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

Section 36.304 Removal of Barriers (Section-by-Section Analysis).

The Department is offering for public comment several proposed additions to § 36.304, which requires the removal of architectural or communications barriers that are structural in nature when it is readily achievable to do so.  These proposed additions are designed to mitigate financial burdens on covered entities, while at the same time ensuring that individuals with disabilities have access to existing facilities.  Discussed below, in turn, is a proposal for a safe harbor provision and a reduced scoping option that would apply to all public accommodations, as well as a proposal for a safe harbor provision and an exemption that would apply only to qualified small businesses as defined in § 36.104.

The proposed additions stem from the Department's proposal to adopt the 2004 ADAAG and from comments the Department received in response to its ANPRM from small business advocates expressing concern with the Department's interpretation of the barrier removal requirement.  The reason that the Department's proposal to adopt the 2004 ADAAG is relevant to barrier removal is that the Department approaches barrier removal by reference to the alterations standard.  28 CFR 36.304(d)(1); 56 FR 35544, 35570 (July 26, 1991).  To the extent that it is readily achievable to do so, public accommodations must comply with the requirement for alterations by following the accessibility standards in Appendix A of the existing regulation.  Id.  By specifying that covered entities follow the 1991 Standards, the regulation provides clear guidance on both what constitutes a barrier and how to make an existing facility accessible to and usable by individuals with disabilities.  Id.

Because the Department uses the 1991 Standards as a guide to identify what constitutes a barrier, the proposed standards will provide a new reference point in assessing an entity's obligations for readily achievable barrier removal.  As discussed above, the 2004 ADAAG contains several changes from the 1991 Standards.  Some of those changes are additions; the 2004 ADAAG introduces requirements for elements in facility types, like recreational facilities and play areas, that are not in the 1991 Standards.  In other situations the changes are incremental, and were added either because of additional study by the Access Board or in order to harmonize requirements with the model codes.  It is the incremental changes that are relevant to the Department's first proposed addition to § 36.304, the proposal of an element-by-element safe harbor for all public accommodations.  The Department has prepared a detailed matrix that identifies both the incremental changes and the new requirements in Appendix 8 of its Regulatory Impact Analysis, which is available for public review at http://www.ada.gov. The elements listed as numbers 1 through 66 on the matrix are incremental changes that the Department deems to be subject to the safe harbor.

The safe harbors discussed in the following paragraphs are available for specific building elements that comply with the 1991 Standards.  If a public accommodation identified barriers but did not remove them because it was not readily achievable because of cost considerations, that public accommodation has a continuing obligation to remove those barriers if the economic considerations for the public accommodation change.  For example, a business upturn may provide the ability to pay for physical changes to the facility, or technological advances may have reduced the costs of a previously expensive modification.  Regardless of the reason that barrier removal has not yet been accomplished, any barrier removal undertaken after the effective date of this rule must comply with the proposed standards to the extent that it is readily achievable to do so.                   

Element-by-element safe harbor for public accommodations. (Section-by-Section Analysis)

The Department is proposing to amend § 36.304(d) in order to adopt a safe harbor for elements in existing facilities that comply with the 1991 Standards, or option I in the ANPRM.  This provision is proposed § 36.304(d)(2).  What is currently § 36.304(d)(2) in the regulation would be redesignated as § 36.304(d)(6).  Specifically, the new § 36.304(d)(2) codifies a safe harbor for all elements that are in compliance with the specific requirements--both the scoping and technical specifications--of the 1991 Standards.  Elements in existing facilities that are not altered after the effective date of this rule, and that comply with the 1991 Standards, are not required to be modified in order to comply with the proposed standards.

This safe harbor provision is not a blanket exemption for facilities.  Compliance with the 1991 Standards is determined on an element-by-element basis in each covered facility.  As noted, elements that the Access Board addressed for the first time in the supplemental guidelines (e.g., play area requirements introduced in the supplemental guidelines, etc.) would not be subject to the safe harbor.  Of course, this safe harbor would have no effect on noncompliant elements.  Barrier removal is an ongoing obligation.  To the extent that elements in existing facilities that impose barriers are not already in compliance with the 1991 Standards, public accommodations would be required to modify such elements to comply with the proposed standards.

The proposed safe harbor reflects the Department's determination that it would be an inefficient use of resources to require covered entities that have complied with the 1991 Standards to retrofit elements simply to comply with the proposed standards if the change provides only a minimal improvement in accessibility.  To a substantial degree, the barrier has already been removed.  In addition, covered entities would have a strong disincentive for voluntary compliance if, every time the applicable standards are revised, covered entities are required once again to modify elements simply to keep pace with new proposals.

