28 CFR Part 36 Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities NPRM: Preamble (2008 Title III NPRM Preamble)

"Wheelchair" (Section-by-Section Analysis)

The Department proposes the following definition of "wheelchair" in § 36.104:   "Wheelchair means a device designed solely for use by an individual with a mobility impairment for the primary purpose of locomotion in typical indoor and outdoor pedestrian areas.  A wheelchair may be manually operated or power-driven."

The proposed definition of "wheelchair" is informed by several existing definitions of "wheelchair." Section 507 of the ADA defines wheelchair in the context of whether to allow wheelchairs in federal wilderness areas:  "the term ‘wheelchair' means a device designed solely for use by a mobility-impaired person for locomotion, that is suitable for use in an indoor pedestrian area."  42 U.S.C. 12207(c)(2).  The Department believes that while this definition is appropriate in the limited context of federal wilderness areas, it is not specific enough to provide clear guidance in the array of settings covered by title III.

The other existing federal definition of wheelchair that the Department reviewed is in the Department of Transportation regulation implementing the transportation provisions under title II and title III of the ADA.  The Department of Transportation's definition of wheelchair is "a mobility aid belonging to any class of three or four-wheeled devices, usable indoors, designed for and used by individuals with mobility disabilities, whether operated manually or powered."  49 CFR 37.3.  The Department has adopted much of the language from this definition.  Under the proposed definition, wheelchairs include manually operated and power-driven wheelchairs and mobility scooters.  Mobility devices such as golf cars, bicycles, and electronic personal assistance mobility devices (EPAMDs) are inherently excluded from the proposed definition. Typically, the devices covered under the proposed definition are single-user, have three to four wheels, and are appropriate for both indoor and outdoor pedestrian areas.  However, it could include a variety of types of wheelchairs and mobility scooters with individualized or unique features or models with different numbers of wheels.  "Typical indoor and outdoor pedestrian areas" refer to locations and surfaces used by and intended for pedestrians, including sidewalks, paved paths, floors of buildings, elevators, and other circulation routes, but would not include such areas as off-road bike paths, roads (except where allowed by law or where a sidewalk is not provided), freeways, or natural surfaces such as beaches where there is not a defined circulation route for pedestrians.

The Department does not propose to define specific dimensions that qualify a device as a wheelchair.  The Department of Transportation's definition includes a subpart defining "common wheelchair" to provide guidance for public transit authorities on which devices must be transported.  A "common wheelchair" is a wheelchair that "does not exceed 30 inches in width and 48 inches in length measured two inches above the ground, and does not weigh more than 600 pounds when occupied."  49 CFR 37.3. The narrower definition of "common wheelchair" was developed with reference to the requirements for lifts to establish parameters for the size and weight a lift can safely accommodate.  See 49 CFR part 37, App. D (2002).  The Department does not believe it is necessary to adopt stringent size and weight requirements for wheelchairs.

The Department requests public input on the proposed definition for "wheelchair."

Question 12:  As explained above, the definition of "wheelchair" is intended to be tailored so that it includes many styles of traditional wheeled mobility devices (e.g., wheelchairs and mobility scooters).  Does the definition appear to exclude some types of wheelchairs, mobility scooters, or other traditional wheeled mobility devices?  Please cite specific examples if possible.

Question 13:  Should the Department expand its definition of "wheelchair" to include Segways®?

Question 14:  Are there better ways to define different classes of mobility devices, such as the weight and size of the device that is used by the Department of Transportation in the definition of "common wheelchair"?

Question 15:  Should the Department maintain the non-exhaustive list of examples as the definitional approach to the term "manually powered mobility aids"?  If so, please indicate whether there are any other non-powered or manually powered mobility devices that should be considered for specific inclusion in the definition, a description of those devices, and an explanation of the reasons they should be included.

Question 16:  Should the Department adopt a definition of the term "manually powered mobility aids"?  If so, please provide suggested language and an explanation of the reasons such a definition would better serve the public.

The proposed regulation regarding mobility devices, including wheelchairs, is discussed below in the section-by-section analysis for § 36.311.