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

Subpart C-Specific Requirements

6. Amend § 36.302 as follows:

a. Revise paragraph (c)(2);

b. Add paragraphs (c)(3) through (c)(8) and paragraphs (e) and (f) to read as follows:

§ 36.302 Modifications in policies, practices, or procedures.

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(c) * * * * *

(2) Exceptions. A public accommodation may ask an individual with a disability to remove a service animal from the premises if: 

(i) The animal is out of control and the animal's handler does not take effective action to control it;

(ii) 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

(iii) The animal poses a direct threat to the health or safety of others that cannot be eliminated by reasonable modifications.

(3) If an animal is properly excluded.  If a place of accommodation properly excludes a service animal, it shall give the individual with a disability the opportunity to obtain goods, services, and accommodations without having the service animal on the premises.

(4) General requirements.  The work or tasks performed by a service animal shall be directly related to the handler's disability.  A service animal that accompanies an individual with a disability into a place of public accommodation shall be individually trained to do work or perform a task, housebroken, and under the control of its handler.  A service animal shall have a harness, leash, or other tether.

(5) Care or supervision of service animals.  A public accommodation is not responsible for caring for or supervising a service animal.

(6) Inquiries. A public accommodation shall not ask about the nature or extent of a person's disability, but can determine whether an animal qualifies as a service animal. For example, a public accommodation may ask if the animal is required because of a disability; and what work or task the animal has been trained to perform. A public accommodation shall not require documentation, such as proof that the animal has been certified or licensed as a service animal.

(7) Access to areas open to the public, program participants, and invitees.  Individuals with disabilities who are accompanied by service animals may access all areas of a place of public accommodation where members of the public, program participants, and invitees are allowed to go.

(8) Fees or surcharges.  A public accommodation shall not ask or require an individual with a disability to post a deposit, pay a fee or surcharge, or comply with other 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 people accompanied by pets are required to do so.  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.

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(e) Hotel reservations.  A public accommodation that owns, leases (or leases to), or operates a place of lodging shall: 

(1) Modify its policies, practices, or procedures to ensure that individuals with disabilities can make reservations, including reservations made by telephone, in-person, or through a third party, for accessible guest rooms during the same hours and in the same manner as individuals who do not need accessible rooms;

(2) Identify and describe accessible features in the hotels and guest rooms offered through the reservations service; and

(3) Guarantee that an accessible guest room reserved through the reservations service will be held for the reserving customer during the reservation period to the same extent that it guarantees reservations made by others.

(f) Ticketing.

(1) General.  A public accommodation shall modify its policies, practices, or procedures to ensure that individuals with disabilities can purchase tickets for accessible seating during the same hours, through the same methods of distribution, and in the same types and numbers of ticketing sales outlets, including telephone service, in-person ticket sales at the facility, or third-party ticketing services, as other patrons.

(2) Availability. Tickets for accessible seating shall be made available during all stages of ticket sales, including, but not limited to, presales, promotions, lotteries, waitlists, and general sales.

(3) Identification of accessible seating.  Wheelchair seating and companion seats shall be identified on seating maps, plans, brochures, or other information provided to the general public to describe the seating layout or configurations at an assembly area.

(4) Notification of accessible seating locations.  A public accommodation that sells or distributes tickets for seating at assembly areas shall, upon inquiry, inform spectators with disabilities and their companions of the locations of all unsold or otherwise available accessible seating for any ticketed event at the facility. 

(5) Sale of season tickets or other tickets for multiple events.  Season tickets or other tickets sold on a multi-event basis to individuals with disabilities and their companions shall be sold under the same terms and conditions as other tickets sold for the same series of events.  Spectators purchasing tickets for accessible seating on a multi-event basis shall also be permitted to transfer tickets for single-event use by friends or associates in the same fashion and to the same extent as permitted other spectators holding tickets for the same type of ticketing plan.

(6) Hold and release of accessible seating.  A public accommodation may release unsold accessible seating to any person with or without a disability following any of the circumstances described below:

(i) When all seating (excluding luxury boxes, club boxes, or suites) for an event have been sold;

(ii) When all seating in a designated area in the facility has been sold and the accessible seating being released is in the same designated area; or

(iii) When all seating in a designated price range has been sold and the accessible seating being sold is within the same designated price range.  Nothing in this provision requires a facility to release wheelchair seats for general sale.

