28 CFR Part 35 Title II Notice of Proposed Rulemaking (NPRM) - Preamble (published 2008)

Equipment and furniture.

Question seven of the ANPRM asked for comment on whether regulatory guidance is needed with respect to the acquisition and use of mobile, portable, and other free-standing equipment or furnishings used by covered entities to provide services, and asked for specific examples of situations that should be addressed.  The ANPRM explained that free-standing equipment was already addressed in the regulations in several different contexts, but that since covered entities continue to raise questions about the extent of their obligation to provide accessible free-standing equipment, the Department was considering adding specific language on equipment.

The Department received comments both in favor and against this proposal with a majority of comments in favor of requiring accessible equipment and furniture.  However, the Department has decided to add no new regulatory text with respect to equipment at this time.  A few title II entities submitted very brief comments, with about half in favor of specific requirements for free-standing equipment and half opposed.  Most individuals and organizations representing individuals with disabilities were in favor of adding or clarifying requirements for accessible equipment.  Disability organizations pointed out that from the user's perspective, it is irrelevant whether the equipment (e.g., ATMs or vending machines) is free-standing or fixed, since the equipment must be accessible in order for them to use it.         

The Department believes that accessible equipment and furnishings are required when appropriate under the existing regulations governing modifications of policies, practices, and procedures, and in the requirement for program accessibility.  28 CFR 35.130(7); 35.150.  In addition, some equipment may also be subject to the effective communication requirements.  28 CFR 35.160.  The existing regulation at § 35.150(a) requires that entities operate each service, program, or activity so that, when viewed in its entirety, each is readily accessible to and usable by individuals with disabilities, subject to a defense of fundamental alteration or undue burden. Section 35.150(b) specifies that such entities may meet their obligation to make each program accessible to individuals with disabilities through the "redesign of equipment."  Section 35.160(a) requires covered entities to provide effective communication to program participants.  Consequently, providing accessible equipment is required when appropriate under the existing regulations.  The Department has decided to continue with this approach and not to add any specific regulatory guidance addressing equipment at this time.

The 2004 ADAAG includes revised requirements for some types of fixed equipment that are specifically addressed in the 1991 Standards, such as ATMs and vending machines, as well as detailed requirements for fixed equipment that is not addressed by name in the current Standards, such as depositories, change machines, and fuel dispensers.  Because the 2004 ADAAG provides detailed requirements for many types of fixed equipment, covered entities should consult those requirements in determining what steps are appropriate for making free-standing equipment accessible.  The Department also agrees that when federal guidance for accessibility exists for equipment required to be accessible to individuals who are blind or have low vision, entities should consult such guidance (e.g., federal standards implementing section 508 of the Rehabilitation Act, 36 CFR part 1194, or the guidelines that specify communication accessibility for ATMs and fare card machines in the 2004 ADAAG, 36 CFR part 1191, App. D).  The Department intends to continue to monitor the use of accessible equipment by covered entities and to analyze the economic impact of possibly providing more detailed requirements in future regulations governing specific types of free-standing equipment.