exempt from all of the technical requirements for
operable parts in section 309. The 2010 Standards also add
exceptions that exempt certain outlets at kitchen counters; heating,
ventilating and air conditioning diffusers; redundant controls
provided for a single element, other than light switches; and
exercise machines and equipment from all of the technical
requirements for operable parts. Exception 7, in section 205.1 of
the 2010 Standards, exempts cleats and other boat securement devices
from the accessible height requirement. Similarly, section 309.4 of
the 2010 Standards exempts gas pump nozzles, but only from the
technical requirement for activating force.
Reach Ranges. The 1991 Standards set the maximum height for side
reach at 54 inches above the floor. The 2010 Standards, at section
308.3, lower that maximum height to 48 inches above the finish floor
or ground. The 2010 Standards also add exceptions, as discussed
above, to the scoping requirement for operable parts for certain
elements that, among other things, will exempt them from the reach
range requirements in section 308.
The 1991 Standards, at sections 4.1.3, 4.27.3, and 4.2.6, and
the 2010 Standards, at sections 205.1, 228.1, 228.2, 308.3, and
309.3, require operable parts of accessible elements, along
accessible routes, and in accessible rooms and spaces to be placed
within the forward or side-reach ranges specified in section 308.
The 2010 Standards also require at least five percent (5%) of
mailboxes provided in an interior location and at least one of each
type of depository, vending machine, change machine, and gas pump to
meet the technical requirements for a forward or a side reach.
Section 4.2.6 of the 1991 Standards specifies a maximum 54-inch
high side reach and a minimum 9-inch low side reach for an
unobstructed reach depth of 10 inches maximum. Section 308.3.1 of
the 2010 Standards specifies a maximum 48-inch high side reach and a
minimum 15-inch low side reach where the element being reached for
is unobstructed. Section 308.3.1, Exception 1, permits an
obstruction that is no deeper than 10 inches between the edge of the
clear floor or ground space and the element that the individual with
a disability is trying to reach. Changes in the side-reach range for
new construction and alterations in the 2010 Standards will affect a
variety of building elements such as light switches, electrical
outlets, thermostats, fire alarm pull stations, card readers, and
keypads.
Commenters were divided in their views about the changes to the
unobstructed side-reach range. Disability advocacy groups and
others, including individuals of short stature, supported the
modifications to the proposed reach range requirements. Other
commenters stated that the new reach range requirements will be
burdensome for small businesses to comply with. These comments
argued that the new reach range requirements restrict design
options, especially in residential housing.
The Department continues to believe that data submitted by
advocacy groups and others provides compelling evidence that lowered
reach range requirements will better serve significantly greater
numbers of individuals with disabilities, including individuals of
short stature, persons with limited upper body strength, and others
with limited use of their arms and fingers. The change to the side-
reach range was developed by the Access Board over a prolonged
period in which there was extensive public participation. This
process did not produce any significant data to indicate that
applying the new unobstructed side-reach range requirement in new
construction or during alterations would impose a significant
burden.

206 and Chapter 4 Accessible Routes

Slope. The 2010 Standards provide, at section 403.3, that the
cross slope of walking surfaces not be steeper than 1:48. The 1991
Standards' cross slope requirement was that it not exceed 1:50. A
commenter recommended increasing the cross slope requirement to
allow a maximum of \1/2\ inch per foot (1:24) to prevent
imperfections in concrete surfaces from ponding water. The
Department continues to believe that the requirement that a cross
slope not be steeper than 1:48 adequately provides for water
drainage in most situations. The suggested changes would double the
allowable cross slope and create a significant impediment for many
wheelchair users and others with a mobility disability.
Accessible Routes from Site Arrival Points and Within Sites. The
1991 Standards, at sections 4.1.2(1) and (2), and the 2010
Standards, at sections 206.2.1 and 206.2.2, require that at least
one accessible route be provided within the site from site arrival
points to an accessible building entrance and that at least one
accessible route connect accessible facilities on the same site. The
2010 Standards also add two exceptions that exempt site arrival
points and accessible facilities within a site from the accessible
route requirements where the only means of access between them is a
vehicular way that does not provide pedestrian access.
Commenters urged the Department to eliminate the exception that
exempts site arrival points and accessible facilities from the
accessible route requirements where the only means of access between
them is a vehicular way not providing pedestrian access. The
Department declines to accept this recommendation because the
Department believes that its use will be limited. If it can be
reasonably anticipated that the route between the site arrival point
and the accessible facilities will be used by pedestrians,
regardless of whether a pedestrian route is provided, then this
exception will not apply. It will apply only in the relatively rare
situations where the route between the site arrival point and the
accessible facility dictates vehicular access--for example, an
office complex on an isolated site that has a private access road,
or a self-service storage facility where all users are expected to
drive to their storage units.
Another commenter suggested that the language of section 406.1
of the 2010 Standards is confusing because it states that curb ramps
on accessible routes shall comply with 406, 405.2 through 405.5, and
405.10. The 1991 Standards require that curb ramps be provided
wherever an accessible route crosses a curb.
The Department declines to change this language because the
change is purely

[[Page 56320]]

editorial, resulting from the overall changes in the format of the
2010 Standards. It does not change the substantive requirement. In
the 2010 Standards all elements on a required accessible route must
be accessible; therefore, if the accessible route crosses a curb, a
curb ramp must be provided.
Areas of Sport Activity. Section 206.2.2 of the 2010 Standards
requires at least one accessible route to connect accessible
buildings, facilities, elements, and spaces on the same site.
Advisory section 206.2.2 adds the explanation that an accessible
route must connect the boundary of each area of sport activity
(e.g., courts and playing fields, whether indoor or outdoor).
Section 206.2.12 of the 2010 Standards further requires that in
court sports the accessible route must directly connect both sides
of the court.
Limited-Use/Limited-Application Elevators, Destination-Oriented
Elevators and Private Residence Elevators. The 1991 Standards, at
section 4.1.3(5), and the 2010 Standards, at sections 206.2 and
206.6, include exceptions to the scoping requirement for accessible
routes that exempt certain facilities from connecting each story
with an elevator. If a facility is exempt from the scoping
requirement, but nonetheless installs an elevator, the 1991
Standards require the elevator to comply with the technical
requirements for elevators. The 2010 Standards add a new exception
that allows a facility that is exempt from the scoping requirement
to install a limited-use/limited-application (LULA) elevator. LULA
elevators are also permitted in the 1991 Standards and the 2010
Standards as an alternative to platform lifts. The 2010 Standards
also add a new exception that permits private residence elevators in
multi-story dwelling and transient lodging units. The 2010 Standards
contain technical requirements for LULA elevators at section 408 and
private residence elevators at section 409.
Section 407.2.1.4 of the 2010 Standards includes an exception to
the technical requirements for locating elevator call buttons for
destination-oriented elevators. The advisory at section 407.2.1.4
describes lobby controls for destination-oriented elevator systems.
Many elevator manufacturers have recently developed these new
``buttonless'' elevator control systems. These new, more efficient
elevators are usually found in high-rise buildings that have several
elevators. They require passengers to enter their destination floor
on an entry device, usually a keypad, in the elevator lobby. The
system then sends the most efficient car available to take all of
the passengers going to the sixth floor, for example, only to the
sixth floor, without making stops at the third, fourth, and fifth
floors on the way to the sixth floor. The challenge for individuals
who are blind or have low vision is how to know which elevator car
to enter, after they have entered their destination floor into the
keypad.
Commenters requested that the Department impose a moratorium on
the installation of destination-oriented elevators arguing that this
new technology presents wayfinding challenges for persons who are
blind or have low vision.
Section 407.2.1.5 of the 2010 Standards allows destination-
oriented elevators to not provide call buttons with visible signals
to indicate when each call is registered and when each call is
answered provided that visible and audible signals, compliant with
407.2.2 of the 2010 Standards, indicating which elevator car to
enter, are provided. This will require the responding elevator car
to automatically provide audible and visible communication so that
the system will always verbally and visually indicate which elevator
car to enter.
As with any new technology, all users must have time to become
acquainted with how to use destination-oriented elevators. The
Department will monitor the use of this new technology and work with
the Access Board so that there is not a decrease in accessibility as
a result of permitting this new technology to be installed.
Accessible Routes to Tiered Dining Areas in Sports Facilities.
The 1991 Standards, at sections 4.1.3(1) and 5.4, and section
206.2.5 of the 2010 Standards require an accessible route to be
provided to all dining areas in new construction, including raised
or sunken dining areas. The 2010 Standards add a new exception for
tiered dining areas in sports facilities. Dining areas in sports
facilities are typically integrated into the seating bowl and are
tiered to provide adequate lines of sight for individuals with
disabilities. The new exception requires accessible routes to be
provided to at least 25 percent (25%) of the tiered dining areas in
sports facilities. Each tier must have the same services and the
accessible routes must serve the accessible seating.
Accessible Routes to Press Boxes. The 1991 Standards, at
sections 4.1.1(1) and 4.1.3(1), cover all areas of newly constructed
facilities required to be accessible, and require an accessible
route to connect accessible entrances with all accessible spaces and
elements within the facility. Section 201.1 of the 2010 Standards
requires that all areas of newly designed and constructed buildings
and facilities and altered portions of existing buildings and
facilities be accessible. Sections 206.2.7(1) and (2) of the 2010
Standards add two exceptions that exempt small press boxes that are
located in bleachers with entrances on only one level, and small
press boxes that are free-standing structures elevated 12 feet or
more above grade, from the accessible route requirement when the
aggregate area of all press boxes in a sports facility does not
exceed 500 square feet. The Department anticipates that this change
will significantly reduce the economic impact on smaller sports
facilities, such as those associated with high schools or community
colleges.
Public Entrances. The 1991 Standards, at sections 4.1.3(8) and
4.1.6(1)(h), require at least fifty percent (50%) of public
entrances to be accessible. Additionally, the 1991 Standards require
the number of accessible public entrances to be equivalent to the
number of exits required by applicable building and fire codes. With
very few exceptions, building and fire codes require at least two
exits to be provided from spaces within a building and from the
building itself. Therefore, under the 1991 Standards where two
public entrances are planned in a newly constructed facility, both
entrances are required to be accessible.
Instead of requiring accessible entrances based on the number of
public entrances provided or the number of exits required (whichever
is greater), section 206.4.1 of the 2010 Standards requires at least
sixty percent (60%) of public entrances to be accessible. The
revision is intended to achieve the same result as the 1991
Standards. Thus, under the 2010 Standards where two public entrances
are planned in a newly constructed facility, both entrances must be
accessible.
Where multiple public entrances are planned to serve different
site arrival points, the 1991 Standards, at section 4.1.2(1), and
section 206.2.1 of the 2010 Standards require at least one
accessible route to be provided from each type of site arrival point
provided, including accessible parking spaces, accessible passenger
loading zones, public streets and sidewalks, and public
transportation stops, to an accessible public entrance that serves
the site arrival point.
Commenters representing small businesses recommended retaining
the 1991 requirement for fifty percent (50%) of public entrances of
covered entities to be accessible. These commenters also raised
concerns about the impact upon existing facilities of the new sixty
percent (60%) requirement.
The Department believes that these commenters misunderstand the
1991 Standards. As explained above, the requirements of the 1991
Standards generally require more than fifty percent (50%) of
entrances in small facilities to be accessible. Model codes require
that most buildings have more than one means of egress. Most
buildings have more than one entrance, and the requirements of the
1991 Standards typically resulted in these buildings having more
than one accessible entrance. Requiring at least sixty percent (60%)
of public entrances to be accessible is not expected to result in a
substantial increase in the number of accessible entrances compared
to the requirements of the 1991 Standards. In some very large
facilities this change may result in fewer accessible entrances
being required by the 2010 Standards. However, the Department
believes that the realities of good commercial design will result in
more accessible entrances being provided for the convenience of all
users.
The 1991 Standards and the 2010 Standards also contain
exceptions that limit the number of accessible entrances required in
alterations to existing facilities. When entrances to an existing
facility are altered and the facility has an accessible entrance,
the entrance being altered is not required to be accessible, unless
a primary function area also is altered and then an accessible path
of travel must be provided to the primary function area to the
extent that the cost to do so is not disproportionate to the overall
cost of the alteration.
Alterations to Existing Elevators. When a single space or
element is altered, the 1991 Standards, at sections 4.1.6(1)(a) and
(b), require the space or element to be made accessible. When an
element in one elevator is altered, the 2010 Standards, at section
206.6.1, require the same element to be

[[Page 56321]]

altered in all elevators that are programmed to respond to the same
call button as the altered elevator.
The 2010 Standards, at sections 407.2.1-407.4.7.1.2, also
contain exceptions to the technical requirements for elevators when
existing elevators are altered that minimize the impact of this
change.
Commenters expressed concerns about the requirement that when an
element in one elevator is altered, the 2010 Standards, at section
206.6.1, will require the same element to be altered in all
elevators that are programmed to respond to the same call button as
the altered elevator. Commenters noted that such a requirement is
burdensome and will result in costly efforts without significant
benefit to individuals with disabilities.
The Department believes that this requirement is necessary to
ensure that when an individual with a disability presses a call
button, an accessible elevator will arrive. Without this
requirement, individuals with disabilities would have to wait
unnecessarily for an accessible elevator to make its way to them
arbitrarily. The Department also believes that the effort required
to meet this provision is minimal in the majority of situations
because it is typical to upgrade all of the elevators in a bank at
the same time.
Accessible Routes in Dwelling Units with Mobility Features.
Sections 4.34.1 and 4.34.2 of the UFAS require the living area,
kitchen and dining area, bedroom, bathroom, and laundry area, where
provided, in covered dwelling units with mobility features to be on
an accessible route. Where covered dwelling units have two or more
bedrooms, at least two bedrooms are required to be on an accessible
route.
The 2010 Standards at sections 233.3.1.1, 809.1, 809.2, 809.2.1,
and 809.4 will require all spaces and elements within dwelling units
with mobility features to be on an accessible route. These changes
exempt unfinished attics and unfinished basements from the
accessible route requirement. Section 233.3.5 of the 2010 Standards
also includes an exception to the dispersion requirement that
permits accessible single-story dwelling units to be constructed,
where multi-story dwelling units are one of the types of units
provided.
Location of Accessible Routes. Section 4.3.2(1) of the 1991
Standards requires accessible routes connecting site arrival points
and accessible building entrances to coincide with general
circulation paths, to the maximum extent feasible. The 2010
Standards require all accessible routes to coincide with or be
located in the same general area as general circulation paths.
Additionally, a new provision specifies that where a circulation
path is interior, the required accessible route must also be located
in the interior of the facility. The change affects a limited number
of buildings. Section 206.3 of the 2010 Standards requires all
accessible routes to coincide with or be located in the same general
area as general circulation paths. Designing newly constructed
interior accessible routes to coincide with or to be located in the
same area as general circulation paths will not typically present a
difficult design challenge and is expected to impose limited design
constraints. The change will have no impact on exterior accessible
routes. The 1991 Standards and the 2010 Standards also require
accessible routes to be located in the interior of the facility
where general circulation paths are located in the interior of the
facility. The revision affects a limited number of buildings.
Location of Accessible Routes to Stages. The 1991 Standards at
section 4.33.5 require an accessible route to connect the accessible
seating and the performing area. Section 206.2.6 of the 2010
Standards requires the accessible route to directly connect the
seating area and the accessible seating, stage, and all areas of the
stage, where a circulation path directly connects the seating area
and the stage. Both the 1991 Standards and the 2010 Standards also
require an accessible route to connect the stage and ancillary
areas, such as dressing rooms, used by performers. The 2010
Standards do not require an additional accessible route to be
provided to the stage. Rather, the changes specify where the
accessible route to the stage, which is required by the 1991
Standards, must be located.

207 Accessible Means of Egress

General. The 1991 Standards at sections 4.1.3(9); 4.1.6(1)(g);
and 4.3.10 establish scoping and technical requirements for
accessible means of egress. Section 207.1 of the 2010 Standards
reference the International Building Code (IBC) for scoping and
technical requirements for accessible means of egress.
The 1991 Standards require the same number of accessible means
of egress to be provided as the number of exits required by
applicable building and fire codes. The IBC requires at least one
accessible means of egress and at least two accessible means of
egress where more than one means of egress is required by other
sections of the building code. The changes in the 2010 Standards are
expected to have minimal impact since the model fire and life safety
codes, which are adopted by all of the states, contain equivalent
requirements with respect to the number of accessible means of
egress.
The 1991 Standards require areas of rescue assistance or
horizontal exits in facilities with levels above or below the level
of exit discharge. Areas of rescue assistance are spaces that have
direct access to an exit, stair, or enclosure where individuals who
are unable to use stairs can go to call for assistance and wait for
evacuation. The 2010 Standards incorporate the requirements
established by the IBC. The IBC requires an evacuation elevator
designed with standby power and other safety features that can be
used for emergency evacuation of individuals with disabilities in
facilities with four or more stories above or below the exit
discharge level, and allows exit stairways and evacuation elevators
to be used as an accessible means of egress in conjunction with
areas of refuge or horizontal exits. The change is expected to have
minimal impact since the model fire and life safety codes, adopted
by most states, already contain parallel requirements with respect
to evacuation elevators.
The 1991 Standards exempt facilities equipped with a supervised
automatic sprinkler system from providing areas of rescue
assistance, and also exempt alterations to existing facilities from
providing an accessible means of egress. The IBC exempts buildings
equipped with a supervised automatic sprinkler system from certain
technical requirements for areas of refuge, and also exempts
alterations to existing facilities from providing an accessible
means of egress.
The 1991 and 2010 Standards require signs that provide direction
to or information about functional spaces to meet certain technical
requirements. The 2010 Standards, at section 216.4, address exit
signs. This section is consistent with the requirements of the IBC.
Signs used for means of egress are covered by this scoping
requirement. The requirements in the 2010 Standards require tactile
signs complying with sections 703.1, 703.2 and 703.5 at doors at
exit passageways, exit discharge, and at exit stairways. Directional
exit signs and signs at areas of refuge required by section 216.4.3
must have visual characters and features complying with section
703.5.
Standby Power for Platform Lifts. The 2010 Standards at section
207.2 require standby power to be provided for platform lifts that
are permitted to serve as part of an accessible means of egress by
the IBC. The IBC permits platform lifts to serve as part of an
accessible means of egress in a limited number of places where
platform lifts are allowed in new construction. The 1991 Standards,
at 4.1.3(5) Exception 4(a) through (d), and the 2010 Standards, at
sections 206.7.1 through 206.7.10, similarly limit the places where
platform lifts are allowed in new construction.
Commenters urged the Department to reconsider provisions that
would require standby power to be provided for platform lifts.
Concerns were raised that ensuring standby power would be too
burdensome. The Department views this issue as a fundamental life
safety issue. Lift users face the prospect of being trapped on the
lift in the event of a power failure if standby power is not
provided. The lack of standby power could be life-threatening in
situations where the power failure is associated with a fire or
other emergency. The use of a platform lift is generally only one of
the options available to covered entities. Covered entities that are
concerned about the costs associated with maintaining standby power
for a lift may wish to explore design options that would incorporate
the use of a ramp.

