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

Subpart B-General Requirements (Section-by-Section Analysis)

Section 36.208 Direct Threat (Section-by-Section Analysis)

The proposed regulation moves the definition of direct threat from § 36.208(b) to the definitions section at § 36.104.  This is an editorial change.  Consequently, § 36.208(c) would become § 36.208(b) in the proposed regulation.

Section 36.211 Maintenance of accessible features (Section-by-Section Analysis)

The general rule regarding the maintenance of accessible features, which provides that a public accommodation must maintain in operable working condition those features of facilities and equipment that are required to be readily accessible to and usable by qualified individuals with disabilities, is unchanged.  However, the Department wishes to clarify its application and proposes one change to the section.

The Department has noticed that some covered entities do not understand what is required by § 36.211, and it would like to take the opportunity presented by this NPRM to clarify.  Section 36.211(a) broadly covers all features that are required to be accessible under the ADA, from accessible routes and elevators to roll-in showers and signage.  It is not sufficient for a building or other feature to be built in compliance with the ADA, only to be blocked or changed later so that it is inaccessible.  A common problem observed by the Department is that covered facilities do not maintain accessible routes.  For example, the accessible routes in offices or stores are commonly obstructed by boxes, potted plants, display racks, or other items so that the routes are inaccessible to people who use wheelchairs.  Under the ADA, the accessible route must be maintained and, therefore, these items are required to be removed.  If the items are placed there temporarily--for example, if an office receives multiple boxes of supplies and is moving them from the hall to the storage room--then § 36.211(b) excuses such "isolated or temporary interruptions."  Other common examples of features that must be maintained, and often are not, are platform lifts and elevators.  Public accommodations must ensure that these features are operable and, to meet this requirement, regular servicing and making repairs quickly will be necessary.

The Department proposes to amend the rule by adding § 36.211(c) to address the discrete situation in which the scoping requirements provided in the proposed standards may reduce the number of required elements below that are required by the 1991 Standards. In that discrete event, a public accommodation may reduce such accessible features in accordance with the requirements in the proposed standards.

Section 36.302 Modifications in Policies, Practices, or Procedures (Section-by-Section Analysis)

Section 36.302(c) Service Animals (Section-by-Section Analysis)

The Department's regulation now states that "[g]enerally, a public accommodation shall modify policies, practices, or procedures to permit the use of a service animal by an individual with a disability."  28 CFR 36.302(c)(1).  In general, the Department is proposing to retain the scope of the current regulation while clarifying its longstanding policies and interpretations.

The Department is proposing to revise § 36.302(c) by adding the following sections as exceptions to the general rule on access.  Proposed § 36.302 would:

1. Expressly incorporate the Department's policy interpretations as outlined in published technical assistance Commonly Asked Questions about Service Animals (1996) (http://www.ada.gov/qasrvc.htm) and ADA Business Brief: Service Animals (2002) (http://www.ada.gov/svcanimb.htm) and add that a public accommodation may ask an individual with a disability to remove a service animal from the premises if:  (1) The animal is out of control and the animal's owner does not take effective action to control it; (2) the animal is not housebroken or the animal's presence or behavior fundamentally alters the nature of the service the public accommodation provides (e.g., repeated barking during a live performance); or (3) the animal poses a direct threat to the health or safety of others that cannot be eliminated by reasonable modifications;

2. Add that if a place of public accommodation properly excludes a service animal, the public accommodation must give the individual with a disability the opportunity to obtain goods, services, or accommodations without having the service animal on the premises;

3. Add requirements that the work or tasks performed by a service animal must be directly related to the handler's disability; that a service animal that accompanies an individual with a disability into a place of public accommodation must be individually trained to do work or perform a task, be housebroken, and be under the control of its owner; and that a service animal must have a harness, leash, or other tether;

4. Modify the language in § 36.302(c)(2), which currently states, "[n]othing in this part requires a public accommodation to supervise or care for a service animal," to read, "[a] public accommodation is not responsible for caring for or supervising a service animal," and relocate this provision to proposed § 36.302(c)(5).  (This proposed language does not require that the person with a disability care for his or her service animal if care can be provided by a family member, friend, attendant, volunteer, or anyone acting on behalf of the person with a disability.);

5. Expressly incorporate the Department's policy interpretations as outlined in published technical assistance Commonly Asked Questions about Service Animals (1996)  (http://www.ada.gov/qasrvc.htm) and ADA Business Brief: Service Animals (2002)  (http://www.ada.gov/svcanimb.htm) that a public accommodation must not ask about the nature or extent of a person's disability, nor require proof of service animal certification or licensing, but that a public accommodation may ask:  (i) If the animal is required because of a disability; and (ii) what work or tasks the animal has been trained to perform;

6. Add that individuals with disabilities who are accompanied by service animals may access all areas of a public accommodation where members of the public are allowed to go; and

7. Expressly incorporate the Department's policy interpretations as outlined in published technical assistance Commonly Asked Questions about Service Animals (1996)  (http://www.ada.gov/qasrvc.htm) and ADA Business Brief: Service Animals (2002)  (http://www.ada.gov/svcanimb.htm) and add that a public accommodation must not require an individual with a disability to pay a fee or surcharge, post a deposit, or comply with requirements not generally applicable to other patrons as a condition of permitting a service animal to accompany its handler in a place of public accommodation, even if such deposits are required for pets, and that if a public accommodation normally charges its clients or customers for damage that they cause, a customer with a disability may be charged for damage caused by his or her service animal.

These changes will respond to the following concerns raised by individuals and organizations that commented in response to the ANPRM. 

Proposed behavior or training standards. (Section-by-Section Analysis)

Some commenters proposed behavior or training standards for the Department to adopt in its revised regulation, not only to remain in keeping with the requirement for individual training, but also on the basis that without training standards the public has no way to differentiate between untrained pets and service animals.  Because of the variety of individual training that a service animal can receive--from formal licensing at an academy to individual training on how to respond to the onset of medical conditions, such as seizures--the Department is not inclined to establish a standard that all service animals must meet.  While the Department does not plan to change the current policy of no formal training or certification requirements, some of the behavioral standards that it has proposed actually relate to suitability for public access, such as being housebroken and under the control of its handler.

Hospital and healthcare settings. (Section-by-Section Analysis)

Public accommodations, including hospitals, must modify policies, practices, or procedures to permit the use of a service animal by an individual with a disability.  28 CFR 36.302(c)(1).  The exception to this requirement is if making the modification would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations.  Id. at 36.302(a).  The Department generally follows the guidance of the Centers for Disease Control and Prevention (CDC) on the use of service animals in a hospital setting.

As required by the ADA, a healthcare facility must permit a person with a disability to be accompanied by his or her service animal in all areas of the facility in which that person would otherwise be allowed, with some exceptions.  Zoonotic diseases can be transmitted to humans through trauma (bites, scratches, direct contact, arthropod vectors, or aerosols).  Although there is no evidence that most service animals pose a significant risk of transmitting infectious agents to humans, animals can serve as a reservoir for a significant number of diseases that could potentially be transmitted to humans in the healthcare setting.  A service animal may accompany its owner to such areas as admissions and discharge offices, the emergency room, inpatient and outpatient rooms, examining and diagnostic rooms, clinics, rehabilitation therapy areas, the cafeteria and vending areas, the pharmacy, rest rooms, and all other areas of the facility where visitors are permitted, except those listed below.

