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

8. Amend § 36.304 as follows:

a.  Redesignate paragraph (d)(2) as (d)(6) and in the first sentence remove the reference "(d)(1)" and add "(d)(1) through (5)" in its place;

b.  Add paragraphs (d)(2) through (d)(5):

§ 36.304 Removal of barriers.

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(d)(2) Safe harbor.  Elements in existing facilities that are not altered after [insert effective date of final rule], and that comply with the 1991 Standards, are not required to be modified in order to comply with the requirements set forth in the proposed standards.

(3) Reduced scoping for public accommodations.  For measures taken to comply with the barrier removal requirements of this section, existing facilities shall comply with the applicable requirements for alterations in § 36.402 and §§ 36.404 through 36.406 of this part for the element being altered, except as follows:

(i) In addition to the provisions of section 240.2.1 of the proposed standards, where an existing play area provides elevated play components, an additional number of ground level play components may be substituted for the number of elevated play components that would have been required to comply with the provisions of § 240.2.2 of the proposed standards; and

(ii) Where an existing swimming pool has at least 300 linear feet of swimming pool wall, it shall comply with the applicable requirements for swimming pools, except that it shall be required to provide only one accessible means of entry that complies with section 1009.2 or section 1009.3 of the proposed standards.

(4) Exemption for small facilities.  For measures taken to comply with the barrier removal requirements of this section, existing facilities shall comply with the applicable requirements for alterations in § 36.402 and §§ 36.404 through 36.406 of this part, except as follows:

(i) Where an existing play area has less than 1000 square feet or is located in a family child care facility where the proprietor actually resides, it shall be exempt from the provisions of section 240 of the proposed standards;

(ii) Where an existing swimming pool has less than 300 linear feet of swimming pool wall, it shall be exempt from the provisions of section 242.2 of the proposed standards; and

(iii) Where an existing sauna or steam room was designed and constructed to seat only two people, it shall be exempt from the provisions of section 241 of the proposed standards.

(5) Qualified small business.  A qualified small business has met its obligation to remove architectural barriers where readily achievable for a given year if, during that tax year, the entity has spent an amount equal to at least one percent (1%) of its gross revenue in the preceding tax year on measures undertaken in compliance with the barrier removal requirements of this section.

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