28 CFR Part 36 Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities NPRM (2008 Title III NPRM)
DEPARTMENT OF JUSTICE
28 CFR PART 36
[CRT Docket No. 106; AG Order No. 2968-2008]
RIN 1190-AA44
Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities
AGENCY:
Department of Justice, Civil Rights Division.
ACTION:
Notice of proposed rulemaking.
SUMMARY:
The Department of Justice (Department) is issuing this notice of proposed rulemaking (NPRM) in order to: (1) Adopt enforceable accessibility standards under the Americans with Disabilities Act of 1990 (ADA) that are "consistent with the minimum guidelines and requirements issued by the Architectural and Transportation Barriers Compliance Board" (Access Board); and perform periodic reviews of any rule judged to have a significant economic impact on a substantial number of small entities, and a regulatory assessment of the costs and benefits of any significant regulatory action as required by the Regulatory Flexibility Act, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA).
In this NPRM, the Department proposes to adopt Parts I and III of the Americans With Disabilities Act and Architectural Barriers Act Accessibility Guidelines (2004 ADAAG), which were published by the Architectural and Transportation Barriers and Compliance Board (Access Board) on July 23, 2004. Prior to its adoption by the Department, the 2004 ADAAG is effective only as guidance to the Department; it has no legal effect on the public until the Department issues a final rule adopting the revised ADA Standards (proposed standards).
Concurrently with the publication of this NPRM, the Department is publishing an NPRM to amend its title II regulation, which covers state and local government entities, in order to adopt the 2004 ADAAG as its proposed standards for title II entities, to make amendments to the title II regulation for consistency with title III, and to make amendments that reflect the collective experience of sixteen years of enforcement of the ADA.
DATES:
All comments must be received by [INSERT DATE 60 DAYS AFTER PUBLICATION IN THE FEDERAL REGISTER]
ADDRESSES:
Submit electronic comments and other data to http://www.regulations.gov. Address written comments concerning this NPRM to: Civil Rights Division, 950 Pennsylvania Avenue, N.W., Disability Rights Section, Washington, D.C., 20530. Overnight deliveries should be sent to the Disability Rights Section, Civil Rights Division, U.S. Department of Justice, located at 1425 New York Avenue, N.W., Suite 4039, Washington, D.C. 20005. All comments will be made available for public viewing online at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
Janet L. Blizard, Deputy Chief, Disability Rights Section, Civil Rights Division, U.S. Department of Justice, at (202) 307-0663 (voice or TTY). This is not a toll-free number. Information may also be obtained from the Department's toll-free ADA Information Line at (800) 514-0301 (voice) or (800) 514-0383 (TTY).
This rule is also available in an accessible format on the ADA Home Page at http://www.ada.gov. You may obtain copies of this rule in large print or on computer disk by calling the ADA Information Line listed above.
ETA Editor's Note:
By the authority vested in me as Attorney General by law, including 28 U.S.C. 509 and 510, 5 U.S.C. 301, and section 306 of the Americans with Disabilities Act, Pub. L. 101-336, 42 U.S.C. 12186, and for the reasons set forth in the preamble, Chapter I of title 28 of the Code of Federal Regulations is proposed to be amended as follows:
1. The authority citation for 28 CFR part 36 continues to read as follows:
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12186(b).
2-3. Amend § 36.104 by adding the following definitions of 1991 Standards, 2004 ADAAG, direct threat, existing facility, other power-driven mobility device, place of lodging, proposed standards, qualified reader, qualified small business, video interpreting services (VIS), and wheelchair in alphabetical order:
1991 Standards means the ADA Standards for Accessible Design, codified at 28 CFR part 36, App. A, 56 FR 35544 (July 26, 1991), and modified in part at 59 FR 2674 (Jan. 18, 1994).
2004 ADAAG means parts I and III of the Americans with Disabilities Act and Architectural Barriers Act Accessibility Guidelines, which were issued by the Architectural and Transportation Barriers Compliance Board at 69 FR 44084 (July 23, 2004), amended (editorial changes only) at 70 FR 45283 (Aug. 5, 2005).
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Direct threat means a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services.
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Existing facility means a facility that has been constructed and remains in existence on any given date.
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Other power-driven mobility device means any of a large range of devices powered by batteries, fuel, or other engines--whether or not designed solely for use by individuals with mobility impairments--that are used by individuals with mobility impairments for the purpose of locomotion, including golf cars, bicycles, electronic personal assistance mobility devices (EPAMDs), or any mobility aid designed to operate in areas without defined pedestrian routes.
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Place of lodging. For purposes of this part, a facility is a place of lodging if it -
(1) Provides guestrooms for sleeping for stays that are primarily short-term in nature (generally two weeks or less) where the occupant does not have the right or intent to return to a specific room or unit after the conclusion of his or her stay; (2) Under conditions and with amenities similar to a hotel, motel, or inn, including (i) An on-site proprietor and reservations desk, (ii) Rooms available on a walk-up basis, (iii) Linen service, and (iv) Accepting reservations for a room type without guaranteeing a particular unit or room until check-in, without a prior lease or security deposit.