Under the ADA, the only circumstances under which a person with a disability may not be entitled to be accompanied by his or her service animal are those rare circumstances in which it has been determined that the animal poses a direct threat to the health or safety of others.  A direct threat is defined as a significant risk to the health or safety of others that cannot be eliminated or mitigated by a modification of polices, practices, or procedures.  Based on CDC guidance, it is generally appropriate to exclude a service animal from areas that require a protected environment, including operating rooms, holding and recovery areas, labor and delivery suites, newborn intensive care nurseries, and sterile processing departments.  See Centers for Disease Control, Guidelines for Environmental Infection Control in Health-Care Facilities:  Recommendations of CDC and the Healthcare Infection Control Practices Advisory Committee (June 2003), available at http://www.cdc.gov/mmwr/preview/mmwrhtml/rr5210a1.htm.

Section 36.302(e) Hotel Reservations (Section-by-Section Analysis)

Each year, the Department receives many complaints about failed reservations.  Most of these complaints involve individuals who have reserved an accessible hotel room only to discover upon arrival that the room they reserved is either not available or not accessible.  Although reservations services were not addressed in the ANPRM, commenters noted the ongoing problem with hotel reservations and urged the Department to provide regulatory guidance on the issue.

The reservations policies, practices, and procedures of public accommodations are subject to title III's general and specific nondiscrimination provisions.  See 42 U.S.C. 12182; 28 CFR 36.302.  With this NPRM, the Department proposes to address hotel reservations within its regulation on modifications to policies, practices, and procedures.  See 28 CFR 36.302.

The proposed rule is based on straightforward nondiscrimination principles:  individuals with disabilities should be able to reserve hotel rooms with the same efficiency, immediacy, and convenience as those who do not need accessible guest rooms. Currently, this simple premise appears more often to be the exception than the rule.

General rule on reservations. (Section-by-Section Analysis)

The Department's proposed § 36.302(e)(1) states the general rule that a public accommodation that owns, leases (or leases to), or operates a place of lodging shall modify its policies, practices, and procedures to ensure that individuals with disabilities can make reservations for accessible guest rooms in the same way as others (i.e., during the same hours and in the same manner as individuals who do not need accessible rooms).

Reservations can be made in many different ways--in person, on the phone, directly with the hotel, with a parent company, or through a travel agency.  The proposed rule is meant to reach any public accommodation that owns, leases (or leases to), or operates a place of lodging, and is not limited to a hotel's operation of its own reservations service.  Thus, the rule would apply equally to corporations that own one or more hotel chains and provide a system by which prospective customers can reserve guest rooms, as well as to franchisors that provide reservation services.  All covered entities must modify their policies and practices to ensure parity in reservations policies between those who need accessible rooms and those who do not.

Identification of accessible guest rooms. (Section-by-Section Analysis)

Proposed § 36.302(e)(2) states that hotel reservations services must identify and describe the accessible features in the hotels and guest rooms.  This requirement is integral to ensuring that individuals with disabilities receive the information they need to benefit from the services offered by the place of lodging.  As a practical matter, a public accommodation's designation of a guest room as "accessible" will not necessarily ensure that the room complies with all of the 1991 Standards.  In older facilities subject to barrier removal, strict compliance with the 1991 Standards is not required.  Public accommodations must remove barriers to the extent that it is readily achievable to do so.  Individuals with disabilities must be able to ascertain which features--in new and existing buildings--are included in the hotel's accessible guest rooms.  The presence or absence of particular accessible features may be the difference between a room that is usable by a person with a disability and one that is not.  Information about the availability and nature of accessible features will minimize the risk that individuals with disabilities will reserve a room that is not what was expected or needed.

Guarantees of accessible guest room reservations. (Section-by-Section Analysis)

Section 36.302(e)(3) provides that a public accommodation that owns, operates, leases (or leases to) a place of lodging shall guarantee accessible guest rooms that are reserved through a reservations service to the same extent that it guarantees rooms that are not accessible.  The Department recognizes that not all reservations are guaranteed and the proposed rule does not impose an affirmative duty to do so.  When a public accommodation typically guarantees hotel reservations (absent unforeseen circumstances), it must provide the same guarantee for accessible guest rooms. Because the Department is aware that reservation guarantees take many different forms (e.g., an upgrade within the same hotel or a comparable room in another hotel), the Department seeks comment on the current practices of hotels and third party reservations services with respect to "guaranteed" hotel reservations and the impact of requiring a public accommodation to guarantee accessible rooms to the extent it guarantees other rooms.

Question 17:  What are the current practices of hotels and third party reservations services with respect to "guaranteed" hotel reservations?  What are the practical effects of requiring a public accommodation to guarantee accessible guest rooms to the same extent that it guarantees other rooms?

Finally, although not included in the proposed regulation as currently drafted, the Department is seeking comment on whether additional regulatory guidance is needed on the policies, practices, and procedures by which public accommodations hold and release accessible hotel guest rooms, and whether third party travel agents should be subject to the requirements set out in § 36.302(e)(2) and § 36.302(e)(3).

Hold and release of accessible guest rooms and third-party reservations. (Section-by-Section Analysis)

With respect to the hold and release of accessible guest rooms, the Department has addressed this issue in settlement agreements and recognizes that current practices vary widely.  As in the ticketing context, regulating in the area of hotel reservations involves complicated issues, such as guest room dispersion and variable pricing.  The Department is concerned about current practices by which accessible guest rooms are released to the general public even though the hotel is not sold out.  In such instances, individuals with disabilities may be denied an equal opportunity to benefit from the services offered by the public accommodation, i.e., a hotel guest room.

The Department also recognizes that the proposed rule does not reach all public accommodations that are engaged in the business of providing hotel reservations.  As discussed above, the rule reaches public accommodations that own, lease (or lease to), or operate a place of lodging.  It does not reach an entity that, for example, owns or operates a travel agency, while the agency or service is independent of any place of lodging.  Public accommodations that own, lease (or lease to), or operate places of lodging are required to provide the information prescribed by the proposed rule to third parties like travel agencies, but the third parties are not, independently, liable.  At this juncture, the Department seeks comment from individuals, businesses, and advocacy groups as to whether such entities should be required to identify and describe accessible features in hotel rooms available through their services, and whether such entities should be subject to the guarantee obligations set out in proposed § 36.302(e)(2) and § 36.302(e)(3).

Question 18:  What are the current practices of hotels and third-party reservations services with respect to (1) holding accessible rooms for individuals with disabilities and (2) releasing accessible rooms to individuals without disabilities?  What factors are considered in making these determinations?  Should public accommodations be required to hold one or more accessible rooms until all other rooms are rented, so that the accessible rooms would be the last rooms rented?

Question 19:  Should a public accommodation that does not itself own, lease (or lease to), or operate a place of lodging but nevertheless provides reservations services, including reservations for places of lodging, be subject to the requirements of proposed § 36.302(e)(2) and (e)(3)?

Section 36.302(f) Ticketing (Section-by-Section Analysis)

The ticketing policies and practices of public accommodations are subject to title III's general and specific discrimination provisions.  See 42 U.S.C. 12182; 28 CFR 36.302.  Through the investigation of complaints, its enforcement actions, and public comments related to ticketing, the Department is aware of the need to provide regulatory guidance to entities involved in the sale or distribution of tickets.  With this NPRM, the Department proposes to include a section on ticketing within the regulation on modifications to policies, practices, and procedures.  See 28 CFR 36.302.

In response to the ANPRM, individuals with disabilities and related advocacy groups commented that the reduced requirements for accessible seating in assembly areas underscored the need for clarification from the Department on ticketing related issues. One disability advocacy group asserted, that in order to guarantee equal access to assembly areas for people with disabilities, it is necessary to provide complementary design standards, sales policies, and operational procedures.

