56236 Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 

disabilities, including those who are blind or 

have low vision. Commenters argued that the 

cost of making Web sites accessible, through 

Web site design, is minimal, yet critical to 

enabling individuals with disabilities to 

benefit from the entity’s programs and 

services. Internet Web sites, when accessible, 

provide individuals with disabilities great 

independence, and have become an essential 

tool for many Americans. Commenters 

recommended that the Department require 

covered entities, at a minimum, to meet the 

section 508 Standard for Electronic and 

Information Technology for Internet 

accessibility. Under section 508 of the 

Rehabilitation Act of 1973, Federal agencies 

are required to make their Web sites 

accessible. 29 U.S.C. 794(d); 36 CFR 1194. 

The Department agrees that the ability to 

access, on an equal basis, the programs and 

activities offered by public entities through 

Internet-based Web sites is of great 

importance to individuals with disabilities, 

particularly those who are blind or who have 

low vision. When the ADA was enacted in 

1990, the Internet was unknown to most 

Americans. Today, the Internet plays a 

critical role in daily life for personal, civic, 

commercial, and business purposes. In a 

period of shrinking resources, public entities 

increasingly rely on the web as an efficient 

and comprehensive way to deliver services 

and to inform and communicate with their 

citizens and the general public. In light of the 

growing importance Web sites play in 

providing access to public services and to 

disseminating the information citizens need 

to participate fully in civic life, accessing the 

Web sites of public entities can play a 

significant role in fulfilling the goals of the 

ADA. 

Although the language of the ADA does not 

explicitly mention the Internet, the 

Department has taken the position that title 

II covers Internet Web site access. Public 

entities that choose to provide services 

through web-based applications (e.g., 

renewing library books or driver’s licenses) 

or that communicate with their constituents 

or provide information through the Internet 

must ensure that individuals with disabilities 

have equal access to such services or 

information, unless doing so would result in 

an undue financial and administrative 

burden or a fundamental alteration in the 

nature of the programs, services, or activities 

being offered. The Department has issued 

guidance on the ADA as applied to the Web 

sites of public entities in a 2003 publication 

entitled, Accessibility of State and Local 

Government Web sites to People with 

Disabilities, (June 2003) available at http:// 

www.ada.gov/websites2.htm. As the 

Department stated in that publication, an 

agency with an inaccessible Web site may 

also meet its legal obligations by providing 

an alternative accessible way for citizens to 

use the programs or services, such as a 

staffed telephone information line. However, 

such an alternative must provide an equal 

degree of access in terms of hours of 

operation and the range of options and 

programs available. For example, if job 

announcements and application forms are 

posted on an inaccessible Web site that is 

available 24 hours a day, seven days a week 

to individuals without disabilities, then the 

alternative accessible method must also be 

available 24 hours a day, 7 days a week. 

Additional guidance is available in the Web 

Content Accessibility Guidelines (WCAG), 

(May 5, 1999) available at http://www.w3.org/ 

TR/WAI–WEBCONTENT (last visited June 

24, 2010) which are developed and 

maintained by the Web Accessibility 

Initiative, a subgroup of the World Wide Web 

Consortium (W3C®). 

The Department expects to engage in 

rulemaking relating to website accessibility 

under the ADA in the near future. The 

Department has enforced the ADA in the area 

of website accessibility on a case-by-case 

basis under existing rules consistent with the 

guidance noted above, and will continue to 

do so until the issue is addressed in a final 

regulation. 

Multiple chemical sensitivities. The 

Department received comments from a 

number of individuals asking the Department 

to add specific language to the final rule 

addressing the needs of individuals with 

chemical sensitivities. These commenters 

expressed concern that the presence of 

chemicals interferes with their ability to 

participate in a wide range of activities. 

These commenters also urged the Department 

to add multiple chemical sensitivities to the 

definition of a disability. 

The Department has determined not to 

include specific provisions addressing 

multiple chemical sensitivities in the final 

rule. In order to be viewed as a disability 

under the ADA, an impairment must 

substantially limit one or more major life 

activities. An individual’s major life 

activities of respiratory or neurological 

functioning may be substantially limited by 

allergies or sensitivity to a degree that he or 

she is a person with a disability. When a 

person has this type of disability, a covered 

entity may have to make reasonable 

modifications in its policies and practices for 

that person. However, this determination is 

an individual assessment and must be made 

on a case-by-case basis. 

