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

Equipment and furniture.

In question seven of the ANPRM, the Department asked for comment on whether regulatory guidance is needed with respect to the acquisition and use of free-standing equipment or furnishings used by covered entities to provide services, and asked for specific examples of the circumstances in which such equipment should be addressed.  The ANPRM explained that free-standing equipment was already addressed in the regulation in several different contexts, but because covered entities continue to raise questions about their obligations to provide accessible free-standing equipment, the Department was considering adding specific language on equipment.  The Department received comments both in favor and against new guidance on accessible equipment and furniture, but has decided not to add any specific regulation governing equipment at this time.

Many businesses were opposed to additional requirements for free-standing equipment, although they favored a move toward clarity and specificity.  Some businesses were concerned that they lack control of the design or manufacturing of such equipment.

Most organizations and individuals 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 not relevant whether the equipment (e.g., ATMs, vending machines) is free-standing or fixed, because the equipment must be accessible in order for individuals with disabilities to use it.

A specific point of concern to several commenters was inaccessible aisles between movable display racks in stores.  The Department's current regulation addresses this issue under barrier removal, requiring that stores rearrange display racks when readily achievable but adding the following exception to § 36.304(f):  "The rearrangement of temporary or movable structures, such as furniture, equipment, and display racks is not readily achievable to the extent that it results in a significant loss of selling or serving space."  If the rearrangement of display racks is not readily achievable, stores still have an obligation to provide alternatives to barrier removal, such as retrieving merchandise from inaccessible shelves or racks.  28 CFR 36.305(b)(2).

When the title III regulation was initially proposed in 1991, it contained a provision concerning accessible equipment, which required that newly purchased furniture or equipment that was made available for use at a place of public accommodation be accessible, unless complying with this requirement would fundamentally alter the goods, services, facilities, privileges, advantages, or accommodations offered, or would not be readily achievable.  See 56 FR 7452, 7470-71 (Feb. 22, 1991).  In the final title III regulation promulgated in 1991, the Department decided not to include this provision, explaining in the preamble to the regulation that "its requirements are more properly addressed under other sections, and . . . there are currently no appropriate accessibility standards addressing many types of furniture and equipment."  56 FR 35544, 35572 (July 26, 1991). 

Equipment has been covered under the Department's ADA regulation, including under the provision requiring modifications in policies, practices, and procedures and the provision requiring barrier removal, even though there is no provision specifically addressing equipment.  See 28 CFR 36.302, 36.304.  If a person with a disability does not have full and equal access to a covered entity's services because of the lack of accessible equipment, the entity must provide that equipment, unless doing so would be a fundamental alteration or would not be readily achievable.   

The Department has decided to continue with this approach, and not to add any specific regulatory guidance addressing equipment at this time.  It intends to analyze the economic impact of future regulations governing specific types of free-standing equipment.  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 may apply those requirements to analogous free-standing equipment to ensure that they are accessible, and to avoid potential liability for discrimination.  The Department also believes 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). With regard to the specific issue of display racks in stores, the Department does not propose to change the approach in the current regulation.  The tension between access for individuals with disabilities and loss of selling space caused by the arrangement of the racks within the store is the same whether the store is newly constructed or an existing facility.  The existing approach appropriately balances the needs of businesses and individuals with disabilities.