The Department recognizes, however, that there are also considerations opposing this approach.  While the incremental benefit of the revisions may be minimal with respect to some elements, with respect to others the proposed standards may confer a significant benefit on some individuals with disabilities that would be unavailable--except of course when public accommodations and commercial facilities undergo alterations or new construction--if this option is adopted. Because there are valid arguments on both sides of this issue, the Department sought public comment on this issue in its ANPRM.

General comments regarding safe harbor. (Section-by-Section Analysis)

The Department received numerous comments on this option in the ANPRM.  Generally, covered entities favored a safe harbor, while entities representing individuals with disabilities did not.  Some disability rights groups, however, favored the safe harbor, arguing that the marginal improvements in accessibility were insufficient to ask entities to retrofit elements that work for most individuals with disabilities.  One disability rights group commented that proposing new standards without a safe harbor would penalize compliant businesses, who would have to pay for retrofits twice, and reward scofflaws, who would have avoided the expense of complying with the current law.  Some businesses opposed the application of a safe harbor and, instead, encouraged the government to consider other avenues for reducing costs, like providing tax relief for businesses.  A tax credit is already available to small businesses (as defined in the tax code), and larger businesses can receive a tax deduction.  26 U.S.C. 44.

Several disability groups and state advocacy centers felt that there was no need for a safe harbor because the statute already controls costs by limiting required actions to what is "readily achievable."  28 CFR 36.304.  The statutory defense maximizes accessibility by requiring case-specific, individualized determinations that excuse strict compliance when it is too difficult or costly.  The safe harbor, by contrast, would exempt even some actions that are readily achievable. Similarly, disability rights groups objected to a blanket rule when the facilities at issue vary so greatly, arguing that large companies should be able to do more to provide accessibility than smaller businesses.

A broad cross section of industries and advocates for industry favored the safe harbor approach organizations representing retail establishments, hotels and lodging, and recreational facilities.  These entities raised issues related to cost, reliance on federal law, and fair play.  Industry advocates were concerned not only with the cost of making the actual changes, but also with the cost of assessing their facilities for compliance with the incremental changes, arguing that the money would be better spent on other, higher priority accessibility measures.

As noted earlier in the general discussion of the safe harbor proposals, some commenters proposed that the Department treat the proposed standards like most building codes when they are updated and apply them prospectively only.  Under the International Building Code, for example, an existing structure is generally grandfathered provided that the building meets a minimum level of safety.  See International Code Council, International Bldg. Code, Commentary, section I.206 (2003); International Existing Bldg. Code, Commentary, section 101.4 (2003). 

While the Department agrees generally with the goal of aiming for consistency between the ADA Standards and building codes--indeed, great effort in the development of the 2004 ADAAG was undertaken to create consistency with building codes where possible--there are critical differences between the 2004 ADAAG and building codes.  The ADA is a civil rights statute, not a building and safety code.  Its primary goal is to ensure access and equality for individuals with disabilities.  It is also a relatively new law, and much of the built environment remains inaccessible.  Nevertheless, the Department is asking for public input on a more limited version of this approach that would exempt owners and operators of places of public accommodation from compliance with the supplemental requirements for play areas and recreation facilities.

Specific areas of dispute. (Section-by-Section Analysis)

Commenters expressed specific concern with the application of a safe harbor to four discrete areas:  reach ranges, ATMs, seating in assembly areas, and access to swimming pools.  Part of the reason the Department received so many comments about reach ranges and swimming pools may owe to the fact that the Department used these requirements in its ANPRM in order to illustrate the application of a safe harbor.  With the exception of swimming pools, which are discussed below in § 36.304(d)(4)(ii), these concerns are addressed, in turn, in the following paragraphs.

Maximum side reach ranges. (Section-by-Section Analysis)

Reach ranges apply to a variety of building elements, including light switches, key pads, electrical outlets, fire alarm pulls, card readers, thermostats, elevator controls, pay phones, and other elements.  The 2004 ADAAG includes a change in the maximum height of a side reach range from 54 inches in the current ADA Standards, to 48 inches in the 2004 ADAAG.  The change related to the needs of little people, and, not surprisingly, the most vocal opposition for a safe harbor came from groups representing little people.  Commenters argued that the lowered height of operable controls can mean the difference between independence and dependence.  One individual argued that little people can become trapped in elevators, posing serious safety risks, when the controls are over 48 inches high.  Two groups strongly opposed a safe harbor for side reach ranges, one of which estimated that the revised reach range will provide access to an additional half million individuals with disabilities.