The Department agrees that more explicit regulation is needed to ensure that individuals with disabilities are not improperly denied access to events because of discriminatory procedures for the sale of wheelchair spaces.  The Department's enforcement actions have demonstrated that some venue operators, ticket sellers and distributors are not properly implementing title III's nondiscrimination provisions.

The Department has entered into agreements addressing problems with ticketing sales and distribution by requiring specific modifications to ticketing policies.  While these negotiated settlement agreements and consent decrees rest on fundamental nondiscrimination principles, they represent solutions tailored to specific facilities.  The Department believes that guidance in this area is needed, but also recognizes that ticketing practices and policies vary with venue size and event type, and that a "one-size-fits-all" approach may be unrealistic.

The proposed rule clarifies the application of title III with respect to ticketing issues in certain contexts, and is intended to strike a balance between a covered entity's desire to maximize ticket sales and the rights of individuals with disabilities to attend events in assembly areas in a manner that is equal to that afforded to individuals without disabilities.  The proposed rule does not, however, purport to cover or clarify all aspects or applications of title III to ticketing issues.  Moreover, the rule applies only to the sale or distribution of tickets that are sold or distributed on a preassigned basis. Tickets sold for most motion pictures, for example, would not be affected by the proposed rule.

Because this rule addresses ticketing policies and practices for stadiums, arenas, theaters, and other facilities in which entertainment and sporting events are held, its provisions are related to and informed by those in proposed § 36.308 (discussed below in the section-by-section analysis of § 36.308), which covers seating in assembly areas.  Section 221 of the proposed standards reduces the scoping requirements for accessible seating in assembly areas.  After the proposed standards are finalized, the scoping reduction will apply to all public accommodations.  See proposed 28 CFR 36.211(c).

Ticket distribution methods. (Section-by-Section Analysis)

Section 36.302(f)(1) states the general rule that a public accommodation shall modify its policies, practices, and procedures to ensure that individuals with disabilities can purchase single or multi-event tickets for accessible seating in the same way as others, i.e., during the same hours and through the same distribution methods as other seating is sold. Tickets can be purchased in many different ways:  in person or on the phone, directly through the venue, or through a third-party company.  The proposed rule makes clear that it is meant to reach all public accommodations that provide a service by which individuals can purchase event tickets, and is not limited to a venue's operation of its own ticketing systems.

The Department has received numerous complaints from individuals who were denied the opportunity to acquire tickets for accessible seats through avenues such as ticketing presales, promotions, lotteries, or waitlists.  The proposed rule, at § 36.302(f)(2), makes clear that public accommodations must include accessible seating in all stages of the ticketing process, including presales, promotions, lotteries, or waitlists.

Identification of available accessible seating. (Section-by-Section Analysis)

Section 36.302(f)(3) of the proposed rule requires a facility to identify available accessible seating.  In the Department's investigations of theaters and stadiums, the Department has discovered that many facilities lack an accurate inventory of the accessible seating in their venues, and that this information gap results in lost opportunities for patrons who need accessible seating.  For some public accommodations, multiple inventories may be required to account for different uses of the facility because the locations of accessible seating may change in an arena depending on whether it is used for a hockey game, a basketball game, or a concert.  The proposed rule further requires that the facility identify the accessible seating on publicly available seating charts.  This transparency will facilitate the accurate sale of accessible seating.

Proposed § 36.302(f)(4) requires public accommodations to provide individuals with disabilities with accurate information about the location of accessible seating.  The proposed rule specifically prohibits the practice of "steering" individuals with disabilities to certain wheelchair spaces so that the facility can maximize potential ticket sales for other unsold wheelchair spaces. 

Season tickets and multiple event sales. (Section-by-Section Analysis)

Proposed § 36.302(f)(5) addresses the sale of season tickets and other tickets for multiple events.  The proposed rule provides that public accommodations must sell season tickets or tickets for multiple events for accessible seating in the same manner that such tickets are sold to those purchasing general seating.  The rule also states that spectators purchasing tickets for accessible seating on a multi-event basis shall be permitted to transfer tickets for single-event use by friends or associates in the same fashion and to the same extent as other spectators holding tickets for the same type of ticketing plan.  A facility must provide a portable seat for the transferee to use, if necessary.

Secondary market ticket sales. (Section-by-Section Analysis)

The Department is aware that the proposed rule may represent a significant change in practice for many public accommodations with respect to "secondary market" ticket sales.   Because the secondary market is a recognized--and often integral--part of the ticketing distribution system for many venues and activities, individuals with disabilities will be denied an equal opportunity to benefit from the goods offered--attendance at an event--if public accommodations have no obligations with respect to accessible seating bought or sold in this way.  In conjunction with the proposed rule, the Department seeks comment about public accommodations' current practices with respect to the secondary market for tickets, and the anticipated impact of the proposed rule on different types of facilities or events.

Question 20:  If an individual resells a ticket for accessible seating to someone who does not need accessible seating, should the secondary purchaser be required to move if the space is needed for someone with a disability?

Question 21:  Are there particular concerns about the obligation imposed by the proposed rule, in which a public accommodation must provide accessible seating, including a wheelchair space where needed, to an individual with a disability who purchases an "inaccessible" seat through the secondary market?

Release of unsold accessible seats. (Section-by-Section Analysis)

Proposed § 36.302(f)(6) provides regulatory guidance regarding the release of unsold accessible seats.  Through its investigations, the Department has become familiar with the problem of designated accessible seating being sold to the general public before people who need accessible seating buy tickets.  As a result, individuals who need to use the accessible seating cannot attend the event.

The Department has entered into agreements addressing this problem by requiring specific modifications to ticketing policies.  The Department believes that guidance in this area is needed, but also recognizes that ticketing practices and policies vary with venue size and event type, and that a "one-size-fits-all" approach may be unrealistic.  These options provide flexibility so that ticketing policies can be adjusted according to the venue size and event type.

Facility sell-out. (Section-by-Section Analysis)

Proposed § 36.302(f)(6)(i) allows for the release of unsold accessible seating once standard seats in the facility have been sold, but luxury boxes, club boxes, or suites are not required to be sold out before the remaining accessible seats are released.  To implement this option, the release of unsold accessible seating should be done according to an established, written schedule.  Blocks of seats should be released in stages, and should include tickets in a range of price categories and locations that is representative of the range of seating that remains available to other patrons.

Sell-outs in specific seating areas. (Section-by-Section Analysis)

Under the second contingency, proposed § 36.302(f)(6)(ii), a facility could release unsold accessible seating in a specific seating area if all of the standard seats in that location were sold out.  For example, if all seats in the orchestra level are sold, the unsold accessible seats in the orchestra level could be released for sale to the general public.

Sell-outs in specific price ranges. (Section-by-Section Analysis)

The third approach described at proposed § 36.302(f)(6)(iii) permits a public accommodation to release unsold accessible seats in a specific price range if all other seats in that price range were sold out.  For example, if all $50 seats were sold, regardless of their location, the unsold $50 accessible seats may be released for sale to the general public.

Question 22: Although not included in the proposed regulation, the Department is soliciting comment on whether additional regulatory guidance is required or appropriate in terms of a more detailed or set schedule for the release of tickets in conjunction with the three approaches described above.  For example, does the proposed regulation address the variable needs of assembly areas covered by the ADA?  Is additional regulatory guidance required to eliminate discriminatory policies, practices, and procedures related to the sale, hold, and release of accessible seating?  What considerations should appropriately inform the determination of when unsold accessible seating can be released to the general public?