208 and 502 Parking Spaces

General. Where parking spaces are provided, the 1991 Standards,
at sections 4.1.2(5)(a) and (7) and 7(a), and the 2010 Standards, at
section 208.1, require a specified number of the parking spaces to
be accessible. The 2010 Standards, at section 208, include an
exception that exempts parking spaces used exclusively for buses,
trucks, delivery vehicles, law enforcement vehicles, or for purposes
of vehicular impound, from the scoping requirement for parking
spaces, provided that when these lots are accessed by the public the
lot has an accessible passenger loading zone.

[[Page 56322]]

The 2010 Standards require accessible parking spaces to be
identified by signs that display the International Symbol of
Accessibility. Section 216.5, Exceptions 1 and 2, of the 2010
Standards exempt certain accessible parking spaces from this signage
requirement. The first exception exempts sites that have four or
fewer parking spaces from the signage requirement. Residential
facilities where parking spaces are assigned to specific dwelling
units are also exempted from the signage requirement.
Commenters stated that the first exception, by allowing a small
parking lot with four or fewer spaces not to post a sign at its one
accessible space, is problematic because it could allow all drivers
to park in accessible parking spaces. The Department believes that
this exception provides necessary relief for small business entities
that may otherwise face the prospect of having between twenty-five
percent (25%) and one hundred percent (100%) of their limited
parking area unavailable to their customers because they are
reserved for the exclusive use of persons whose vehicles display
accessible tags or parking placards. The 2010 Standards still
require these businesses to ensure that at least one of their
available parking spaces is designed to be accessible.
A commenter stated that accessible parking spaces must be
clearly marked. The Department notes that section 502.6 of the 2010
Standards provides that accessible parking spaces must be identified
by signs that include the International Symbol of Accessibility.
Also, section 502.3.3 of the 2010 Standards requires that access
aisles be marked so as to discourage parking in them.
Access Aisle. Section 502.3 of the 2010 Standards requires that
an accessible route adjoin each access aisle serving accessible
parking spaces. The accessible route connects each access aisle to
accessible entrances.
Commenters questioned why the 2010 Standards would permit an
accessible route used by individuals with disabilities to coincide
with the path of moving vehicles. The Department believes that the
2010 Standards appropriately recognize that not all parking
facilities provide separate pedestrian routes. Section 502.3 of the
2010 Standards provides the flexibility necessary to permit
designers and others to determine the most appropriate location of
the accessible route to the accessible entrances. If all pedestrians
using the parking facility are expected to share the vehicular
lanes, then the ADA permits covered entities to use the vehicular
lanes as part of the accessible route. The advisory note in section
502.3 of the 2010 Standards, however, calls attention to the fact
that this practice, while permitted, is not ideal. Accessible
parking spaces must be located on the shortest accessible route of
travel to an accessible entrance. Accessible parking spaces and the
required accessible route should be located where individuals with
disabilities do not have to cross vehicular lanes or pass behind
parked vehicles to have access to an accessible entrance. If it is
necessary to cross a vehicular lane because, for example, local fire
engine access requirements prohibit parking immediately adjacent to
a building, then a marked crossing running perpendicular to the
vehicular route should be included as part of the accessible route
to an accessible entrance.
Van Accessible Parking Spaces. The 1991 Standards, at sections
4.1.2(5)(b), 4.6.3, 4.6.4, and 4.6.5, require one in every eight
accessible parking spaces to be van accessible. Section 208.2.4 of
the 2010 Standards requires one in every six accessible parking
spaces to be van accessible.
A commenter asked whether automobiles other than vans may park
in van accessible parking spaces. The 2010 Standards do not prohibit
automobiles other than vans from using van accessible parking
spaces. The Department does not distinguish between vehicles that
are actual ``vans'' versus other vehicles such as trucks, station
wagons, sport utility vehicles, etc. since many vehicles other than
vans may be used by individuals with disabilities to transport
mobility devices.
Commenters' opinions were divided on this point. Facility
operators and others asked for a reduction in the number of required
accessible parking spaces, especially the number of van accessible
parking spaces, because they claimed these spaces often are not
used. Individuals with disabilities, however, requested an increase
in the scoping requirements for these parking spaces.
The Department is aware that a strong difference of opinion
exists between those who use such spaces and those who must provide
or maintain them. Therefore, the Department did not increase the
total number of accessible spaces required. The only change was to
increase the proportion of spaces that must be accessible to vans
and other vehicles equipped to transport mobility devices.
Direct Access Entrances From Parking Structures. Where levels in
a parking garage have direct connections for pedestrians to another
facility, the 1991 Standards, at section 4.1.3(8)(b)(i), require at
least one of the direct connections to be accessible. The 2010
Standards, at section 206.4.2, require all of these direct
connections to be accessible.

209 and 503 Passenger Loading Zones and Bus Stops

Passenger Loading Zones at Medical Care and Long-Term Care
Facilities. Sections 6.1 and 6.2 of the 1991 Standards and section
209.3 of the 2010 Standards require medical care and long-term care
facilities, where the period of stay exceeds 24 hours, to provide at
least one accessible passenger loading zone at an accessible
entrance. The 1991 Standards also require a canopy or roof overhang
at this passenger loading zone. The 2010 Standards do not require a
canopy or roof overhang.
Commenters urged the Department to reinstate the requirement for
a canopy or roof overhang at accessible passenger loading zones at
medical care and long-term care facilities. While the Department
recognizes that a canopy or roof overhang may afford useful
protection from inclement weather conditions to everyone using a
facility, it is not clear that the absence of such protection would
impede access by individuals with disabilities. Therefore, the
Department declined to reinstate that requirement.
Passenger Loading Zones. Where passenger loading zones are
provided, the 1991 Standards, at sections 4.1.2(5) and 4.6.6,
require at least one passenger loading zone to be accessible.
Sections 209.2.1 and 503 of the 2010 Standards, require facilities
such as airport passenger terminals that have long, continuous
passenger loading zones to provide one accessible passenger loading
zone in every continuous 100 linear feet of loading zone space. The
1991 Standards and the 2010 Standards both include technical
requirements for the vehicle pull-up space (96 inches wide minimum
and 20 feet long minimum). Accessible passenger loading zones must
have an access aisle that is 60 inches wide minimum and extends the
full length of the vehicle pull-up space. The 1991 Standards permit
the access aisle to be on the same level as the vehicle pull-up
space, or on the sidewalk. The 2010 Standards require the access
aisle to be on the same level as the vehicle pull-up space and to be
marked so as to discourage parking in the access aisle.
Commenters expressed concern that certain covered entities,
particularly airports, cannot accommodate the requirements of the
2010 Standards to provide passenger loading zones, and urged a
revision that would require one accessible passenger loading zone
located in reasonable proximity to each building entrance served by
the curb.
Commenters raised a variety of issues about the requirements at
section 503 of the 2010 Standards stating that the requirements for
an access aisle, width, length, and marking of passenger loading
zones are not clear, do not fully meet the needs of individuals with
disabilities, may run afoul of state or local requirements, or may
not be needed because many passenger loading zones are typically
staffed by doormen or valet parkers. The wide range of opinions
expressed in these comments indicates that this provision is
controversial. However, none of these comments provided sufficient
data to enable the Department to determine that the requirement is
not appropriate.
Valet Parking and Mechanical Access Parking Garages. The 1991
Standards, at sections 4.1.2(5)(a) and (e), and sections 208.2,
209.4, and 209.5 of the 2010 Standards require parking facilities
that provide valet parking services to have an accessible passenger
loading zone. The 2010 Standards extend this requirement to
mechanical access parking garages. The 1991 Standards contained an
exception that exempted valet parking facilities from providing
accessible parking spaces. The 2010 Standards eliminate this
exception. The reason for not retaining the provision is that valet
parking is a service, not a facility type.
Commenters questioned why the exception for valet parking
facilities from providing accessible parking spaces was eliminated.
The provision was eliminated because valet parkers may not have the
skills necessary to drive a vehicle that is equipped to be
accessible, including use of hand controls, or when a seat is not
present to accommodate a driver using a wheelchair. In that case,
permitting the individual with a disability to self-park may be a
required reasonable modification of policy by a covered entity.

[[Page 56323]]

210 and 504 Stairways

The 1991 Standards require stairs to be accessible only when
they provide access to floor levels not otherwise connected by an
accessible route (e.g., where the accessible route is provided by an
elevator, lift, or ramp). The 2010 Standards, at sections 210.1 and
504, require all newly constructed stairs that are part of a means
of egress to comply with the requirements for accessible stairs,
which include requirements for accessible treads, risers, and
handrails. In existing facilities, where floor levels are connected
by an accessible route, only the handrail requirement will apply
when the stairs are altered. Exception 2 to section 210.1 of the
2010 Standards permits altered stairs to not comply with the
requirements for accessible treads and risers where there is an
accessible route between floors served by the stairs.
Most commenters were in favor of this requirement for handrails
in alterations and stated that adding handrails to stairs during
alterations would be feasible and not costly while providing
important safety benefits. The Department believes that it strikes
an appropriate balance by focusing the expanded requirements on new
construction. The 2010 Standards apply to stairs which are part of a
required means of egress. Few stairways are not part of a means of
egress. The 2010 Standards are consistent with most building codes
which do not exempt stairways when the route is also served by a
ramp or elevator.

211 and 602 Drinking Fountains

Sections 4.1.3(10) and 4.15 of the 1991 Standards and sections
211 and 602 of the 2010 Standards require drinking fountains to be
provided for persons who use wheelchairs and for others who stand.
The 1991 Standards require wall and post-mounted cantilevered
drinking fountains mounted at a height for wheelchair users to
provide clear floor space for a forward approach with knee and toe
clearance and free standing or built-in drinking fountains to
provide clear floor space for a parallel approach. The 2010
Standards require drinking fountains mounted at a height for
wheelchair users to provide clear floor space for a forward approach
with knee and toe clearance, and include an exception for a parallel
approach for drinking fountains installed at a height to accommodate
very small children. The 2010 Standards also include a technical
requirement for drinking fountains for standing persons.

212 and 606 Kitchens, Kitchenettes, Lavatories, and Sinks

The 1991 Standards, at sections 4.24, and 9.2.2(7), contain
technical requirements for sinks and only have specific scoping
requirements for sinks in transient lodging. Section 212.3 of the
2010 Standards requires at least five percent (5%) of sinks in each
accessible space to comply with the technical requirements for
sinks. The technical requirements address clear floor space, height,
faucets, and exposed pipes and surfaces. The 1991 Standards, at
section 4.24, and the 2010 Standards, at section 606, both require
the clear floor space at sinks to be positioned for a forward
approach and knee and toe clearance to be provided under the sink.
The 1991 Standards, at section 9.2.2(7), allow the clear floor space
at kitchen sinks and wet bars in transient lodging guest rooms with
mobility features to be positioned for either a forward approach
with knee and toe clearance or for a parallel approach.
The 2010 Standards include an exception that permits the clear
floor space to be positioned for a parallel approach at kitchen
sinks in any space where a cook top or conventional range is not
provided, and at a wet bar.
A commenter stated that it is unclear what the difference is
between a sink and a lavatory, and that this is complicated by
requirements that apply to sinks (five percent (5%) accessible) and
lavatories (at least one accessible). The term ``lavatory''
generally refers to the specific type of plumbing fixture required
for hand washing in toilet and bathing facilities. The more generic
term ``sink'' applies to all other types of sinks located in covered
facilities.
A commenter recommended that the mounting height of sinks and
lavatories should take into consideration the increased use of
three-wheeled scooters and some larger wheelchairs. The Department
is aware that the use of three-wheeled scooters and larger
wheelchairs may be increasing and that some of these devices may
require changes in space requirements in the future. The Access
Board is funding research to obtain data that may be used to develop
design guidelines that provide access to individuals using these
mobility devices.

213, 603, 604, and 608 Toilet and Bathing Facilities, Rooms, and
Compartments

General. Where toilet facilities and bathing facilities are
provided, they must comply with section 213 of the 2010 Standards.
A commenter recommended that all accessible toilet facilities,
toilet rooms, and compartments should be required to have signage
indicating that such spaces are restricted solely for the use of
individuals with disabilities. The Department believes that it is
neither necessary nor appropriate to restrict the use of accessible
toilet facilities. Like many other facilities designed to be
accessible, accessible toilet facilities can and do serve a wide
range of individuals with and without disabilities.
A commenter recommended that more than one wheelchair accessible
compartment be provided in toilet rooms serving airports and train
stations because these compartments are likely to be occupied by
individuals with luggage and persons with disabilities often take
longer to use them. The Access Board is examining airport terminal
accessibility as part of an ongoing effort to facilitate
accessibility and promote effective design. As part of these
efforts, the Access Board will examine requirements for accessible
toilet compartments in larger airport restrooms. The Department
declines to change the scoping for accessible toilet compartments at
this time.
Ambulatory Accessible Toilet Compartments. Section 213.3.1 of
the 2010 Standards requires multi-user men's toilet rooms, where the
total of toilet compartments and urinals is six or more, to contain
at least one ambulatory accessible compartment. The 1991 Standards
count only toilet stalls (compartments) for this purpose. The 2010
Standards establish parity between multi-user women's toilet rooms
and multi-user men's toilet rooms with respect to ambulatory
accessible toilet compartments.
Urinals. Men's toilet rooms with only one urinal will no longer
be required to provide an accessible urinal under the 2010
Standards. Such toilet rooms will still be required to provide an
accessible toilet compartment.
Commenters urged that the exception be eliminated. The
Department believes that this change will provide flexibility to
many small businesses and it does not alter the requirement that all
common use restrooms must be accessible.
Multiple Single-User Toilet Rooms. Where multiple single-user
toilet rooms are clustered in a single location, fifty percent
(50%), rather than the one hundred percent (100%) required by the
1991 Standards, are required to be accessible by section 213.2,
Exception 4 of the 2010 Standards. Section 216.8 of the 2010
Standards requires that accessible single-user toilet rooms must be
identified by the International Symbol of Accessibility where all
single-user toilet rooms are not accessible.
Hospital Patient Toilet Rooms. An exception was added in section
223.1 of the 2010 Standards to allow toilet rooms that are part of
critical or intensive care patient sleeping rooms to no longer be
required to provide mobility features.
Water Closet Location and Rear Grab Bar. Section 604.2 of the
2010 Standards allows greater flexibility for the placement of the
centerline of wheelchair accessible and ambulatory accessible water
closets. Section 604.5.2, Exception 1 permits a shorter grab bar on
the rear wall where there is not enough wall space due to special
circumstances (e.g., when a lavatory or other recessed fixture is
located next to the water closet and the wall behind the lavatory is
recessed so that the lavatory does not overlap the required clear
floor space at the water closet). The 1991 Standards contain no
exception for grab bar length, and require the water closet
centerline to be exactly 18 inches from the side wall, while the
2010 Standards requirement allows the centerline to be between 16
and 18 inches from the side wall in wheelchair accessible toilet
compartments and 17 to 19 inches in ambulatory accessible toilet
compartments.
Water Closet Clearance. Section 604.3 of the 2010 Standards
represents a change in the accessibility requirements where a
lavatory is installed adjacent to the water closet. The 1991
Standards allow the nearest side of a lavatory to be placed 18
inches minimum from the water closet centerline and 36 inches
minimum from the side wall adjacent to the water closet. However,
locating the lavatory so close to the water closet prohibits many
individuals with disabilities from using a side transfer. To allow
greater transfer options, including side transfers, the 2010
Standards prohibit lavatories from overlapping the clear floor space
at water closets, except in covered residential dwelling units.
A majority of commenters, including persons who use wheelchairs,
strongly

