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

SUPPLEMENTARY INFORMATION:

Electronic Submission and Posting of Public Comments

You may submit electronic comments to http://www.regulations.gov.  When submitting comments electronically, you must include CRT Docket No. 106 in the subject box, and you must include your full name and address.

Please note that all comments received are considered part of the public record and made available for public inspection online at http://www.regulations.gov.  Such information includes personal identifying information (such as your name, address, etc.) voluntarily submitted by the commenter.

If you want to submit personal identifying information (such as your name, address, etc.) as part of your comment, but do not want it to be posted online, you must include the phrase "PERSONAL IDENTIFYING INFORMATION" in the first paragraph of your comment.  You must also locate all the personal identifying information you do not want posted online in the first paragraph of your comment and identify information you want redacted.

If you want to submit confidential business information as part of your comment but do not want it posted online, you must include the phrase "CONFIDENTIAL BUSINESS INFORMATION" in the first paragraph of your comment.  You must also prominently identify confidential business information to be redacted within the comment.  If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted on http://www.regulations.gov.

Personal identifying information identified and located as set forth above will be placed in the agency's public docket file, but not posted online.  Confidential business information identified and located as set forth above will not be placed in the public docket file.  If you wish to inspect the agency's public docket file in person by appointment, please see the "FOR FURTHER INFORMATION CONTACT" paragraph.

Overview

Throughout this NPRM, the current, legally enforceable ADA Standards will be referred to as the "1991 Standards," 28 CFR part 36, App. A, 56 FR 35544 (July 26, 1991), modified in part at 59 FR 2674 (Jan. 18, 1994).  The Access Board's 2004 revised guidelines will be referred to as the "2004 ADAAG," 69 FR 44084 (July 23, 2004), as amended (editorial changes only) at 70 FR 45283 (Aug. 5, 2005).  The revisions now proposed in the NPRM, based on the 2004 ADAAG, are referred to in the preamble as the "proposed standards."

In performing the required, periodic review of its existing regulation, the Department has reviewed the title III regulation section by section, and, as a result, proposes several clarifications and amendments in this NPRM.  The Department's initial, formal benefit-cost analysis can be found at Appendix B.  See E.O. 12866, 58 FR 51735 (Sept. 30, 1993), amended by E.O. 13258, 67 FR 9385 (Feb. 26, 2002), and E.O. 13422, 72 FR 2703 (Jan. 18, 2007); 5 U.S.C. 601, 603, and 610(a); and OMB Circular A-4, http://www.whitehouse.gov/omb/circulars/a004/a-4.pdf. The NPRM was submitted to the Office of Management and Budget (OMB), Office of Information and Regulatory Affairs, for review and approval prior to publication in the Federal Register.  It has also been reviewed by the Small Business Administration's Office of Advocacy pursuant to Executive Order 13272, 67 FR 53461, (Aug. 13, 2002).

Purpose

On July 26, 1990, President George H.W. Bush signed into law the Americans With Disabilities Act, 42 U.S.C. 12101 et seq., a comprehensive civil rights law prohibiting discrimination on the basis of disability.  At the beginning of his administration, President George W. Bush underscored the nation's commitment to ensuring the rights of over fifty million individuals with disabilities nationwide by announcing the New Freedom Initiative (available at http://www.whitehouse.gov/infocus/newfreedom). The Access Board's publication of the 2004 ADAAG is the culmination of a long-term effort to facilitate ADA compliance and enforcement by eliminating, to the extent possible, inconsistencies among federal accessibility requirements and between federal accessibility requirements and state and local building codes.  In support of this effort, the Department is announcing its intention to adopt standards consistent with Parts I and III of the 2004 ADAAG as the ADA Standards for Accessible Design.  To facilitate this process, the Department is seeking public comment on the issues discussed in this notice.

The ADA and Department of Justice Regulations

The ADA broadly protects the rights of individuals with disabilities in employment, access to state and local government services, places of public accommodation, transportation, and other important areas of American life and, in addition, requires newly designed and constructed or altered state and local government facilities, public accommodations, and commercial facilities to be readily accessible to and usable by individuals with disabilities.  42 U.S.C. 12101 et seq.  Under the ADA, the Department is responsible for issuing regulations to implement title II and title III of the Act, except to the extent that transportation providers subject to title II or title III are regulated by the Department of Transportation.  Id. at 12134.

The Department also is proposing amendments to its title II regulation, which prohibits discrimination on the basis of disability in state and local government services, concurrently with the publication of this NPRM in this issue of the Federal Register.                                    

Title III prohibits discrimination on the basis of disability in the activities of places of public accommodation (businesses that are generally open to the public and that fall into one of twelve categories listed in the ADA, such as restaurants, movie theaters, schools, day care facilities, recreational facilities, and doctors' offices) and requires newly constructed or altered places of public accommodation--as well as commercial facilities (privately owned, nonresidential facilities like factories, warehouses, or office buildings)--to comply with the ADA Standards.  42 U.S.C. 12181-89.

On July 26, 1991, the Department issued its final rules implementing title II and title III, which are codified at 28 CFR part 35 (title II) and part 36 (title III).  Appendix A of the title III regulation, at 28 CFR part 36, contains the 1991 Standards, which were based upon the version of ADAAG published by the Access Board on the same date.  Under the Department's regulation implementing title III, places of public accommodation and commercial facilities are currently required to comply with the 1991 Standards with respect to newly constructed or altered facilities.

Relationship to Other Laws

The Department of Justice regulation implementing title III, 28 CFR 36.103, provides:

(a) Rule of interpretation. Except as otherwise provided in this part, this part shall not be construed to apply a lesser standard than the standards applied under title V of the Rehabilitation Act of 1973, 29 U.S.C. 791 et seq., or the regulations issued by federal agencies pursuant to that title.

(b) Section 504.  This part does not affect the obligations of a recipient of federal financial assistance to comply with the requirements of section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, and regulations issued by federal agencies implementing section 504.

(c) Other laws. This part does not invalidate or limit the remedies, rights, and procedures of any other federal, state, or local laws (including state common law) that provide greater or equal protection for the rights of individuals with disabilities or individuals associated with them.

Nothing in this proposed rule will alter this relationship.  The Department recognizes that public accommodations subject to title III of the ADA may also be subject to title I of the ADA, which prohibits discrimination on the basis of disability in employment; section 504, which prohibits discrimination on the basis of disability in the programs and activities of recipients of federal financial assistance; and other federal statutes such as the Air Carrier Access Act, 49 U.S.C. 41705, and the Fair Housing Act, 42 U.S.C. 3601 et seq. Compliance with the Department's ADA regulations does not necessarily ensure compliance with other federal statutes.