Industry commenters asserted that requiring existing facilities to apply the new requirement would mean, among other things, that entities would be required to lower every light switch in every building to the extent it is readily achievable.  One business group noted that thousands of businesses have already internalized the cost of lowering operating controls from 60 inches to 54 inches to comply with the 1991 Standards, and that an additional retrofit would require an additional commitment of funds.  A small business association stated that lowering pay phones would be a significant expense to the pay phone industry, which is already incurring losses due to the introduction of cell phones on the market. Other associations expressed concerns about vending machines, most of which now comply with the 54 inch reach range.

Potential solutions that do not require structural modifications were offered by disability advocacy groups.  One national advocacy group stated that public accommodations could provide relatively low-cost solutions to the problem, such as light switch extension handles or other inexpensive alternatives to relocating operating controls.  Some commenters noted that, while it is not an ideal solution, individuals of short stature may choose to carry equipment that would enable them to reach controls.

Independence and ready accessibility are significant goals in the ADA.  The Department would like to hear further from individuals of short stature whether there are discrete areas--like operating controls in elevators--that are either significant to daily living or pose safety risks that cannot be ameliorated by extension handles or similar, less expensive devices.  The 48 inch maximum reach range would apply fully to alterations and new construction.  Similarly, elements that do not comply with the existing requirement of a 48 inch reach range would also be required to meet the new 48 inch reach range.

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.

Stadium-style theaters. (Section-by-Section Analysis)

Finally, commenters expressed concern regarding the application of a safe harbor to stadium-style theaters.  Lines of sight and dispersal of wheelchair seating in assembly areas, especially in stadium-style theaters, have been the subject of litigation.  The 1991 Standards require that wheelchair seating "provide people with physical disabilities a choice of admissions prices and lines of sight comparable to those for members of the general public."  The 2004 ADAAG adopts specific design guidelines for lines of sight and the dispersal of wheelchair seating.  Cf. 28 CFR part 36, App. A, section 4.33.3; 2004 ADAAG sections 221, 802.  As the Department explained in the ANPRM, however, this guideline is merely the codification of longstanding Department policy.  Because the requirements in the 2004 ADAAG are not a change from that policy, entities that comply with the Department's policy will also be in compliance with the relevant provisions in the proposed standards.

Reduced scoping for public accommodations, small facilities, and qualified small businesses. (Section-by-Section Analysis)

As noted above, the Department is still considering the possibility of developing an alternative set of reduced scoping requirements for certain elements that were not subject to specific scoping and technical requirements in the 1991 Standards.  Business entities were generally in favor of exemptions and reduced scoping, although most of the comments addressed elements in compliance with technical and scoping requirements in the 1991 Standards (e.g., the maximum side reach range).  Disability advocacy groups and individuals strongly objected to exemptions and to significantly reduced scoping, arguing that the 2004 ADAAG represents minimum standards, and that the readily achievable standard already provides enough flexibility to covered entities.

The Department believes that reduced scoping for a select few specifications in the context of barrier removal is a moderate and reasonable response to business entities' concerns about the potential for increased costs of compliance and litigation risk when the Department adopts the 2004 ADAAG.  Reduced scoping reflects the determination that, while some requirements make sense for alterations and new construction, in the barrier removal context they might not because of the expense or nature of the measure required.  Given the disparity in size and resources among the entities that fall within the ambit of public accommodations, reduced scoping would be justified only for supplemental elements that are particularly complicated and expensive to retrofit.  Based on comments in the ANPRM and the Department's initial regulatory assessment, the Department has identified ten elements for which the Department believes reduced scoping might be appropriate for barrier removal:  play areas, swimming pools, wading pools, saunas and steam rooms, exercise machines, team or player seating areas, areas of sport activity, boating facilities, fishing piers and platforms, and miniature golf courses.

Play areas. (Section-by-Section Analysis)

Sections 206.2.17, 206.7.8, and 240.1 of the 2004 ADAAG provide a detailed set of requirements for newly constructed and altered play areas.  At least one ground level play component of each type provided (e.g., for different experiences such as rocking, swinging, climbing, spinning, and sliding) must be accessible and connected to an accessible route.  In addition, if elevated play components are provided, entities must make at least fifty percent (50%) of the elevated play components accessible and connect them to an accessible route, and may have to make an additional number of ground level play components (representing different types) accessible as well.  There are a number of exceptions to the technical specifications for accessible routes, and there are special rules (incorporated by reference from nationally recognized standards for accessibility and safety in play areas) for accessible ground surfaces. Accessible ground surfaces must be inspected and maintained regularly and frequently to ensure continued compliance.