[[Page 56324]]

agreed with the requirement to provide enough space for a side
transfer. These commenters believed that the requirement will
increase the usability of accessible single-user toilet rooms by
making side transfers possible for many individuals who use
wheelchairs and would have been unable to transfer to a water closet
using a side transfer even if the water closet complied with the
1991 Standards. In addition, many commenters noted that the
additional clear floor space at the side of the water closet is also
critical for those providing assistance with transfers and personal
care for persons with disabilities. Numerous comments noted that
this requirement is already included in other model accessibility
standards and many state and local building codes and its adoption
in the 2010 Standards is a important part of harmonization efforts.
The Department agrees that the provision of enough clear floor space
to permit side transfers at water closets is an important feature
that must be provided to ensure access for persons with disabilities
in toilet and bathing facilities. Furthermore, the adoption of this
requirement closely harmonizes with the model codes and many state
and local building codes.
Other commenters urged the Department not to adopt section 604.3
of the 2010 Standards claiming that it will require single-user
toilet rooms to be two feet wider than the 1991 Standards require,
and this additional requirement will be difficult to meet. Multiple
commentators also expressed concern that the size of single-user
toilet rooms would be increased but they did not specify how much
larger such toilet rooms would have to be in their estimation. In
response to these concerns, the Department developed a series of
single-user toilet room floor plans demonstrating that the total
square footage between representative layouts complying with the
1991 Standards and the 2010 Standards are comparable. The Department
believes the floor plan comparisons clearly show that size
differences between the two Standards are not substantial and
several of the 2010 Standards-compliant plans do not require
additional square footage compared to the 1991 Standards plans.
These single-user toilet room floor plans are shown below.
Several commenters concluded that alterations of single-user
toilet rooms should be exempt from the requirements of section 604.3
of the 2010 Standards because of the significant reconfiguration and
reconstruction that would be required, such as moving plumbing
fixtures, walls, and/or doors at significant additional expense. The
Department disagrees with this conclusion since it fails to take
into account several key points. The 2010 Standards contain
provisions for in-swinging doors, 603.2.3, Exception 2, and recessed
fixtures adjacent to water closets, 604.5.2, Exception 1. These
provisions give flexibility to create more compact room designs and
maintain required clearances around fixtures. As with the 1991
Standards, any alterations must comply to the extent that it is
technically feasible to do so.
The requirements at section 604.3.2 of the 2010 Standards
specify how required clearance around the water closet can overlap
with specific elements and spaces. An exception that applies only to
covered residential dwelling units permits a lavatory to be located
no closer than 18 inches from the centerline of the water closet.
The requirements at section 604.3.2 of the 2010 Standards increase
accessibility for individuals with disabilities. One commenter
expressed concern about other items that might overlap the clear
floor space, such as dispensers, shelves, and coat hooks on the side
of the water closet where a wheelchair would be positioned for a
transfer. Section 604.3.2 of the 2010 Standards allows items such as
associated grab bars, dispensers, sanitary napkin disposal units,
coat hooks, and shelves to overlap the clear floor space. These are
items that typically do not affect the usability of the clear floor
space.
Toilet Room Doors. Sections 4.22.2 and 4.22.3 of the 1991
Standards and Section 603.2.3 of the 2010 Standards permit the doors
of all toilet or bathing rooms with in-swinging doors to swing into
the required turning space, but not into the clear floor space
required at any fixture. In single-user toilet rooms or bathing
rooms, Section 603.2.3 Exception 2 of the 2010 Standards permits the
door to swing into the clear floor space of an accessible fixture if
a clear floor space that measures at least 30 inches by 48 inches is
provided outside of the door swing.
Several commenters expressed reservations about Exception 2 of
Section 603.2.3. Concerns were raised that permitting doors of
single-user toilet or bathing rooms with in-swinging doors to swing
into the clearance around any fixture will result in inaccessibility
to individuals using larger wheelchairs and scooters. Additionally,
a commenter stated that the exception would require an unacceptable
amount of precision maneuvering by individuals who use standard size
wheelchairs. The Department believes that this provision achieves
necessary flexibility while providing a minimum standard for
maneuvering space. The standard does permit additional maneuvering
space to be provided, if needed.
In the NPRM, the Department provided a series of plan drawings
illustrating comparisons of the minimum size single-user toilet
rooms. These floor plans showed typical examples that met the
minimum requirements of the proposed ADA Standards. A commenter was
of the opinion that the single-user toilet plans shown in the NPRM
demonstrated that the new requirements will not result in a
substantial increase in room size. Several other commenters
representing industry offered criticisms of the single-user toilet
floor plans to support their assertion that a 2010 Standards-
compliant single-user toilet room will never be smaller and will
likely be larger than such a toilet room required under the 1991
Standards. Commenters also asserted that the floor plans prepared by
the Department were of a very basic design which could be
accommodated in a minimal sized space whereas the types of
facilities their customers demand would require additional space to
be added to the rooms shown in the floor plans. The Department
recognizes that there are many design choices that can affect the
size of a room or space. Choices to install additional features may
result in more space being needed to provide sufficient clear floor
space for that additional feature to comply. However, many
facilities that have these extra features also tend to have ample
space to meet accessibility requirements. Other commenters asserted
that public single-user toilet rooms always include a closer and a
latch on the entry door, requiring a larger clear floor space than
shown on the push side of the door shown in Plan 1B. The Department
acknowledges that in instances where a latch is provided and a
closer is required by other regulations or codes, the minimum size
of a room with an out-swinging door may be slightly larger than as
shown in Plan 1C.
Additional floor plans of single-user toilet rooms are now
included in further response to the commentary received.
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Toilet Paper Dispensers. The provisions for toilet paper
dispensers at section 604.7 of the 2010 Standards require the
dispenser to be located seven inches minimum and nine inches maximum
in front of the water closet measured to the centerline of the
dispenser. The paper outlet of the dispenser must be located 15
inches minimum and 48 inches maximum above the finish floor. In the
1991 Standards the location of the toilet paper dispenser is
determined by the centerline and forward edge of the dispenser. In
the 2010 Standards the mounting location of the toilet paper
dispenser is determined by the centerline of the dispenser and the
location of the outlet for the toilet paper.

[[Page 56332]]

One commenter discussed the difficulty of using large roll
toilet paper dispensers and dispensers with two standard size rolls
stacked on top of each other. The size of the large dispensers can
block access to the grab bar and the outlet for the toilet paper can
be too low or too high to be usable. Some dispensers also control
the delivery of the toilet paper which can make it impossible to get
the toilet paper. Toilet paper dispensers that control delivery or
do not allow continuous paper flow are not permitted by the 1991
Standards or the 2010 Standards. Also, many of the large roll toilet
paper dispensers do not comply with the 2010 Standards since their
large size does not allow them to be mounted 12 inches above or 1\1/
2\ inches below the side grab bar as required by section 609.3.
Shower Spray Controls. In accessible bathtubs and shower
compartments, sections 607.6 and 608.6 of the 2010 Standards require
shower spray controls to have an on/off control and to deliver water
that is 120 [deg]F (49 [deg]C) maximum. Neither feature was required
by the 1991 Standards, but may be required by plumbing codes.
Delivering water that is no hotter than 120 [deg]F (49 [deg]C) will
require controlling the maximum temperature at each accessible
shower spray unit.
Shower Compartments. The 1991 Standards at sections 4.21 and
9.1.2 and the 2010 Standards at section 608 contain technical
requirements for transfer-type and roll-in shower compartments. The
2010 Standards provide more flexibility than the 1991 Standards as
follows:
Transfer-type showers are exactly 36 inches wide by 36
inches long.
The 1991 Standards and the 2010 Standards permit a \1/
2\-inch maximum curb in transfer-type showers. The 2010 Standards
add a new exception that permits a 2-inch maximum curb in transfer-
type showers in alterations to existing facilities, where recessing
the compartment to achieve a \1/2\-inch curb will disturb the
structural reinforcement of the floor slab.
Roll-in showers are 30 inches wide minimum by 60 inches
long minimum. Alternate roll-in showers are 36 inches wide by 60
inches long minimum, and have a 36-inch minimum wide opening on the
long side of the compartment. The 1991 Standards require alternate
roll-in showers in a portion of accessible transient lodging guest
rooms, but provision of this shower type in other facilities is
generally permitted as an equivalent facilitation. The 1991
Standards require a seat to be provided adjacent to the opening; and
require the controls to be located on the side adjacent to the seat.
The 2010 Standards permit alternate roll-in showers to be used in
any facility, only require a seat in transient lodging guest rooms,
and allow location of controls on the back wall opposite the seat as
an alternative.
Commenters raised concerns that adding a new exception that
permits a 2-inch maximum curb in transfer-type showers in
alterations to existing facilities, where recessing the compartment
to achieve a \1/2\-inch curb will disturb the structural
reinforcement of the floor slab, will impair the ability of
individuals with disabilities to use transfer-type showers.
The exception in section 608.7 of the 2010 Standards permitting
a 2-inch maximum curb in transfer-type showers is allowed only in
existing facilities where provision of a \1/2\-inch high threshold
would disturb the structural reinforcement of the floor slab.
Whenever this exception is used the least high threshold that can be
used should be provided, up to a maximum height of 2 inches. This
exception is intended to provide some flexibility where the existing
structure precludes full compliance.
Toilet and Bathing Rooms. Section 213 of the 2010 Standards sets
out the scoping requirements for toilet and bathing rooms.
Commenters recommended that section 213, Toilet Facilities and
Bathing Facilities, of the 2010 Standards include requirements that
unisex toilet and bathing rooms be provided in certain facilities.
These commenters suggested that unisex toilet and bathing rooms are
most useful as companion care facilities.
Model plumbing and building codes require single-user (unisex or
family) toilet facilities in certain occupancies, primarily assembly
facilities, covered malls, and transportation facilities. These
types of toilet rooms provide flexibility for persons needing
privacy so that they can obtain assistance from family members or
persons of the opposite sex. When these facilities are provided,
both the 1991 Standards and 2010 Standards require that they be
accessible. The 2010 Standards do not scope unisex toilet facilities
because plumbing codes generally determine the number and type of
plumbing fixtures to be provided in a particular occupancy and often
determine whether an occupancy must provide separate sex facilities
in addition to single-user facilities. However, the scoping at
section 213.2.1 of the 2010 Standards coordinates with model
plumbing and building code requirements which will permit a small
toilet room with two water closets or one water closet and one
urinal to be considered a single-user toilet room provided that the
room has a privacy latch. In this way, a person needing assistance
from a person of the opposite sex can lock the door to use the
facility while temporarily inconveniencing only one other potential
user. These provisions strike a reasonable balance and impose less
impact on covered entities.
A commenter recommended that in shower compartments rectangular
seats as provided in section 610.3.1 of the 2010 Standards should
not be permitted as a substitute for L-shaped seats as provided in
610.3.2.
The 2010 Standards do not indicate a preference for either
rectangular or L-shaped seats in shower compartments. L-shaped seats
in transfer and certain roll-in showers have been used for many
years to provide users with poor balance additional support because
they can position themselves in the corner while showering.

214 and 611 Washing Machines and Clothes Dryers

Sections 214.2 (washing machines) and 214.3 (clothes dryers) of
the 2010 Standards specify the number of each type of these machines
required to be accessible (one to two depending upon the total
number of machines provided) and section 611 specifies the technical
requirements. An exception will permit the maximum height for the
tops of these machines to be 2 inches higher than the general
requirement for maximum high reach over an obstruction.
A commenter objected to the scoping provision for accessible
washing machines and clothes dryers stating that the probability is
low that more than one accessible machine would be needed at the
same time in the laundry facility of a place of transient lodging.
The scoping in this provision is based on the relative size of
the facility. The Department assumes that the size of the facility
(and, therefore, the number of accessible machines provided) will be
determined by the covered entity's assessment of the demand for
laundry facilities. The Department declines to assume that persons
with disabilities will have less use for accessible facilities in
transient lodging than in other public accommodations.

216 and 703 Signs

The following types of signs, though they are not specifically
subject to the 1991 Standards requirement for signs, will now be
explicitly exempted by sections 216 and 703 of the 2010 Standards.
These types of signs include: seat and row designations in assembly
areas; occupant names, building addresses; company names and logos;
signs in parking facilities (except those identifying accessible
parking spaces and means of egress); and exterior signs identifying
permanent rooms and spaces that are not located at the door to the
space they serve. This requirement also clarifies that the exception
for temporary signs applies to signs used for seven days or less.
The 2010 Standards retain the option to provide one sign where
both visual and tactile characters are provided or two signs, one
with visual, and one with tactile characters.

217 and 704 Telephones

Drive-up Public Telephones. Where public telephones are
provided, the 1991 Standards, at section 4.1.3(17)(a), and section
217.2 of the 2010 Standards, require a certain number of telephones
to be wheelchair accessible. The 2010 Standards add a new exception
that exempts drive-up public telephones.
Text Telephones (TTY). Section 4.1.3(17) of the 1991 Standards
requires a public TTY to be provided if there are four or more
public pay telephones at a site and at least one is in an interior
location. Section 217.4.2 of the 2010 Standards requires that a
building or facility provide a public TTY on each floor that has
four or more public telephones, and in each telephone bank that has
four or more telephones. Additionally, section 217.4.4 of the 2010
Standards requires that at least one public TTY be installed where
four or more public pay telephones are provided on an exterior site.
Section 217.4.5 of the 2010 Standards also requires that a public
TTY be provided where at least one public pay telephone is provided
at a public rest stop, emergency roadside stop, or service plaza.
Section 217.4.6 of the 2010 Standards also requires that a public
TTY be provided at each location where at least one public pay

[[Page 56333]]

telephone is provided serving a hospital emergency room, a hospital
recovery room, or a hospital waiting room. Section 217.4.7 of the
2010 Standards also requires that, in addition to the requirements
for a public TTY to be provided at each location where at least four
or more public pay telephones are provided at a bank of pay
telephones and where at least one public pay telephone is provided
on a floor or in a public building, where at least one public pay
telephone serves a particular entrance to a bus or rail facility at
least one public TTY must serve that entrance. In airports, in
addition to the requirements for the provision of a public TTY at
phone banks, on floors, and in public buildings with pay phones,
where four or more public pay phones are located in a terminal
outside the security areas, in a concourse within the security
areas, or a baggage claim area in a terminal at least one public TTY
must be provided. Section 217.4.8 of the 2010 Standards also
requires that a TTY be provided in at least one secured area where
at least one pay telephone is provided in a secured area used only
by detainees or inmates and security personnel in detention and
correctional facilities.

Wheelchair Accessible Telephones

Section 217.2 of the 2010 Standards requires that where public
telephones are provided wheelchair accessible telephones complying
with section 704.2 must be provided in accordance with Table 217.2.
A commenter stated that requiring installation of telephones
within the proposed reach range requirements would adversely impact
public and telephone owners and operators. According to the
commenter, individuals without disabilities will not use telephones
that are installed within the reach range requirements because they
may be inconvenienced by having to stoop to operate these
telephones, and, therefore, owners and operators will lose revenue
due to less use of public telephones.
This comment misunderstands the scoping requirements for
wheelchair accessible telephones. Section 217.2 of the 2010
Standards provides that where one or more single units are provided,
only one unit per floor, level, or exterior site is required to be
wheelchair accessible. However, where banks of telephones are
provided, only one telephone in each bank is required to be
wheelchair accessible. The Department believes these scoping
requirements for wheelchair accessible telephones are reasonable and
will not result in burdensome obligations or lost revenue for owners
and operators.

218 and 810 Transportation Facilities

Detectable Warnings. Detectable warnings provide a distinctively
textured surface of truncated domes. The 1991 Standards at sections
4.1.3(15), 4.7.7, 4.29.2, 4.29.5, 4.29.6, and 10.3.1(8) require
detectable warnings at curb ramps, hazardous vehicular areas,
reflecting pools, and transit platform edges. The 2010 Standards at
sections 218, 810.5, 705.1, and 705.2 only require detectable
warnings at transit platform edges. The technical specifications for
the diameter and spacing of the truncated domes have also been
changed. The 2010 Standards also delete the requirement for the
material used to contrast in resiliency or sound-on-cane contact
from adjoining walking surfaces at interior locations.
The 2010 Standards apply to detectable warnings on developed
sites. They do not apply to the public right-of-way. Scoping for
detectable warnings at all locations other than transit platform
edges has been eliminated from the 2010 Standards. However, because
detectable warnings have been shown to significantly benefit
individuals with disabilities at transit platform edges, the 2010
Standards provide scoping and technical requirements for detectable
warnings at transit platform edges.

219 and 706 Assistive Listening Systems

Signs. Section 216.10 of the 2010 Standards requires each
covered assembly area to provide signs at each auditorium to inform
patrons that assistive listening systems are available. However, an
exception to this requirement permits assembly areas that have
ticket offices or ticket windows to display the required signs at
the ticket window.
A commenter recommended eliminating the exception at 216.10
because, for example, people who buy tickets through the mail, by
subscription, or on-line may not need to stop at a ticket office or
window upon arrival at the assembly area. The Department believes
that an individual's decision to purchase tickets before arriving at
a performance does not limit the discretion of the assembly operator
to use the ticket window to provide other services to its patrons.
The Department retained the exception at 216.10 to permit the venue
operator some flexibility in determining how to meet the needs of
its patrons.
Audible Communication. The 1991 Standards, at section
4.1.3(19)(b), require assembly areas, where audible communication is
integral to the use of the space, to provide an assistive listening
system if they have an audio amplification system or an occupant
load of 50 or more people and have fixed seating. The 2010 Standards
at section 219 require assistive listening systems in spaces where
communication is integral to the space and audio amplification is
provided and in courtrooms.
The 1991 Standards require receivers to be provided for at least
four percent (4%) of the total number of fixed seats. The 2010
Standards, at section 219.3, revise the percentage of receivers
required according to a table that correlates the required number of
receivers to the seating capacity of the facility. Small facilities
will continue to provide receivers for four percent (4%) of the
seats. The required percentage declines as the size of the facility
increases. The changes also require at least twenty-five percent
(25%), but no fewer than two, of the receivers to be hearing-aid
compatible. Assembly areas served by an induction loop assistive
listening system will not have to provide hearing-aid compatible
receivers.
Commenters were divided in their opinion of this change. The
Department believes that the reduction in the required number of
assistive listening systems for larger assembly areas will meet the
needs of individuals with disabilities. The new requirement to
provide hearing-aid compatible receivers should make assistive
listening systems more usable for people who have been underserved
until now.
Concerns were raised that the requirement to provide assistive
listening systems may have an adverse impact on restaurants. This
comment misunderstands the scope of coverage. The 2010 Standards
define the term ``assembly area'' to include facilities used for
entertainment, educational, or civic gatherings. A restaurant would
fall within this category only if it is presenting programs to
educate or entertain diners, and it provides an audio amplification
system.
Same Management or Building. The 2010 Standards add a new
exception that allows multiple assembly areas that are in the same
building and under the same management, such as theaters in a
multiplex cinema and lecture halls in a college building, to
calculate the number of receivers required based on the total number
of seats in all the assembly areas, instead of each assembly area
separately, where the receivers are compatible with the assistive
listening systems used in each of the assembly areas.
Mono Jacks, Sound Pressure, Etc. Section 4.33.7 of the 1991
Standards does not contain specific technical requirements for
assistive listening systems. The 2010 Standards at section 706
require assistive listening systems to have standard mono jacks and
will require hearing-aid compatible receivers to have neck loops to
interface with telecoils in hearing aids. The 2010 Standards also
specify sound pressure level, signal-to-noise ratio, and peak
clipping level. Currently available assistive listening systems
typically meet these technical requirements.

220 and 707 Automatic Teller Machines and Fare Machines

Section 707 of the 2010 Standards adds specific technical
requirements for speech output, privacy, tactilely-discernible input
controls, display screens, and Braille instructions to the general
accessibility requirements set out in the 1991 Standards. Machines
shall be speech enabled and exceptions are provided that cover when
audible tones are permitted, when advertisements or similar
information are provided, and where speech synthesis cannot be
supported. The 1991 Standards require these machines to be
accessible to and independently usable by persons with visual
impairments, but do not contain any technical specifications.