Public accommodations that are subject both to the Department's regulations and to regulations published by other federal agencies must ensure that they comply with the requirements of both regulations.  If there is a direct conflict between the regulations, the regulation that provides greater accessibility will prevail. When different statutes apply to entities that routinely interact, each entity must follow the regulation that specifically applies to it.  For example, a quick service restaurant in an airport is a public accommodation subject to title III.  It regularly serves the passengers of air carriers subject to the Air Carrier Access Act (ACAA).  The restaurant is subject to the title III requirements, not to the ACAA requirements.  Conversely, the airline is required to comply with the ACAA, not with the ADA.

The Roles of the Access Board and the Department of Justice

The Access Board was established by section 502 of the Rehabilitation Act of 1973.  29 U.S.C. 792. The Board consists of thirteen public members appointed by the President, of whom the majority must be individuals with disabilities, and the heads of twelve federal departments and agencies specified by statute, including the heads of the Department of Justice and the Department of Transportation. Originally, the Access Board was established to develop and maintain accessibility guidelines for federally funded facilities under the Architectural Barriers Act of 1968 (ABA).  42 U.S.C. 4151 et seq.  The passage of the ADA expanded the Access Board's responsibilities.  The ADA requires the Access Board to "issue minimum guidelines that shall supplement the existing Minimum Guidelines and Requirements for Accessible Design for purposes of subchapters II and III of this chapter . . . to ensure that buildings, facilities, rail passenger cars, and vehicles are accessible, in terms of architecture and design, transportation, and communication, to individuals with disabilities."  42 U.S.C. 12204.  The ADA requires the Department to issue regulations that include enforceable accessibility standards applicable to facilities subject to title II or title III that are consistent with the minimum guidelines issued by the Access Board.  Id. at 12134, 12186.

The Department was extensively involved in the development of the 2004 ADAAG.  As a federal member of the Access Board, the Attorney General's representative voted to approve the revised guidelines.  Although the enforceable standards issued by the Department under title II and title III must be consistent with the minimum guidelines published by the Access Board, it is the sole responsibility of the Attorney General to promulgate standards and to interpret and enforce those standards.

The ADA also requires the Department to develop regulations with respect to existing facilities subject to title II (Subtitle A) and title III.  How and to what extent the Access Board's guidelines are used with respect to the barrier removal requirement applicable to existing facilities under title III of the ADA and to the provision of program accessibility under title II of the ADA are solely within the discretion of the Department.

The Revised Guidelines (2004 ADAAG)

Part I of the 2004 ADAAG provides scoping requirements for facilities subject to the ADA; scoping is a term used in the 2004 ADAAG to describe requirements (set out in Parts I and II) that prescribe what elements and spaces--and, in some cases, how many--must comply with the technical specifications.  Part II provides scoping (which is defined in the preamble of title 2) requirements for facilities subject to the ABA (i.e., facilities designed, built, altered, or leased with federal funds).  Part III provides uniform technical specifications for facilities subject to either statute.  This revised format is designed to eliminate unintended conflicts between the two federal accessibility standards and to minimize conflicts between the federal regulations and the model codes that form the basis of many state and local building codes.

The 2004 ADAAG is the culmination of a ten-year effort to improve ADA compliance and enforcement.  In 1994, the Access Board began the process of updating the original ADAAG by establishing an advisory committee composed of members of the design and construction industry, the building code community, state and local government entities, and people with disabilities.  In 1999, based largely on the report and recommendations of the advisory committee,^[1] the Access Board issued a proposed rule to update and revise its ADA and ABA Accessibility Guidelines.  See 64 FR 62248 (Nov. 16, 1999).  In response to its proposed rule, the Access Board received more than 2,500 comments from individuals with disabilities, affected industries, state and local governments, and others.  The Access Board provided further opportunity for participation by holding public hearings throughout the nation.  The Access Board worked vigorously from the beginning to harmonize the ADA and ABA Accessibility Guidelines with industry standards and model codes.  The Access Board released an interim draft of its guidelines to the public on April 2, 2002, 67 FR 15509, in order to provide an opportunity for entities with model codes to consider amendments that would promote further harmonization.  By the date of its final publication on July 23, 2004, 69 FR 44084, the 2004 ADAAG had been the subject of extraordinary public participation and review.

In addition, the Access Board amended the ADAAG four times since 1998.  In 1998, it added specific guidelines on state and local government facilities, 63 FR 2000 (Jan. 13, 1998), and building elements designed for use by children, 63 FR 2060 (Jan. 13, 1998).  Subsequently, the Access Board added specific guidelines on play areas, 65 FR 62498 (Oct. 18, 2000), and on recreational facilities 67 FR 56352 (Sept. 3, 2002).

These amendments to the ADAAG have not previously been adopted by the Department as ADA Standards. Through this NPRM, the Department is announcing its intention to publish a proposed rule that will adopt revised ADA Standards consistent with the 2004 ADAAG, including all of the amendments to the ADAAG since 1998.

The Advance Notice of Proposed Rulemaking

The Department published an advance notice of proposed rulemaking (ANPRM) on September 30, 2004, 69 FR 58768, for two reasons:  (1) To begin the process of adopting the Access Board's 2004 ADAAG by soliciting public input on issues relating to the potential application of the Access Board's revisions once the Department adopts them as revised standards; and (2) to request background information that would assist the Department in preparing a regulatory analysis under the guidance provided in OMB Circular A-4, available at http://www.whitehouse.gov/omb/circulars/a004/a-4.pdf, Sections D (Analytical Approaches) and E (Identifying and Measuring Benefits and Costs).  While underscoring that the Department, as a member of the Access Board, had already reviewed comments provided to the Access Board during its development of the 2004 ADAAG, the Department specifically requested public comment on the potential application of the 2004 ADAAG to existing facilities. The extent to which the 2004 ADAAG is used with respect to the barrier removal requirement applicable to existing facilities under title III (like the program access requirement in title II) is solely within the discretion of the Department.  The ANPRM dealt with the Department's responsibilities under both title II and title III.

Public response to the ANPRM was extraordinary.  The Department extended the comment deadline by four months at the public's request.  70 FR 2992 (Jan. 19, 2005).  By the end of the extended comment period, the Department had received more than 900 comments covering a broad range of issues.  Most of the comments responded to questions specifically posed by the Department, including issues involving the application of the 2004 ADAAG once the Department adopts it and cost information to assist the Department in its regulatory assessment.  The public provided information on how to assess the cost of elements in small facilities, office buildings, hotels and motels, assembly areas, hospitals and long-term care facilities, residential units, recreational facilities, and play areas. Comments addressed the effective date of the proposed standards, the triggering event by which the effective date is measured in new construction, and variations on a safe harbor that would excuse elements built in compliance with the 1991 Standards from compliance with the proposed standards.  Comments responded to questions regarding elements scoped for the "first time" in the 2004 ADAAG, including detention and correctional facilities, recreational facilities, and play areas, as well as proposed additions to the Department's regulation for items such as free-standing equipment.  Comments also dealt with specific requirements in the 2004 ADAAG.