The Department is concerned about the potential impact of these supplemental requirements on existing play areas that are not otherwise being altered.  Consequently, the Department is proposing several specific provisions and posing additional questions in an effort to both mitigate and gather information about the potential burden of the supplemental requirements on existing facilities.

State and local governments may have already adopted accessibility standards or codes similar to the 2004 ADAAG requirements for play and recreation areas, but which might have some differences from the Access Board's guidelines.

Question 30:  The Department would welcome comment on whether there are state and local standards specifically regarding play and recreation area accessibility.  To the extent that there are such standards, we would welcome comment on whether facilities currently governed by, and in compliance with, such state and local standards or codes should be subject to a safe harbor from compliance with applicable requirements in the 2004 ADAAG.  We would also welcome comment on whether it would be appropriate for the Access Board to consider implementation of guidelines that would permit such a safe harbor with respect to play and recreation areas undertaking alterations.

Question 31:  The Department requests public comment with respect to the application of these requirements to existing play areas.  What is the "tipping point" at which the costs of compliance with the supplemental requirements for existing play areas would be so burdensome that the entity would simply shut down the playground?

The Department notes that section 240.1 of the 2004 ADAAG specifies that play areas located in family child care facilities where the proprietor actually resides are exempt from the scoping and technical requirements for play areas.  Thus, such family child care facility owners have no obligation to make similar changes for their existing facilities for purposes of barrier removal.    According to the Access Board, these family child care facilities are typically located in private homes, serve a relatively small number of children (usually no more than twelve) at any given time, and install simple and inexpensive playground equipment for which accessible products are less likely to be readily available.  For such facilities, moreover, the cost of providing an accessible ground surface could far exceed the cost of the equipment itself, increasing the likelihood that the home owner will simply decide not to provide any playground equipment.  While this exception may limit the accessibility of play areas in home-based child care facilities, such facilities would remain subject to the ADA's general requirement to ensure that individuals with disabilities have an equal opportunity to enjoy the services of their facilities.

The Department proposes to add § 36.304(d)(4)(i) to provide that, for purposes of the readily achievable barrier removal requirement, existing play areas that are less than 1,000 square feet in size are exempt from the scoping and technical requirements for play areas in the 2004 ADAAG found in § 240 of the proposed standards.  The Department selected this size based on the provision in § 1008.2.4.1 of the 2004 ADAAG, Exception 1, permitting play areas less than 1,000 square feet in size to provide accessible routes with a reduced clear width (44 inches instead of 60 inches).  In its 2000 regulatory assessment for the play area guidelines, the Access Board assumed that such "small" play areas represent one hundred percent (100%) of the play areas located in restaurants, the largest proportion (between sixty to eighty percent (60-80%)) of the play areas located in hotels and day care facilities, and about twenty percent (20%) of the play areas located in schools.  (The Access Board assumed that play areas in city and state parks are typically larger than 1,000 square feet.)  If these assumptions are correct, the proposed exemption would have the greatest impact upon existing play areas located in restaurants, hotels, and day care facilities and would have relatively little impact on existing play areas located in schools or parks.

Question 32:  The Department would like to hear from public accommodations and individuals with disabilities about the potential effect of this approach.  Should existing play areas less than 1,000 square feet be exempt from the requirements applicable to play areas?

The Department also proposes to add § 36.304(d)(3)(i) to provide that, for purposes of the readily achievable barrier removal requirement, existing play areas will be permitted to meet a reduced scoping requirement with respect to their elevated play components.  Elevated play components are play components that are approached above or below grade and that are part of a composite play structure consisting of two or more components that are attached or functionally linked to create an integrated unit providing more than one play activity.  The proposed standards provide that a play area that includes both ground level and elevated play components must ensure that a specified number of the ground level play components and at least fifty percent (50%) of the elevated play components are accessible.

Many commenters advised the Department that making elevated play components accessible in the barrier removal context would exceed what is readily achievable for most facilities. Given the nature of the element at issue, retrofitting existing elevated play components in play areas to meet the scoping and technical specifications in the alteration standard would be difficult and costly, and in some instances, infeasible.  In response to expressed concerns, the Department proposes to reduce the scoping for existing play areas undertaking barrier removal by permitting entities to substitute ground level play components for elevated play components.  Entities that provide elevated play components that do not comply with the 2004 ADAAG section 240.2.2 would be deemed in compliance with their barrier removal obligations as long as the number of accessible ground level play components is equal to the sum of (a) the number of ground level play components required to comply with the 2004 ADAAG section 240.2.1 (as provided by Table 240.2.1.2, but at least one of each type) and (b) the number of elevated play components required to comply with the 2004 ADAAG section 240.2.2 (namely, fifty percent (50%) of all elevated play components).  In existing play areas that provide a limited number of ground level play components, qualifying for this exception may require providing additional ground level play components.

