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

ATMs. (Section-by-Section Analysis)

Several commenters expressed concern about the application of a safe harbor to ATMs. Specifically, "talking ATMs"--or ATMs with speech output that are independently usable by individuals who are blind or have low vision--are an important issue for one advocacy group, as well as for the banking and ATM industries.  The 1991 Standards use a performance test, requiring that "[i]nstructions and all information for use shall be made accessible to and independently usable by persons with vision impairments."  28 CFR part 36, App. A, section 4.34.4.  The 2004 ADAAG has a similar requirement that more specifically spells out what is necessary for ATMs to be speech-enabled.  Under the 2004 ADAAG, there are specific design requirements for speech output, and speech must be delivered through a mechanism that is readily available to all users.  See 2004 ADAAG section 707.5.

Some individuals who are blind or have low vision fear that a safe harbor would derail the efforts they have made to ensure that ATMs have speech output.  The banking and ATM industries object to retrofitting all existing ATMs, arguing it requires both hardware and software changes that can be expensive in certain cases.  They also argue that retrofitting is inefficient, since most machines, especially those in banks, are replaced every seven to nine years, a relatively short life span compared to other elements in facilities, and will be updated when they are replaced.

Because new ATMs are generally equipped with speech output, this is a time-limited issue that really affects a discrete group of stand-alone ATMs in rural areas or small retail locations, like gas stations or convenience stores.  Industry commenters describe a practice by which used machines in urban areas or larger banks are generally sold to smaller entities or placed in rural areas as new machines are purchased.  ATMs vary in their technological sophistication, and it is more expensive to adapt the smaller, stand-alone machines.

Even though the ATM requirement appears in the 1991 Standards, the Department has traditionally treated the speech or communication element as subject to the requirements for auxiliary aids and services in § 36.303.  The Department's preamble to its regulation explained that, "[g]iven that § 36.304's proper focus is on the removal of physical barriers, the Department believes that the obligation to provide communications equipment and devices . . . is more appropriately determined by the requirements for auxiliary aids and services under § 36.303." 56 FR 35544, 35568.  When the Department later discussed ATMs as they relate to barrier removal in the 1991 regulation, the Department referred only to those aspects of the ATM that make it physically accessible to individuals with mobility disabilities.  Id.

The safe harbor provision applies only to readily achievable barrier removal; the Department is not planning to apply a safe harbor to the requirement for auxiliary aids and services.  ATMs that lack speech output are not eligible for a safe harbor. Although the Department is not applying a safe harbor to the communication-related requirements on ATMs, the Department is proposing a new section dealing with equipment that the Department hopes will resolve some of the concerns raised by both sides.  The issue of whether it is permissible for an entity to purchase used ATMs that do not have speech output remains an open question, and the Department is proposing questions designed to elicit more specific feedback from the industry in the section dealing with equipment.  The Department offers for comment a narrowly drawn exemption for small, stand-alone ATMs, in which entities would be allowed to purchase used ATMs without speech output in certain circumstances.