221 Assembly Areas

Wheelchair Spaces/Companion Seats. Owners of large assembly
areas have historically complained to the Department that the
requirement for one percent (1%) of seating to be wheelchair seating
is excessive and that wheelchair seats are not being sold. At the
same time, advocates have traditionally argued that persons who use
wheelchairs will increasingly participate in activities at assembly
areas once they become accessible and that at least one percent (1%)
of seats should be accessible.
The 1991 Standards, at sections 4.1.3(19)(a) and 4.33.3, require
assembly areas to provide

[[Page 56334]]

wheelchair and companion seats. In assembly areas with a capacity of
more than five hundred seats, accessible seating at a ratio of one
percent (1%) (plus one seat) of the number of traditional fixed
seats must be provided. The 2010 Standards, at section 221.2,
require assembly areas with 501 to 5000 seats to provide at least
six wheelchair spaces and companion seats plus one additional
wheelchair space for each additional 150 seats (or fraction thereof)
between 501 through 5000. In assembly areas with more than 5000
seats at least 36 wheelchair spaces and companion seats plus one
additional wheelchair space for each 200 seats (or fraction thereof)
more than 5000 are required. See sections 221.1 and 221.2 of the
2010 Standards.
Commenters questioned why scoping requirements for large
assembly areas are being reduced. During the development of the 2004
ADAAG, industry providers, particularly those representing larger
stadium-style assembly areas, supplied data to the Access Board
demonstrating the current scoping requirements for large assembly
areas often exceed the demand. Based on the data provided to the
Access Board, the Department believes the reduced scoping
requirements will adequately meet the needs of individuals with
disabilities, while balancing concerns of the industry.
Commenters representing assembly areas supported the reduced
scoping. One commenter asked that scoping requirements for larger
assembly areas be reduced even further. Although the commenter
referenced data demonstrating that wheelchair spaces in larger
facilities with seating capacities of 70,000 or more may not be used
by individuals with disabilities, the data was not based on actual
results, but was calculated at least in part based on probability
assumptions. The Department is not convinced that further reductions
should be made based upon those projections and that further
reductions would not substantially limit accessibility at assembly
areas for persons who use wheelchairs.
Section 221.2.1.3 of the 2010 Standards clarifies that the
scoping requirements for wheelchair spaces and companion seats are
to be applied separately to general seating areas and to each luxury
box, club box, and suite in arenas, stadiums, and grandstands. In
assembly areas other than arenas, stadiums, and grandstands, the
scoping requirements will not be applied separately. Thus, in
performing arts facilities with tiered boxes designed for spatial
and acoustical purposes, the scoping requirement is to be applied to
the seats in the tiered boxes. The requisite number of wheelchair
spaces and companion seats required in the tiered boxes are to be
dispersed among at least twenty percent (20%) of the tiered boxes.
For example, if a performing arts facility has 20 tiered boxes with
10 fixed seats in each box, for a total of 200 seats, at least five
wheelchair spaces and companion seats must be provided in the boxes,
and they must be dispersed among at least four of the 20 boxes.
Commenters raised concerns that the 2010 Standards should
clarify requirements for scoping of seating areas and that requiring
accessible seating in each luxury box, club box, and suite in
arenas, stadiums and grandstands could result in no wheelchair and
companion spaces available for individuals with disabilities in the
general seating area(s). These comments appear to misunderstand the
requirements. The 2010 Standards require each luxury box, club box,
and suite in an arena, stadium or grandstand to be accessible and to
contain wheelchair spaces and companion seats as required by
sections 221.2.1.1, 221.2.1.2 and 221.3. In addition, the remaining
seating areas not located in boxes must also contain the number of
wheelchair and companion seating locations specified in the 2010
Standards based on the total number of seats in the entire facility
excluding luxury boxes, club boxes and suites.
Wheelchair Space Overlap in Assembly Areas. Section 4.33.3 of
the 1991 Standards and the 2010 Standards, at sections 402, 403.5.1,
802.1.4, and 802.1.5, require walkways that are part of an
accessible route to have a 36-inch minimum clear width. Section
802.1.5 of the 2010 Standards specifically prohibits accessible
routes from overlapping wheelchair spaces. This change is consistent
with the technical requirements for accessible routes, since the
clear width of accessible routes cannot be obstructed by any object.
The 2010 Standards also specifically prohibit wheelchair spaces from
overlapping circulation paths. An advisory note clarifies that this
prohibition applies only to the circulation path width required by
applicable building codes and fire and life safety codes since the
codes prohibit obstructions in the required width of assembly
aisles.
Section 802.1.5 of the 2010 Standards provides that where a main
circulation path is located in front of a row of seats that contains
a wheelchair space and the circulation path is wider than required
by applicable building codes and fire and life safety codes, the
wheelchair space may overlap the ``extra'' circulation path width.
Where a main circulation path is located behind a row of seats that
contains a wheelchair space and the wheelchair space is entered from
the rear, the aisle in front of the row may need to be wider in
order not to block the required circulation path to the other seats
in the row, or a mid-row opening may need to be provided to access
the required circulation path to the other seats.
Line of Sight and Dispersion of Wheelchair Spaces in Assembly
Areas. Section 4.33.3 of the 1991 Standards requires wheelchair
spaces and companion seats to be an integral part of any fixed
seating plan in assembly areas and to provide individuals with
disabilities a choice of admission prices and lines of sight
comparable to those available to other spectators. Section 4.33.3
also requires wheelchair spaces and companion seats to be dispersed
in assembly areas with more than 300 seats. Under the 1991
Standards, sports facilities typically located some wheelchair
spaces and companion seats on each accessible level of the facility.
In 1994, the Department issued official guidance interpreting the
requirement for comparable lines of sight in the 1991 Standards to
mean wheelchair spaces and companion seats in sports stadia and
arenas must provide patrons with disabilities and their companions
with lines of sight over standing spectators to the playing field or
performance area, where spectators were expected to stand during
events. See ``Accessible Stadiums,'' www.ada.gov/stadium.pdf. The
Department also interpreted the section 4.33.3 comparable lines of
sight requirement to mean that wheelchair spaces and companion seats
in stadium-style movie theaters must provide patrons with
disabilities and their companions with viewing angles comparable to
those provided to other spectators.
Sections 221.2.3 and 802.2 of the 2010 Standards add specific
technical requirements for providing lines of sight over seated and
standing spectators and also require wheelchair spaces and companion
seats (per section 221.3) to provide individuals with disabilities
choices of seating locations and viewing angles that are
substantially equivalent to, or better than, the choices of seating
locations and viewing angles available to other spectators. This
applies to all types of assembly areas, including stadium-style
movie theaters, sports arenas, and concert halls. These rules are
expected to have minimal impact since they are consistent with the
Department's longstanding interpretation of the 1991 Standards and
technical assistance.
Commenters stated that the qualitative viewing angle language
contained in section 221.2.3 is not appropriate for an enforceable
regulatory standard unless the terms of such language are defined.
Other commenters requested definitions for viewing angles, an
explanation for precisely how viewing angles are measured, and an
explanation for precisely how to evaluate whether one viewing angle
is better than another viewing angle. The Department is convinced
that the regulatory language in the 2010 Standards is sufficient to
provide a performance-based standard for designers, architects, and
other professionals to design facilities that provide comparable
lines of sight for wheelchair seating in assembly areas, including
viewing angles. The Department believes that as a general rule, the
vast variety of sizes and configurations in assembly areas requires
it to establish a performance standard for designers to adapt to the
specific circumstances of the venue that is being designed. The
Department has implemented more explicit requirements for stadium-
style movie theaters in 28 CFR 36.406(f) and 35.151(g) of the final
regulations based on experience and expertise gained after several
major enforcement actions.
Another commenter inquired as to what determines whether a
choice of seating locations or viewing angles is better than that
available to all other spectators. The answer to this question
varies according to each assembly area that is being designed, but
designers and venue operators understand which seats are better and
that understanding routinely drives design choices made to maximize
profit and successful operation of the facility, among other things.
For example, an ``equivalent or better'' line of sight in a major
league football stadium would be different than for a 350-seat
lecture hall. This performance standard is based upon the underlying
principle of equal opportunity for

[[Page 56335]]

a good viewing experience for everyone, including persons with
disabilities. The Department believes that for each specific
facility that is designed, the owner, operator, and design
professionals will be able to distinguish easily between seating
locations and the quality of the associated lines of sight from
those seating locations in order to decide which ones are better
than others. The wheelchair locations do not have to be exclusively
among the seats with the very best lines of sight nor may they be
exclusively among the seats with the worst lines of sight. Rather,
wheelchair seating locations should offer a choice of viewing
experiences and be located among the seats where most of the
audience chooses to sit.
Section 4.33.3 of the 1991 Standards requires wheelchair spaces
and companion seating to be offered at a choice of admission prices,
but section 221.2.3.2 of the 2010 Standards no longer requires
wheelchair spaces and companion seats to be dispersed based on
admission prices. Venue owners and operators commented during the
2004 ADAAG rulemaking process that pricing is not always established
at the design phase and may vary from event to event within the same
facility, making it difficult to determine where to place wheelchair
seats during the design and construction phase. Their concern was
that a failure by the venue owner or operator to provide a choice of
ticket prices for wheelchair seating as required by the 1991
Standards governing new construction could somehow unfairly subject
parties involved in the design and construction to liability
unknowingly.
Sections 221.2.3.2 and 221.3 of the 2010 Standards require
wheelchair spaces and companion seats to be vertically dispersed at
varying distances from the screen, performance area, or playing
field. The 2010 Standards, at section 221.2.3.2, also require
wheelchair spaces and companion seats to be located in each balcony
or mezzanine served by an accessible route. The final regulations at
28 CFR 35.151(g)(1) and 36.406(f)(1) also require assembly areas to
locate wheelchair spaces and companion seats at all levels of the
facility that include seating and that are served by an accessible
route. The Department interprets that requirement to mean that
wheelchair and companion seating must be provided in a particular
area even if the accessible route may not be the same route that
other individuals use to reach their seats. For example, if other
patrons reach their seats on the field by an inaccessible route
(e.g., by stairs), but there is an accessible route that complies
with section 206.3 that could be connected to seats on the field,
accessible seats must be placed on the field even if that route is
not generally available to the public. The 2010 Standards, at
section 221.2.3.2, provide an exception for vertical dispersion in
assembly areas with 300 or fewer seats if the wheelchair spaces and
companion seats provide viewing angles that are equivalent to, or
better than, the average viewing angle provided in the facility.
Section 221.3 of the 2010 Standards requires wheelchair spaces
and companion seats to be dispersed horizontally. In addition, 28
CFR 35.151(g)(2) and 36.406(f)(2) require assembly areas that have
seating around the field of play or performance area to place
wheelchair spaces and companion seating all around that field of
play or performance area.

Stadium-Style Movie Theaters

Pursuant to 28 CFR 35.151(g) and 36.406(f), in addition to other
obligations, stadium-style movie theaters must meet horizontal and
vertical dispersion requirements set forth in sections 221.2.3.1 and
221.2.3.2 of the 2010 Standards; placement of wheelchair and
companion seating must be on a riser or cross-aisle in the stadium
section of the theater; and placement of such seating must satisfy
at least one of the following criteria: (i) It is located within the
rear sixty percent (60%) of the seats provided in the auditorium; or
(ii) it is located within the area of the auditorium where the
vertical viewing angles are between the 40th and 100th percentile of
vertical viewing angles for all seats in that theater as ranked from
the first row (1st percentile) to the back row (100th percentile).
The line-of-sight requirements recognize the importance to the
movie-going experience of viewing angles, and the final regulations
ensure that movie patrons with disabilities are provided views of
the movie screen comparable to other theater patrons. Some
commenters supported regulatory language that would require stadium-
style theaters to meet standards of accessibility equal to those of
non-stadium-style theaters, with larger theaters being required to
provide accessible seating locations and viewing angles equal to
those offered to individuals without disabilities.
One commenter noted that stadium-style movie theaters, sports
arenas, music venues, theaters, and concert halls each pose unique
conditions that require separate and specific standards to
accommodate patrons with disabilities, and recommended that the
Department provide more specific requirements for sports arenas,
music venues, theaters, and concert halls. The Department has
concluded that the 2010 Standards will provide sufficient
flexibility to adapt to the wide variety of assembly venues covered.
Companion Seats. Section 4.33.3 of the 1991 Standards required
at least one fixed companion seat to be provided next to each
wheelchair space. The 2010 Standards at sections 221.3 and 802.3
permit companion seats to be movable. Several commenters urged the
Department to ensure that companion seats are positioned in a manner
that places the user at the same shoulder height as their companions
using mobility devices. The Department recognizes that some
facilities have created problems by locating the wheelchair space
and companion seat on different floor elevations (often a difference
of one riser height). Section 802.3.1 of the 2010 Standards
addresses this problem by requiring the wheelchair space and the
companion seat to be on the same floor elevation. This solution
should prevent any vertical discrepancies that are not the direct
result of differences in the sizes and configurations of
wheelchairs.
Designated Aisle Seats. Section 4.1.3(19)(a) of the 1991
Standards requires one percent (1%) of fixed seats in assembly areas
to be designated aisle seats with either no armrests or folding or
retractable armrests on the aisle side of the seat. The 2010
Standards, at sections 221.4 and 802.4, base the number of required
designated aisle seats on the total number of aisle seats, instead
of on all of the seats in an assembly area as the 1991 Standards
require. At least five percent (5%) of the aisle seats are required
to be designated aisle seats and to be located closest to accessible
routes. This option will almost always result in fewer aisle seats
being designated aisle seats compared to the 1991 Standards. The
Department is aware that sports facilities typically locate
designated aisle seats on, or as near to, accessible routes as
permitted by the configuration of the facility.
One commenter recommended that section 221.4, Designated Aisle
Seats, be changed to require that aisle seats be on an accessible
route, and be integrated and dispersed throughout an assembly area.
Aisle seats, by their nature, typically are located within the
general seating area, and integration occurs almost automatically.
The issue of dispersing aisle seats or locating them on accessible
routes is much more challenging. During the separate rulemaking on
the 2004 ADAAG the Access Board specifically requested public
comment on the question of whether aisle seats should be required to
be located on accessible routes. After reviewing the comments
submitted during the 2004 Access Board rulemaking, the Access Board
concluded that this could not be done without making significant and
costly changes in the design of most assembly areas. However,
section 221.4 of the 2004 ADAAG required that designated aisle seats
be the aisle seats closest to accessible routes. The Department
proposed the same provision and concurs in the Access Board's
conclusion and declines to implement further changes.
Team or Player Seating Areas. Section 221.2.1.4 of the 2010
Standards requires that at least one wheelchair space compliant with
section 802.1 be provided in each team or player seating area
serving areas of sport activity. For bowling lanes, the requirement
for a wheelchair space in player seating areas is limited to lanes
required to be accessible.
Lawn Seating. The 1991 Standards, at section 4.1.1(1), require
all areas of newly constructed facilities to be accessible, but do
not contain a specific scoping requirement for lawn seating in
assembly areas. The 2010 Standards, at section 221.5, specifically
require lawn seating areas and exterior overflow seating areas
without fixed seats to connect to an accessible route.
Aisle Stairs and Ramps in Assembly Areas. Sections 4.1.3 and
4.1.3(4) of the 1991 Standards require that interior and exterior
stairs connecting levels that are not connected by an elevator,
ramp, or other accessible means of vertical access must comply with
the technical requirements for stairs set out in section 4.9 of the
1991 Standards. Section 210.1 of the 2010 Standards requires that
stairs that are part of a means of egress shall comply with section
504's technical requirements for stairs. The 1991 Standards do not
contain any exceptions for aisle stairs in assembly areas. Section
210.1, Exception 3 of the 2010 Standards adds a new exception that
exempts

[[Page 56336]]

aisle stairs in assembly areas from section 504's technical
requirements for stairs, including section 505's technical
requirements for handrails.
Section 4.8.5 of the 1991 Standards exempts aisle ramps that are
part of an accessible route from providing handrails on the side
adjacent to seating. The 2010 Standards, at section 405.1, exempt
aisle ramps adjacent to seating in assembly areas and not serving
elements required to be on an accessible route, from complying with
all of section 405's technical requirements for ramps. Where aisle
ramps in assembly areas serve elements required to be on an
accessible route, the 2010 Standards require that the aisle ramps
comply with section 405's technical requirements for ramps. Sections
505.2 and 505.3 of the 2010 Standards provide exceptions for aisle
ramp handrails. Section 505.2 states that in assembly areas, a
handrail may be provided at either side or within the aisle width
when handrails are not provided on both sides of aisle ramps.
Section 505.3 states that, in assembly areas, handrails need not be
continuous in aisles serving seating.

222 and 803 Dressing, Fitting, and Locker Rooms

Dressing rooms, fitting rooms, and locker rooms are required to
comply with the accessibility requirements of sections 222 and 803
of the 2010 Standards. Where these types of rooms are provided in
clusters, five percent (5%) but at least one room in each cluster
must comply. Some commenters stated that clothing and retail stores
would have to expand and reconfigure accessible dressing, fitting
and locker rooms to meet the changed provision for clear floor space
alongside the end of the bench. Commenters explained that meeting
the new requirement would result in a loss of sales and inventory
space. Other commenters also expressed opposition to the changed
requirement in locker rooms for similar reasons.
The Department reminds the commenters that the requirements in
the 2010 Standards for the clear floor space to be beside the short
axis of the bench in an accessible dressing, fitting, or locker room
apply only to new construction and alterations. The requirements for
alterations in the 2010 Standards at section 202.3 do not include
the requirement from the 1991 Standards at section 4.1.6(1)(c) that
if alterations to single elements, when considered together, amount
to an alteration of a room or space in a building or facility, the
entire space shall be made accessible. Therefore, under the 2010
Standards, the alteration requirements only apply to specific
elements or spaces that are being altered. So providing the clear
floor space at the end of the bench as required by the 2010
Standards instead of in front of the bench as is allowed by the 1991
Standards would only be required when the bench in the accessible
dressing room is altered or when the entire dressing room area is
altered.