Ticket pricing. (Section-by-Section Analysis)

Section 36.302(f)(7) of the proposed rule addresses ticket pricing.  The proposed rule codifies the Department's longstanding policy that public accommodations cannot impose a surcharge for wheelchair spaces.  Accessible seating must be made available at all price levels for an event.  If an existing facility has barriers to accessible seating at a particular price level for an event, then a percentage (determined by the ratio of the total number of  seats at that price level to the total number of seats in the assembly area) of the number of accessible seats must be provided at that price level in an accessible location.  In no case shall the price of any particular accessible seat exceed the price that would ordinarily be charged for an inaccessible seat in that location.  For example, many theaters built prior to the passage of the ADA have balconies that are inaccessible to people who use wheelchairs, and the only wheelchair spaces are located in the orchestra level in which tickets are more expensive.  If a comparably sized balcony in a theater built under the ADA's new construction standards would have two wheelchair spaces, the existing theater must sell two orchestra wheelchair spaces at the balcony price on a first come, first served basis.

Fraudulent purchase of designated accessible seating. (Section-by-Section Analysis)

The Department has received numerous comments regarding fraudulent attempts to purchase wheelchair spaces for patrons other than those who use wheelchairs.  Moreover, the Department recognizes that the implementation of some of its proposals, such as those relating to the public identification of accessible seating, increase the potential for the fraudulent purchase of accessible seats by those who do not need them.  The Department continues to believe that requiring an individual to provide proof that he or she is a person with a disability is an unnecessary and burdensome invasion of privacy and may unfairly deter individuals with disabilities who seek to purchase tickets to an event.

Notwithstanding this position, the proposed rule at § 36.302(f)(8) permits public accommodations to take certain steps to address potential ticket fraud.  A covered entity may inquire at the time of the ticket purchase whether the wheelchair space is for someone who uses a wheelchair.  For season or subscription tickets, a facility may require the purchaser to attest in writing that the wheelchair space is for someone who uses a wheelchair.  However, the proposed rule preserves the right of an individual with a disability to transfer his or her ticket for individual events and clarifies that the intermittent use of the wheelchair space by a person who does not use a wheelchair does not constitute fraud.

Purchase of multiple tickets. (Section-by-Section Analysis)

The Department has received numerous complaints that public accommodations are unfairly restricting the number of tickets that can be purchased by individuals with disabilities.  Many public accommodations limit the number of tickets an individual with a disability may purchase, requiring the individual to purchase no more than two tickets (for himself or herself and a companion), while other patrons have significantly higher purchase limits (if any).  This is particularly unfair for families, friends, or other groups larger than two that include a person who requires accessible seating.  If the ticket number is limited, the result for wheelchair users is that parents and children, friends, classmates, and others are separated.  Section 36.302(f)(9) clarifies the application of title III to ameliorate such a situation.

There are various ways that covered entities can accommodate groups that require at least one wheelchair space.  The proposed regulation permits up to three companions to sit in a designated wheelchair area, platform, or cross-over aisle that is designated as a wheelchair area, even if the number of companions outnumbers the individuals requiring a wheelchair space.  For example, a parent who uses a wheelchair could attend a concert with his or her spouse and their two children who do not use wheelchairs, and all four could sit together in the wheelchair area.  The Department recognizes that some advocates may object to this use of designated wheelchair areas because it will reduce the amount of accessible seating available for those who need it.  On balance, however, the Department believes that the opportunity to sit with family and friends, as other patrons do, is an integral element of the experience of attending a ticketed event, and it is an element that is often denied to individuals with disabilities. 

By limiting the number of tickets that can be purchased under this provision to four, the Department seeks a balance by which groups and families can be accommodated while still leaving ample space for other individuals who use wheelchairs.  The Department seeks comments from individuals, business entities, and advocacy organizations on whether the proposed rule will appropriately effectuate the integration and nondiscrimination principles underlying the rule.

Question 23:  Is the proposed rule regarding the number of tickets that a public accommodation must permit individuals who use wheelchairs to purchase sufficient to effectuate the integration of wheelchair users with others?  If not, please provide suggestions for achieving the same result with regard to individual and group ticket sales.

Group ticket sales. (Section-by-Section Analysis)

Group ticket sales present another area in which the Department believes additional regulatory guidance is appropriate.  The purpose of the proposed rule is to prevent the current practice of separating groups in a way that isolates or segregates those in the group who require wheelchair seating.  For group sales, if a group includes one or more individuals who use a wheelchair, the proposed rule requires the facility to place that group in a seating area that includes wheelchair spaces so that, if possible, the group can sit together.  If it is necessary to divide the group, it should be divided so that the individuals in the group who use wheelchairs are not isolated from the group.  In existing facilities that lack accessible seating in certain areas (e.g., a theater with an inaccessible balcony) the proposed regulation requires covered entities to seat at least three companions with the individual using a wheelchair in the accessible seating area of the orchestra.

Section 36.303 Auxiliary Aids and Services (Section-by-Section Analysis)

Captioning, narrative description, and video interpreting services. (Section-by-Section Analysis)

The Department is proposing changes to § 36.303 in order to codify its longstanding policies in this area, and to propose amendments based on technological advances and breakthroughs in the area of auxiliary aids and services since the original regulation was published more than sixteen years ago.  The Department is proposing to add video interpreting services (VIS) to the regulatory text and is discussing in this preamble options for addressing captioning and narrative description.

Several types of auxiliary aids that have become more readily available have been added to § 36.303.  The Department has added a new technology in § 36.303(b)(1), video interpreting services (VIS), which consists of a video phone, video monitors, cameras, a high-speed Internet connection, and an interpreter.  The video phone provides video transmission to a video monitor that permits the individual who is deaf or hard of hearing to view and sign to a video interpreter (i.e., a live interpreter in another location), who can see and sign to the individual through a camera located on or near the monitor, while others can communicate by speaking.  The video monitor can display a split screen of two live images, the interpreter in one image and the individual who is deaf or hard of hearing in the other image.  VIS can provide immediate, effective access to interpreting services seven days a week, twenty-four hours a day by allowing people in different locations to engage in live, face-to-face communications. Moreover, VIS is particularly helpful when qualified interpreters are not readily available (e.g., for quick responses to emergency hospital visits, in areas with an insufficient number of qualified interpreters to meet demand, and in rural areas where distances and an interpreter's travel time present obstacles).

For purposes of clarification, the Department proposes to add to § 36.303(b)(1) the exchange of written notes as an example of an auxiliary aid or service.  This common-sense example is a codification of the Department's longstanding policy with regard to title III entities, and was included in the preamble to the original regulation.  See 56 FR 35544, 35566 (July 26, 1991).  This additional example of an appropriate auxiliary aid or service was inserted because many entities do not realize that this easy and efficient means is available to them.  While the exchange of written notes is inappropriate for lengthy or complicated communications, it can be appropriate for situations such as routine purchases in a department store or at a sports arena, or as a means of communication while awaiting the arrival of an interpreter.

In § 36.303(b)(2), the Department proposes to insert additional examples of auxiliary aids and services for individuals who are blind or have low vision.  The preamble to the 1991 title III regulation makes clear that the original list was illustrative and that "additional examples such as signage or mapping, audio description services, secondary auditory programs (SAP), telebraillers, and reading machines . . . . may be considered appropriate auxiliary aids and services."  56 FR 35544, 35566.  Because technological advances in the seventeen years since the ADA was enacted have increased the range of auxiliary aids and services for those who are blind or have low vision, the Department has added additional examples, including brailled displays, screen reader software, magnification software, optical readers, secondary auditory programs (SAP), and accessible electronic and information technology.

