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 36.403 Alterations and Path of Travel (Section-by-Section Analysis)

The Department is proposing one change to § 36.403 on alterations and path of travel by adding a path of travel safe harbor.  Proposed § 36.403(a)(1) states that if a private entity has constructed or altered required elements of a path of travel in accordance with the 1991 Standards, the private entity is not required to retrofit such elements to reflect incremental changes in the proposed standards solely because of an alteration to a primary function area served by that path of travel.  The Department is not proposing any additional changes to §§ 36.402 through 36.405, which establish requirements for alterations.  Some commenters suggested that the definition of alteration be modified to provide more guidance on what actions trigger application of the proposed standards generally, and the extent to which an alteration triggers an additional path of travel obligation.

Consequently, the Department is proposing a safe harbor to clarify alteration requirements as they pertain to path of travel.  One commenter noted that changing a door lock on a hotel guest room would trigger requirements to make the path of travel accessible.  This suggestion is expressly rejected by the language of the existing regulation in § 36.403(c)(2), which makes clear that "alterations to windows, hardware, controls, electrical outlets, and signage shall not be deemed to be alterations that affect the usability of or access to an area containing a primary function."  Commenter suggestions that painting and wallpapering be expressly excluded from the definition of alterations are similarly unnecessary as both the 1991 Standards and the proposed standards provide in the definition of "alteration" that "[n]ormal maintenance, reroofing, painting or wallpapering . . . are not alterations unless they affect the usability of the building or facility."