While this provision may result in less accessibility than the application of the alteration standard where readily achievable, public accommodations will likely be more willing to voluntarily undertake barrier removal measures in play areas if they anticipate that compliance will be straightforward and readily achievable in most instances.  In addition, for existing play areas with limited resources, it will often be more efficient to devote resources to making the ground surface of the play area accessible, which is necessary to provide an accessible route to any play components.  Reduced scoping for elevated play components could also minimize the risk that covered entities will delay compliance, remove elevated play components, or simply close the play area.  It also provides a bright-line rule for which compliance can be easily evaluated.

Question 33:  The Department would like to hear from public accommodations and individuals with disabilities about the potential effect of this approach.  Should existing play areas be permitted to substitute additional ground level play components for the elevated play components it would otherwise have been required to make accessible?

Question 34: The Department would welcome comment on whether it would be appropriate for the Access Board to consider implementation of guidelines for play and recreational facilities undertaking alterations that would permit reduced scoping of requirements or substitution of ground level play components in lieu of elevated play components, as the Department is proposing with respect to barrier removal obligations for certain play or recreational facilities.

The Department is also considering reducing the scoping for sites with multiple existing play areas designed for the same age group.  Where separate play areas are provided within a single site, even if each play area serves the same age group and provides the same types of play components, the 2004 ADAAG would require each play area to comply.  In existing facilities that are not being altered, where multiple play areas designed for a particular age group are provided, the Department is considering requiring only one play area to be made accessible.

Question 35:  Should the Department require only one play area of each type to comply in existing sites with multiple play areas? Are there other select requirements applicable to play areas in the 2004 ADAAG for which the Department should consider exemptions or reduced scoping?

Swimming pools. (Section-by-Section Analysis)

The Department is proposing two specific provisions to minimize the potential impact of the supplemental requirements on existing swimming pools.  First, the Department is proposing to add § 36.304(d)(3)(ii) to provide that, for purposes of the readily achievable barrier removal requirement, swimming pools that have at least 300 linear feet of swimming pool wall will be required to provide only one (rather than two) accessible means of entry, which must be a sloped entry or a pool lift.  This provision represents a less stringent requirement than section 242.2 of the 2004 ADAAG, which requires such pools, when newly constructed or altered, to provide two accessible means of entry.  Under this proposal, for barrier removal purposes, public accommodations would be required to have at least one accessible entry where readily achievable to do so.

Commenters responding to the ANPRM noted that the two-means-of-entry-standard, if applied in the barrier removal context, will disproportionately affect small businesses, both in terms of the cost of implementing the standard and anticipated litigation costs.  Larger covered entities benefit from economies of scale, which are not available to small businesses.  Although complying with the alteration standard will not be readily achievable for many small businesses (at least not complete compliance), the litigation-related costs of proving that compliance is not readily achievable may be significant.  Moreover, these commenters argue, the immediacy of perceived noncompliance with the standard--it will usually be readily apparent whether a public accommodation has the required accessible entry or entries--makes this element particularly vulnerable to serial ADA litigation.  The reduced scoping would apply to all existing public accommodations, regardless of size.

The Department recognizes that this approach could reduce the accessibility of larger swimming pools compared to the requirements in the 2004 ADAAG.  Individuals with disabilities and advocates were particularly concerned about the accessibility of pools, and noted that for many people with disabilities, swimming is one of the few types of exercise that is generally accessible and, for some people, can be an important part of maintaining health.  Other commenters noted that having two accessible means of egress from a pool can be a significant safety feature in the event of an emergency.  It may be, however, that as a practical matter the reduction in scoping may not be significant, as the measures required to meet the alteration standards for accessible entries would often not be readily achievable even if considered on a case-by-case basis.

Question 36:  The Department would like to hear from public accommodations and individuals with disabilities about this exemption.  Should the Department allow existing public accommodations to provide only one accessible means of access to swimming pools more than 300 linear feet long?