The Department proposes replacing the term "telecommunications devices for deaf persons (TDD's)" with "text telephones (TTYs)" in § 36.303(b)(1).  Although "TDD" is the term used in the ADA, "TTY" has become the commonly accepted term and is consistent with the terminology used by the Access Board in the 2004 ADAAG.  Second, the Department has inserted in § 36.303(d)(2) additional types of auxiliary aids and services that can effectively provide telephone communication for individuals who are deaf or hard of hearing.  Two of the auxiliary aids now included--public telephones equipped with volume control mechanisms and hearing aid-compatible telephones--are designed for individuals who are hard of hearing.  The third added auxiliary aid or service is VIS, which is an alternative designed for individuals who are deaf.  A public accommodation need not provide all of these auxiliary aids and services, but should offer those needed to provide effective communication.

Companions. (Section-by-Section Analysis)

The Department's proposed language for § 36.303(c) imposes no new obligations on places of public accommodation.  The first sentence of § 36.303(c)(1) adds the phrase "and their companions," so that the sentence now reads:  "A public accommodation shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities and their companions who are individuals with disabilities."  A new § 36.303(c)(1)(i) defines "companion" as "a family member, friend, or associate of a program participant who, along with the participant, is an appropriate person with whom the public accommodation should communicate."  Section 36.303(c)(1)(ii) advises that public accommodations should be aware that the method of communication used by the individual and the nature, length, and complexity of the communication involved are factors to be considered by the public accommodation in determining what type of auxiliary aid or service is necessary.  See, e.g., Department of Justice, The Americans with Disabilities Act, Title III Technical Assistance Manual, Covering Public Accommodations and Commercial Facilities (Title III TA Manual), III-4.300, available at http://www.ada.gov/taman3.html.  For example, an individual with a disability who is deaf or hard of hearing may need a qualified interpreter to discuss with hospital personnel a diagnosis, procedures, tests, treatment options, surgery, or prescribed medication (e.g., dosage, side effects, drug interactions, etc.).  In comparison, an individual who is deaf or hard of hearing who purchases an item in the hospital gift shop may only need an exchange of written notes to achieve effective communication.

The Department is proposing to add companions to the scope of coverage of § 36.303 to emphasize that the ADA applies in some instances in which a public accommodation needs to communicate with a family member, friend, or associate of the program participant in order to provide its services.  Examples of such situations include when a school communicates with the parent of a child during a parent-teacher meeting or in a life-threatening situation, when a hospital needs to communicate with an injured person's companion to obtain necessary information.  In such situations, if the companion is deaf or hard of hearing, blind, has low vision, or has a disability that affects his or her speech, it is the public accommodation's responsibility to provide appropriate auxiliary aid or service to communicate effectively with the companion.  Where communication with a companion is necessary to serve the interests of a person who is participating in a public accommodation's services, programs, or activities, effective communication must be assured.

Companions in health care settings. (Section-by-Section Analysis)

Effective communication is particularly critical in health care settings where miscommunication may lead to misdiagnosis and improper or delayed medical treatment.  Under the ADA, hospitals must provide effective means of communication for patients and their companions with disabilities. The Department has encountered confusion and reluctance by medical care providers regarding the scope of their obligation with respect to such companions. Effective communication with a companion with a disability is necessary in a variety of circumstances.  For example, a companion may be legally authorized to make health care decisions on behalf of the patient or may need to help the patient with information or instructions given by hospital personnel.  In addition, a companion may be the patient's next of kin or health care surrogate with whom hospital personnel communicate concerning the patient's medical condition.  Moreover, a companion could be designated by the patient to communicate with hospital personnel about the patient's symptoms, needs, condition, or medical history.  It has been the Department's longstanding position that public accommodations are required to provide effective communication to companions when they accompany patients to medical care providers for treatment.

Consultation on auxiliary aid or service. (Section-by-Section Analysis)

A public accommodation should consult with the individual with a disability, wherever possible, to determine what auxiliary aid or service would provide effective communication.  In many cases, more than one auxiliary aid or service will provide effective communication, and the individual with a disability can provide invaluable information as to what auxiliary aids are effective.  For example, it could be difficult to provide effective communication using written notes involving someone with a developmental disability or in severe pain, or if a public accommodation were to provide a qualified ASL interpreter, when an individual needs an oral interpreter instead.  Both examples illustrate the importance of consulting with the individual with a disability.

Proposed § 36.303(c)(2) states that a public accommodation shall not require an individual with a disability to bring another individual to interpret for him or her.  The Department is adding this language to emphasize that when a public accommodation is interacting with a person with a disability, it is the public accommodation's responsibility to provide an interpreter to ensure that the communication is as effective as its communications with others.  It is not appropriate to require the person with a disability to bring another individual to provide such services or, when an accompanying individual is present, to expect that individual to provide such services.

Limited instances in which an accompanying individual may interpret. (Section-by-Section Analysis)

Section 36.303(c)(3) codifies the Department's policy that there are very limited instances when a public accommodation may rely on an accompanying individual to interpret or facilitate communication:  (1) In an emergency involving a threat to public safety or welfare; or (2) if the individual with a disability specifically requests it, the accompanying individual agrees to provide the assistance, and reliance on that individual for this assistance is appropriate under the circumstances.  In such instances, the public accommodation is still required to offer to provide an interpreter free of charge.  In no circumstances should a child be used to facilitate communication with a parent about a sensitive matter.  The Department has produced a video and several publications that explain this and other ADA obligations in law enforcement settings.  They may be viewed at http://www.ada.gov or ordered from the ADA Information Line (800-514-0301 (voice) or 800-514-0383 (TTY)).

Public accommodations must be aware that considerations of privacy, confidentiality, emotional involvement, and other factors may adversely affect the ability of family members or friends to facilitate communication.  In addition, the Department stresses that privacy and confidentiality must be maintained.  We note that covered entities, such as hospitals, that are subject to the Privacy Rules, 45 CFR parts 160, 162, and 164, of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), Public Law. 104-191, are permitted to disclose to a patient's relative, close friend, or any other person identified by the patient (such as an interpreter) relevant patient information if the patient agrees to such disclosures.  The agreement need not be in writing.  Covered entities should consult the HIPAA Privacy Rules regarding other ways disclosures might be able to be made to such persons.

Telecommunications. (Section-by-Section Analysis)

The Department is proposing to reorganize § 36.303(d) and make several substantive changes that reflect changing terminology and technology.

The heading "Telecommunications devices for the deaf (TDD's)" currently at § 36.303(d) is replaced by the broader heading "Telecommunications."  Paragraph (d)(1) is retitled, "Telephones" and altered to address situations in which a public accommodation must provide an effective means to communicate by telephone for individuals with disabilities, including the use of automated attendant systems, which are electronic, automated systems and that are a common method for answering and directing incoming calls to places of public accommodation.  The Department has become aware that individuals with disabilities who use TTYs or telecommunications relay services--primarily those who are deaf or hard of hearing or who have speech-related impairments--have been unable to use automated attendant systems because they are not compatible with TTYs or telecommunications relay services.  Automated attendant systems often disconnect before the individual using one of these calling methods can complete the communication.  The Department, therefore, proposes a new § 36.303(d)(1)(i) that requires that individuals using telecommunications relay services or TTYs must be able to connect to and use effectively any automated attendant system used by a public accommodation.

The Department declined to address this issue in the 1991 regulations because it believed that it was more appropriate for the Federal Communications Commission (FCC) to address this in its rulemaking under title IV of the ADA.  See 56 FR 35544, 35567 (July 26, 1991).  Because the FCC has since raised this concern with the Department and requested that the Department address it, it is now appropriate to raise this issue in the title III regulation.