Examinations and Courses. The 

Department received one comment 

requesting that it specifically include 

language regarding examinations and courses 

in the title II regulation. Because section 309 

of the ADA 42 U.S.C. 12189, reaches ‘‘[a]ny 

person that offers examinations or courses 

related to applications, licensing, 

certification, or credentialing for secondary 

or post secondary education, professional, or 

trade purposes,’’ public entities also are 

covered by this section of the ADA. Indeed, 

the requirements contained in title II 

(including the general prohibitions against 

discrimination, the program access 

requirements, the reasonable modifications 

requirements, and the communications 

requirements) apply to courses and 

examinations administered by public entities 

that meet the requirements of section 309. 

While the Department considers these 

requirements to be sufficient to ensure that 

examinations and courses administered by 

public entities meet the section 309 

requirements, the Department acknowledges 

that the title III regulation, because it 

addresses examinations in some detail, is 

useful as a guide for determining what 

constitutes discriminatory conduct by a 

public entity in testing situations. See 28 CFR 

36.309. 

Hotel Reservations. In the NPRM, at 

§ 36.302(e), the Department proposed adding 

specific language to title III addressing the 

requirements that hotels, timeshare resorts, 

and other places of lodging make reasonable 

modifications to their policies, practices, or 

procedures, when necessary to ensure that 

individuals with disabilities are able to 

reserve accessible hotel rooms with the same 

efficiency, immediacy, and convenience as 

those who do not need accessible guest 

rooms. The NPRM did not propose adding 

comparable language to the title II regulation 

as the Department believes that the general 

nondiscrimination, program access, effective 

communication, and reasonable 

modifications requirements of title II provide 

sufficient guidance to public entities that 

operate places of lodging (i.e., lodges in State 

parks, hotels on public college campuses). 

The Department received no public 

comments suggesting that it add language on 

hotel reservations comparable to that 

proposed for the title III regulation. Although 

the Department continues to believe that it is 

unnecessary to add specific language to the 

title II regulation on this issue, the 

Department acknowledges that the title III 

regulation, because it addresses hotel 

reservations in some detail, is useful as a 

guide for determining what constitutes 

discriminatory conduct by a public entity 

that operates a reservation system serving a 

place of lodging. See 28 CFR 36.302(e). 

■ 18. Revise the heading to Appendix B 

to read as follows: 

Appendix B to Part 35—Guidance on 

ADA Regulation on Nondiscrimination 

on the Basis of Disability in State and 

Local Government Services Originally 

Published July 26, 1991 

Dated: July 23, 2010. 

Eric H. Holder, Jr., 

Attorney General. 

[FR Doc. 2010–21821 Filed 9–14–10; 8:45 am] 

BILLING CODE 4410–14–P 

DEPARTMENT OF JUSTICE 

28 CFR Part 36 

[CRT Docket No. 106; AG Order No. 3181– 

2010] 

RIN 1190–AA44 

Nondiscrimination on the Basis of 

Disability by Public Accommodations 

and in Commercial Facilities 

AGENCY: Department of Justice, Civil 

Rights Division. 

ACTION: Final rule. 

SUMMARY: This final rule revises the 

Department of Justice (Department) 

regulation that implements title III of 

the Americans with Disabilities Act 

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Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 56237 

1On September 25, 2008, President George W. 

Bush signed into law the Americans with 

Disabilities Amendments Act of 2008 (ADA 

Amendments Act), Public Law 110–325. The ADA 

Amendments Act amended the ADA definition of 

disability to clarify its coverage of persons with 

disabilities and to provide guidance on the 

application of the definition. This final rule does 

not contain regulatory language implementing the 

ADA Amendments Act. The Department intends to 

publish a supplemental rule to amend the 

regulatory definition of ‘‘disability’’ to implement 

the changes mandated by that law. 

(ADA), relating to nondiscrimination on 

the basis of disability by public 

accommodations and in commercial 

facilities. The Department is issuing this 

final rule in order to 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, and to update or amend certain 

provisions of the title III regulation so 

that they comport with the Department’s 

legal and practical experiences in 

enforcing the ADA since 1991. 

Concurrently with the publication of the 

final rule for title III, the Department is 

publishing a final rule amending its 

ADA title II regulation, which covers 

nondiscrimination on the basis of 

disability in State and local government 

services. 

DATES: Effective Date: March 15, 2011. 

FOR FURTHER INFORMATION CONTACT: 

Janet L. Blizard, Deputy Chief, or 

Christina Galindo-Walsh, Attorney 

Advisor, 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. 

