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

Section 35.151(b) Alterations (Section-by-Section Analysis)

The Department's proposed rule would amend § 35.151(b)(2) to make clear that the path of travel requirements of § 35.151(b)(4) do not apply to measures taken solely to comply with program accessibility requirements.  This amendment is consistent with § 36.304(d)(1) of the title III regulation, which states that "[t]he path of travel requirements of § 36.403 shall not apply to measures taken solely to comply with the barrier removal requirements of this section."

The two requirements for alterations to historic facilities enumerated in current § 35.151(d)(1) and (2) have been combined under proposed § 35.151(b)(3), and one substantive change is proposed. Proposed § 35.151(b)(3) provides that alterations to historic properties shall comply, to the maximum extent feasible, with the provisions applicable to historic properties in the design standards specified in § 35.151(c). Currently, the regulation provides that alterations to historic facilities shall comply with section 4.1.7 of UFAS or section 4.1.7 of the 1991 Standards.  See 28 CFR 35.151(d)(1).  However, the proposed regulation requires that alterations to historic properties on or after six months after the effective date of the proposed regulation comply with the proposed standards, not UFAS or the 1991 Standards.  See § 35.151(c).  The substantive requirement in current § 35.151(d)(2)--that alternative methods of access shall be provided pursuant to the requirements of § 35.150 if it is not feasible to provide physical access to an historic property in a manner that will not threaten or destroy the historic significance of the building or facility--is unchanged.

The Department proposes to add § 35.151(b)(4) in order to make the path of travel requirement in title II consistent with that in title III.  Both the Uniform Federal Accessibility Standards (UFAS) and the title III regulation contain requirements for provision of an accessible "path of travel" to the altered area when an existing facility is altered, although the circumstances that trigger the requirements are somewhat different under each statute.  Under section 4.1.6(3) of UFAS, an accessible route to the altered area, an accessible entrance, and (where applicable) accessible toilet facilities must be provided when a substantial alteration is made to an existing building.  An alteration is considered "substantial" if the total cost of all alterations within any twelve month period amounts to fifty percent (50%) or more of the full and fair cash value of the building.  The proposed rule eliminates the UFAS "substantial alteration" basis for path of travel requirements because it eliminates UFAS as an option.

The path of travel requirements of the Department's proposed title II rule are based on section 303(a)(2) of the ADA, which provides that when an entity undertakes an alteration to a place of public accommodation or commercial facility that affects or could affect the usability of or access to an area that contains a primary function, the entity shall ensure that, to the maximum extent feasible, the path of travel to the altered area--and the restrooms, telephones, and drinking fountains serving it--is readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs.

The Department proposes to add a provision to the path of travel requirement in § 35.151(b)(4)(ii)(C) that would clarify that public entities that have brought required elements of the path of travel into compliance are not required to modify those elements in order to reflect incremental changes in the proposed standards when the public entity alters a primary function area that is served by the element.  In these circumstances, the public entity is entitled to a safe harbor, and is only required to modify elements to comply with the proposed standards if the public entity is planning an alteration to the element.

The proposed rule provides that areas such as mechanical rooms, boiler rooms, supply storage rooms, employee lounges and locker rooms, janitorial closets, entrances, and corridors are not areas containing a primary function.  Nor are restroom areas containing a primary function unless the provision of restrooms is the major reason that the facility is maintained by a public entity, such as at a highway rest stop.  In that situation, a restroom would be considered to be an "area containing a primary function" of the facility.

The requirement for an accessible path of travel does not apply, however, to the extent that the cost and scope of alterations to the path of travel is disproportionate to the cost of the overall alteration, as determined under criteria established by the Attorney General. Sections 227, 42 U.S.C. 12147, and 242, 42 U.S.C. 12162, of the ADA adopt the same requirement for public transportation facilities under title II.

Section 202.4 of the proposed standards adopts the statutory path of travel requirement, and § 36.403 of the Department's title III regulation establishes the criteria for determining when the cost of alterations to the path of travel is "disproportionate" to the cost of the overall alteration.  The Department's proposed § 35.151(b)(4) will adopt the language now contained in the title III regulation in its entirety, including the disproportionality limitation (i.e., alterations made to provide an accessible path of travel to the altered area would be deemed disproportionate to the overall alteration when the cost exceeds twenty percent (20%) of the cost of the alteration to the primary function area).