As mentioned above in the discussion of § 36.303(b), the Department is replacing the term "telecommunications devices for the deaf (TDD's)" wherever it occurs throughout the proposed regulation with the term "text telephones (TTYs)."  Thus, § 36.303(d)(2) is entitled, "Text telephones (TTY)," and where "TDD" is used in this portion, it is replaced by "TTY."  Aside from these updates to terminology and adjustments to the section numbering, proposed § 36.303(d)(2) is unchanged substantively from current § 36.303(d).

Video interpreting services. (Section-by-Section Analysis)

Section 36.303(f) has been added to establish performance standards for video interpreting services (VIS), a system the Department recognizes as a means to provide qualified interpreters quickly and easily. VIS also has economic advantages, is readily available, and because of advances in video technology, can provide a high quality interpreting experience. Circumventing the difficulty of providing live interpreters quickly, more public accommodations are providing qualified interpreters via VIS.

There are downsides to VIS, such as frozen images on the screen, or when an individual is in a medical care facility and is limited in moving his or her head, hands, or arms. Another downside is that the camera may mistakenly focus on an individual's head, which makes communication difficult or impossible.  In addition, the accompanying audio transmission might be choppy or garbled, making spoken communication unintelligible.  Lastly, the Department is aware of complaints that some public accommodations have difficulty setting up and operating VIS, because staff have not been appropriately trained. 

To address these potential problems, the Department is proposing the inclusion of four performance standards for VIS to ensure effective communication:  (1) High quality, clear, real-time, full-motion video and audio over a dedicated high-speed Internet connection; (2) a clear, sufficiently large, and sharply delineated picture of the participant's heads, arms, hands, and fingers, regardless of his or her body position; (3) clear transmission of voices; and (4) nontechnicians who are trained to set up and operate VIS quickly.

Finally, the changes enumerated above result in the current § 36.303(f), "Alternatives," being moved to § 36.303(h).

Captioning at movie theaters. (Section-by-Section Analysis)

The Department is considering options under which it might require that movie theater owners and operators exhibit movies that are captioned for patrons who are deaf or hard of hearing.  Both open and closed captioning are examples of auxiliary aids and services under the Department's regulation.  28 CFR 36.303(b)(1).  Open captions are similar to subtitles in that the text is visible to everyone in the theater, while closed captioning displays the written text of the audio only to those individuals who request it.  The ADA itself contains no explicit language regarding captioning in movie theaters, but the legislative history of title III states that, "[o]pen-captioning . . . of feature films playing in movie theaters, is not required by this legislation.  Film makers, are, however, encouraged to produce and distribute open-captioned versions of films and theaters are encouraged to have at least some pre-announced screenings of a captioned version of feature films."  H.R. Rep. No. 101-485 (II), at 108 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 389-91; S. Rep. No. 101-116 at 64 (1989). Congress was silent, however, on the question of closed captioning in movie theaters, a technology not yet developed at that time for first run movies, while acknowledging that closed captions may be an effective auxiliary aid and service for making aurally delivered information available to individuals who are deaf or hard of hearing. See H.R. Rep. No. 101-485 (II), at 108 (1990), reprinted in 1990 U.S.C.C.A.N. at 303, 391.  In addition, Congress stated that "technological advances can be expected to further enhance options for making meaningful and effective opportunities available to individuals with disabilities.  Such advances may require public accommodations to provide auxiliary aids and services in the future which today would not be required because they would be held to impose undue burdens on such entities."  Id.

Similarly, in 1991, the Department stated that "[m]ovie theaters are not required . . . to present open-captioned films," but was silent as to closed captioning.  56 FR 35544, 35567 (July 26, 1991).  The Department also noted, however, that "other public accommodations that impart verbal information through soundtracks on films, video tapes, or slide shows are required to make such information accessible to persons with hearing impairments.  Captioning is one means to make the information accessible to individuals with disabilities."  Id.  The Department cited in its regulation "open and closed captioning," as examples of auxiliary aids and services.  28 CFR 36.303(b)(1).

Captioning makes films accessible to individuals whose hearing is too limited to benefit from assistive listening devices.  Technological advances since the early 1990s have made open and closed captioning for movies more readily available and effective.  Movie theater owners generally do not pay for open movie captions; rather, the cost generally is absorbed by the movie studios.  Originally, the captions had to be burned onto select film prints, which would be distributed to theaters around the country.  These prints usually were not captioned and distributed at the same time the movie was released to the general public, but only after a film had experienced some commercial success.  This technology has evolved, however, and burning captions onto individual film prints is no longer necessary.  Due to advances in digital technology, captions can be turned on or off in digital format without having to use a separate film print with the hard captions burned on.  As a result, captions can be superimposed onto the film at theaters.  In addition, digital projection systems send all captions and audio to the theaters on a hard disk or via satellite, and a digital projector is used to display the movie.  While movie theater owners need to purchase expensive projectors in order to display digital movies, the Department understands that movie theater operators are moving to digital film and are entering into creative agreements to help finance the projectors.  Open captioning can now be done before a movie is released to the public.

Closed captioning displays the written text of the audio only to those individuals who request captioning.  With some closed captioning systems, the captions are displayed on the back wall of the theater as the movie is shown on the movie screen and reflected onto portable devices at the seats of patrons who are deaf or hard of hearing.  Another system involves captioning that the patron receives through electronic devices, such as personal digital assistants (PDAs), using mobile wireless technology.  The individual wears a pair of glasses or a head band that plugs into the PDA (i.e., a wireless transmitter sends the captions to each moviegoer using the device),  and that produces "floating" captions that appear as if they are several meters in front of the viewer's eyes. Significantly, more than half of the feature films produced by the major movie studios now provide some form of captioning. 

While the Department has not required that the movie theater industry caption its presentations, during the mid-1990s, as closed captioning became available, the Department began requiring in certain settlement agreements that presentations be closed captioned.  See Agreement Between Walt Disney World Co. and the United States (Jan. 17, 1997), available at http://www.ada.gov/disney-sa.htm (requiring captioning for film, video, and video monitors that are part of an attraction or that provide information).

The Department is aware that the courts have split on the question of whether captioning should be provided at movie theaters.  See Ball v. AMC Entm't, 246 F. Supp. 2d 17 (D.D.C. 2003) (denying defendant movie operators' motion for summary judgment and noting that a closed captioned system is an auxiliary aid or service that could be required under the ADA); Cornilles v. Regal Cinema, No. Civ. 00-173-AS, 2001 WL 34041789 (D. Or. Dec. 11, 2001) (unpub. op.) (rejecting plaintiff's request that all films at a movie theater be captioned, noting that defendants already provide some captioning); Todd v. American Multi-Cinema, Inc., No. Civ. A. H-02-1944, 2004 WL 1764686 (S.D. Tex. Aug. 5, 2004) (unpub. op.) (granting summary judgment for defendant because of plaintiffs' inability to rebut defendants' claims that providing a specific type of closed captioning constituted an undue burden).  The judge in the Ball case cited legislative history for the proposition that captioning may be required, noting that technological advances may "require public accommodations to provide auxiliary aids and services in the future which today would not be required" and that the type of accommodation and services provided . . . [under the ADA] should "keep pace with the rapidly changing technology of the times."  246 F. Supp. 2d at 22 (citing H.R. Rep. No. 101-485(II) at 108). 

Several state Attorney General Offices around the country have begun negotiating agreements and, in some instances, initiating lawsuits to ensure that movie theater owners and operators provide captioning at certain movie screenings.

Although captioning was not mentioned in the ANPRM, two commenters requested that captioning be provided and a movie theater owner urged the Department not to require movie theaters to provide captioning or narrative description services.