SUPPLEMENTARY INFORMATION: 

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 13 public members appointed by the 

President, the majority of whom must be 

individuals with disabilities, and the 

heads of 12 Federal departments and 

agencies specified by statute, including 

the heads of the Department of Justice 

and the Department of Transportation 

(DOT). Originally, the Access Board was 

established to develop and maintain 

accessibility guidelines for facilities 

designed, constructed, altered, or leased 

with Federal dollars 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, 

42 U.S.C. 12134(c), 12186(c), but vests 

in the Attorney General sole 

responsibility for the promulgation of 

those standards that fall within the 

Department’s jurisdiction and 

enforcement of the regulations. 

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. 

Enactment of the ADA and Issuance of 

the 1991 Regulations 

On July 26, 1990, President George 

H.W. Bush signed into law the ADA, a 

comprehensive civil rights law 

prohibiting discrimination on the basis 

of disability.1 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. The ADA also 

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. Section 306(a) of 

the ADA directs the Secretary of 

Transportation to issue regulations for 

demand responsive or fixed route 

systems operated by private entities not 

primarily engaged in the business of 

transporting people (sections 

302(b)(2)(B) and (C)) and for private 

entities that are primarily engaged in the 

business of transporting people (section 

304). See 42 U.S.C. 12182(b), 12184, 

12186(a). Section 306(b) directs the 

Attorney General to promulgate 

regulations to carry out the provisions of 

the rest of title III. 42 U.S.C. 12186(b). 

Title II applies to State and local 

government entities, and, in Subtitle A, 

protects qualified individuals with 

disabilities from discrimination on the 

basis of disability in services, programs, 

and activities provided by State and 

local government entities. Title II 

extends the prohibition on 

discrimination established by section 

504 of the Rehabilitation Act of 1973, as 

amended, 29 U.S.C. 794 (section 504), to 

all activities of State and local 

governments regardless of whether these 

entities receive Federal financial 

assistance. 42 U.S.C. 12131–65. 

Title III, which this rule addresses, 

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 12 categories listed in 

the ADA, such as restaurants, movie 

theaters, schools, day care facilities, 

recreation facilities, and doctors’ offices) 

and requires newly constructed or 

altered places of public 

accommodation—as well as commercial 

facilities (privately owned, 

nonresidential facilities such as 

factories, warehouses, or office 

buildings)—to comply with the ADA 

Standards. 42 U.S.C. 12181–89. 

On July 26, 1991, the Department 

issued 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 1991 title III 

regulation, which is republished as 

Appendix D to 28 CFR part 36, contains 

the ADA Standards for Accessible 

Design (1991 Standards), which were 

based upon the version of the 

Americans with Disabilities Act 

Accessibility Guidelines (1991 ADAAG) 

published by the Access Board on the 

same date. Under the Department’s 1991 

title III regulation, places of public 

accommodation and commercial 

facilities currently are required to 

comply with the 1991 Standards with 

respect to newly constructed or altered 

facilities. 

The Access Board’s publication of the 

2004 ADA/ABA Guidelines was the 

culmination of a long-term effort to 

facilitate ADA compliance by 

eliminating, to the extent possible, 

inconsistencies among Federal 

accessibility requirements and between 

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56238 Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 

Federal accessibility requirements and 

State and local building codes. In 

support of this effort, the Department is 

amending its regulation implementing 

title III and adopting standards 

consistent with ADA Chapter 1, ADA 

Chapter 2, and Chapters 3 through 10 of 

the 2004 ADA/ABA Guidelines. The 

Department is also amending its title II 

regulation, which prohibits 

discrimination on the basis of disability 

in State and local government services, 

concurrently with the publication of 

this rule in this issue of the Federal 

Register. 

Development of the 2004 ADA/ABA 

Guidelines 

In 1994, the Access Board began the 

process of updating the 1991 ADAAG by 

establishing an advisory committee 

composed of members of the design and 

construction industry, the building code 

community, and State and local 

government entities, as well as 

individuals with disabilities. In 1998, 

the Access Board 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). In 1999, based 

largely on the report and 

recommendations of the advisory 

committee, the Access Board issued a 

notice of proposed rulemaking (NPRM) 

to update and revise its ADA and ABA 

Accessibility Guidelines. See 64 FR 

62248 (Nov. 16, 1999). In 2000, the 

Access Board added specific guidelines 

on play areas. See 65 FR 62498 (Oct. 18, 

2000). 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. In September of 

2002, the Access Board set forth specific 

guidelines on recreation facilities. 67 FR 

56352 (Sept. 3, 2002). 