(7) Ticket prices. The price of tickets for accessible seating shall not be set higher than for tickets to seating located in the same seating section for the same event. 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.

(8) Prevention of fraudulent purchase of accessible seating.  A public accommodation may not require proof of disability before selling a wheelchair space. 

(i) For the sale of single-event tickets, it is permissible to inquire whether the individual purchasing the wheelchair space uses a wheelchair. 

(ii) For season tickets, subscriptions or other multi-events, it is permissible to ask the individual to attest in writing that the wheelchair space is for an individual who utilizes a wheelchair.  A public accommodation may investigate the potential misuse of accessible seating where there is good cause to believe that such seating has been purchased fraudulently.

(9) Purchasing multiple tickets. 

(i) Individuals with disabilities and their companions shall be permitted to purchase the same maximum number of tickets for an event per sales transaction as other spectators seeking to purchase seats for the same  event.  If there is an insufficient number of seats for all members of a party to sit together, seats shall be provided that are as close as possible to the wheelchair spaces.  For accessible seating in a designated wheelchair area, a public accommodation shall provide up to three companion seats for each person with a disability who requires a wheelchair space, provided that at the time of purchase there are sufficient available wheelchair spaces. 

(ii) For group sales, if a group includes one or more individuals who use a wheelchair, the group shall be placed 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 their group.

7. Amend § 36.303 as follows:

a.  Revise paragraphs (b)introductory text, (b)(1), (b)(2), (c), and (d);

b.  Redesignate paragraph (f) as paragraph (h);

c.  Add paragraphs (f) and (g) to read as follows:

§ 36.303 Auxiliary aids and services

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(b) Examples. The term auxiliary aids and services includes--

(1) Qualified interpreters, notetakers, computer-aided transcription services, written materials, exchange of written notes, telephone handset amplifiers, assistive listening devices, assistive listening systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, text telephones (TTYs), videotext displays, video interpreting services (VIS), accessible electronic and information technology, or other effective methods of making aurally delivered information available to individuals who are deaf or hard of hearing;

(2) Qualified readers, taped texts, audio recordings, brailled materials and displays, screen reader software, magnification software, optical readers, secondary auditory programs (SAP), large print materials, accessible electronic and information technology, or other effective methods of making visually delivered materials available to individuals who are blind or have low vision; * * *

(c) Effective communication.

(1) 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. 

(i) For purposes of this section, companion means 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.

(ii) The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the method of communication used by the individual, the nature, length, and complexity of the communication involved, and the context in which the communication is taking place.  A public accommodation should consult with individuals with disabilities whenever possible to determine what type of auxiliary aid is needed to ensure effective communication, but the ultimate decision as to what measures to take rests with the public accommodation, provided that the method chosen results in effective communication.

(2) A public accommodation shall not require an individual with a disability to bring another individual to interpret for him or her.

(3) A public accommodation shall not rely on an individual accompanying an individual with a disability to interpret or facilitate communication, except in an emergency involving a threat to public safety or welfare, or unless 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.

(d) Telecommunications.

(1) Telephones.

(i) When a public accommodation uses an automated attendant system for receiving and directing incoming telephone calls, that automated attendant system must provide effective communication with individuals using TTYs or a telecommunications relay system.

(ii) A public accommodation that offers a customer, client, patient, or participant the opportunity to make outgoing telephone calls on more than an incidental convenience basis shall make available, upon request, public telephones equipped with volume control mechanisms, hearing aid compatible telephones, or text telephones (TTYs) for the use of an individual who is deaf or hard of hearing, or has a speech impairment.

(iii) This part does not require a public accommodation to use public telephones equipped with volume control mechanisms, hearing aid compatible telephones, or TTYs for receiving or making telephone calls incident to its operations.

(iv) A public accommodation shall respond to telephone calls from a telecommunications relay service established under title IV of the Americans with Disabilities Act in the same manner that it responds to other telephone calls.

(2) Text telephones (TTYs).

(i) A public accommodation that offers a customer, client, patient, or participant the opportunity to make outgoing telephone calls on more than an incidental convenience basis shall make available, upon request, a TTY for the use of an individual who is deaf or hard of hearing, or has a speech impairment. 

(ii) This part does not require a public accommodation to use a TTY for receiving or making telephone calls incident to its operations.