Many commenters requested clarification of or changes to the Department's title III regulation.  Commenters observed that now, more than seventeen years after enactment of the ADA, as facilities are becoming physically accessible to individuals with disabilities, the Department needs to focus on second generation issues that ensure that individuals with disabilities can actually gain access to and use the accessible elements.  So, for example, commenters asked the Department to focus on such issues as ticketing in assembly areas and reservations for hotel rooms, rental cars, and boat slips.  The public asked about captioning and the division of responsibility between the Department and the Access Board for fixed and non-fixed (or free-standing) equipment. Finally, commenters asked for clarification on some issues in the existing regulations, such as title III's requirements regarding service animals.

All of the issues raised in the public comments are addressed, in turn, in this NPRM or in the NPRM for title II.  Issues involving title II of the ADA, such as the exhaustion of administrative remedies under the Prison Litigation Reform Act (PLRA), 42 U.S.C. 1997e et seq., are addressed in the Department's NPRM for title II in this issue of the Federal Register, published concurrently with this NPRM.

Background (SBREFA, Regulatory Flexibility Act, and Executive Order) Reviews

The Department must provide two types of assessments as part of its NPRM:  an analysis of the costs and benefits of adopting the 2004 ADAAG as its proposed standards, and a periodic review of its existing regulations to consider their impact on small entities, including small businesses, small nonprofit organizations, and small governmental jurisdictions.  E.O. 12866, 58 FR 51735 (Sept. 30, 1993), as amended by E.O. 13258, 67 FR 9385 (Feb. 26, 2002) and E.O. 13422, 72 FR 2763 (Jan. 18, 2007); Regulatory Flexibility Act of 1980, 5 U.S.C. 601, 603, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 610(a); OMB Circular A-4, http://www.whitehouse.gov/omb/circulars/a004/a-4.pdf; and E.O. 13272, 67 FR 53461 (Aug. 13, 2002).

The Department leaves open the possibility that, as a result of the receipt of comments on an issue raised by the 2004 ADAAG, or if the Department's Regulatory Impact Analysis reveals that the costs of making a particular feature or facility accessible are disproportionate to the benefits to persons with disabilities, the Attorney General, as a member of the Access Board, may return the issue to the Access Board for further consideration of the particular feature or facility.  In such a case, the Department would delay adoption of the accessibility requirement for the particular feature or facility in question in its final rule and await Access Board action before moving to consider any final action.

Regulatory Impact Analysis.

An initial regulatory impact analysis of the costs and benefits of a proposed rule is required by Executive Order 12866 (as amended by Executive Order 13258 and Executive Order 13422).  A full benefit-cost analysis is required of any regulatory action that is deemed to be significant--that is, a regulation that will have an annual effect of $100 million or more on the economy.  See OMB Circular A-4; Regulatory Flexibility Act of 1980, 5 U.S.C. 601, 603, as amended by SBREFA, 5 U.S.C. 610(a).

Early in the rulemaking process, the Department concluded that the economic impact of its adoption of the 2004 ADAAG as proposed standards for title II and title III was likely to exceed the threshold for significant regulatory actions of $100 million.  The Department has completed its initial regulatory impact analysis measuring the incremental benefits and costs of the proposed standards; the initial regulatory impact analysis is addressed at length with responses to public comments from the ANPRM, in Appendix B.

The public may notice differences between the Department's regulatory impact analysis and the Access Board's regulatory assessment of the 2004 ADAAG.  The differences in framework and approach result from the differing postures and responsibilities of the Department and the Access Board.  First, the breadth of the proposed changes assessed in Appendix A of this NPRM is greater than in the Access Board's assessments related to the 2004 ADAAG.  Unlike the Access Board, the Department must examine the effect of the proposed standards not only on newly constructed or altered facilities, but also on existing facilities.  Second, whereas the Access Board issued separate rules for many of the differences between the 1991 Standards and the 2004 ADAAG (e.g., play areas and recreational facilities), the Department is proposing to adopt several years of revisions in a single rulemaking.

According to the Department's initial Regulatory Impact Analysis ("RIA"), it is estimated that the incremental cost of the proposed requirements for each of the following eight existing elements will exceed monetized benefits by more than $100 million when using the 1991 Standards as the comparative baseline: Side reach; water closet clearances in single-user toilet rooms with in-swinging doors; stairs; elevators; location of accessible routes to stages; accessible attorney areas and witness stands; assistive listening systems; and accessible teeing grounds, putting greens, and weather shelters at golf courses.  However, this baseline figure does not take into account the fact that, since 1991, various model codes and consensus standards--such as the model International Building Codes ("IBC") published by the International Codes Council and the consensus accessibility standards developed by the American National Standards Institute ("ANSI")--have been adopted by a majority of states (in whole or in part) and that these codes have provisions mirroring the substance of the Department's proposed regulations.  Indeed, such regulatory overlap is intentional since harmonization among federal accessibility standards, state and local building codes, and model codes, is one of the goals of the Department's rulemaking efforts. 

Even though the 1991 Standards are an appropriate baseline to compare the new requirements against, since they represent the current set of uniform federal regulations governing accessibility, in practice it is likely that many public and private facilities across the country are already being built or altered in compliance with the Department's proposed standards with respect to these elements.  Because the model codes are voluntary, public entities often modify or carve out particular standards when adopting them into their laws, and even when the standards are the same, local officials often interpret them differently.  The mere fact that a state or local government has adopted a version of the IBC does not necessarily mean that the facilities within that jurisdiction are legally subject to its accessibility provisions.  Because of these complications, and the inherent difficulty of determining which baseline is the most appropriate for each provision, the RIA accompanying this rulemaking compares the costs and benefits of the proposed requirements to several alternative baselines, which reflect various versions of existing building codes.  In addition, since the Department is soliciting comment on these eight particular provisions with high net costs, the Department believes it is useful to further discuss the potential impact of alternative baselines on these particular provisions.

For example, the Department's proposed standards for existing stairs and elevators have identical counterparts in one or more IBC versions (2000, 2003, or 2006). Please note, however, that the IBC 2006 version bases a number of its provisions on guidelines in the 2004 ADAAG.  These IBC versions, in turn, have been adopted collectively by forty-six (46) states and the District of Columbia on a statewide basis.  In the four (4) remaining states (Colorado, Delaware, Illinois, and Mississippi), while IBC adoption is left to the discretion of local jurisdictions, the vast majority of these local jurisdictions have elected to adopt IBC as their local code.  Thus, given that nearly all jurisdictions in the country currently enforce a version of the IBC as their building code, and to the extent that the IBC building codes may be settled in this area and would not be further modified to be consistent if they differ from the final version of these regulations, the incremental costs and benefits attributable to the Department's proposed regulations governing alterations to existing stairs and elevators may be less significant than the RIA suggests over the life of the regulation.  