By the date of its final publication on 

July 23, 2004, the 2004 ADA/ABA 

Guidelines had been the subject of 

extraordinary review and public 

participation. 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. 

The Department was involved 

extensively in the development of the 

2004 ADA/ABA Guidelines. As a 

Federal member of the Access Board, 

the Attorney General’s representative 

voted to approve the revised guidelines. 

ADA Chapter 1 and ADA Chapter 2 of 

the 2004 ADA/ABA Guidelines provide 

scoping requirements for facilities 

subject to the ADA; ‘‘scoping’’ is a term 

used in the 2004 ADA/ABA Guidelines 

to describe requirements that prescribe 

which elements and spaces—and, in 

some cases, how many—must comply 

with the technical specifications. ABA 

Chapter 1 and ABA Chapter 2 provide 

scoping requirements for facilities 

subject to the ABA (i.e., facilities 

designed, built, altered, or leased with 

Federal funds). Chapters 3 through 10 of 

the 2004 ADA/ABA Guidelines provide 

uniform technical specifications for 

facilities subject to either the ADA or 

the ABA. This revised format is 

designed to eliminate unintended 

conflicts between the two sets of 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. For the purposes of this 

final rule, the Department will refer to 

ADA Chapter 1, ADA Chapter 2, and 

Chapters 3 through 10 of the 2004 ADA/ 

ABA Guidelines as the 2004 ADAAG. 

These amendments to the 1991 

ADAAG have not been adopted 

previously by the Department as ADA 

Standards. Through this rule, the 

Department is adopting revised ADA 

Standards consistent with the 2004 

ADAAG, including all of the 

amendments to the 1991 ADAAG since 

1998. For the purposes of this part, the 

Department’s revised standards are 

entitled ‘‘The 2010 Standards for 

Accessible Design’’ and consist of the 

2004 ADAAG and the requirements 

contained in subpart D of 28 CFR part 

36. Because the Department has adopted 

the 2004 ADAAG as part of its title II 

and title III regulations, once the 

Department’s final rules become 

effective, the 2004 ADAAG will have 

legal effect with respect to the 

Department’s title II and title III 

regulations and will cease to be mere 

guidance for those areas regulated by 

the Department. In 2006, DOT adopted 

the 2004 ADAAG. With respect to those 

areas regulated by DOT, these 

guidelines, as adopted by DOT, have 

had legal effect since 2006. 

Under this regulation, the Department 

of Justice covers passenger vessels 

operated by private entities not 

primarily engaged in the business of 

transporting people with respect to the 

provision of goods and services of a 

public accommodation on the vessel. 

For example, a vessel operator whose 

vessel departs from Point A, takes 

passengers on a recreational trip, and 

returns passengers to Point A without 

ever providing for disembarkation at a 

Point B (e.g., a dinner or harbor cruise, 

a fishing charter) is a public 

accommodation operated by a private 

entity not primarily engaged in the 

business of transporting people. This 

regulation covers those aspects of the 

vessel’s operation relating to the use and 

enjoyment of the public 

accommodation, including, for example, 

the boarding process, safety policies, 

accessible routes on the vessel, and the 

provision of effective communication. 

Persons with complaints or concerns 

about discrimination on the basis of 

disability by vessel operators who are 

private entities not primarily engaged in 

the business of transporting people, or 

questions about how this regulation 

applies to such operators and vessels, 

should contact the Department of 

Justice. 

Vessels operated by private entities 

primarily engaged in the business of 

transporting people and that provide the 

goods and services of a public 

accommodation are covered by this 

regulation and the Department of 

Transportation’s passenger vessel rule, 

49 CFR part 39. A vessel operator whose 

vessel takes passengers from Point A to 

Point B (e.g., a cruise ship that sails 

from Miami to one or more Caribbean 

islands, a private ferry boat between two 

points on either side of a river or bay, 

a water taxi between two points in an 

urban area) is most likely a private 

entity primarily engaged in the business 

of transporting people. Persons with 

questions about how this regulation 

applies to such operators and vessels 

may contact the Department of Justice or 

the Department of Transportation for 

guidance or further information. 

However, the Department of Justice has 

enforcement authority for all private 

entities under title III of the ADA, so 

individuals with complaints about 

noncompliance with part 39 should 

provide those complaints to the 

Department of Justice. 