The Department also proposes to add § 36.304(d)(4)(ii) to provide that, for purposes of the readily achievable barrier removal requirement, existing swimming pools that have less than 300 linear feet of swimming pool wall will be exempt from the provisions of section 242.2 of the 2004 ADAAG.  In its 2002 regulatory assessment for the recreation guidelines, the Access Board assumed that pools with less than 300 feet of linear pool wall would represent ninety percent (90%) of the pools in high schools; eighty percent (80%) of the pools in hotels and motels; seventy percent (70%) of the pools in exercise and sports facilities; forty percent (40%) of the pools in public parks and community centers (e.g., YMCAs); and thirty percent (30%) of the pools in colleges and universities.

Question 37:  The Department would like to hear from public accommodations and individuals with disabilities about the potential effect of this approach.  Should existing swimming pools with less than 300 linear feet of pool wall be exempt from the requirements applicable to swimming pools?

Finally, the Department is interested in collecting information regarding the number of existing facilities that provide more than one swimming pool on a site.  The Department is considering creating an exception that would permit existing facilities with multiple swimming pools on a site to make only one of each type of swimming pool accessible.

Question 38:  What types of facilities provide more than one swimming pool on a site?  In such facilities, do the pools tend to be identical or do they differ in type (e.g., in size, configuration, function, or use)?

Wading pools. (Section-by-Section Analysis)

Section 242.3 of the 2004 ADAAG provides that newly constructed or altered wading pools must provide at least one sloped means of entry to the deepest part of the pool.  The Department is concerned that installing a sloped entry in existing wading pools may not be feasible for a significant proportion of covered entities and is considering creating an exemption for existing wading pools that are not being altered.  The Department is also interested in collecting information regarding the number of existing facilities that provide more than one wading pool on a site.  As an alternative to an exemption for all existing wading pools, the Department is considering creating an exception that would permit existing facilities with multiple wading pools on a site to make only one of each type of pool accessible.

Question 39:  What site constraints exist in existing facilities that could make it difficult or infeasible to install a sloped entry in an existing wading pool?  Should existing wading pools that are not being altered be exempt from the requirement to provide a sloped entry?  What types of facilities provide more than one wading pool on a site?  In such facilities, do the pools tend to be identical or do they differ in type (e.g., in size, configuration, function or use)?

Saunas and steam rooms. (Section-by-Section Analysis)

The Department is proposing one specific provision to minimize the potential impact of the supplemental requirements on existing saunas and steam rooms.  Section 241 of the 2004 ADAAG requires newly constructed or altered saunas and steam rooms to meet accessibility requirements, including accessible turning space and an accessible bench.  Where saunas or steam rooms are provided in clusters, five percent (5%), but at least one sauna or steam room in each cluster, will have to be accessible.  The Department understands that many saunas are manufactured (pre-fabricated) and come in standard sizes (e.g., two-person or four-person), and that the two-person size may not be large enough to meet the turning space requirement.  Therefore, the Department proposes in § 36.304(d)(4)(iii) to specify that, for purposes of the readily achievable barrier removal requirement, existing saunas or steam rooms that have a capacity of only two persons are exempt from the scoping and technical requirements for saunas and steam rooms in section 241 of the 2004 ADAAG.  While this exception may limit the accessibility of small existing saunas or steam rooms, such facilities would remain subject to the ADA's general requirement to ensure that individuals with disabilities have an equal opportunity to enjoy the services and amenities of their facilities.

Exercise machines. (Section-by-Section Analysis)

Sections  206.2.13 and 236 of the 2004 ADAAG require one of each type of fixed exercise machine to meet clear floor space specifications and to be on an accessible route.  Types of machines are generally defined according to the muscular groups exercised or the kind of cardiovascular exercise provided.

Question 40:  Will existing facilities have to reduce the number of available exercise equipment and machines in order to comply?  What types of space limitations would affect compliance?

Team or player seating areas. (Section-by-Section Analysis)

Section 221.2.1.4 of the 2004 ADAAG requires one or more wheelchair spaces to be provided in each team or player seating area with fixed seats, depending upon the number of seats provided for spectators.  For bowling lanes, the requirement would be limited to lanes required to be accessible.

Question 41:   Are team or player seating areas in certain types of existing facilities (e.g., ice hockey rinks) more difficult to make accessible due to existing designs?  What types of existing facilities typically have design constraints that would make compliance with this requirement infeasible?