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Proposed standards means the requirements set forth in appendices B and D to 36 CFR part 1191 as adopted by the Department of Justice.
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Qualified interpreter means an interpreter who is able to interpret effectively, accurately, and impartially using any necessary specialized vocabulary. Qualified interpreters include, for example, sign language interpreters, oral interpreters, and cued speech interpreters. Oral interpreter means an interpreter who has special skill and training to mouth a speaker's words silently for individuals who are deaf or hard of hearing. Cued speech interpreter means an interpreter who functions in the same manner as an oral interpreter except that he or she also uses a hand code, or cue, to represent each speech sound.
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Qualified reader means a person who is able to read effectively, accurately, and impartially using any necessary vocabulary.
Qualified small business means a public accommodation that meets the definition of "business concern" in 13 CFR 121.105 and that, together with its Affiliates, as determined pursuant to the criteria set forth in 13 CFR 121.103, meets the small business size standards established in 13 CFR 121.201, for the industry in which it is primarily engaged, as amended from time to time by the Small Business Administration. The term "primarily engaged" for purposes of this definition is defined in 13 CFR 121.107.
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Service animal means any dog or other common domestic animal individually trained to do work or perform tasks for the benefit of an individual with a disability, including, but not limited to, guiding individuals who are blind or have low vision, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing minimal protection or rescue work, pulling a wheelchair, fetching items, assisting an individual during a seizure, retrieving medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and assisting individuals, including those with cognitive disabilities, with navigation. 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. The term service animal does not include wild animals (including nonhuman primates born in captivity), reptiles, rabbits, farm animals (including any breed of horse, miniature horse, pony, pig, or goat), ferrets, amphibians, and rodents. Animals whose sole function is to provide emotional support, comfort, therapy, companionship, therapeutic benefits, or to promote emotional well-being are not service animals.
Video interpreting services (VIS) means an interpreting service that uses video conference technology over high-speed internet lines. VIS generally consists of a videophone, monitors, cameras, a high-speed internet connection, and an interpreter.
Wheelchair means a device designed solely for use by an individual with a mobility impairment for the primary purpose of locomotion in typical indoor and outdoor pedestrian areas. A wheelchair may be manually operated or power-driven.
4. Amend § 36.208 by removing paragraph (b) and redesignating paragraph (c) as paragraph (b).
5. Amend § 36.211 by adding paragraph (c) to read as follows:
§ 36.211 Maintenance of accessible features.
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(c) If the proposed standards reduce the number of required accessible elements below the number required by the 1991 Standards, the number of accessible elements in a facility subject to this part may be reduced in accordance with the requirements of the proposed standards.
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]
12. Amend § 36.403 by adding paragraph (a)(1) and revising (f)(2)(iii) to read as follows:
§ 36.403 Alterations: Path of travel.
(a) * * *
(1) If a private entity has constructed or altered required elements of a path of travel at a place of public accommodation or commercial facility in accordance with the specifications in the 1991 Standards, the private entity is not required to retrofit such elements to reflect incremental changes in the proposed standards solely because of an alteration to a primary function area served by that path of travel.
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(f) * * *
(iii) Costs associated with providing accessible telephones, such as relocating the telephone to an accessible height, installing amplification devices, or installing a text telephone (TTY); * * *
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13. Amend § 36.406 as follows:
a. Add the heading Applicable standards to paragraph (a);
b. Redesignate paragraph (a) as paragraph (a)(1);
c. Revise paragraphs (a)(1) and (b);
d. Add paragraphs (a)(2), (c), (d), (e), (f), and (g);
e. Remove Appendix to § 36.406 to read as follows:
§ 36.406 Standards for new construction and alterations.
(a) Applicable standards.
(1) New construction and alterations subject to this part shall comply with the 1991 Standards if physical construction of the property commences before [date six months after the effective date of the final rule].
(2) New construction and alterations subject to this part shall comply with the proposed standards if physical construction of the property commences on or after [date six months after the effective date of the final rule.]
(b) The proposed standards apply to fixed or built-in elements of buildings, structures, site improvements, and pedestrian routes or vehicular ways located on a site. Unless specifically stated otherwise, advisory notes, appendix notes, and figures contained in the proposed standards explain or illustrate the requirements of the rule; they do not establish enforceable requirements.
(c) Places of lodging. Places of lodging, including inns, hotels, motels, time-shares, condominium hotels, mixed-use, and corporate hotel facilities subject to the proposed standards shall comply with the provisions of the proposed standards that apply to transient lodging, including, but not limited to the requirements for transient lodging guest rooms in sections 224 and 806.
(d) Social service establishments. Group homes, halfway houses, shelters, or similar social service establishments that provide temporary sleeping accommodations or residential dwelling units subject to the proposed standards shall comply with the provisions of the proposed standards that apply to residential facilities, including, but not limited to, the provisions in sections 233 and 809.