The provisions of this rule and 49 

CFR part 39 are intended to be 

substantively consistent with one 

another. Consequently, in interpreting 

the application of this rule to vessel 

operators who are private entities not 

primarily engaged in the business of 

transporting people, the Department of 

Justice views the obligations of those 

vessel operators as being similar to 

those of private entities primarily 

engaged in the business of transporting 

people under the provisions of 49 CFR 

part 39. 

The Department’s Rulemaking History 

The Department published an 

advance notice of proposed rulemaking 

(ANPRM) on September 30, 2004, 69 FR 

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58768, for two reasons: (1) To begin the 

process of adopting the 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 

Office of Management and Budget 

(OMB) Circular A–4 sections D 

(Analytical Approaches) and E 

(Identifying and Measuring Benefits and 

Costs) (Sept. 17, 2003), available at 

http://www.whitehouse.gov/OMB/ 

circulars/a004/a-4.pdf (last visited June 

24, 2010). While underscoring that the 

Department, as a member of the Access 

Board, already had 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 (as well as with respect to the 

program access requirement in title II) is 

within the sole discretion of the 

Department. The ANPRM dealt with the 

Department’s responsibilities under 

both title II and title III. 

The public response to the ANPRM 

was substantial. 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. Many of the commenters 

responded to questions posed 

specifically by the Department, 

including questions regarding the 

Department’s application of the 2004 

ADAAG once adopted by the 

Department and the Department’s 

regulatory assessment of the costs and 

benefits of particular elements. Many 

other commenters addressed areas of 

desired regulation or of particular 

concern. 

To enhance accessibility strides made 

since the enactment of the ADA, 

commenters asked the Department to 

focus on previously unregulated areas, 

such as ticketing in assembly areas; 

reservations for hotel rooms, rental cars, 

and boat slips; and captioning. They 

also asked for clarification on some 

issues in the 1991 regulations, such as 

the requirements regarding service 

animals. Other commenters dealt with 

specific requirements in the 2004 

ADAAG or responded to questions 

regarding elements scoped for the first 

time in the 2004 ADAAG, including 

recreation facilities and play areas. 

Commenters also provided some 

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, recreation 

facilities, and play areas. Still other 

commenters addressed the effective date 

of the proposed standards, the triggering 

event by which the effective date is 

calculated for 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. 

After careful consideration of the 

public comments in response to the 

ANPRM, on June 17, 2008, the 

Department published an NPRM 

covering title III. 73 FR 34508. The 

Department also published an NPRM on 

that day covering title II. 73 FR 34466. 

The NPRMs addressed the issues raised 

in the public’s comments to the ANPRM 

and sought additional comment, 

generally and in specific areas, such as 

the Department’s adoption of the 2004 

ADAAG, the Department’s regulatory 

assessment of the costs and benefits of 

the rule, its updates and amendments of 

certain provisions of the existing title II 

and III regulations, and areas that were 

in need of additional clarification or 

specificity. 

A public hearing was held on July 15, 

2008, in Washington, DC. Forty-five 

individuals testified in person or by 

phone. The hearing was streamed live 

over the Internet. By the end of the 60- 

day comment period, the Department 

had received 4,435 comments 

addressing a broad range of issues, 

many of which were common to the title 

II and title III NPRMs, from 

representatives of businesses and 

industries, State and local government 

agencies, disability advocacy 

organizations, and private individuals. 

The Department notes that this 

rulemaking was unusual in that much of 

the proposed regulatory text and many 

of the questions asked across titles II 

and III were the same. Consequently, 

many of the commenters did not 

provide separate sets of documents for 

the proposed title II and title III rules, 

and in many instances, the commenters 

did not specify which title was being 

commented upon. As a result, where 

comments could be read to apply to 

both titles II and III, the Department 

included them in the comments and 

responses for each final rule. 

Most of the commenters responded to 

questions posed specifically by the 

Department, including what were the 

most appropriate definitions for terms 

such as ‘‘wheelchair,’’ ‘‘mobility device,’’ 

and ‘‘service animal’’; how to quantify 

various benefits that are difficult to 

monetize; what requirements to adopt 

for ticketing and assembly areas; 

whether to adopt safe harbors for small 

businesses; and how best to regulate 

captioning. Some comments addressed 

specific requirements in the 2004 

ADAAG or responded to questions 

regarding elements scoped for the first 

time in the 2004 ADAAG, including 

recreation facilities and play areas. 

Other comments responded to questions 

posed by the Department concerning 

certain specific requirements in the 

2004 ADAAG. 

Relationship to Other Laws 

The Department of Justice regulation 

implementing title III, 28 CFR 36.103, 

provides the following: 

(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) 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. 