Areas of sport activity. (Section-by-Section Analysis)

Sections 206.2.2 and 206.2.12 of the 2004 ADAAG require each area of sport activity (e.g., courts and playing fields, whether indoor or outdoor) to be served by an accessible route.  In court sports, the accessible route would also have to directly connect both sides of the court.  The Department is considering limiting the application of this requirement in existing facilities that have multiple areas of sport activity that serve the same purpose.  For example, in existing facilities with multiple soccer fields of a similar size, the Department may interpret the readily achievable barrier removal requirement to require that a reasonable number but at least one soccer field (rather than all of them) be served by an accessible route.

Question 42:  Should the Department interpret the barrier removal requirement to require only a reasonable number but at least one of each type of playing field to be served by an accessible route?  Should the Department create an exception to this requirement for existing courts (e.g., tennis courts) that have been constructed back-to-back without any space in between them?

Boating facilities. (Section-by-Section Analysis)

Sections 206.2.10, 235.2, and 235.3 of the 2004 ADAAG require a specified number of boat slips and boarding piers at boat launch ramps to be accessible and connected to an accessible route.  In existing boarding piers, the required clear pier space may be perpendicular to and extend the width of the boat slip if the facility has at least one accessible boat slip, providing that more accessible slips would reduce the total number (or widths) of existing boat slips.  Accessible boarding piers at boat launch ramps must comply with the requirements for accessible boat slips for the entire length of the pier.  If gangways (only one end of route is attached to land) and floating piers (neither end is attached to land) are involved, a number of exceptions are provided from the general standards for accessible routes in order to take into account the difficulty of meeting accessibility slope requirements due to fluctuations in water level. In existing facilities, moreover, gangways need not be lengthened to meet the requirement (except, in an alteration, as may be required by the path of travel requirement).

Question 43:  The Department is interested in collecting data regarding the impact of these requirements in existing boating facilities.  Are there issues (e.g., space limitations) that would make it difficult to provide an accessible route to existing boat slips and boarding piers at boat launch ramps?  To what extent do the exceptions for existing facilities (i.e., with respect to boat slips and gangways) mitigate the burden on existing facilities?

Fishing piers and platforms. (Section-by-Section Analysis)

Sections 206.2.14 and 237 of the 2004 ADAAG require at least twenty-five percent (25%) of railings at fishing piers and platforms to be no higher than 34 inches high, so that a person seated in a wheelchair can fish over the railing, to be dispersed along the pier or platform, and to be on an accessible route.  (An exception permits railings to comply instead with the model codes, which permit railings to be 42 inches high.)  If gangways (where only one end of route is attached to land) and floating piers (where neither end is attached to land) are involved, a number of exceptions are provided from the general standards for accessible routes in order to take into account the difficulty of meeting accessibility slope requirements due to fluctuations in water level.  In existing facilities, moreover, gangways need not be lengthened to meet the requirement (except, in an alteration, as may be required by the path of travel requirement).

Question 44:  The Department is interested in collecting data regarding the impact of this requirement on existing facilities.  Are there issues (e.g., space limitations) that would make it difficult to provide an accessible route to existing fishing piers and platforms?

Miniature golf courses. (Section-by-Section Analysis)

Sections 206.2.16, 239.2, and 239.3 of the 2004 ADAAG require at least fifty percent (50%) of the holes on miniature golf courses to be accessible and connected to an accessible route (which must connect the last accessible hole directly to the course entrance or exit); generally, the accessible holes would have to be consecutive ones.  Specified exceptions apply to accessible routes located on the playing surfaces of holes.

Question 45:  The Department is considering creating an exception for existing miniature golf facilities that are of a limited total square footage, have a limited amount of available space within the course, or were designed with extreme elevation changes.  If the Department were to create such an exception, what parameters should the Department use to determine whether a miniature golf course should be exempt?

Scope of coverage. (Section-by-Section Analysis)

As illustrated by the above discussion, the 2004 ADAAG introduces supplemental scoping and technical requirements for play areas and recreation facilities that apply to elements and spaces--e.g., playgrounds and swimming pools--that are found in a variety of different types of facilities.  In light of these supplemental requirements and their potentially wide-ranging application, the Department wishes to emphasize that the types of private entities covered under title III are unchanged by the proposed rule, and to reiterate the criteria that determine whether an entity is exempt from coverage under the ADA.  In addition, the Department notes that certain types of facilities, while they may be exempt from the coverage of the ADA, may nonetheless be subject to the accessibility requirements of other federal laws.