224 and 806 Transient Lodging Guest Rooms

Scoping. The minimum number of guest rooms required to be
accessible in transient lodging facilities is covered by section 224
of the 2010 Standards. Scoping requirements for guest rooms with
mobility features and guest rooms with communication features are
addressed at section 224.2 and section 224.4, respectively. Under
the 1991 Standards all newly constructed guest rooms with mobility
features must provide communication features. Under the 2010
Standards, in section 224.5, at least one guest room with mobility
features must also provide communication features. Additionally, not
more than ten percent (10%) of the guest rooms required to provide
mobility features and also equipped with communication features can
be used to satisfy the minimum number of guest rooms required to
provide communication features.
Some commenters opposed requirements for guest rooms accessible
to individuals with mobility disabilities stating that statistics
provided by the industry demonstrate that all types of accessible
guest rooms are unused. They further claimed that the requirements
of the 2010 Standards are too burdensome to meet in new
construction, and that the requirements will result in a loss of
living space in places of transient lodging. Other commenters urged
the Department to increase the number of guest rooms required to be
accessible. The number of guest rooms accessible to individuals with
mobility disabilities and the number accessible to persons who are
deaf or who are hard of hearing in the 2010 Standards are consistent
with the 1991 Standards and with the IBC. The Department continues
to receive complaints about the lack of accessible guest rooms
throughout the country. Accessible guest rooms are used not only by
individuals using mobility devices such as wheelchairs and scooters,
but also by individuals with other mobility disabilities including
persons who use walkers, crutches, or canes.
Data provided by the Disability Statistics Center at the
University of California, San Francisco demonstrated that the number
of adults who use wheelchairs has been increasing at the rate of six
percent (6%) per year from 1969 to 1999; and by 2010, it was
projected that two percent (2%) of the adult population would use
wheelchairs. In addition to persons who use wheelchairs, three
percent (3%) of adults used crutches, canes, walkers, and other
mobility devices in 1999; and the number was projected to increase
to four percent (4%) by 2010. Thus, in 2010, up to six percent (6%)
of the population may need accessible guest rooms.
Dispersion. The 2010 Standards, in section 224.5, set scoping
requirements for dispersion in facilities covered by the transient
lodging provisions. This section covers guest rooms with mobility
features and guest rooms with communication features and applies in
new construction and alterations. The primary requirement is to
provide choices of types of guest rooms, number of beds, and other
amenities comparable to the choices provided to other guests. An
advisory in section 224.5 provides guidance that ``factors to be
considered in providing an equivalent range of options may include,
but are not limited to, room size, bed size, cost, view, bathroom
fixtures such as hot tubs and spas, smoking and nonsmoking, and the
number of rooms provided.''
Commenters asked the Department to clarify what is meant by
various terms used in section 224.5 such as ``classes,'' ``types,''
``options,'' and ``amenities.'' Other commenters asked the
Department to clarify and simplify the dispersion requirements set
forth in section 224.5 of the 2010 Standards, in particular the
scope of the term ``amenities.'' One commenter expressed concern
that views, if considered an amenity, would further complicate room
categories and force owners and operators to make an educated guess.
Other commenters stated that views should only be a dispersion
criteria if view is a factor for pricing room rates.
These terms are not to be considered terms of art, but should be
used as in their normal course. For example, ``class'' is defined by
Webster's Dictionary as ``a division by quality.'' ``Type'' is
defined as ``a group of * * * things that share common traits or
characteristics distinguishing them as an identifiable group or
class.'' Accordingly, these terms are not intended to convey
different concepts, but are used as synonyms. In the 2010 Standards,
section 224.5 and its advisory require dispersion in such a varied
range of hotels and lodging facilities that the Department believes
that the chosen terms are appropriate to convey what is intended.
Dispersion required by this section is not ``one size fits all'' and
it is imperative that each covered entity consider its individual
circumstance as it applies this requirement. For example, a facility
would consider view as an amenity if some rooms faced mountains, a
beach, a lake, or other scenery that was considered to be a premium.
A facility where view was not marketed or requested by guests would
not factor the view as an amenity for purposes of meeting the
dispersion requirement.
Section 224.5 of the 2010 Standards requires that guest rooms
with mobility features and guest rooms with communication features
``shall be dispersed among the various classes of guest rooms, and
shall provide choices of types of guest rooms, number of beds, and
other amenities comparable to the choices provided to other guests.
When the minimum number of guest rooms required is not sufficient to
allow for complete dispersion, guest rooms shall be dispersed in the
following priority: guest room type, number of beds and amenities.''
This general dispersion requirement is intended to effectuate
Congress' directive that a percentage of each class of hotel rooms
is to be fully accessible to persons with disabilities. See H.R.
Rep. No. 101-485 (II) at 391. Accordingly, the promise of the ADA in
this instance is that persons with disabilities will have an equal
opportunity to benefit from the various options available to hotel
guests without disabilities, from single occupancy guest rooms with
limited features (and accompanying limited price tags) to luxury
suites with lavish features and choices. The inclusion of section
224.5 of the 2010 Standards is not new. Substantially similar
language is contained in section 9.1.4 of the 1991 Standards.
Commenters raised concerns that the factors included in the
advisory to section 224.5 of the 2010 Standards have been expanded.
The advisory provides: ``[f]actors to be considered in providing an
equivalent

[[Page 56337]]

range of options may include, but are not limited to, room size, bed
size, cost, view, bathroom fixtures such as hot tubs and spas,
smoking and nonsmoking, and the number of rooms provided.''
As previously discussed, the advisory materials provided in the
2010 Standards are meant to be illustrative and do not set out
specific requirements. In this particular instance, the advisory
materials for section 224.5 set out some of the common types of
amenities found at transient lodging facilities, and include common
sense concepts such as view, bathroom fixtures, and smoking status.
The intention of these factors is to indicate to the hospitality
industry the sorts of considerations that the Department, in its
enforcement efforts since the enactment of the ADA, has considered
as amenities that should be made available to persons with
disabilities, just as they are made available to guests without
disabilities.
Commenters offered several suggestions for addressing
dispersion. One option included the flexibility to use an equivalent
facilitation option similar to that provided in section 9.1.4(2) of
the 1991 Standards.
The 2010 Standards eliminated all specific references to
equivalent facilitation. Since Congress made it clear that each
class of hotel room is to be available to individuals with
disabilities, the Department declines to adopt such a specific
limitation in favor of the specific requirement for new construction
and alterations found in section 224.5 of the 2010 Standards.
In considering the comments of the hospitality industry from the
ANPRM and the Department's enforcement efforts in this area, the
Department sought comment in the NPRM on whether the dispersion
requirements should be applied proportionally, or whether the
requirements of section 224.5 of the 2010 Standards would be
complied with if access to at least one guest room of each type were
to be provided.
One commenter expressed concern about requiring different guest
room types to be proportionally represented in the accessible guest
room pool as opposed to just having each type represented. Some
commenters also expressed concern about accessible guest rooms
created in pre-1993 facilities and they requested that such
accessible guest rooms be safe harbored just as they are safe
harbored under the 1991 Standards. In addition, one commenter
requested that the proposed dispersion requirements in section 224.5
of the 2010 Standards not be applied to pre-1993 facilities even
when they are altered. Some commenters also offered a suggestion for
limitations to the dispersion requirements as an alternative to safe
harboring pre-1993 facilities. The suggestion included: (1) Guest
rooms' interior or exterior footprints may remain unchanged in order
to meet the dispersion requirements; (2) Dispersion should only be
required among the types of rooms affected by an alteration; and (3)
Subject to (1) and (2) above and technical feasibility, a facility
would need to provide only one guest room in each guest room type
such as single, double and suites. One commenter requested an
exception to the dispersion criteria that applies to both existing
and new multi-story timeshare facilities. This requested exception
waives dispersion based on views to the extent that up to eight
units may be vertically stacked in a single location.
Section 224.1.1 of the 2010 Standards sets scoping requirements
for alterations to transient lodging guest rooms. The advisory to
section 224.1.1 further explains that compliance with 224.5 is more
likely to be achieved if all of the accessible guest rooms are not
provided in the same area of the facility, when accessible guest
rooms are added as a result of subsequent alterations.
Some commenters requested a specific exemption for small hotels
of 300 or fewer guest rooms from dispersion regarding smoking rooms.
The ADA requires that individuals with disabilities be provided with
the same range of options as persons without disabilities, and,
therefore, the Department declines to add such an exemption. It is
noted, however, that the existence of this language in the advisory
does not require a place of transient lodging that does not offer
smoking guest rooms at its facility to do so only for individuals
with disabilities.
Guest Rooms with Mobility Features. Scoping provisions for guest
rooms with mobility features are provided in section 224.2 of the
2010 Standards. Scoping requirements for alterations are included in
224.1.1. These scoping requirements in the 2010 Standards are
consistent with the 1991 Standards.
One commenter expressed opposition to the new scoping provisions
for altered guest rooms, which, according to the commenter, require
greater numbers of accessible guest rooms with mobility features.
Section 224.1.1 of the 2010 Standards provides scoping
requirements for alterations to guest rooms in existing facilities.
Section 224.1.1 modifies the scoping requirements for new
construction in section 224 by limiting the application of section
224 requirements only to those guest rooms being altered or added
until the number of such accessible guest rooms complies with the
minimum number required for new construction in section 224.2 of the
2010 Standards. The minimum required number of accessible guest
rooms is based on the total number of guest rooms altered or added
instead of the total number of guest rooms provided. These
requirements are consistent with the requirements in the 1991
Standards. Language in the 2010 Standards clarifies the provision of
section 104.2 of the 2010 Standards which requires rounding up
values to the next whole number for calculations of percentages in
scoping.
Guest Rooms with Communication Features. The revisions at
section 224.4 of the 2010 Standards effect no substantive change
from the 1991 Standards with respect to the number of guest rooms
required to provide communication features. The scoping requirement
is consolidated into a single table, instead of appearing in three
sections as in the 1991 Standards. The revised provisions also limit
the overlap between guest rooms required to provide mobility
features and guest rooms required to provide communication features.
Section 224.5 of the 2010 Standards requires that at least one guest
room providing mobility features must also provide communications
features. At least one, but not more than ten percent (10%), of the
guest rooms required to provide mobility features can also satisfy
the minimum number of guest rooms required to provide communication
features.
Commenters suggested that the requirements for scoping and
dispersion of guest rooms for persons with mobility impairments and
guest rooms with communication features are too complex for the
industry to effectively implement.
The Department believes the requirements for guest rooms with
communications features in the 2010 Standards clarify the
requirements necessary to provide equal opportunity for travelers
with disabilities. Additional technical assistance will be made
available to address questions before the rule goes into effect.
Visible Alarms in Guest Rooms with Communication Features. The
1991 Standards at sections 9.3.1 and 4.28.4 require transient
lodging guest rooms with communication features to provide either
permanently installed visible alarms that are connected to the
building fire alarm system or portable visible alarms that are
connected to a standard 110-volt electrical outlet and are both
activated by the building fire alarm system and provide a visible
alarm when the single station smoke detector is activated. Section
215.4 of the 2010 Standards no longer includes the portable visible
alarm option and instead requires that transient lodging guest rooms
with communication features be equipped with a fire alarm system
which includes permanently installed audible and visible alarms in
accordance with NFPA 72 National Fire Alarm Code (1999 or 2002
edition). Such guest rooms with communication features are also
required by section 806.3.2 of the 2010 Standards to be equipped
with visible notification devices that alert room occupants of
incoming telephone calls and a door knock or bell.
The 2010 Standards add a new exception for alterations to
existing facilities that exempts existing fire alarm systems from
providing visible alarms, unless the fire alarm system itself is
upgraded or replaced, or a new fire alarm system is installed.
Transient lodging facilities that alter guest rooms are not required
to provide permanently installed visible alarms complying with the
NFPA 72 if the existing fire alarm system has not been upgraded or
replaced, or a new fire alarm system has not been installed.
Commenters representing small providers of transient lodging
raised concerns about the proposed changes to prohibit the use of
portable visible alarms used in transient lodging guest rooms. These
commenters recommended retaining requirements that allow the use of
portable visible alarms.
Persons who are deaf or hard of hearing have reported that
portable visible alarms used in transient lodging guest rooms are
deficient because the alarms are not activated by the building fire
alarm system, and the alarms do not work when the building power
source goes out in emergencies. The 2010 Standards are consistent
with the model

[[Page 56338]]

building, fire, and life safety codes as applied to newly
constructed transient lodging facilities. One commenter sought
confirmation of its understanding of visible alarm requirements from
the Department. This commenter interpreted the exception to section
215.1 of the 2010 Standards and the Department's commentary to the
NPRM to mean that if a transient lodging facility does not have
permanently installed visible alarms in its communication accessible
guest rooms, it will not be required to provide such alarms until
such time that its fire alarm system is upgraded or replaced, or a
new fire alarm system is installed. In addition, this commenter also
understood that, if a hotel already has permanently installed
visible alarms in all of its mobility accessible guest rooms, it
would not have to relocate such visible alarms and other
communication features in those rooms to other guest rooms to comply
with the ten percent (10%) overlap requirement until the alarm
system is upgraded or replaced.
This commenter's interpretation and understanding are consistent
with the Department's position in this matter. Section 215.4 of the
2010 Standards requires that guest rooms required to have
communication features be equipped with a fire alarm system
complying with section 702. Communication accessible guest rooms are
required to have all of the communication features described in
section 806.3 of the 2010 Standards including a fire alarm system
which provides both audible and visible alarms. The exception to
section 215.1 of the 2010 Standards, which applies only to fire
alarm requirements for guest rooms with communication features in
existing facilities, exempts the visible alarm requirement until
such time as the existing fire alarm system is upgraded or replaced,
or a new fire alarm system is installed. If guest rooms in existing
facilities are altered and they are required by section 224 of the
2010 Standards to have communication features, such guest rooms are
required by section 806.3 to have all other communication features
including notification devices.
Vanity Counter Space. Section 806.2.4.1 of the 2010 Standards
requires that if vanity countertop space is provided in inaccessible
transient lodging guest bathrooms, comparable vanity space must be
provided in accessible transient lodging guest bathrooms.
A commenter questioned whether in existing facilities vanity
countertop space may be provided through the addition of a shelf.
Another commenter found the term ``comparable'' vague and expressed
concern about confusion the new requirement would cause. This
commenter suggested that the phrase ``equal area in square inches''
be used instead of comparable vanity space.
In some circumstances, the addition of a shelf in an existing
facility may be a reasonable way to provide a space for travelers
with disabilities to use their toiletries and other personal items.
However, this is a determination that must be made on a case-by-case
basis. Comparable vanity countertop space need not be one continuous
surface and need not be exactly the same size as the countertops in
comparable guest bathrooms. For example, accessible shelving within
reach of the lavatory could be stacked to provide usable surfaces
for toiletries and other personal items.
Shower and Sauna Doors in Transient Lodging Facilities. Section
9.4 of the 1991 Standards and section 206.5.3 of the 2010 Standards
both require passage doors in transient lodging guest rooms that do
not provide mobility features to provide at least 32 inches of clear
width. Congress directed this requirement to be included so that
individuals with disabilities could visit guests in other rooms. See
H. Rept. 101-485, pt. 2, at 118 (1990); S. Rept. 101-116, at 70
(1989). Section 224.1.2 of the 2010 Standards adds a new exception
to clarify that shower and sauna doors in such inaccessible guest
rooms are exempt from the requirement for passage doors to provide
at least 32 inches of clear width. Two commenters requested that
saunas and steam rooms in existing facilities be exempt from the
section 224.1.2 requirement and that the requirement be made
applicable to new construction only.
The exemption to the section 224.1.2 requirement for a 32-inch
wide clearance at doors to shower and saunas applies only to those
showers and saunas in guest rooms which are not required to have
mobility features. Showers and saunas in other locations, including
those in common use areas and guest rooms with mobility features,
are required to comply with the 32-inch clear width standard as well
as other applicable accessibility standards. Saunas come in a
variety of types: portable, pre-built, pre-cut, and custom-made. All
saunas except for custom-made saunas are made to manufacturers'
standard dimensions. The Department is aware that creating the
required 32-inch clearance at existing narrower doorways may not
always be technically feasible. However, the Department believes
that owners and operators will have an opportunity to provide the
required doorway clearance, unless doing so is technically
infeasible, when an alteration to an existing sauna is undertaken.
Therefore, the Department has retained these requirements.
Platform Lifts in Transient Lodging Guest Rooms and Dwelling
Units. The 1991 Standards, at section 4.1.3(5), exception 4, and the
2010 Standards, at sections 206.7 and 206.7.6, both limit the
locations where platform lifts are permitted to be used as part of
an accessible route. The 2010 Standards add a new scoping
requirement that permits platform lifts to be used to connect levels
within transient lodging guest rooms and dwelling units with
mobility features.

806 Transient Lodging Guest Rooms

In the NPRM, the Department included floor plans showing
examples of accessible guest rooms and bathrooms designs with
mobility features to illustrate how compliance with the 2010
Standards could be accomplished with little or no additional space
compared to designs that comply with the 1991 Standards.
Commenters noted that the Department's plans showing accessible
transient lodging guest rooms compliant with the 2010 Standards were
not common in the transient lodging industry and also noted that the
plans omitted doors at sleeping room closets.
The Department agrees that the configuration of the accessible
bathrooms is somewhat different from past designs used by the
industry, but this was done to meet the requirements of the 2010
Standards. The plans were provided to show that, with some redesign,
the 2010 Standards do not normally increase the square footage of an
accessible sleeping room or bathroom with mobility features in new
construction. The Department has also modified several accessible
guest room plans to show that doors can be installed on closets and
comply with the 2010 Standards.
A commenter stated that the Department's drawings suggest that
the fan coil units for heat and air conditioning are overhead, while
the typical sleeping room usually has a vertical unit, or a packaged
terminal air conditioning unit within the room. The Department's
drawings are sample plans, showing the layout of the space,
relationship of elements to each other, and required clear floor and
turning spaces. It was not the intent of the Department to provide
precise locations for all elements, including heating and air
conditioning units.
Commenters noted that in guest rooms with two beds, each bed was
positioned close to a wall, reducing access on one side. Another
commenter stated that additional housekeeping time is needed to
clean the room when beds are placed closer to walls. The 2010
Standards require that, when two beds are provided, there must be at
least 36 inches of clear space between the beds. The plans provided
in the NPRM showed two bed arrangements with adequate clear width
complying with the 1991 Standards and the 2010 Standards. Additional
space can be provided on the other side of the beds to facilitate
housekeeping as long as the clear floor space between beds is at
least 36 inches wide.
Commenters stated that chases in sleeping room bathrooms that
route plumbing and other utilities can present challenges when
modifying existing facilities. In multi-story facilities, relocating
or re-routing these elements may not be possible, limiting options
for providing access. The Department recognizes that relocating
mechanical chases in multi-story facilities may be difficult or
impossible to accomplish. While these issues do not exist in new
facilities, altered existing facilities must comply with the 2010
Standards to the extent that it is technically feasible to do so.
When an alteration cannot fully comply because it is technically
infeasible to do so, the alteration must still be designed to comply
to the greatest extent feasible.
Commenters noted that on some of the Department's plans where a
vanity is located adjacent to a bathtub, the vanity may require more
maintenance due to exposure to water. The Department agrees that it
would be advisable that items placed next to a bathtub or shower be
made of materials that are not susceptible to water damage.
Transient Lodging Guest Room Floor Plans and Related Text. The
Department has included the following floor plans showing
application of the requirements of the 2010 Standards without
significant loss of guest

[[Page 56339]]

room living space in transient lodging compared to the 1991
Standards.
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225 and 811 Storage

Section 225 of the 2010 Standards provides that where storage is
provided in accessible spaces, at least one of each type shall
comply with the 2010 Standards. Self-service shelving is required to
be on an accessible route, but is not required to comply with the
reach range requirements. These requirements are consistent with the
1991 Standards.
Section 225.3 adds a new scoping requirement for self-storage
facilities. Facilities with 200 or fewer storage spaces will be
required to make at least five percent (5%) of the storage spaces
accessible. Facilities with more than 200 storage spaces will be
required to provide ten accessible storage spaces, plus two percent
(2%) of the total storage spaces over 200.
Sections 225.2.1 and 811 of the 2010 Standards require lockers
to meet accessibility requirements. Where lockers are provided in
clusters, five percent (5%) but at least one locker in each cluster
will have to comply. Under the 1991 Standards, only one locker of
each type provided must be accessible.
Commenters recommended that the Department adopt language
requiring public accommodations to provide access to all self-
service shelves and display areas available to customers. Other
commenters opposed this requirement as too burdensome to retail and
other entities and claimed that significant revenue would be lost if
this requirement were to be implemented.
Other commenters raised concerns that section 225.2.2 of the
2010 Standards scopes only self-service shelving whereas section
4.1.3(12)(b) of the 1991 Standards applies to both ``shelves or
display units.''
Although ``display units'' were not included in the 2010
Standards under the belief that displays are not to be touched and

[[Page 56351]]

therefore by definition cannot be ``self-service,'' both the 2010
Standards and the 1991 Standards should be read broadly to apply to
all types of shelves, racks, hooks, and similar self-service
merchandising fittings, including self-service display units. Such
fixtures are permitted to be installed above or below the reach
ranges possible for many persons with disabilities so that space
available for merchandising is used as efficiently as possible.