In a similar vein, consideration of an alternate IBC/ANSI baseline would also likely lower the incremental costs and benefits for five other proposed standards (side reach; water closet clearances in single-user toilet rooms with in-swinging doors; location of accessible routes to stages; accessible attorney areas and witness stands; and assistive listening systems), albeit to a lesser extent.  Each of these proposed standards has a counterpart in either Chapter 11 of one or more versions of the IBC, ANSI A117.1, or a functionally equivalent state accessibility code.  While IBC Chapter 11 and ANSI A117.1 have yet not been as widely adopted as some other IBC chapters, the RIA nonetheless still estimates that between 15% and 35% of facilities nationwide are already covered by IBC/A117.1 provisions that mirror these five proposed standards.  It is thus expected that the incremental costs and benefits for these proposed standards may also be lower than the costs and benefits relative to the 1991 Standards baseline.          

Question 1:  The Department believes it would be useful to solicit input from the public to inform us on the anticipated costs or benefits for certain requirements.  The Department therefore invites comment as to what the actual costs and benefits would be for these eight existing elements, in particular as applied to alterations, in compliance with the proposed regulations (side reach, water closet clearances in single-user toilet rooms with in-swinging doors, stairs, elevators, location of accessible routes to stages, accessible attorney areas and witness stands, assistive listening systems, and accessible teeing grounds, putting greens, and weather shelters at golf courses), as well as additional practical benefits from these requirements, which are often difficult to adequately monetize.       

The Department does not have statutory authority to modify the 2004 ADAAG; instead the ADA requires the Attorney General to issue regulations implementing the ADA that are "consistent with" the ADA Accessibility Guidelines issued by the Access Board.  See 42 U.S.C. 12134(c), 12186(c).  As noted above in other parts of this preamble, the Department leaves open the possibility of seeking further consideration by the Access Board of particular issues based on disproportionate costs compared to benefits and public comments.  The Access Board did not have the benefit of our RIA or public comment on our RIA as it pertains to the 2004 ADAAG.

Question 2:  The Department would welcome comment on whether any of the proposed standards for these eight areas (side reach, water closet clearances in single-user toilet rooms with in-swinging doors, stairs, elevators, location of accessible routes to stages, accessible attorney areas and witness stands, assistive listening systems, and accessible teeing grounds, putting greens, and weather shelters at golf courses) should be raised with the Access Board for further consideration, in particular as applied to alterations.   

Stages.

The proposed requirement to provide direct access to stages represents an effort to ensure that individuals with disabilities are able to participate in programs in an integrated setting.  Under the current 1991 Standards, a compliant accessible route connecting seating locations to performing areas is permitted to go outside the assembly area and make use of an indirect interior accessible route to access the stage area.  As a result, even when other audience members are able to access a stage directly via stairs in order to participate in ceremonies, skits, or other interactive on-stage events, persons with mobility disabilities may be required to use an inconvenient indirect entrance to the stage.  As graduates or award recipients, they may be required to part company with their peers, to make their way to the stage alone, and to make a conspicuous entrance.  To address this situation, the proposed requirement mandates that, when a direct circulation path (for audience members) connects the seating area to a stage, the accessible route to the stage must also be direct.

The Department has generally determined that the overall costs for this requirement are relatively high in the alterations context, due to the expense of having to provide a lift or ramp to access the stage area directly, regardless of which baseline is used for the analysis.  The Department, however, has had difficulty in estimating the real costs of this requirement because of a lack of information about whether colleges, elementary and secondary schools, and entertainment venues now routinely provide such access when they are altering existing auditoriums or how frequently such alterations occur.  Also, the Department currently lacks sufficient data or other sources with which to quantify the benefits that accrue to students and other persons with disabilities who, as a result of direct access to stages, would be able to participate fully and equally in graduation exercises and other events. 

Question 3: The Department would welcome information from operators of auditoriums on the likelihood that their auditoriums will be altered in the next fifteen years, and, if so, whether such alterations are likely to include accessible and direct access to stages.  In addition, the Department would like specific information on whether, because of local law or policy, auditorium operators are already providing a direct accessible route to their stages.  (The Department is also interested in whether having to provide a direct access to the stage would encourage operators of auditoriums to postpone or cancel the alteration of their facilities.)  The Department also seeks information on possible means of quantifying the benefits that accrue to persons with disabilities from this proposed requirement or on its importance to them.  To the extent that such information cannot be quantified, the Department welcomes examples of personal or anecdotal experience that illustrate the value of this requirement.

The Department's RIA also estimates significant costs, regardless of the baseline used, for the proposed requirement that court facilities must provide an accessible route to a witness stand or attorney area and clear floor space to accommodate a wheelchair. These costs arise both in the new construction and alteration contexts.  If the witness stand is raised, then either a ramp or lift must be provided to ensure access to the witness stand.  While the RIA quantifies the benefits for this proposed requirement (as it does for all of the proposed requirements) primarily in terms of time savings, the Department fully appreciates that such a methodology does not capture the intangible benefits that accrue when persons with mobility disabilities are able to participate in the court process as conveniently as any other witness or party.  Without access to the witness stand, for example, a wheelchair user, or a witness who uses other mobility devices such as a walker or crutches, may have to sit at floor level.  If the witness with a mobility disability testifies from a floor level position, the witness could be placed at a disadvantage in communicating with the judge and jury who may no longer be able to see the witness as easily, or, potentially at all.  This may create a reciprocal difficulty for the judge and jurors who lose the sightline normally provided by the raised witness stand that enables them to see and hear the witness in order to evaluate his or her demeanor and credibility--difficulty that redounds to the detriment of litigants themselves and ultimately our system of justice.

Question 4:  The Department welcomes comment on how to measure or quantify the  intangible benefits that would accrue from accessible witness stands.  We particularly invite anecdotal accounts of the courtroom experiences of individuals with disabilities who have encountered inaccessible witness stands, as well as the experiences of state and local governments in making witness stands accessible, either in the new construction or alteration context.

Under the 1991 Standards, Assistive Listening Systems ("ALS") are required in courtrooms and in other settings where audible communication is integral to the use of the space and audio amplification systems are provided for the general audience.  However, these Standards do not set forth technical specifications for such systems.  Since 1991, advancements in ALS and the advent of digital technologies have made these systems more amenable to uniform technical specifications.  In keeping with these technological advancements, the revised requirements create a technical standard that, among other things, ensures that a certain percentage of required ALS have hearing-aid compatible receivers. Requiring hearing-aid compatible ALS enables persons who are hard of hearing to hear a speech, a play, a movie, or to follow the content of a trial.  Without an effective ALS, people with hearing loss are effectively excluded from participation because they are unable to hear or understand the audible portion of the presentation.