Private clubs (e.g., country clubs and civic organizations) are generally exempt from title III. Under the ADA, the definition of a private club is based on title II of the Civil Rights Act of 1964 and related case law.  Generally, entities are considered private clubs where members exercise a high degree of control over club operations; the membership selection is highly selective; substantial membership fees are charged; the entity is operated on a nonprofit basis; and the club was not founded specifically to avoid compliance with federal civil rights laws.  For example, a country club may qualify as a private club and have a golf course on its grounds.  If the golf course is for the exclusive use of club members and their guests, the golf course is not a public accommodation covered by title III.  However, if the country club allows nonmembers to pay a fee to play golf, the golf course is a public accommodation and is subject to title III.  The country club's other operations and facilities, however, would remain exempt if they were exclusive to members.

Religious organizations and entities controlled by religious organizations, including places of worship, are also exempt from the coverage of title III.  This exemption is intended to have a broad application and covers all of the activities of a religious entity, whether they are religious or secular.  For example, a religious organization that operates a child care facility that includes a playground, even if the child care facility is open to nonmembers, is exempt from the requirements of the ADA despite the fact that the facility would otherwise qualify as a public accommodation under title III.  However, it should be noted that religious organizations that receive federal financial assistance are not exempt from the responsibility to comply with the requirements of section 504 or any other applicable federal statute that prohibits discrimination on the basis of disability in federally assisted programs.

Finally, facilities governed by homeowners associations or similar organizations may be covered by the Fair Housing Act (FHA) and subject to HUD's jurisdiction, rather than title III of the ADA, or they may be covered by both the FHA and title III.  The distinguishing feature is whether use of the facilities in question is limited exclusively to owners, residents, and their guests, or if the facilities are made available to the public.  For example, a development governed by a homeowners association that includes a swimming pool may be covered by the FHA only, or both the FHA and the ADA.  The residences and other areas provided for the exclusive use of residents and their guests are covered by the FHA.  If the swimming pool is available only to residents and their guests, it would be covered by the FHA only.  However, if the pool is also available to members of the public who buy pool memberships, the pool would qualify as a public accommodation and would be subject to the requirements of title III.

Safe harbor for qualified small businesses regarding what is readily achievable. (Section-by-Section Analysis)

The Department is offering for public comment a modification to the barrier removal requirement at § 36.304(d)(5) that provides a safe harbor for qualified small businesses as defined in § 36.104.  Pursuant to this safe harbor, a qualified small business would have met its readily achievable barrier removal obligations for a given year if, in the preceding tax year, it spent at least one percent (1%) of its gross revenues on barrier removal.  In so doing, the Department wishes to promulgate a rule that will benefit a broad class of small businesses by providing a level of certainty in short-term and long-term planning with respect to barrier removal.  An effective rule would also provide some protection, through diminished litigation risks, to small businesses that undertake significant barrier removal projects.  The Department received many comments from the small business community urging it to consider changing its approach to barrier removal.

The Department seeks public input on this safe harbor for readily achievable barrier removal, and, specifically, solicits advice on whether one percent (1%) is the appropriate level of expenditure.  Another business group, which proposed a similar scheme, suggested that the Department propose that small businesses spend five percent (5%) of their net revenues.  The Department believes from its experience in enforcing the ADA that the relevant expenditure should be a percentage of gross, rather than net, revenues in order to avoid the effect of differences in bookkeeping practices and to maximize accessibility consistent with congressional intent.  The Department recognizes, however, that entities with similar gross revenues may have very different net revenues, and that this difference may significantly affect what is readily achievable for a particular entity.  Such an approach places significant importance on getting the right percentage of revenues that should be considered.            

Any formulaic approach, even for a subset of the public accommodations covered by the ADA, is a departure from the Department's current position on barrier removal.  During the Department's rulemaking for the regulation published in 1991, the issue of barrier removal received significant attention.  Advocacy groups both for individuals with disabilities and private businesses requested specific guidance on what measures were required for barrier removal.  Commenters were concerned that, absent a standard, unsafe or ineffective design practices might be undertaken.  The Department's current rule reflects the view of many commenters that requiring public accommodations to comply with the alteration standards, where readily achievable to do so, promotes certainty and good design.

SBREFA requires the Department to consider alternative means of compliance for small businesses.  5 U.S.C. 603(c).  To comply with this obligation, the Department is soliciting public comment on the possibility of providing a safe harbor to qualified small businesses that have spent at least one percent (1%) of their gross revenues to remove architectural, communication, or transportation barriers.

Question 46:  Should the Department adopt a presumption whereby qualifying small businesses are presumed to have done what is readily achievable for a given year if, during the previous tax year, the entity spent at least one  percent (1%) of its gross revenues on barrier removal?  Why or why not?  Is one percent (1%) an appropriate amount?  Are gross revenues the appropriate measure?  Why or why not?