226 and 902 Dining Surfaces and Work Surfaces

Section 226.1 of the 2010 Standards require that where dining
surfaces are provided for the consumption of food or drink, at least
five percent (5%) of the seating spaces and standing spaces at the
dining surfaces comply with section 902. Section 902.2 requires the
provision of accessible knee and toe clearance.
Commenters stated that basing accessible seating on seating
spaces and standing spaces potentially represents a significant
increase in scoping, particularly given the ambiguity in what
represents a ``standing space'' and urged a return to the 1991
Standard of requiring accessible seating based on fixed dining
tables. The scoping change merely takes into account that tables may
vary in size so that basing the calculation on the number of tables
rather than on the number of individuals that may be accommodated by
the tables could unnecessarily restrict opportunities for persons
with disabilities. The revised scoping permits greater flexibility
by allowing designers to disperse accessible seating and standing
spaces throughout the dining area. Human factors data, which is
readily available to designers, provides information about the
amount of space required for both eating and drinking while seated
or standing.

227 and 904 Sales and Service

Check-Out Aisles and Sales and Service Counters. The 1991
Standards, at section 7.2, and the 2010 Standards, at section 904.4,
contain technical requirements for sales and service counters. The
1991 Standards generally require sales and service counters to
provide an accessible portion at least 36 inches long and no higher
than 36 inches above the finish floor. The nondiscrimination
requirements of the ADA regulations require the level of service
provided at the accessible portion of any sales and service counter
to be the same as the level of service provided at the inaccessible
portions of the counter.
The 2010 Standards specify different lengths for the accessible
portion of sales and service counters based on the type of approach
provided. Where a forward approach is provided, the accessible
portion of the counter must be at least 30 inches long and no higher
than 36 inches, and knee and toe space must be provided under the
counter. The requirement that knee and toe space be provided where
only clear floor space for a forward approach to a sales and service
counter is provided is not a new requirement. It is a clarification
of the ongoing requirement that part of the sales and service
counter be accessible. This requirement applies to the entire
accessible part of sales and service counters and requires that the
accessible clear floor or ground space adjacent to those counters be
kept clear of merchandise, equipment, and other items so that the
accessible part of the counter is readily accessible to and usable
by individuals with disabilities. The accessible part of the counter
must also be staffed and provide an equivalent level of service as
that provided to all customers.
Where clear floor space for a parallel approach is provided, the
accessible portion of the counter must be at least 36 inches long
and no higher than 36 inches above the finish floor. A clear floor
or ground space that is at least 48 inches long x 30 inches wide
must be provided positioned for a parallel approach adjacent to the
36-inch minimum length of counter.
Section 904.4 of the 2010 Standards includes an exception for
alterations to sales and service counters in existing facilities. It
permits the accessible portion of the counter to be at least 24
inches long, where providing a longer accessible counter will result
in a reduction in the number of existing counters at work stations
or existing mailboxes, provided that the required clear floor or
ground space is centered on the accessible length of the counter.
Section 904.4 of the 2010 Standards also clarifies that the
accessible portion of the counter must extend the same depth as the
sales or service counter top. Where the counter is a single-height
counter, this requirement applies across the entire depth of the
counter top. Where the counter is a split-height counter, this
requirement applies only to the customer side of the counter top.
The employee-side of the counter top may be higher or lower than the
customer-side of the counter top.
Commenters recommended that the Department consider a regulatory
alternative exempting small retailers from the new knee and toe
clearance requirement and retaining existing wheelchair
accessibility standards for sales and service counters. These
commenters believed that the knee and toe clearance requirements
will cause a reduction in the sales and inventory space at check-out
aisles and other sales and service counters.
Both the 1991 and the 2010 Standards permit covered entities to
determine whether they will provide a forward or a parallel approach
to sales and service counters. So any facility that does not wish to
provide the knee or toe clearance required for a front approach to
such a counter may avoid that option. However, the Department
believes that permitting a forward approach without requiring knee
and toe clearance is not adequate to provide accessibility because
the person using a wheelchair will be prevented from coming close
enough to the counter to see the merchandise or to transact business
with a degree of convenience that is comparable to that provided to
other customers.
A parallel approach to sales and service counters also can
provide the accessibility required by the 2010 Standards.
Individuals using wheelchairs can approach sales and service
counters from the side, and, assuming the necessary elements,
features, or merchandise necessary to complete a business
transaction are within the reach range requirements for a side
approach, the needs of individuals with disabilities can be met
effectively.
Section 227 of the 2010 Standards clarifies the requirements for
food service lines. Queues and waiting lines serving counters or
check-out aisles, including those for food service, must be
accessible to individuals with disabilities.

229 Windows

A new requirement at section 229.1 of the 2010 Standards
provides that if operable windows are provided for building users,
then at least one window in an accessible space must be equipped
with controls that comply with section 309.
Commenters generally supported this provision but some
commenters asked whether the maximum five-pounds (5 lbs.) of force
requirement of section 309 applies to the window latch itself or
only to the force required to open the window. Section 309 applies
to all controls and operating mechanisms, so the latch must comply
with the requirement to operate with no more than five pounds of
force (5 lbf).

230 and 708 Two-Way Communication Systems

New provisions of the 2010 Standards at sections 230.1 and 708
require two-way communications systems to be equipped with visible
as well as audible signals.

231 and 808 Judicial Facilities and Courtrooms

Section 231 of the 2010 Standards adds requirements for
accessible courtrooms, holding cells, and visiting areas.
Accessible Courtroom Stations. Sections 231.2, 808, 304, 305,
and 902 of the 2010 Standards provide increased accessibility at
courtroom stations. Clear floor space for a forward approach is
required for all courtroom stations (judges' benches, clerks'
stations, bailiffs' stations, deputy clerks' stations, court
reporters' stations, and litigants' and counsel stations). Other
applicable specifications include accessible work surface heights
and toe and knee clearance.
Accessible Jury Boxes, Attorney Areas, and Witness Stands.
Section 206.2.4 of the 2010 Standards requires, in new construction
and alterations, at least one accessible route to connect accessible
building or facility entrances with all accessible spaces and
elements within the building or facility that are connected by a
circulation path unless they are exempted by Exceptions 1-7 of
section 206.2.3. Advisory 206.2.4 Spaces and Elements Exception 1
explains that the exception allowing raised courtroom stations to be
used by court employees, such as judge's benches, to be adaptable
does not apply to areas of the courtroom likely to be used by
members of the public such as jury areas, attorney areas, or witness
stands. These areas must be on an accessible route at the time of
initial construction or alteration.
Raised Courtroom Stations Not for Members of the Public. Section
206.2.4, Exception 1 of the 2010 Standards provides that raised
courtroom stations that are used

[[Page 56352]]

by judges, clerks, bailiffs, and court reporters will not have to
provide full vertical access when first constructed or altered if
they are constructed to be easily adaptable to provide vertical
accessibility.
One commenter suggested that a sufficient number of accessible
benches for judges with disabilities, in addition to requiring
accessible witness stands and attorney areas, be required. The
Department believes that the requirements regarding raised benches
for judges are easily adaptable to provide vertical access in the
event a judge requires an accessible bench. Section 206.2.4 of the
2010 Standards provides that raised courtroom stations used by
judges and other judicial staff do not have to provide full vertical
access when first constructed or altered as long as the required
clear floor space, maneuvering space, and electrical service, where
appropriate, is provided at the time of new construction or can be
achieved without substantial reconstruction during alterations.
A commenter asserted that there is nothing inherent in clerks'
stations, jury boxes, and witness stands that require them to be
raised. While it would, of course, be easiest to provide access by
eliminating height differences among courtroom elements, the
Department recognizes that accessibility is only one factor that
must be considered in the design process of a functioning courtroom.
The need to ensure the ability of the judge to maintain order, the
need to ensure sight lines among the judge, the witness, the jury,
and other participants, and the need to maintain the security of the
participants all affect the design of the space. The Department
believes that the 2010 Standards have been drafted in a way that
will achieve accessibility without unduly constraining the ability
of a designer to address the other considerations that are unique to
courtrooms.
Commenters argued that permitting courtroom stations to be
adaptable rather than fully accessible at the time of new
construction likely will lead to discrimination in hiring of clerks,
court reporters, and other court staff. The Department believes that
the provisions will facilitate, not hinder, the hiring of court
personnel who have disabilities. All courtroom work stations will be
on accessible routes and will be required to have all fixed elements
designed in compliance with the 2010 Standards. Elevated work
stations for court employees may be designed to add vertical access
as needed. Since the original design must provide the proper space
and electrical wiring to install vertical access, the change should
be easily accomplished.

232 Detention Facilities and Correctional Facilities

Section 232 of the 2010 Standards establishes requirements for
the design and construction of cells, medical care facilities, and
visiting areas in detention facilities and in correctional
facilities. Section 35.151(k) of the Department's title II rule
provides scoping for newly constructed general holding cells and
general housing cells requiring mobility features compliant with
section 807.2 of the 2010 Standards in a minimum of three percent
(3%) of cells, but no fewer than one cell. Section 232.2 of the 2010
Standards provides scoping for newly constructed cells with
communications features requiring a minimum of two percent (2%) of
cells, but at least one cell, to have communication features.
The Department's title II rule at Sec. 35.151(k) also specifies
scoping for alterations to detention and correctional facilities.
Generally a minimum of three percent (3%), but no fewer than one, of
the total number of altered cells must comply with section 807.2 of
the 2010 Standards and be provided within each facility. Altered
cells with mobility features must be provided in each classification
level, including administrative and disciplinary segregation, each
use and service area, and special program. The Department notes that
the three percent (3%), but no fewer than one, requirement is a
minimum. As corrections systems plan for new facilities or
alterations, the Department urges planners to include in their
population estimates a projection of the numbers of inmates with
disabilities so as to have sufficient numbers of accessible cells to
meet inmate needs.

233 Residential Facilities

Homeless Shelters, Group Homes, and Similar Social Service
Establishments. Section 233 of the 2010 Standards includes specific
scoping and technical provisions that apply to new construction and
alteration of residential facilities. In the 1991 Standards scoping
and technical requirements for homeless shelters, group homes, and
similar social service establishments were included in section 9
Transient Lodging. These types of facilities will be covered by
section 233 of the 2010 Standards and by 28 CFR 35.151(e) and
36.406(d) and will be subject to requirements for residential
facilities rather than the requirements for transient lodging. This
approach will harmonize federal accessibility obligations under both
the ADA and section 504 of the Rehabilitation Act of 1973, as
amended. In sleeping rooms with more than 25 beds that are covered
by Sec. 36.406(d) a minimum of five percent (5%) of the beds must
have clear floor space compliant with section 806.2.3 of the 2010
Standards. In large facilities with more than 50 beds, at least one
roll-in shower compliant with section 608.2.2 or section 608.2.3 of
the 2010 Standards must be provided. Where separate shower
facilities are provided for men and for women, at least one roll-in
shower must be provided for each gender.
Housing Operated By or On Behalf of Places of Education. Housing
at a place of education includes: Residence halls, dormitories,
suites, apartments, or other places of residence operated by or on
behalf of places of education. Residence halls or dormitories
operated by or on behalf of places of education are covered by the
provisions in sections 224 and 806 of the 2010 Standards. The
Department has included in the title III rule at Sec. 36.406(e)
requirements that apply to housing at places of education that
clarify requirements for residence halls and dormitories and other
types of student housing. Requirements for housing at a place of
education covered by the title II rule are included at Sec.
35.151(f).
Kitchens and Kitchenettes. Section 4.34.2 of the UFAS requires a
clear turning space at least 60 inches in diameter or an equivalent
T-shaped turning space in kitchens. Section 4.34.6 requires a
clearance between opposing base cabinets, counters, appliances, or
walls of at least 40 inches except in a U-shaped kitchen where the
minimum clearance is 60 inches.
Section 804 of the 2010 Standards provides technical
requirements for kitchens and kitchenettes. Section 804.2.1 requires
that pass through kitchens, which have two entries and counters,
appliances, or cabinets on two opposite sides or opposite a parallel
wall, provide at least 40 inches minimum clearance. Section 804.2.2
requires that U-shaped kitchens, which are enclosed on three
continuous sides, provide at least 60 inches minimum clearance
between all opposing base cabinets, countertops, appliances, or
walls within kitchen work areas. Kitchens that do not have a cooktop
or conventional range are exempt from the clearance requirements but
still must provide an accessible route.
If a kitchen does not have two entries, the 2010 Standards
require the kitchen to have 60 inches minimum clearance between the
opposing base cabinets, counters, appliances, or walls.
One commenter supported the provisions of section 804 of the
2010 Standards but sought clarification whether this section applies
to residential units only, or to lodging and office buildings as
well. Section 212 makes section 804 applicable to all kitchens and
kitchenettes in covered buildings.
Residential Facilities. Section 4.1.4(11) of the UFAS contains
scoping requirements for the new construction of housing. Under the
1991 title II regulation, state and local governments had the option
of complying with the UFAS or the 1991 Standards. After the
compliance date for the 2010 Standards, state and local governments
will no longer have the option of complying with the UFAS, but will
have to use the 2010 Standards for new construction and alterations.
Sections 233.1, 233.2, 233.3, 233.3.1, and 233.3.2 of the 2010
Standards differentiate between entities subject to the United
States Department of Housing and Urban Development (HUD) regulations
implementing section 504 of the Rehabilitation Act of 1973 and
entities not subject to the HUD regulations. The HUD regulations
apply to recipients of federal financial assistance through HUD, and
require at least five percent (5%) of dwelling units in multi-family
projects of five or more dwelling units to provide mobility features
and at least two percent (2%) of the dwelling units to provide
communication features. The HUD regulations define a project unique
to its programs as ``one or more residential structures which are
covered by a single contract for federal financial assistance or
application for assistance, or are treated as a whole for processing
purposes, whether or not located on a common site.'' To avoid any
potential conflicts with the HUD regulations, the 2010 Standards
require residential dwelling units subject to the HUD regulations to
comply with the scoping requirements in the HUD regulations, instead
of the scoping requirements in the 2010 Standards.
For entities not subject to the HUD regulations, the 2010
Standards require at

[[Page 56353]]

least five percent (5%) of the dwelling units in residential
facilities to provide mobility features, and at least two percent
(2%) of the dwelling units to provide communication features. The
2010 Standards define facilities in terms of buildings located on a
site. The 2010 Standards permit facilities that contain 15 or fewer
dwelling units to apply the scoping requirements to all the dwelling
units that are constructed under a single contract, or are developed
as whole, whether or not located on a common site.
Alterations to Residential Facilities. Section 4.1.6 of the UFAS
requires federal, state, and local government housing to comply with
the general requirements for alterations to facilities. Applying the
general requirements for alterations to housing can result in
partially accessible dwelling units where single elements or spaces
in dwelling units are altered.
The 2010 Standards, at sections 202.3 Exception 3, 202.4, and
233.3, contain specific scoping requirements for alterations to
dwelling units. Dwelling units that are not required to be
accessible are exempt from the general requirements for alterations
to elements and spaces and for alterations to primary function
areas.
The scoping requirements for alterations to dwelling units
generally are based on the requirements in the UFAS:
Where a building is vacated for purposes of alterations
and has more than 15 dwelling units, at least five percent (5%) of
the altered dwelling units are required to provide mobility features
and at least two percent (2%) of the dwelling units are required to
provide communication features.
Where a bathroom or a kitchen is substantially altered
in an individual dwelling unit and at least one other room is also
altered, the dwelling unit is required to comply with the scoping
requirements for new construction until the total number of dwelling
units in the facility required to provide mobility features and
communication features is met.
As with new construction, the 2010 Standards permit facilities
that contain 15 or fewer dwelling units to apply the scoping
requirements to all the dwelling units that are altered under a
single contract, or are developed as a whole, whether or not located
on a common site. The 2010 Standards also permit a comparable
dwelling unit to provide mobility features where it is not
technically feasible for the altered dwelling unit to comply with
the technical requirements.