From an economic perspective, the cost of a single hearing-aid compliant ALS is not high--about $500 more than a non-compliant system--and compliant equipment is readily available on the retail market.  As estimated in the RIA, the high overall costs for the revised technical requirements for ALS are instead driven by the assumption that entities with large assembly areas (such as universities, stadiums, and auditoriums) will be required to purchase a relatively large number of compliant systems.  On the other hand, the overall scoping for ALS has been reduced in the Department's proposed requirement, thus mitigating the cost to covered entities.  The proposed revision to the technical requirement merely specifies that (25% or at least 2) of the required ALS receivers must be hearing-aid compatible.  The RIA estimates that a significant part of the cost of this requirement will come from the replacement of individual ALS receivers and system maintenance. 

Question 5: The Department seeks information from arena and assembly area administrators on their experiences in managing ALS.  In order to evaluate the accuracy of the assumptions in the RIA relating to ALS costs, the Department welcomes particular information on the life expectancy of ALS equipment and the cost of ongoing maintenance.

The Department's proposed requirements mandate an accessible (pedestrian) route that connects all accessible elements within the boundary of the golf course and facility, including teeing grounds, putting greens, and weather shelters.  Requiring access to necessary features of a golf course ensures that persons with mobility disabilities may fully and equally participate in a recreational activity.  

From an economic perspective, the Department's RIA assumes that virtually every tee and putting green on an existing course will need to be regraded in order to provide compliant accessible (pedestrian) routes to these features.  However, the Department's proposal also excuses compliance with the requirement for an accessible (pedestrian) route so long as a "golf car passage" (i.e., the path typically used by golf cars) is otherwise provided to the teeing ground, putting green, or other accessible element on a course.  Because it is likely that most public and private golf courses in the United States already provide golf passages to most or all holes, the actual costs of this requirement for owners and operators of existing golf courses should be reduced with little to no practical loss in accessibility.

Question 6: The Department seeks information from the owners and operators of golf courses, both public and private, on the extent to which their courses already have golf car passages to teeing grounds, putting greens, and weather shelters, and, if so, whether they intend to avail themselves of the proposed exception.

Analysis of impact on small entities.

The second type of analysis that the Department has undertaken is a review of its existing regulations for title II and title III in order to consider the impact of those regulations on small entities. The review requires agencies to consider five factors:  (1) The continued need for the rule; (2) the nature of complaints or comments received concerning the rule from the public; (3) the complexity of the rule; (4) the extent to which the rule overlaps, duplicates, or conflicts with other federal rules, and, to the extent feasible, with state and local governmental rules; and (5) the length of time since the rule has been evaluated or the degree to which technology, economic conditions, or other factors have changed in the area affected by the rule.  5 U.S.C. 610(b).  Based on these factors, the agency should determine whether to continue the rule without change, or to amend or rescind the rule to minimize any significant economic impact of the rule on a substantial number of small entities.  Id. at 610(a).

In performing this review, the Department has gone through its regulation section by section, and, as a result, proposes several clarifications and amendments in this NPRM. Amendments to its title II regulation are proposed in the NPRM for title II published concurrently with this rule.  The proposals reflect the Department's analysis and review of complaints or comments from the public as well as changes in technology.  Many of the proposals aim to clarify and simplify the obligations of covered entities.  As discussed in greater detail above, a significant goal in the development of the 2004 ADAAG was to eliminate duplication or overlap in federal accessibility guidelines as well as to harmonize the federal guidelines with model codes.  The Department has also worked to create harmony where appropriate between the requirements of titles II and III.  Finally, while the regulation is required by statute and there is a continued need for it as a whole, the Department proposes several modifications that are intended to reduce its effects on small entities.

Organization of This NPRM

The subsequent sections of this NPRM deal with the Department's response to comments and its proposals for changes to its current regulation that derive from the required, periodic review that it performed.  The proposed standards and the Department's response to comments regarding the 2004 ADAAG are contained in Appendix A to the NPRM.  Appendix B to the NPRM contains the Department's initial, formal benefit-cost analysis.

The section of the NPRM entitled, "General Issues" briefly introduces topics that are noteworthy because they are new to the title III regulation or have been the subject of attention or comment.  The topics introduced in the general issues section include:  safe harbor and other proposed limitations on barrier removal, service animals, equipment, wheelchairs and other power-driven mobility devices, auxiliary aids and services (including captioning and video interpreting services), and certification of state and local building codes.

Following the "General Issues" section, there is a section entitled, "Section-By-Section Analysis and Response to Comments."  This section provides a detailed discussion of the proposed changes to the title III regulation.  The section-by-section analysis follows the order of the current regulation, except that regulatory sections that remain unchanged are not indicated.  The discussion within each section explains the proposals and the reasoning behind them, as well as the Department's response to related public comments.  Subject areas that deal with more than one section of the regulation include references to the related sections, where appropriate.

Both the "General Issues" section and the "Section-By-Section Analysis" include specific questions to which the Department requests public response.  These questions are numbered and italicized so that they are easier for readers to locate and reference.  The Department emphasizes, however, that the public may comment on any aspect of this NPRM and is not required to respond solely to questions specifically posed by the Department.

The Department's proposed changes to the actual regulatory text of title III, that follow the section-by-section analysis are entitled, "Part 36:  Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities."

General Issues

This section briefly introduces topics that are noteworthy because they are new to the title III regulation or have been the subject of considerable attention or comment. Each topic is discussed subsequently in the section-by-section analysis.

Safe harbor and other proposed limitations on barrier removal.

One of the most important issues that the Department must address is the effect that supplemental or changed ADA Standards will have on the continuing obligation of public accommodations to remove architectural, transportation, and communication barriers in existing facilities to the extent that it is readily achievable to do so.  This issue was not addressed in the 2004 ADAAG because it was outside the scope of the Access Board's authority under the ADA.  Responsibility for implementing title III's requirement that public accommodations eliminate existing architectural barriers where it is readily achievable to do so rests solely with the Department.

The Department's current regulation implementing title III of the ADA establishes the requirements for barrier removal by public accommodations. 28 CFR 36.304.  Under this requirement, the Department uses the 1991 Standards as a guide to identify what constitutes an architectural barrier, as well as the specifications that covered entities must follow in making architectural changes to the extent that it is readily achievable.  28 CFR part 36, App. B.  Once adopted, therefore, the 2004 ADAAG will present a new reference point for title III's requirement to remove architectural barriers in existing places of public accommodation. The Department is concerned that the incremental changes in the 2004 ADAAG may place unnecessary cost burdens on businesses that have already removed barriers by complying with the 1991 Standards in their existing facilities.

The Department seeks to strike an appropriate balance between ensuring that people with disabilities are provided access to buildings and facilities and potential financial burdens on existing places of public accommodation under their continuing obligation for barrier removal. Such a balance would not impose unnecessary financial burdens on existing places of public accommodation.