The Department is considering options under which it might require captioning for movies exhibited by public accommodations, while recognizing that the movie industry is in transition as more movies are made in digital format and movie theater owners and operators begin to purchase digital projectors.  Movie theater owners and operators with digital projectors have available to them different options for providing captioning than those without digital projectors.  The Department is aware of the flux in the technology used to exhibit movies and seeks comments regarding how to require captioning while the film industry transitions to a digital format.  Also, the Department is concerned about the potential cost to exhibit captioned movies, although that cost may vary depending upon whether open or closed captioning is used and whether or not digital projectors are used.  The Department is cognizant that the cost of captioning must stay within the parameters of the undue burden requirement in 28 CFR 36.303(a).

The Department is considering the possibility of requiring that, after the effective date of the revised regulation, a public accommodation will exhibit all new movies in captioned format at every showing.  The Department would not specify which types of captioning to provide, but would instead leave that to the discretion of the movie theater owners and operators.

Question 24:  Should the Department require that, one year after the effective date of this regulation, public accommodations exhibit all new movies in captioned format at every showing? Is it more appropriate to require captioning less frequently? Should the requirement for captioning be tied to the conversion of movies from film to the use of a digital format?  Please include specifics regarding how frequently captioning should be provided. 

Narrative description. (Section-by-Section Analysis)

The Department is also considering options under which it might require that movie theater owners and operators exhibit movies with narrative descriptions, which enable individuals who are blind or have low vision to enjoy movies by providing a spoken interpretation of key visual elements of a movie, such as actions, settings, facial expressions, costumes, and scene changes.  The descriptions are narrated and recorded onto an audiotape or disk that can be synchronized with the film as it is projected. For example, a special reader head attached to the film projector can read a timecode track printed on the film, which then sends a signal using an infrared or FM transmitter to the theater where the narration can be heard on headsets equipped with receivers and worn by the movie patron.

As with captioning, the same two issues arise with this technology:  the cost and the change to digital movies and projectors.  The Department understands that the cost of narrative description equipment is less than that for closed captioning.  Generally, movie studios contract with entities to provide the narrative description, and it can be done at the same time captioning is created.  The Department understands that when theaters move to digital technology, both the caption data and the narrative descriptions can be embedded into the digital signal that is projected.

Question 25:  Should the Department require that, one year after the effective date of this revised regulation, a public accommodation will exhibit all new movies with narrative description?  Would it be more appropriate to require narrative description less frequently?  Should the requirement for narrative description of movies be tied to the use of a digital format?  If so, why?  Please include specifics regarding how frequently narrative description should be provided.

Captioning at sporting venues. (Section-by-Section Analysis)

The Department is aware that individuals who are deaf or hard of hearing have expressed concerns that they are unaware of information that is provided over the public address systems.  Therefore, in § 36.303(g), the Department is proposing that sports stadiums with a capacity of 25,000 or more provide captioning for patrons who are deaf or hard of hearing for safety and emergency information announcements made over the public address system. There are various options that could be used for providing captioning, such as on a scoreboard, on a line board, on a handheld device, or other methods.

Question 26:  The Department believes that requiring captioning of safety and emergency information made over the public address system in stadiums seating fewer than 25,000 has the potential of creating an undue burden for smaller entities. However, the Department requests public comment about the effect of requiring captioning of emergency announcements in all stadiums, regardless of size. Would such a requirement be feasible for small stadiums?

Question 27:  The Department is considering requiring captioning of safety and emergency information in sports stadiums with a capacity of 25,000 or more within a year of the effective date of the regulation.  Would a larger threshold, such as sports stadiums with a capacity of 50,000 or more, be more appropriate or would a lower threshold, such as stadiums with a capacity of 15,000 or more, be more appropriate?

Question 28:  If the Department adopted a requirement for captioning at sports stadiums, should there be a specific means required?  That is, should it be provided through any effective means (scoreboards, line boards, handheld devices, or other means), or are there problems with some means, such as handheld devices, that should eliminate them as options?

Question 29:  The Department is aware that several major stadiums that host sporting events, including National Football League football games at Fed Ex Field in Prince Georges County, Maryland, currently provide open captioning of all public address announcements, and do not limit captioning to safety and emergency information.  What would be the effect of a requirement to provide captioning for patrons who are deaf or hard of hearing for game-related information (e.g., play-by-play information), safety and emergency information, and any other relevant announcements?

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?

Section 36.308 Seating in Assembly Areas (Section-by-Section Analysis)

The Department is proposing to revise this section to be consistent with revisions in the proposed requirements applicable to new construction and alterations.  The purpose of the section is unchanged:  To establish the barrier removal requirements for assembly areas.  Sections 36.308(a)(1) and (b) have been revised to include an express requirement to provide companion seats and designated aisle seats.

Section 36.308(a)(1)(ii)(A) and (B) have been revised to provide that wheelchair and companion seats must be an integral part of the seating area, dispersed to all accessible seating levels, and that the locations must provide viewing angles to the screen, performance area, or other focal point that are equivalent to or better than the average viewing angles provided to all other spectators.

Proposed § 36.308(a)(1)(iii) provides that companion seats may be fixed or movable and that they shall be equivalent in size, quality, comfort, and amenities to the other seats in the assembly area.

A new § 36.308(c)(1) has been added to provide that when an assembly area has designated seating sections that provide spectators with distinct services or amenities that are not generally available to other spectators, the facility must ensure that wheelchair seating spaces and companion seating are provided in each specialty seating area.  The number of wheelchair seating spaces and companion seating provided in specialty seating areas shall be included in, rather than being additive to, wheelchair space requirements set forth in table 221.2.1.1 in the proposed standards.

Proposed § 36.308(c)(2) requires that, to the extent possible, wheelchair users shall be permitted to purchase companion tickets on the same terms that tickets are made available to other members of the public.  In assembly areas with seating capacities exceeding 5,000, each of five designated wheelchair spaces shall have at least three companion seats (i.e., five groups of four seats, each group including a wheelchair space) in order to provide more flexible seating arrangements for families and other small groups.  The group companion seats required by this section may be located adjacent to either the wheelchair location or other companion seats.  The Department is proposing this requirement to address complaints from many wheelchair users that the practice of providing a strict one-to-one relationship between wheelchair locations and companion seating often prevents family members from attending events together.

Section 36.309 Examinations and Courses (Section-by-Section Analysis)

Section 309 of the ADA is intended to fill the gap that is created when licensing, certification, and other testing authorities are not covered by section 504 or title II of the ADA, and to ensure that individuals with disabilities are not excluded from educational, professional, or trade opportunities because examinations or courses are offered in a place or manner that is not accessible.  See 42 U.S.C. 12189.  Through its enforcement efforts, the Department has discovered that the requests made by testing entities for documentation regarding the existence of an individual's disability and her or his need for a modification or an auxiliary aid or service are often inappropriate or burdensome.  The proposed rule attempts to address this problem.

Section 36.309(b) as revised states that while it is appropriate for a testing entity to require that an applicant document the existence of a disability in order to establish that he or she is entitled to testing modifications or aids, the request for documentation must be appropriate and reasonable.  Requested documentation should be narrowly tailored so that the testing entity can ascertain the nature of the disability and the individual's need for the requested modification or auxiliary aid.  Generally, a testing entity should accept without further inquiry documentation provided by a qualified professional who has made an individualized assessment of the applicant.  Appropriate documentation may include a letter from a qualified professional or evidence of a prior diagnosis, accommodation, or classification, such as eligibility for a special education program.  When an applicant's documentation is recent and demonstrates a consistent history of a diagnosis, there is no need for further inquiry into the nature of the disability.  A testing entity should consider an applicant's past use of a particular auxiliary aid or service.