234 and 1002 Amusement Rides

New and Altered Permanently Installed Amusement Rides. Section
234 of the 2010 Standards sets out scoping requirements and section
1002 sets out the technical requirements for the accessibility of
permanently installed amusement rides. These requirements apply to
newly designed and constructed amusement rides and used rides when
certain alterations are made.
A commenter raised concerns that smaller amusement parks tend to
purchase used rides more frequently than new rides, and that the
conversion of a used ride to provide the required accessibility may
be difficult to ensure because of the possible complications in
modifying equipment to provide accessibility.
The Department agrees with this commenter. The Department notes,
however, that the 2010 Standards will require modifications to
existing amusement rides when a ride's structural and operational
characteristics are altered to the extent that the ride's
performance differs from that specified by the manufacturer or the
original design. Such an extensive alteration to an amusement ride
may well require that new load and unload areas be designed and
constructed. When load and unload areas serving existing amusement
rides are newly designed and constructed they must be level, provide
wheelchair turning space, and be on an accessible route compliant
with Chapter 4 of the 2010 Standards except as modified by section
1002.2 of the 2010 Standards.
Mobile or Portable Amusement Rides. The exception in section
234.1 of the 2010 Standards exempts mobile or portable amusement
rides, such as those set up for short periods of time at carnivals,
fairs or festivals, from having to comply with the 2010 Standards.
However, even though the mobile/portable ride itself is not subject
to the Standards, these facilities are still subject to the ADA's
general requirement to ensure that individuals with disabilities
have an equal opportunity to enjoy the services and amenities of
these facilities.
Subject to these general requirements, mobile or portable
amusement rides should be located on an accessible route and the
load and unload areas serving a ride should provide a level
wheelchair turning space to provide equal opportunity for
individuals with disabilities to be able to participate on the
amusement ride to the extent feasible.
One commenter noted that the exception in Section 234.1 of the
2010 Standards for mobile or portable amusement rides limits the
opportunities of persons with disabilities to participate on
amusement rides because traveling or temporary amusement rides by
their nature come to their customers' town or a nearby town rather
than the customer having to go to them and so are less expensive
than permanent amusement parks. While the Department understands the
commenter's concerns, the Department notes that most amusement rides
are too complex to be reasonably modified or re-engineered to
accommodate the majority of individuals with disabilities and that
additional complexities and safety concerns are added when the rides
are mobile or portable.
A commenter asked that section 234 of the 2010 Standards make
clear that the requirements for accessible routes include the routes
leading up to and including the loading and unloading areas of
amusement rides. Sections 206.2.9 and 1002.2 of the 2010 Standards
clarify that the requirements for accessible routes include the
routes leading up to and including the loading and unloading areas
of amusement rides.
A commenter requested that the final rule specifically allow for
wheelchair access through the exit or other routes, or alternate
means of wheelchair access routes to amusement rides. The commenter
stated that the concept of wheelchair access through the exit or
alternate routes was a base assumption for the 2010 Standards. The
commenter noted that the concept is apparent in the signage and
load/unload area provisions in Section 216.12 (`` * * * where
accessible unload areas also serve as accessible load areas, signs
indicating the location of the accessible load and unload areas
shall be provided at entries to queues and waiting lines''). The
Department agrees with the commenter that accessible load and unload
areas may be the same where signs that comply with section 216.12
are provided.
Wheelchair Space or Transfer Seat or Transfer Device. Sections
234.3 and 1002.4-1002.6 of the 2010 Standards provide that each new
and altered amusement ride, except for mobile/portable rides and a
few additional excepted rides, will be required to provide at least
one type of access by means of one wheelchair space or one transfer
seat or one transfer device (the design of the transfer device is
not specified).
Commenters urged the Department to revise the requirements for
wheelchair spaces and transfer seats and devices because most
amusement rides are too complex to be reasonably modified or re-
engineered to accommodate the majority of individuals with
disabilities. They argued that the experience of amusement rides
will be significantly reduced if the proposed requirements are
implemented.
The 2004 ADAAG, which the Department adopted as part of the 2010
Standards, was developed with the assistance of an advisory
committee that included representation from the design staffs of
major amusement venues and from persons with disabilities. The
Department believes that the resulting 2004 ADAAG reflected
sensitivity to the complex problems posed in adapting existing rides
by focusing on new rides that can be designed from the outset to be
accessible.
To permit maximum design flexibility, the 2010 Standards permit
designers to determine whether it is more appropriate to permit
individuals who use wheelchairs to remain in their chairs on the
ride, or to provide for transfer access.
Maneuvering Space in Load and Unload Areas. Sections 234.2 and
1002.3 of the 2010 Standards require that a level wheelchair turning
space be provided at the load and unload areas of each amusement
ride. The turning space must comply with sections 304.2 and 304.3.
Signs Required at Waiting Lines to Amusement Rides. Section
216.12 of the 2010 Standards requires signs at entries to queues and
waiting lines identifying type and location of access for the
amusement ride.

235 and 1003 Recreational Boating Facilities

These sections require that accessible boat slips and boarding
piers be provided. Most commenters approved of the requirements for
recreational boating facility accessibility and urged the Department
to keep regulatory language consistent with those provisions. They
commented that the requirements appropriately reflect industry
conditions. Individual commenters and disability organizations
agreed that the 2010 Standards

[[Page 56354]]

achieve acceptable goals for recreational boating facility access.
Accessible Route. Sections 206.2.10 and 1003.2 of the 2010
Standards require an accessible route to all accessible boating
facilities, including boat slips and boarding piers at boat launch
ramps. Section 1003.2.1 provides a list of exceptions applicable to
structures such as gangways, transition plates, floating piers, and
structures containing combinations of these elements that are
affected by water level changes. The list of exceptions specifies
alternate design requirements applicable to these structures which,
because of water level variables, cannot comply with the slope,
cross slope, and handrail requirements for fixed ramps contained in
sections 403.3, 405.2, 405.3, 405.6, and 405.7 of the 2010
Standards. Exceptions 3 and 4 in Section 1003.2.1, which permit a
slope greater than that specified in Section 405.2, are available
for structures that meet specified length requirements. Section
206.7.10 permits the use of platform lifts as an alternative to
gangways that are part of accessible routes.
Commenters raised concerns that because of water level
fluctuations it may be difficult to provide accessible routes to all
accessible boating facilities, including boat slips and boarding
piers at boat launch ramps. One of the specific concerns expressed
by several commenters relates to the limits for running slope
permitted on gangways that are part of an accessible route as
gangways may periodically have a steeper slope than is permitted for
a fixed ramp. The exceptions contained in section 1003.2 of the 2010
Standards modify the requirements of Chapter 4. For example, where
the total length of a gangway or series of gangways serving as an
accessible route is 80 feet or more an exception permits the slope
on gangways to exceed the maximum slope in section 405.2.
Some commenters suggested that permissible slope variations
could be reduced further by introducing a formula that ties required
gangway length to anticipated water level fluctuations. Such a
formula would incorporate predictions of tidal level changes such as
those issued by the National Oceanographic and Atmospheric
Administration (NOAA) and the United States Geologic Survey (USGS).
This suggested approach would be an alternative to the gangway
length exceptions and limits in section 1003.2.1 of the 2010
Standards. These commenters noted that contemporary building
materials and techniques make gangways of longer length and
alternative configurations achievable. These commenters provided at
least one example of a regional regulatory authority using this type
of formula. While this approach may be successfully implemented and
consistent with the goals of the ADA, the example provided was
applied in a highly developed area containing larger facilities. The
Department has considered that many facilities do not have
sufficient resources available to take advantage of the latest
construction materials and design innovations. Other commenters
supported compliance exceptions for facilities that are subject to
extreme tidal conditions. One commenter noted that if a facility is
located in an area with limited space and extreme tidal variations,
a disproportionately long gangway might intrude into water travel
routes. The Department has considered a wide range of boating
facility characteristics including size, water surface areas, tidal
fluctuations, water conditions, variable resources, whether the
facility is in a highly developed or remote location, and other
factors. The Department has determined that the 2010 Standards
provide sufficient flexibility for such broad application.
Additionally, the length requirement for accessible routes in
section 1003.2.1 provides an easily determinable compliance
standard.
Accessible Boarding Piers. Where boarding piers are provided at
boat launch ramps, sections 235.3 and 1003.3.2 of the 2010 Standards
require that at least five percent (5%) of boarding piers, but at
least one, must be accessible.
Accessible Boat Slips. Sections 235.2 and 1003.3.1 of the 2010
Standards require that a specified number of boat slips in each
recreational boating facility meet specified accessibility
standards. The number of accessible boat slips required by the 2010
Standards is set out in a chart in section 235.2. One accessible
boat slip is required for facilities containing 25 or fewer total
slips. The number of required accessible boat slips increases with
the total number of slips at the facility. Facilities containing
more than one thousand (1000) boat slips are required to provide
twelve (12) accessible boat slips plus one for each additional one
hundred slips at the facility.
One commenter asserted the need for specificity in the
requirement for dispersion of accessible slips. Section 235.2.1 of
the 2010 Standards addresses dispersion and requires that boat slips
``shall be dispersed throughout the various types of boat slips
provided.'' The commenter was concerned that if a marina could not
put accessible slips all on one pier, it would have to reconstruct
the entire facility to accommodate accessible piers, gangways, docks
and walkways. The provision permits required accessible boat slips
to be grouped together. The Department recognizes that economical
and structural feasibility may produce this result. The 2010
Standards do not require the dispersion of the physical location of
accessible boat slips. Rather, the dispersion must be among the
various types of boat slips offered by the facility. Section 235.2.1
of the 2010 Standards specifies that if the required number has been
met, no further dispersion is required. For example, if a facility
offers five different `types' of boat slips but is only required to
provide three according to the table in Section 235.2, that facility
is not required to provide more than three accessible boat slips,
but the three must be varied among the five `types' of boat slips
available at the facility.

236 and 1004 Exercise Machines and Equipment

Accessible Route to Exercise Machines and Equipment. Section
206.2.13 of the 2010 Standards requires an accessible route to serve
accessible exercise machines and equipment.
Commenters raised concerns that the requirement to provide
accessible routes to serve accessible exercise machines and
equipment will be difficult for some facilities to provide,
especially some transient lodging facilities that typically locate
exercise machines and equipment in a single room. The Department
believes that this requirement is a reasonable one in new
construction and alterations because accessible exercise machines
and equipment can be located so that an accessible route can serve
more than one piece of equipment.
Exercise Machines and Equipment. Section 236 of the 2010
Standards requires at least one of each type of exercise machine to
meet clear floor space requirements of section 1004.1. Types of
machines are generally defined according to the muscular groups
exercised or the kind of cardiovascular exercise provided.
Several commenters were concerned that existing facilities would
have to reduce the number of available exercise equipment and
machines in order to comply with the 2010 Standards. One commenter
submitted prototype drawings showing equipment and machine layouts
with and without the required clearance specified in the 2010
Standards. The accessible alternatives all resulted in a loss of
equipment and machines. However, because these prototype layouts
included certain possibly erroneous assumptions about the 2010
Standards, the Department wishes to clarify the requirements.
Section 1004.1 of the 2010 Standards requires a clear floor
space ``positioned for transfer or for use by an individual seated
in a wheelchair'' to serve at least one of each type of exercise
machine and equipment. This requirement provides the designer
greater flexibility regarding the location of the clear floor space
than was employed by the commenter who submitted prototype layouts.
The 2010 Standards do not require changes to exercise machines or
equipment in order to make them more accessible to persons with
disabilities. Even where machines or equipment do not have seats and
typically are used by individuals in a standing position, at least
one of each type of machine or equipment must have a clear floor
space. Therefore, it is reasonable to assume that persons with
disabilities wishing to use this type of machine or equipment can
stand or walk, even if they use wheelchairs much of the time. As
indicated in Advisory 1004.1, ``the position of the clear floor
space may vary greatly depending on the use of the equipment or
machine.'' Where exercise equipment or machines require users to
stand on them, the clear floor space need not be located parallel to
the length of the machine or equipment in order to provide a lateral
seat-to-platform transfer. It is permissible to locate the clear
floor space for such machines or equipment in the aisle behind the
device and to overlap the clear floor space and the accessible
route.
Commenters were divided in response to the requirement for
accessible exercise machines and equipment. Some supported
requirements for accessible machines and equipment; others urged the
Department not to require accessible machines and

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equipment because of the costs involved. The Department believes
that the requirement strikes an appropriate balance in ensuring that
persons with disabilities, particularly those who use wheelchairs,
will have the opportunity to use the exercise equipment. Providing
access to exercise machines and equipment recognizes the need and
desires of individuals with disabilities to have the same
opportunity as other patrons to enjoy the advantages of exercise and
maintaining health.

237 and 1005 Fishing Piers and Platforms

Accessible Route. Sections 206.2.14 and 1005.1 of the 2010
Standards require an accessible route to each accessible fishing
pier and platform. The exceptions described under Recreational
Boating above also apply to gangways and floating piers. All
commenters supported the requirements for accessible routes to
fishing piers and platforms.
Accessible Fishing Piers and Platforms. Sections 237 and 1005 of
the 2010 Standards require at least twenty-five percent (25%) of
railings, guards, or handrails (if provided) to be at a 34-inch
maximum height (so that a person seated in a wheelchair can cast a
fishing line over the railing) and to be located in a variety of
locations on the fishing pier or platform to give people a variety
of locations to fish. An exception allows a guard required to comply
with the IBC to have a height greater than 34 inches. If railings,
guards, or handrails are provided, accessible edge protection and
clear floor or ground space at accessible railings are required.
Additionally, at least one turning space complying with section
304.3 of the 2010 Standards is required to be provided on fishing
piers and platforms.
Commenters expressed concerns about the provision for fishing
piers and platforms at the exception in section 1005.2.1 of the 2010
Standards that allows a maximum height of 42 inches for a guard when
the pier or platform is covered by the IBC. Two commenters stated
that allowing a 42-inch guard or railing height for facilities
covered by another building code would be difficult to enforce. They
also thought that this would hinder access for persons with
disabilities because the railing height would be too high for a
person seated in a wheelchair to reach over with their fishing pole
in order to fish. The Department understands these concerns but
believes that the railing height exception is necessary in order to
avoid confusion resulting from conflicting accessibility
requirements, and therefore has retained this exception.

238 and 1006 Golf Facilities

Accessible Route. Sections 206.2.15, 1006.2, and 1006.3 of the
2010 Standards require an accessible route to connect all accessible
elements within the boundary of the golf course and, in addition, to
connect golf car rental areas, bag drop areas, teeing grounds,
putting greens, and weather shelters. An accessible route also is
required to connect any practice putting greens, practice teeing
grounds, and teeing stations at driving ranges that are required to
be accessible. An exception permits the accessible route
requirements to be met, within the boundaries of the golf course, by
providing a ``golf car passage'' (the path typically used by golf
cars) if specifications for width and curb cuts are met.
Most commenters expressed the general viewpoint that nearly all
golf courses provide golf cars and have either well-defined paths or
permit the cars to drive on the course where paths are not present,
and thus meet the accessible route requirement.
The Department received many comments requesting clarification
of the term ``golf car passage.'' Some commenters recommended
additional regulatory language specifying that an exception from a
pedestrian route requirement should be allowed only when a golf car
passage provides unobstructed access onto the teeing ground, putting
green, or other accessible element of the course so that an
accessible golf car can have full access to those elements. These
commenters cautioned that full and equal access would not be
provided if a golfer were required to navigate a steep slope up or
down a hill or a flight of stairs in order to get to the teeing
ground, putting green, or other accessible element of the course.
Conversely, another commenter requesting clarification of the
term ``golf car passage'' argued that golf courses typically do not
provide golf car paths or pedestrian paths up to actual tee grounds
or greens, many of which are higher or lower than the car path. This
commenter argued that if golf car passages were required to extend
onto teeing grounds and greens in order to qualify for an exception,
then some golf courses would have to substantially regrade teeing
grounds and greens at a high cost.
Some commenters argued that older golf courses, small nine-hole
courses, and executive courses that do not have golf car paths would
be unable to comply with the accessible route requirements because
of the excessive cost involved. A commenter noted that, for those
older courses that have not yet created an accessible pedestrian
route or golf car passage, the costs and impacts to do so should be
considered.
A commenter argued that an accessible route should not be
required where natural terrain makes it infeasible to create an
accessible route. Some commenters cautioned that the 2010 Standards
would jeopardize the integrity of golf course designs that utilize
natural terrain elements and elevation changes to set up shots and
create challenging golf holes.
The Department has given careful consideration to the comments
and has decided to adopt the 2010 Standards requiring that at least
one accessible route connect accessible elements and spaces within
the boundary of the golf course including teeing grounds, putting
greens, and weather shelters, with an exception provided that golf
car passages shall be permitted to be used for all or part of
required accessible routes. In response to requests for
clarification of the term ``golf car passage,'' the Department
points out that golf car passage is merely a pathway on which a
motorized golf car can operate and includes identified or paved
paths, teeing grounds, fairways, putting greens, and other areas of
the course. Golf cars cannot traverse steps and exceedingly steep
slopes. A nine-hole golf course or an executive golf course that
lacks an identified golf car path but provides golf car passage to
teeing grounds, putting greens, and other elements throughout the
course may utilize the exception for all or part of the accessible
pedestrian route. The exception in section 206.2.15 of the 2010
Standards does not exempt golf courses from their obligation to
provide access to necessary elements of the golf course; rather, the
exception allows a golf course to use a golf car passage for part or
all of the accessible pedestrian route to ensure that persons with
mobility disabilities can fully and equally participate in the
recreational activity of playing golf.
Accessible Teeing Grounds, Putting Greens, and Weather Shelters.
Sections 238.2 and 1006.4 of the 2010 Standards require that golf
cars be able to enter and exit each putting green and weather
shelter. Where two teeing grounds are provided, the forward teeing
ground is required to be accessible (golf car can enter and exit).
Where three or more teeing grounds are provided, at least two,
including the forward teeing ground, must be accessible.
A commenter supported requirements for teeing grounds,
particularly requirements for accessible teeing grounds, noting that
accessible teeing grounds are essential to the full and equal
enjoyment of the golfing experience.
A commenter recommended that existing golf courses be required
to provide access to only one teeing ground per hole. The majority
of commenters reported that most public and private golf courses
already provide golf car passage to teeing grounds and greens. The
Department has decided that it is reasonable to maintain the
requirement. The 2010 Standards provide an exception for existing
golf courses with three or more teeing grounds not to provide golf
car passage to the forward teeing ground where terrain makes such
passage infeasible.
Section 1006.3.2 of the 2010 Standards requires that where curbs
or other constructed barriers prevent golf cars from entering a
fairway, openings 60 inches wide minimum shall be provided at
intervals not to exceed 75 yards.
A commenter disagreed with the requirement that openings 60
inches wide minimum be installed at least every 75 yards, arguing
that a maximum spacing of 75 yards may not allow enough flexibility
for terrain and hazard placements. To resolve this problem, the
commenter recommended that the standards be modified to require that
each golf car passage include one 60-inch wide opening for an
accessible golf car to reach the tee, and that one opening be
provided where necessary for an accessible golf car to reach a
green. The requirement for openings where curbs or other constructed
barriers may otherwise prevent golf cars from entering a fairway
allows the distance between openings to be less than every 75 yards.
Therefore, the Department believes that the language in section
1006.3.2 of the 2010 Standards allows appropriate flexibility. Where
a paved path with curbs or other constructed barrier exists, the
Department believes that it is essential that

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openings be provided to enable golf car passages to access teeing
grounds, fairways and putting greens, and other required elements.
Golf car passage is not restricted to a paved path with curbs. Golf
car passage also includes fairways, teeing grounds, putting greens,
and other areas on which golf cars operate.
Accessible Practice Putting Greens, Practice Teeing Grounds, and
Teeing Stations at Driving Ranges. Section 238.3 of the 2010
Standards requires that five percent (5%) but at least one of each
of practice putting greens, practice teeing grounds, and teeing
stations at driving ranges must permit golf cars to enter and exit.