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(f) Video interpreting services (VIS).  A public accommodation that chooses to provide qualified interpreters via VIS shall ensure that it provides--

(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 interpreter's head and the participating individual's head, arms, hands, and fingers, regardless of his body position;

(3) Clear transmission of voices; and

(4) Training to nontechnicians so that they may quickly and efficiently set up and operate the VIS.

(g) Sports stadiums. 

One year after the effective date of this regulation, sports stadiums that have a seating capacity of 25,000 or more shall provide captioning on the scoreboards and video monitors for safety and emergency information.

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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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9. Amend § 36.308 as follows:

a.  Revise paragraphs (a)(1)(i), (a)(1)(ii), introductory text, (A), and (B), and (b);

b.  Add paragraphs (a)(1)(iii) and (c) to read as follows:

§ 36.308 Seating in assembly areas.

(a)(1) * * *

(i) Provide a reasonable number of wheelchair seating spaces, companion seats, and designated aisle seats; and

(ii) Locate the wheelchair seating spaces and companion seats so that they:

(A) Are an integral part of the seating area and are dispersed to all accessible seating levels; and

(B) 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;

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(iii) Companion seats shall be equivalent in size, quality, comfort, and amenities to the other seats in the assembly areas.  Companion seats may be fixed or movable. * * *

(b) New construction and alterations. The provision and location of wheelchair seating spaces and companion seats and designated aisle seats in newly constructed or altered assembly areas shall be governed by the standards for new construction and alterations in subpart D of this part.

(c) Modifications of policy.

(1) Seating areas. When designating seating sections of assembly areas providing spectators with, or entitling them to, distinct services or amenities that are not generally available to other spectators, a public accommodation in assembly areas shall ensure that wheelchair seating spaces and companion seating are provided in each such specialty seating area.  The number of wheelchair seating spaces and companion seating provided in specialty seating areas shall be included in, rather than in addition to, wheelchair space requirements set forth in Table 221.2.1.1 in the proposed standards.

(2) Group ticket purchases.  To the extent possible, a public accommodation in assembly areas shall permit wheelchair users 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, designate at least three companion seats for each of five wheelchair seating spaces in order to provide more flexible seating arrangements for families and other small groups.  The group companion seats required by this subsection may be located adjacent to either the wheelchair location or other companion seats.

10. Amend § 36.309 by adding paragraph (b)(1)(iv) to read as follows:

* * * * * (b)(1) * * *

(iv) any request for documentation if such documentation is required is reasonable and limited to the need for the modification or aid requested. * * *  

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11. Amend 28 CFR part 36 by adding § 36.311 to read as follows:

§ 36.311 Mobility devices.

(a) Use of wheelchairs and manually powered mobility aids.  A public accommodation shall permit individuals with mobility impairments to use wheelchairs, scooters, walkers, crutches, canes, braces, or similar devices in any areas open to pedestrian use.

(b) Other power-driven mobility devices.  A public accommodation shall make reasonable modifications in its policies, practices, and procedures to permit the use of other power-driven mobility devices by individuals with disabilities, unless the public accommodation can demonstrate that the use of the device is not reasonable or that its use will result in a fundamental alteration in the nature of the public accommodation's goods, services, facilities, privileges, advantages, or accommodations.

(c) Development of policies permitting the use of other power-driven mobility devices.  A public accommodation shall establish policies to permit the use of other power-driven mobility devices by individuals with disabilities when it is reasonable to afford a public accommodation's goods, services, facilities, or accommodations to an individual with a disability.  Whether a modification is reasonable to allow the use of a class of power-driven mobility device by an individual with a disability in specific venues (e.g., doctors' offices, parks, commercial buildings, etc.) shall be determined based on:

(1) The dimensions, weight, and operating speed of the mobility device in relation to a wheelchair;

(2) The potential risk of harm to others by the operation of the mobility device;

(3) The risk of harm to the environment or natural or cultural resources or conflict with Federal land management laws and regulations; and

(4) The ability of the public accommodation to stow the mobility device when not in use, if requested by the user.

(d) Inquiry into use of mobility device.  A public accommodation may ask a person using a power-driven mobility device if the mobility device is required because of the person's disability.  A public accommodation shall not ask a person using a mobility device questions about the nature and extent of the person's disability.

§§ 36.312-36.399 [Reserved]