The Department's ANPRM raised several options that might reduce such financial burdens.  One approach, described in the ANPRM as Option I, is to establish a safe harbor with regard to elements in existing facilities that comply with the scoping and technical provisions in the 1991 Standards.  Specifically, the Department would deem that public accommodations have met their obligation for barrier removal with respect to any element in an existing facility if that element complies with the scoping and technical requirements in the 1991 Standards.  Another possible approach--Option II in the ANPRM--is to reduce the scoping requirements for some of the supplemental or changed requirements as they apply to existing facilities (e.g., play areas and recreational facilities).  Option III in the ANPRM proposed the exemption of certain elements in the proposed standards; under this option, the Department would determine that certain supplemental requirements are inappropriate for barrier removal.  After reviewing the public comments on the ANPRM, the Department has decided to propose a combination of Options I and II.  The specific proposals are addressed in the discussion of barrier removal in the section-by-section analysis of § 36.304 below.

The Department is not proposing to adopt Option III.  Instead, in keeping with its obligations under the SBREFA to consider regulatory alternatives, the Department is seeking public comment on an alternative suggested by advocates for small business. Under this alternative, the Department would revamp its approach to barrier removal that is readily achievable as applied to "qualified small business" entities, which are defined in § 36.104.

Small business advocates argued for clearer guidance on when barrier removal is, and is not, readily achievable.  According to the small business advocacy groups, the Department's current approach to readily achievable barrier removal disproportionately affects small businesses for the following reasons:  (1) Small businesses are more likely to operate in older buildings and facilities; (2) the 1991 Standards are too numerous and technical for most small business owners to understand and then to square with the ADA requirements with state and local building or accessibility codes; and (3) small businesses are particularly vulnerable to title III litigation and are often compelled to settle because they cannot afford the litigation costs involved in proving whether an action is readily achievable.  Advocates for small business endorsed many of the proposals in the ANPRM, such as the safe harbor and reduced scoping for some elements.

The proposed standards will go a long way toward meeting the concern of small businesses with regard to harmonizing federal and state requirements; the Access Board harmonized the 2004 ADAAG with the model codes that form the basis of most state and local accessibility codes.  Still, the Department is proposing that a qualified small business is presumed to have done what is readily achievable in a given year if, in the prior tax year, it spent a fixed percentage of its revenues on readily achievable barrier removal.  The Department believes that the efficacy of any such proposal will turn on two determinations:  (1) The definition of a qualified small business, and (2) the formula for calculating what percentage of revenues should be sufficient to satisfy the readily achievable presumption.  The Department discusses its proposal for safe harbor and reduced scoping requirements in the section-by-section analysis of § 36.304.

The Department invites comment on whether public accommodations that operate existing facilities with play or recreation areas should be exempted from compliance with certain requirements in the 2004 ADAAG.  Existing facilities would continue to be subject to accessibility requirements in existing law, but not specifically to the requirements in:  (1) The Access Board's supplemental guidelines on play areas, 65 FR 62498 (Oct. 18, 2000); and (2) the Access Board's supplemental guidelines on recreation facilities, 67 FR 56352 (Sept. 3, 2002).  Under that scenario, the 2004 ADAAG would apply only to new play areas and recreation facilities, and would not govern the accessibility of existing facilities as legal requirements.  Public accommodations that operate existing facilities with play or recreation areas, pursuant to the ADA's requirements to provide equal opportunity for individuals with disabilities, may still have the obligation to provide an accessible route to the playground, some accessible equipment, and an accessible surface for the play area or recreation facility.

Question 7: Should the Department exempt owners and operators of public accommodations from specific compliance with the supplemental requirements for play areas and recreation facilities, and instead continue to determine accessibility in these facilities on a case-by-case basis under existing law?  Please provide information on the effect of such a proposal on people with disabilities and places of public accommodation.

Service animals.

The Department wishes to clarify the obligations of public accommodations to accommodate individuals with disabilities who use service animals.  The Department continues to receive a large number of complaints from individuals with service animals.  It appears that many covered entities are confused regarding their obligations under the ADA with regard to individuals with disabilities who use service animals.  At the same time, some individuals with impairments--who would not be covered as individuals with disabilities--are claiming that their animals are legitimate service animals, whether fraudulently or sincerely (albeit mistakenly), to gain access to hotels, restaurants, and other places of public accommodation.  Another trend is the use of wild, exotic, or unusual species, many of which are untrained, as service animals.  The Department is proposing amendments to its regulation on service animals in the hope of mitigating the apparent confusion.

Minimal protection.

In the Department's ADA Business Brief on Service Animals, which was published in 2002, the Department interpreted the minimal protection language within the context of a seizure (i.e., alerting and protecting a person who is having a seizure).  Although the Department received comments urging it to eliminate the minimal protection language, the Department continues to believe that it should retain the "providing minimal protection" language and interpret the language to exclude so-called "attack dogs" that pose a direct threat to others.

Guidance on permissible service animals.

In the original regulation implementing title III, "service animal" was defined as "any guide dog, signal dog, or other animal," and the Department believed, at the time, that leaving the species selection up to the discretion of the person with a disability was the best course of action.  Due to the proliferation of animals used by individuals, including wild animals, the Department believes that this area needs some parameters.  Therefore, the Department is proposing to eliminate certain species from coverage even if the other elements of the definition are satisfied.

Comfort animals vs. psychiatric service animals.

Under the Department's present regulatory language, some individuals and entities have assumed that the requirement that service animals must be individually trained to do work or perform tasks excluded all individuals with mental disabilities from having service animals. Others have assumed that any person with a psychiatric condition whose pet provided comfort to them was covered by the ADA.  The Department believes that psychiatric service animals that are trained to do work or perform a task (e.g., reminding its owner to take medicine) for individuals whose disability is covered by the ADA are protected by the Department's present regulatory approach.

Psychiatric service animals can be trained to perform a variety of tasks that assist individuals with disabilities to detect the onset of psychiatric episodes and ameliorate their effects.  Tasks performed by psychiatric service animals may include reminding the handler to take medicine; providing safety checks, or room searches, or turning on lights for persons with Post Traumatic Stress Disorder; interrupting self-mutilation by persons with dissociative identity disorders; and keeping disoriented individuals from danger.

The Department is proposing new regulatory text in § 36.104 to formalize its position on emotional support/comfort animals, which is that "[a]nimals whose sole function is to provide emotional support, comfort, therapy, companionship, therapeutic benefits, or promote emotional well-being are not service animals."  The Department wishes to state, however, that the exclusion of emotional support animals from ADA coverage does not mean that individuals with psychiatric, cognitive, or mental disabilities cannot use service animals.  The Department proposes specific regulatory text in § 36.104 to make this clear:  "The term service animal includes individually trained animals that do work or perform tasks for the benefit of individuals with disabilities, including psychiatric, cognitive, and mental disabilities."  This language simply clarifies the Department's longstanding position and is not a new position.