Finally, a private entity should respond in a timely manner to requests and should provide applicants with a reasonable opportunity to supplement their requests with additional information, if necessary.  Failure by the testing entity to act in a timely manner and making requests of unnecessary magnitude could result in the sort of delay that amounts to a denial of equal opportunity or equal treatment.

Section 36.311 Mobility Devices (Section-by-Section Analysis)

Proposed § 36.311 has been added to provide additional guidance to public accommodations about the circumstances in which power-driven mobility devices must be accommodated.

As discussed earlier in this NPRM, this proposal is in response to growing confusion about what types of mobility devices must be accommodated.  The Department has received complaints and become aware of situations where individuals with mobility disabilities have utilized for locomotion purposes riding lawn mowers, golf cars, large wheelchairs with rubber tracks, gasoline-powered, two-wheeled scooters, and other devices that are not designed for indoor use or exclusively used by people with disabilities.  Indeed, there has been litigation about whether the ADA requires covered entities to allow people with disabilities to use their EPAMDs like users of traditional wheelchairs.  Individuals with disabilities have sued several shopping malls in which businesses refused to allow a person with a disability to use an EPAMD.  See, e.g., Sarah Antonacci, White Oaks Faces Lawsuit over Segway, State Journal-Register, Oct. 9, 2007, available at http://www.sj-r.com/news/stories/17784.asp; Shasta Clark, Local Man Fighting Mall Over Right to Use Segway, WATE 6 News, July 26, 2005, available at http://www.wate.com/Global/story.asp?s=3643674. The Department believes clarification on what the ADA requires is necessary at this juncture.

Section 36.311(a) reiterates the general rule that public accommodations shall permit individuals using wheelchairs, scooters, and manually powered mobility aids, including walkers, crutches, canes, braces, and similar devices, in any areas open to pedestrians. The regulation underscores this general proposition because the great majority of mobility scooters and wheelchairs must be accommodated under nearly all circumstances in which title III applies.

Section 36.311(b) adopts the general requirement in the ADA that public accommodations must make reasonable modifications to their policies, practices, and procedures when necessary to enable an individual with a disability to use a power-driven mobility device to participate in its services, programs, or activities unless doing so would result in a fundamental alteration of their services, programs, or activities.

If a public accommodation restricts the use of power-driven mobility devices by people without disabilities, then it must develop policies addressing which devices and under what circumstances individuals with disabilities may use power-driven mobility devices for the purpose of mobility.  Under the Department's proposed regulation in § 36.311(c), public accommodations must adopt policies and procedures regarding the accommodation of power-driven mobility devices other than wheelchairs and scooters that are designed to assess whether allowing an individual with a disability to use a power-driven mobility device is reasonable and does not result in a fundamental alteration to its programs, services, or activities.  Public accommodations may establish policies and procedures that address and distinguish among types of mobility devices.

For example, an amusement park may determine that it is reasonable to allow individuals with disabilities to use EPAMDs in a variety of outdoor programs and activities, but that it would not be reasonable to allow the use of golf cars as mobility devices in similar circumstances.  At the same time, the entity may address its concerns about factors such as space limitations by disallowing EPAMDs by members of the general public.

Section 36.311(c) lists permissible factors that a public accommodation may consider in determining whether the use of different types of power-driven mobility devices by individuals with disabilities may be permitted.  In developing policies, public accommodations should group power-driven mobility devices by type (e.g., EPAMDs, golf cars, gasoline-powered vehicles, wheelchairs designed for outdoor use, and other devices).  A blanket exclusion of all devices that fall under the definition of other power-driven mobility devices in all locations would likely violate the proposed regulation.

The factors listed in § 36.311(c)(1) through (3) may be used in order to develop policies regarding the use of other power-driven mobility devices by people with disabilities.  The dimensions, weight, and other characteristics of the mobility device in relation to a wheelchair or scooter, as well as the device's maneuverability and speed, may be considered.  Another permissible consideration is the potential risk of harm to others by the operation of other power-driven mobility devices.  The use of gasoline-powered golf cars by people with disabilities inside a building may be prohibited, for example, because the exhaust may be harmful to others.   A mobility device that is unsafe to others would not be reasonable under the proposed regulation.  Additionally, the risk of harm to the environment or natural or cultural resources or conflicts with federal land management laws and regulations are also to be considered.  The final consideration is the ability of the public accommodation to stow the mobility device when not in use, if requested by the user.

While a public accommodation may inquire into whether the individual is using the device due to a disability, the entity may not inquire about the nature and extent of the disability, as provided in § 36.311(d).          

The Department anticipates that, in many circumstances, allowing the use of unique mobility devices by individuals with disabilities will be reasonable to provide access to a public accommodation's services, programs, and activities, and that in many cases it will not fundamentally alter the public accommodation's operations and services.  On the other hand, the use of mobility devices that are unsafe to others, or unusually unwieldy or disruptive, is unlikely to be reasonable and may constitute a fundamental alteration.

Consider the following examples: 

Example 1:

Although people who do not have mobility disabilities are prohibited from operating EPAMDs at a theme park, the public accommodation has developed a policy allowing people with disabilities to use EPAMDs as their mobility device at the theme park.  The policy states that EPAMDs are allowed in all areas of the theme park that are open to pedestrians as a reasonable modification to its general policy on EPAMDs.  The public accommodation determined that the venue provides adequate space for a larger device such as an EPAMD and that it does not fundamentally alter the nature of the theme park's goods and services.  The theme park's policies do, however, require that EPAMDs be operated at a safe speed limit.  A theme park employee may inquire at the ticket gate whether the device is needed due to the user's disability and also inform an individual with a disability using an EPAMD that the theme park's policy requires that it be operated at or below the designated speed limit.

Example 2:

A luxury cruise ship has developed a policy regarding the use of EPAMDs by individuals with disabilities on the ship.  In developing the policy, the public accommodation has considered the dimensions of the EPAMD, including its height, in relation to the common areas of the ship and the safety of other passengers.  Since the cruise ship in this example is large, there are many areas where a person using an EPAMD can be easily accommodated, including decks and spaces where passengers routinely walk and exercise, under certain weather conditions.  However, the dimensions of the ship, as on most such vessels, are more compact than analogous features of facilities on land and may contain thresholds and other features that present obstacles to some EPAMDs. Therefore, with respect to some areas, such as the passageways in cabin areas where the spaces are narrow and ceilings are low, the cruise ship may determine that allowing an individual with a disability to use an EPAMD for mobility would result in a fundamental alteration to some of the cruise ship areas.  In these constricted areas, the cruise ship staff may offer a wheelchair or other means of locomotion where the EPAMD would be inappropriate.  If the cruise ship in this example is smaller, it may be necessary for the staff to restrict the use of EPAMDs in most or all areas.

The Department is seeking public comment on the proposed definitions and policy concerning wheelchairs and other mobility devices.

Question 47:  Are there types of personal mobility devices that must be accommodated under nearly all circumstances?  Conversely, are there types of mobility devices that almost always will require an assessment to determine whether they should be accommodated?  Please provide examples of devices and circumstances in your responses.

Question 48:  Should motorized devices that use fuel or internal-combustion engines (e.g., all-terrain vehicles) be considered personal mobility devices that are covered by the ADA?  Are there specific circumstances in which accommodating these devices would result in a fundamental alteration?

Question 49:  Should personal mobility devices used by individuals with disabilities be categorized by intended purpose or function, by indoor or outdoor use, or by some other factor?  Why or why not?