239 and 1007 Miniature Golf Facilities

Accessible Route to Miniature Golf Course Holes. Sections
206.2.16, 239.3, and 1007.2 of the 2010 Standards require an
accessible route to connect accessible miniature golf course holes
and the last accessible hole on the course directly to the course
entrance or exit. Accessible holes are required to be consecutive
with an exception permitting one break in the sequence of
consecutive holes provided that the last hole on the miniature golf
course is the last hole in the sequence.
Many commenters supported expanding the exception from one to
multiple breaks in the sequence of accessible holes. One commenter
noted that permitting accessible holes with breaks in sequence would
enable customers with disabilities to enjoy the landscaping, water
and theme elements of the miniature golf course. Another commenter
wrote in favor of allowing multiple breaks in accessible holes with
a connecting accessible route.
Other commenters objected to allowing multiple breaks in the
sequence of miniature golf holes. Commenters opposed to this change
argued that allowing any breaks in the sequence of accessible holes
at a miniature golf course would disrupt the flow of play for
persons with disabilities and create a less socially integrated
experience. A commenter noted that multiple breaks in sequence would
not necessarily guarantee the provision of access to holes that are
most representative of those with landscaping, water elements, or a
fantasy-like experience.
The Department has decided to retain the exception without
change. Comments did not provide a sufficient basis on which to
conclude that allowing multiple breaks in the sequence of accessible
holes would necessarily increase integration of accessible holes
with unique features of miniature golf courses. Some designs of
accessible holes with multiple breaks in the sequence might provide
equivalent facilitation where persons with disabilities gain access
to landscaping, water or theme elements not otherwise represented in
a consecutive configuration of accessible holes. A factor that might
contribute to equivalent facilitation would be an accessible route
designed to bring persons with disabilities to a unique feature,
such as a waterfall, that would otherwise not be served by an
accessible route connecting consecutive accessible holes.
Specified exceptions are permitted for accessible route
requirements when located on the playing surfaces near holes.
Accessible Miniature Golf Course Holes. Sections 239.2 and
1007.3 of the 2010 Standards require at least fifty percent (50%) of
golf holes on miniature golf courses to be accessible, including
providing a clear floor or ground space that is 48 inches minimum by
60 inches minimum with slopes not steeper than 1:48 at the start of
play.

240 and 1008 Play Areas

Section 240 of the 2010 Standards provides scoping for play
areas and section 1008 provides technical requirements for play
areas. Section 240.1 of the 2010 Standards sets requirements for
play areas for children ages 2 and over and covers separate play
areas within a site for specific age groups. Section 240.1 also
provides four exceptions to the requirements that apply to family
child care facilities, relocation of existing play components in
existing play areas, amusement attractions, and alterations to play
components where the ground surface is not altered.
Ground Surfaces. Section 1008.2.6 of the 2010 Standards provides
technical requirements for accessible ground surfaces for play areas
on accessible routes, clear floor or ground spaces, and turning
spaces. These ground surfaces must follow special rules,
incorporated by reference from nationally recognized standards for
accessibility and safety in play areas, including those issued by
the American Society for Testing and Materials (ASTM).
A commenter recommended that the Department closely examine the
requirements for ground surfaces at play areas. The Department is
aware that there is an ongoing controversy about play area ground
surfaces arising from a concern that some surfaces that meet the
ASTM requirements at the time of installation will become
inaccessible if they do not receive constant maintenance. The Access
Board is also aware of this issue and is working to develop a
portable field test that will provide more relevant information on
installed play surfaces. The Department would caution covered
entities selecting among the ground surfacing materials that comply
with the ASTM requirements that they must anticipate the maintenance
costs that will be associated with some of the products. Permitting
a surface to deteriorate so that it does not meet the 2010 Standards
would be an independent violation of the Department's ADA
regulations.
Accessible Route to Play Components. Section 206.2.17 of the
2010 Standards provides scoping requirements for accessible routes
to ground level and elevated play components and to soft contained
play structures. Sections 240.2 and 1008 of the 2010 Standards
require that accessible routes be provided for play components. The
accessible route must connect to at least one ground level play
component of each different type provided (e.g., for different
experiences such as rocking, swinging, climbing, spinning, and
sliding). Table 240.2.1.2 sets requirements for the number and types
of ground level play components required to be on accessible routes.
When elevated play components are provided, an accessible route must
connect at least fifty percent (50%) of the elevated play
components. Section 240.2.1.2, provides an exception to the
requirements for ground level play components if at least fifty
percent (50%) of the elevated play components are connected by a
ramp and at least three of the elevated play components connected by
the ramp are different types of play components.
The technical requirements at section 1008 include provisions
where if three or fewer entry points are provided to a soft
contained play structure, then at least one entry point must be on
an accessible route. In addition, where four or more entry points
are provided to a soft contained play structure, then at least two
entry points must be served by an accessible route.
If elevated play components are provided, fifty percent (50%) of
the elevated components are required to be accessible. Where 20 or
more elevated play components are provided, at least twenty five
percent (25%) will have to be connected by a ramp. The remaining
play components are permitted to be connected by a transfer system.
Where less than 20 elevated play components are provided, a transfer
system is permitted in lieu of a ramp.
A commenter noted that the 2010 Standards allow for the
provision of transfer steps to elevated play structures based on the
number of elevated play activities, but asserted that transfer steps
have not been documented as an effective means of access.
The 2010 Standards recognize that play structures are designed
to provide unique experiences and opportunities for children. The
2010 Standards provide for play components that are accessible to
children who cannot transfer from their wheelchair, but they also
provide opportunities for children who are able to transfer.
Children often interact with their environment in ways that would be
considered inappropriate for adults. Crawling and climbing, for
example, are integral parts of the play experience for young
children. Permitting the use of transfer platforms in play
structures provides some flexibility for creative playground design.
Accessible Play Components. Accessible play components are
required to be on accessible routes, including elevated play
components that are required to be connected by ramps. These play
components must also comply with other accessibility requirements,
including specifications for clear floor space and seat heights
(where provided).
A commenter expressed concerns that the general requirements of
section 240.2.1 of the 2010 Standards and the advisory accompanying
section 240.2.1 conflict. The comment asserts that section 240.2.1
of the 2010 Standards provides that the only requirement for
integration of equipment is where there are two or more required
ground level play components, while the advisory appears to suggest
that all accessible components must be integrated.
The commenter misinterprets the requirement. The ADA mandates
that persons with disabilities be able to participate in programs or
activities in the most integrated setting appropriate to their
needs. Therefore, all accessible play components must be integrated
into the general playground setting. Section 240.2.1 of

[[Page 56357]]

the 2010 Standards specifies that where there is more than one
accessible ground level play component, the components must be both
dispersed and integrated.

241 and 612 Saunas and Steam Rooms

Section 241 of the 2010 Standards sets scoping for saunas and
steam rooms and section 612 sets technical requirements including
providing accessible turning space and an accessible bench. Doors
are not permitted to swing into the clear floor or ground space for
the accessible bench. The exception in section 612.2 of the 2010
Standards permits a readily removable bench to obstruct the required
wheelchair turning space and the required clear floor or ground
space. Where they are provided in clusters, five percent (5%) but at
least one sauna or steam room in each cluster must be accessible.
Commenters raised concerns that the safety of individuals with
disabilities outweighs the usefulness in providing accessible saunas
and steam rooms. The Department believes that there is an element of
risk in many activities available to the general public. One of the
major tenets of the ADA is that individuals with disabilities should
have the same opportunities as other persons to decide what risks to
take. It is not appropriate for covered entities to prejudge the
abilities of persons with disabilities.

242 and 1009 Swimming Pools, Wading Pools, and Spas

Accessible Means of Entry to Pools. Section 242 of the 2010
Standards requires at least two accessible means of entry for larger
pools (300 or more linear feet) and at least one accessible entry
for smaller pools. This section requires that at least one entry
will have to be a sloped entry or a pool lift; the other could be a
sloped entry, pool lift, a transfer wall, or a transfer system
(technical specifications for each entry type are included at
section 1009).
Many commenters supported the scoping and technical requirements
for swimming pools. Other commenters stated that the cost of
requiring facilities to immediately purchase a pool lift for each
indoor and outdoor swimming pool would be very significant
especially considering the large number of swimming pools at lodging
facilities. One commenter requested that the Department clarify what
would be an ``alteration'' to a swimming pool that would trigger the
obligation to comply with the accessible means of entry in the 2010
Standards.
Alterations are covered by section 202.3 of the 2010 Standards
and the definition of ``alteration'' is provided at section 106.5. A
physical change to a swimming pool which affects or could affect the
usability of the pool is considered to be an alteration. Changes to
the mechanical and electrical systems, such as filtration and
chlorination systems, are not alterations. Exception 2 to section
202.3 permits an altered swimming pool to comply with applicable
requirements to the maximum extent feasible if full compliance is
technically infeasible. ``Technically infeasible'' is also defined
in section 106.5 of the 2010 Standards.
The Department also received comments suggesting that it is not
appropriate to require two accessible means of entry to wave pools,
lazy rivers, sand bottom pools, and other water amusements where
there is only one point of entry. Exception 2 of Section 242.2 of
the 2010 Standards exempts pools of this type from having to provide
more than one accessible means of entry provided that the one
accessible means of entry is a swimming pool lift compliant with
section 1009.2, a sloped entry compliant with section 1009.3, or a
transfer system compliant with section 1009.5 of the 2010 Standards.
Accessible Means of Entry to Wading Pools. Sections 242.3 and
1009.3 of the 2010 Standards require that at least one sloped means
of entry is required into the deepest part of each wading pool.
Accessible Means of Entry to Spas. Sections 242.4 and 1009.2,
1009.4, and 1009.5 of the 2010 Standards require spas to meet
accessibility requirements, including an accessible means of entry.
Where spas are provided in clusters, five percent (5%) but at least
one spa in each cluster must be accessible. A pool lift, a transfer
wall, or a transfer system will be permitted to provide the required
accessible means of entry.

243 Shooting Facilities with Firing Positions

Sections 243 and 1010 of the 2010 Standards require an
accessible turning space for each different type of firing position
at a shooting facility if designed and constructed on a site. Where
firing positions are provided in clusters, five percent (5%), but at
least one position of each type in each cluster must be accessible.

Additional Technical Requirements

302.1 Floor or Ground Surfaces

Both section 4.5.1 of the 1991 Standards and section 302.2 of
the 2010 Standards require that floor or ground surfaces along
accessible routes and in accessible rooms and spaces be stable,
firm, slip-resistant, and comply with either section 4.5 in the case
of the 1991 Standards or section 302 in the case of the 2010
Standards.
Commenters recommended that the Department apply an ASTM
Standard (with modifications) to assess whether a floor surface is
``slip resistant'' as required by section 302.1 of the 2010
Standards. The Department declines to accept this recommendation
since, currently, there is no generally accepted test method for the
slip-resistance of all walking surfaces under all conditions.

304 Turning Space

Section 4.2.3 of the 1991 Standards and Section 304.3 of the
2010 Standards allow turning space to be either a circular space or
a T-shaped space. Section 304.3 permits turning space to include
knee and toe clearance complying with section 306. Section 4.2.3 of
the 1991 Standards did not specifically permit turning space to
include knee and toe clearance. Commenters urged the Department to
retain the turning space requirement, but exclude knee and toe
clearance from being permitted as part of this space. They argued
that wheelchairs and other mobility devices are becoming larger and
that more individuals with disabilities are using electric three and
four-wheeled scooters which cannot utilize knee clearance.
The Department recognizes that the technical specifications for
T-shaped and circular turning spaces in the 1991 and 2010 Standards,
which are based on manual wheelchair dimensions, may not adequately
meet the needs of individuals using larger electric scooters.
However, there is no consensus about the appropriate dimension on
which to base revised requirements. The Access Board is conducting
research to study this issue in order to determine if new
requirements are warranted. For more information, see the Access
Board's Web site at http://www.access-board.gov/research/current-
projects.htm#suny. The Department plans to wait for the results of
this study and action by the Access Board before considering any
changes to the Department's rules. Covered entities may wish to
consider providing more than the minimum amount of turning space in
confined spaces where a turn will be required. Appendix section
A4.2.3 and Fig. A2 of the 1991 Standards provide guidance on
additional space for making a smooth turn without bumping into
surrounding objects.

404 Doors, Doorways, and Gates

Automatic Door Break Out Openings. The 1991 Standards do not
contain any technical requirement for automatic door break out
openings. The 2010 Standards at sections 404.1, 404.3, 404.3.1, and
404.3.6 require automatic doors that are part of a means of egress
and that do not have standby power to have a 32-inch minimum clear
break out opening when operated in emergency mode. The minimum clear
opening width for automatic doors is measured with all leaves in the
open position. Automatic bi-parting doors or pairs of swinging doors
that provide a 32-inch minimum clear break out opening in emergency
mode when both leaves are opened manually meet the technical
requirement. Section 404.3.6 of the 2010 Standards includes an
exception that exempts automatic doors from the technical
requirement for break out openings when accessible manual swinging
doors serve the same means of egress.
Maneuvering Clearance or Standby Power for Automatic Doors.
Section 4.13.6 of the 1991 Standards does not require maneuvering
clearance at automatic doors. Section 404.3.2 of the 2010 Standards
requires automatic doors that serve as an accessible means of egress
to either provide maneuvering clearance or to have standby power to
operate the door in emergencies. This provision has limited
application and will affect, among others, in-swinging automatic
doors that serve small spaces.
Commenters urged the Department to reconsider provisions that
would require maneuvering clearance or standby power for automatic
doors. They assert that these requirements would impose unreasonable
financial and administrative burdens on all covered entities,
particularly smaller entities. The Department declines to change
these provisions because they are fundamental life-safety issues.
The requirement applies only to doors that are part of a means of
egress that must be accessible in an emergency. If an emergency-
related power failure prevents the

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operation of the automatic door, a person with a disability could be
trapped unless there is either adequate maneuvering room to open the
door manually or a back-up power source.
Thresholds at Doorways. The 1991 Standards, at section 4.13.8,
require the height of thresholds at doorways not to exceed \1/2\
inch and thresholds at exterior sliding doors not to exceed \3/4\
inch. Sections 404.1 and 404.2.5 of the 2010 Standards require the
height of thresholds at all doorways that are part of an accessible
route not to exceed \1/2\ inch. The 1991 Standards and the 2010
Standards require raised thresholds that exceed \1/4\ inch in height
to be beveled on each side with a slope not steeper than 1:2. The
2010 Standards include an exception that exempts existing and
altered thresholds that do not exceed \3/4\ inch in height and are
beveled on each side from the requirement.

505 Handrails

The 2010 Standards add a new technical requirement at section
406.3 for handrails along walking surfaces.
The 1991 Standards, at sections 4.8.5, 4.9.4, and 4.26, and the
2010 Standards, at section 505, contain technical requirements for
handrails. The 2010 Standards provide more flexibility than the 1991
Standards as follows:
Section 4.26.4 of the 1991 Standards requires handrail
gripping surfaces to have edges with a minimum radius of \1/8\ inch.
Section 505.8 of the 2010 Standards requires handrail gripping
surfaces to have rounded edges.
Section 4.26.2 of the 1991 Standards requires handrail
gripping surfaces to have a diameter of 1\1/4\ inches to 1\1/2\
inches, or to provide an equivalent gripping surface. Section 505.7
of the 2010 Standards requires handrail gripping surfaces with a
circular cross section to have an outside diameter of 1\1/4\ inches
to 2 inches. Handrail gripping surfaces with a non-circular cross
section must have a perimeter dimension of 4 inches to 6\1/4\
inches, and a cross section dimension of 2\1/4\ inches maximum.
Sections 4.8.5 and 4.9.4 of the 1991 Standards require
handrail gripping surfaces to be continuous, and to be uninterrupted
by newel posts, other construction elements, or obstructions.
Section 505.3 of the 2010 Standards sets technical requirements for
continuity of gripping surfaces. Section 505.6 requires handrail
gripping surfaces to be continuous along their length and not to be
obstructed along their tops or sides. The bottoms of handrail
gripping surfaces must not be obstructed for more than twenty
percent (20%) of their length. Where provided, horizontal
projections must occur at least 1\1/2\ inches below the bottom of
the handrail gripping surface. An exception permits the distance
between the horizontal projections and the bottom of the gripping
surface to be reduced by \1/8\ inch for each \1/2\ inch of
additional handrail perimeter dimension that exceeds 4 inches.
Section 4.9.4 of the 1991 Standards requires handrails
at the bottom of stairs to continue to slope for a distance of the
width of one tread beyond the bottom riser nosing and to further
extend horizontally at least 12 inches. Section 505.10 of the 2010
Standards requires handrails at the bottom of stairs to extend at
the slope of the stair flight for a horizontal distance at least
equal to one tread depth beyond the last riser nosing. Section
4.1.6(3) of the 1991 Standards has a special technical provision for
alterations to existing facilities that exempts handrails at the top
and bottom of ramps and stairs from providing full extensions where
it will be hazardous due to plan configuration. Section 505.10 of
the 2010 Standards has a similar exception that applies in
alterations.
A commenter noted that handrail extensions are currently
required at the top and bottom of stairs, but the proposed
regulations do not include this requirement, and urged the
Department to retain the current requirement. Other commenters
questioned the need for the extension at the bottom of stairs.
Sections 505.10.2 and 505.10.3 of the 2010 Standards require
handrail extensions at both the top and bottom of a flight of
stairs. The requirement in the 1991 Standards that handrails extend
horizontally at least 12 inches beyond the width of one tread at the
bottom of a stair was changed in the 2004 ADAAG by the Access Board
in response to public comments. Existing horizontal handrail
extensions that comply with 4.9.4(2) of the 1991 Standards should
meet or exceed the requirements of the 2010 Standards.
Commenters noted that the 2010 Standards will require handrail
gripping surfaces with a circular cross section to have an outside
diameter of 2 inches, and that this requirement would impose a
physical barrier to individuals with disabilities who need the
handrail for stability and support while accessing stairs.
The requirement permits an outside diameter of 1\1/4\ inches to
2 inches. This range allows flexibility in meeting the needs of
individuals with disabilities and designers and architects. The
Department is not aware of any data indicating that an outside
diameter of 2 inches would pose any adverse impairment to use by
individuals with disabilities.
Handrails Along Walkways. The 1991 Standards do not contain any
technical requirement for handrails provided along walkways that are
not ramps. Section 403.6 of the 2010 Standards specifies that where
handrails are provided along walkways that are not ramps, they shall
comply with certain technical requirements. The change is expected
to have minimal impact.

0
23. Revise the heading to Appendix C to read as follows:

Appendix C to Part 36--Guidance on ADA Regulation on Nondiscrimination
on the Basis of Disability by Public Accommodations and in Commercial
Facilities originally published on July 26, 1991.

0
24. Revise the heading to Appendix D to read as follows:

Appendix D to Part 36--1991 Standards for Accessible Design as
Originally Published on July 26, 1991.

Dated: July 23, 2010.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2010-21824 Filed 9-14-10; 8:45 am]
BILLING CODE 4410-13-P