The Department's rule is based on the assumption that the title II and title III regulations govern a wider range of public settings than the settings that allow for emotional support animals.  The Department recognizes, however, that there are situations not governed exclusively by the title II and title III regulations, particularly in the context of residential settings and employment, where there may be compelling reasons to permit the use of animals whose presence provides emotional support to a person with a disability.  Accordingly, other federal agency regulations governing those situations may appropriately provide for increased access for animals other than service animals.

Modification in policies, practices, or procedures.

The preamble to § 36.302 of the current title III regulation states that the regulatory language was intended to provide the "broadest feasible access" to individuals with service animals while acknowledging that, in rare circumstances, accommodating service animals may not be required if it would result in a fundamental alteration of the nature of the goods or services the public accommodation provides or the safe operation of the public accommodation.  56 FR 35544, 35565 (July 26, 1991).  In order to clarify this provision, the Department is incorporating into the proposed regulation guidance that it has provided previously through technical assistance.

Proposed training standards.

The Department has always required that service animals be individually trained to do work or perform tasks for the benefit of an individual with a disability, but has never imposed any type of formal training requirements or certification process.  While some groups have urged the Department to modify this position, the Department does not believe such a modification would serve the array of individuals with disabilities who use service animals.

Detailed regulatory text changes and the Department's response to public comments on these issues and others are discussed below in the definition section, § 36.104, and the section on modifications in policies, practices, and procedures, § 36.302(c).

Equipment and furniture.

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

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

Most organizations and individuals representing individuals with disabilities were in favor of adding or clarifying requirements for accessible equipment.  Disability organizations pointed out that from the user's perspective, it is not relevant whether the equipment (e.g., ATMs, vending machines) is free-standing or fixed, because the equipment must be accessible in order for individuals with disabilities to use it.

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

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

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

The Department has decided to continue with this approach, and not to add any specific regulatory guidance addressing equipment at this time.  It intends to analyze the economic impact of future regulations governing specific types of free-standing equipment.  The 2004 ADAAG includes revised requirements for some types of fixed equipment that are specifically addressed in the 1991 Standards, such as ATMs and vending machines, as well as detailed requirements for fixed equipment that is not addressed by name in the current Standards, such as depositories, change machines, and fuel dispensers.  Because the 2004 ADAAG provides detailed requirements for many types of fixed equipment, covered entities may apply those requirements to analogous free-standing equipment to ensure that they are accessible, and to avoid potential liability for discrimination.  The Department also believes that when federal guidance for accessibility exists for equipment required to be accessible to individuals who are blind or have low vision, entities should consult such guidance (e.g., federal standards implementing section 508 of the Rehabilitation Act, 36 CFR part 1194, or the guidelines that specify communication accessibility for ATMs and fare card machines in the 2004 ADAAG, 36 CFR part 1191, App. D). With regard to the specific issue of display racks in stores, the Department does not propose to change the approach in the current regulation.  The tension between access for individuals with disabilities and loss of selling space caused by the arrangement of the racks within the store is the same whether the store is newly constructed or an existing facility.  The existing approach appropriately balances the needs of businesses and individuals with disabilities.

Accessible golf cars.

Question six of the ANPRM asked whether golf courses should be required to make at least one, and possibly two, specialized golf cars available for the use of individuals with disabilities with no greater advance notice than that required of other golfers.  The ANPRM also asked about the safety of such cars and their potential for damaging golf course greens. Accessible golf cars are designed for use by individuals with mobility disabilities and are operated using hand controls.  An individual with a disability can hit a golf ball while remaining in the seat of an accessible golf car.  Some accessible golf cars have a swivel, elevated seat that allows the golfer to play from a semi-standing position.  Accessible golf cars can be used by individuals without disabilities as well.  The Department received many comments on the subject of accessible golf cars (approximately one quarter of all comments received), the majority of which favored a requirement for accessible golf cars.  However, the Department has decided not to add a regulation specifically addressing accessible golf cars at this time.

Comments in support of requiring courses to provide accessible golf cars came from individuals both with and without disabilities.  These commenters generally supported having one, two, or multiple cars per course.  A number of comments stressed the social aspect of golf, generally, and its specific importance in many business transactions.  Most commenters believed that no advance notice should be required to reserve an accessible golf car.  Some golf course owners argued that a requirement for advance reservation of an accessible golf car might allow them to develop pooling arrangements with other courses.

In response to the Department's questions regarding the safety of accessible golf cars, most commenters stated that the accessible cars are safe, do not damage the greens, and speed up the pace of play.  Some commenters expressed concern about the safety of accessible golf cars, arguing either that the cars should pass the American National Standards Institute (ANSI) standards for traditional golf cars,^[2] or that accessible cars should not be required until there are applicable safety standards.  Comments from golf courses with experience in providing accessible golf cars were generally positive in terms of the cars' safety and the impact on maintenance of the greens and the course.

As the Department requested, the public also addressed the issue of whether a golf course that does not provide standard golf cars should offer accessible cars.  One commenter explained that the courses that do not provide golf cars are often shorter length courses, such as "executive" or nine-hole courses, and that individuals with disabilities who are learning to play golf, or who might not have the stamina to play eighteen holes, would be more likely to use these courses.  Thus, accessible golf cars should be available at these courses. This commenter pointed out that one executive course that had no traditional--but two accessible--cars made money on the single-user cars because individuals with and without disabilities wanted to use them. 

The Department also received comments opposing a requirement to provide accessible golf cars from some golf course owners, associations, and individuals.  Those opposing such a requirement argued that there was little demand for accessible golf cars, or that the problem could be solved by putting "medical flags" on traditional golf cars.  Such flags might identify cars that were permitted to have wider use of the course.  Other commenters stated that accessible golf cars were too expensive or were specialized equipment that individuals with disabilities should purchase for themselves.

Like some individuals with disabilities, some commenters who opposed a requirement for accessible golf cars also expressed concern about the lack of safety standards.  There were also concerns that repair costs for greens or for accessible golf cars would be more significant than with traditional golf cars.  One commenter suggested that courses exceeding certain slope and degree standards be exempted from having single-user cars.  Others argued that, in practice, the safety issue and the issue of damage to courses are negligible.

The Department has decided not to add a regulation specifically addressing accessible golf cars at this time.  As with free-standing equipment, the Department believes that the existing regulation is adequate to address this issue.  The Department may gain additional guidance in the future from the experience of the Department of Defense, which is planning to provide two accessible golf cars at each of the 174 golf courses that the Department of Defense operates, except those at which it would be unsafe to operate such golf cars because of the terrain of the course.  See U.S. Department of Defense, Report to Congress:  Access of Disabled Persons to Morale, Recreation, and Welfare (MRW) Facilities and Activities (Sept. 25, 2007).