(1) In sleeping rooms with more than twenty-five beds covered by this section, a minimum of five percent (5%) of the beds shall have clear floor space complying with section 806.2.3.
(e) Housing at a place of education. Dormitories or residence halls operated by or on behalf of places of education that are subject to the proposed standards shall comply with the provisions applicable to transient lodging, including, but not limited to, the requirements for transient lodging guest rooms in sections 224 and 806.
(f) Assembly areas. Assembly areas subject to the proposed standards shall comply with the provisions applicable to assembly areas, including, but not limited to, sections 221 and 804. In addition, assembly areas shall ensure that:
(1) Wheelchair and companion seating locations are dispersed to all levels of the facility that are served by an accessible route;
(2) Wheelchair and companion seating locations are not located on (or obstructed by) temporary platforms or other movable structures. When wheelchair seating locations are not required to accommodate people who use wheelchairs, individual, removable seats may be placed in those spaces;
(3) Facilities that have more than 5,000 seats shall provide at least five wheelchair spaces and at least three companion seats for each wheelchair space; and
(4) Stadium-style movie theaters shall locate wheelchair seating spaces and companion seating on a riser or cross-aisle in the stadium section that satisfies at least one of the following criteria:
(i) It is located within the rear sixty percent (60%) of the seats provided in an auditorium; or
(ii) It is located within the area of an auditorium in which the vertical viewing angles (as measured to the top of the screen) are from the 40th to the 100th percentile of vertical viewing angles for all seats as ranked from the seats in the first row (1st percentile) to seats in the back row (100th percentile).
(g) Medical care facilities. Medical care facilities subject to the proposed standards shall comply with the provisions applicable to medical care facilities, including, but not limited to, sections 223 and 805. In addition, medical care facilities that do not specialize in the treatment of conditions that affect mobility shall disperse the accessible patient bedrooms required by section 223.2.1 in a manner that enables patients with disabilities to have access to appropriate specialty services.
14. Remove § 36.407.
§ 36.407 [Removed]
15. Remove §36.603
§ 36.603 [Removed]
16. Redesignate §36.604 as §36.603 and revise to read as follows:
§36.604 [Redesignated as §36.603]
§ 36.603 Preliminary determination.
Upon receipt and review of all information relevant to a request filed by a submitting official for certification of a code, and after consultation with the Architectural and Transportation Barriers Compliance Board, the Assistant Attorney General shall make a preliminary determination of equivalency or a preliminary determination to deny certification.
17. Redesignate §36.605 as §36.604 and revise paragraphs (a), (a)(2), and (b) to read as follows:
§ 36.605 [Redesignated as § 36.604.]
§ 36.604 Procedure following preliminary determination of equivalency.
(a) If the Assistant Attorney General makes a preliminary determination of equivalency under § 36.603, he or she shall inform the submitting official, in writing, of that preliminary determination. The Assistant Attorney General also shall:
* * *
(2) After considering the information received in response to the notice described in paragraph (a) of this section, and after publishing a separate notice in the Federal Register, hold an informal hearing, in the State or local jurisdiction charged with administration and enforcement of the code, at which interested individuals, including individuals with disabilities, are provided an opportunity to express their views with respect to the preliminary determination of equivalency; and
(b) The Assistant Attorney General--after consultation with the Architectural and Transportation Barriers Compliance Board and consideration of the materials and information submitted pursuant to this section, as well as information previously provided by the submitting official--shall issue either a certification of equivalency or a final determination to deny the request for certification. The Assistant Attorney General shall publish notice of the certification of equivalency or denial of certification in the Federal Register.
18. Redesignate § 36.606 as §36.605 and revise the first paragraph (a) to read as follows:
§36.606 [Redesignated as §36.605]
§ 36.605 Procedure following preliminary denial of certification.
(a) If the Assistant Attorney General makes a preliminary determination to deny certification of a code under § 36.603, he or she shall notify the submitting official of the determination. * * *
* * * * *
19. Redesignate § 36.607 as §36.606 and add a new paragraph (d) to read as follows:
[Redesignated as § 36.606]
§ 36.606 Effect of certification.
* * * * *
(d) When the standards of the Act against which a code is deemed equivalent are substantially revised or amended, a certification of equivalency issued under the preexisting standards is no longer effective, as of the date the revised standards take effect. However, construction in compliance with a certified code during the period when a certification of equivalency was effective shall be considered rebuttable evidence of compliance with the Standards then in effect as to those elements of buildings and facilities that comply with the certified code. A submitting official may reapply for certification pursuant to the Act's revised standards, and, to the extent possible, priority will be afforded the request in the review process.
20. Redesignate § 36.608 as § 36.607.
_________________________
Dated: May 30, 2008
_________________________
Michael B. Mukasey,
Attorney General.
[FR DOC. E8-12623 Filed 6-16-08; 8:45am]
BILLING CODE 4410-13-P
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