Wheelchairs and other power-driven mobility devices.

Since the passage of the ADA, choices of mobility aids available to individuals with disabilities have vastly increased.  In addition to devices such as wheelchairs and mobility scooters, individuals with disabilities may use devices that are not designed primarily for use by individuals with disabilities, such as electronic personal assistive mobility devices (EPAMDs).  (The only available model known to the Department is the Segway®.)  The Department has received complaints and become aware of situations where individuals with mobility disabilities have utilized riding lawn mowers, golf cars, large wheelchairs with rubber tracks, gasoline-powered, two-wheeled scooters, and other devices for locomotion in pedestrian areas. These new or adapted mobility aids benefit individuals with disabilities, but also present new challenges for public accommodations and commercial facilities.

EPAMDs illustrate some of the challenges posed by new mobility devices.  The basic Segway® model is a two-wheeled, gyroscopically stabilized, battery-powered personal transportation device.  The user stands on a platform suspended three inches off the ground by wheels on each side, grasps a T-shaped handle, and steers the device similarly to a bicycle.  The EPAMD can travel up to 12½ miles per hour, compared to the average pedestrian walking speed of 3 to 4 miles per hour and the approximate maximum speed for power-operated wheelchairs of 6 miles per hour.  In a study of trail and other nonmotorized transportation users including EPAMDs, the Federal Highway Administration (FHWA) found that the eye height of people using EPAMDs ranged from 68¼ inches to 79½ inches.  See Federal Highway Administration, Characteristics of Emerging Road and Trail Users and Their Safety (Oct. 2004), available at http://www.tfhrc.gov/safety/pubs/04103. Thus, EPAMDs can operate at much greater speeds than wheelchairs, and the average user is much taller than most wheelchair users.

EPAMDs have been the subject of debate among users, pedestrians, disability advocates, state and local governments, businesses, and bicyclists.  The fact that the device is not designed primarily for use by or marketed primarily to individuals with disabilities, nor used primarily by persons with disabilities, complicates the question of whether individuals with disabilities should be allowed to operate them in areas and facilities where other powered devices are not allowed. Those who question the use of EPAMDs in pedestrian areas argue that the speed, size, and operating features of the devices make them too dangerous to operate alongside pedestrians and wheelchair users.  Although the question of their safety has not been resolved, many states have passed legislation addressing EPAMD operation on sidewalks, bicycle paths, and roads.  In addition, some states, such as Iowa and Oregon, have minimum age requirements, or mandatory helmet laws.  New Jersey requires helmets for all EPAMD users, while Hawaii and Pennsylvania require helmets for users under a certain age.

While there may be legitimate safety issues for EPAMD users and bystanders, EPAMDs and other non-traditional mobility devices can deliver real benefits to individuals with disabilities.  For example, individuals with severe respiratory conditions who can walk limited distances and individuals with multiple sclerosis have reported benefitting significantly from EPAMDs.  Such individuals often find that EPAMDs are more comfortable and easier to use than more traditional mobility devices and assist with balance, circulation, and digestion in ways that wheelchairs do not.  See Rachel Metz, Disabled Embrace Segway, New York Times, Oct. 14, 2004.

The Department has received questions and complaints from individuals with disabilities and covered entities about which mobility aids must be accommodated and under what circumstances.  While some individuals with disabilities support the use of unique mobility devices, other individuals with disabilities are concerned about their personal safety when others are using such devices.  There is also concern about the impact of such mobility devices on facilities, such as the weight of the device on fragile floor surfaces.

The Department intends to address these issues and proposes to adopt a policy that sets the parameters for when these devices must be accommodated.  Toward that end, the Department proposes new definitions of the terms "wheelchair"--which includes manually and power-driven wheelchairs and mobility scooters--and "other power-driven mobility device" and accompanying regulatory text.  The proposed definitions are discussed in the section-by-section analysis of § 36.104, and the proposed regulatory text is discussed in the section-by-section analysis of § 36.311.

Much of the debate surrounding mobility aids has centered on appropriate definitions for the terms "wheelchair" and "other power-driven mobility devices."  The Department has not defined the term "manually powered mobility aids."  Instead, the proposed rule provides a list including wheelchairs, walkers, crutches, canes, braces, or similar devices.  The inclusion of the term "similar devices" indicates that the list is not intended to be exhaustive.  The Department would like input as to whether  addressing "manually powered mobility aids" in this manner (i.e., via examples of such devices) is appropriate.  The Department also would like information as to whether there are any other non-powered or manually powered mobility aids that should be added to the list and an explanation of the reasons they should be included.  If an actual definition is preferred, the Department would welcome input with regard to the language that might be used to define "manually powered mobility aids," and an explanation of the reasons this language would better serve the public.

Auxiliary aids and services: captioning and video interpreting services.

Section 36.303 of the title III regulation requires a public accommodation to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated, or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the public accommodation can demonstrate that taking such steps would fundamentally alter the nature of the goods, services, facilities, advantages, or accommodations being offered or would result in an undue burden.  Implicit in this duty to provide auxiliary aids and services is the underlying obligation of a public accommodation to communicate effectively with its customers, clients, patients, or participants who have disabilities affecting hearing, vision, or speech, and their companions.

The Department has investigated hundreds of complaints alleging that public accommodations have failed to provide effective communication, many of which have resulted in settlement agreements and consent decrees.  During the course of its investigations, the Department has determined that public accommodations sometimes misunderstand the scope of their obligations under the statute and the regulation.  Moreover, the number of individuals with hearing loss continues to grow in this country as a large segment of the population ages and as people live longer. 

The Department is proposing several changes to § 36.303 to update the regulatory language in response to numerous technological advances and breakthroughs in the area of auxiliary aids and services since the regulation was promulgated sixteen years ago.  The most significant changes are in the language regarding video interpreting services and the provision of effective communication for companions.  In addition, the Department is discussing in its preamble to § 36.303 options for adding captioning and narrative description that may eventually result in proposed textual changes.  The specific amendments are described below in § 36.303 of the section-by-section analysis.

Certification.

The current title III regulation provides that state or local governments may apply to the Department for certification that state laws or local building codes comply with or exceed the minimum accessibility requirements of the ADA.  The current submission requirements and certification process, however, have proved onerous for state and local governments and for the Department.  Many have urged the Department to streamline the certification process and make it less cumbersome for state and local jurisdictions.

In keeping with the Department's efforts to clarify legal obligations under the ADA and harmonize requirements with other federal laws and model codes, the proposed rule includes amendments to subpart F (§§ 36.601-36.608) to streamline the certification process.  The proposed changes are intended to provide more flexibility in the certification process and shorten the overall time involved.  The Department believes that the adoption of the 2004 ADAAG will help achieve these goals because it has been further harmonized with model codes.  The specific changes to subpart F are described below in the section-by-section analysis.