These provisions remain unchanged 

by the final rule. 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 of 

the Rehabilitation Act of 1973 and other 

Federal statutes that prohibit 

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 

(ACAA), 49 U.S.C. 41705 et seq., and 

the Fair Housing Act (FHAct), 42 U.S.C. 

3601 et seq. Compliance with the 

Department’s title II and title III 

regulations does not ensure compliance 

with other Federal statutes. 

Public accommodations that are 

subject to the ADA as well as other 

Federal disability discrimination laws 

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56240 Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 

must be aware of the requirements of all 

applicable laws and must comply with 

these laws and their implementing 

regulations. Although in many cases 

similar provisions of different statutes 

are interpreted to impose similar 

requirements, there are circumstances in 

which similar provisions are applied 

differently because of the nature of the 

covered entity or activity, or because of 

distinctions between the statutes. For 

example, emotional support animals 

that do not qualify as service animals 

under the Department’s title III 

regulations may nevertheless qualify as 

permitted reasonable accommodations 

for persons with disabilities under the 

FHAct and the ACAA. See, e.g., 

Overlook Mutual Homes, Inc. v. 

Spencer, 666 F. Supp. 2d 850 (S.D. Ohio 

2009). Public accommodations that 

operate housing facilities must ensure 

that they apply the reasonable 

accommodation requirements of the 

FHAct in determining whether to allow 

a particular animal needed by a person 

with a disability into housing and may 

not use the ADA definition as a 

justification for reducing their FHAct 

obligations. In addition, nothing in the 

ADA prevents a public accommodation 

subject to one statute from modifying its 

policies and providing greater access in 

order to assist individuals with 

disabilities in achieving access to 

entities subject to other Federal statutes. 

For example, a quick service restaurant 

at an airport is, as a public 

accommodation, subject to the title III 

requirements, not to the ACAA 

requirements. Conversely, an air carrier 

that flies in and out of the same airport 

is required to comply with the ACAA, 

but is not covered by title III of the 

ADA. If a particular animal is a service 

animal for purposes of the ACAA and is 

thus allowed on an airplane, but is not 

a service animal for purposes of the 

ADA, nothing in the ADA prohibits an 

airport restaurant from allowing a 

ticketed passenger with a disability who 

is traveling with a service animal that 

meets the ACAA’s definition of a service 

animal to bring that animal into the 

facility even though under the ADA’s 

definition of service animal the animal 

lawfully could be excluded. 

Organization of This Rule 

Throughout this rule, the original 

ADA Standards, which are republished 

as Appendix D to 28 CFR part 36, will 

be referred to as the ‘‘1991 Standards.’’ 

The original title III regulation, codified 

at 28 CFR part 36 (2009), will be 

referred to as the ‘‘1991 regulation’’ or 

the ‘‘1991 title III regulation.’’ ADA 

Chapter 1, ADA Chapter 2, and Chapters 

3 through 10 of the 2004 ADA/ABA 

Guidelines, 36 CFR part 1191, app. B 

and D (2009), will be referred to as the 

‘‘2004 ADAAG.’’ The Department’s 

Notice of Proposed Rulemaking, 73 FR 

34508 (June 17, 2008), will be referred 

to as the ‘‘NPRM.’’ As noted above, the 

2004 ADAAG, taken together with the 

requirements contained in subpart D of 

28 CFR part 36 (New Construction and 

Alterations) of the final rule, will be 

referred to as the ‘‘2010 Standards.’’ The 

amendments made to the 1991 title III 

regulation and the adoption of the 2004 

ADAAG, taken together, will be referred 

to as the ‘‘final rule.’’ 

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, has made several clarifications 

and amendments in this rule. Appendix 

A of the final rule, ‘‘Guidance on 

Revisions to ADA Regulation on 

Nondiscrimination on the Basis of 

Disability by Public Accommodations 

and Commercial Facilities,’’ codified as 

Appendix A to 28 CFR part 36, provides 

the Department’s response to comments 

and its explanations of the changes to 

the regulation. The section entitled 

‘‘Section-by-Section Analysis and 

Response to Comments’’ in Appendix A 

provides a detailed discussion of the 

changes to the title III regulation. The 

Section-by-Section Analysis follows the 

order of the 1991 title III regulation, 

except that regulatory sections that 

remain unchanged are not referenced. 

The discussion within each section 

explains the changes 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. The 

Section-by-Section Analysis also 

discusses many of the questions asked 

by the Department for specific public 

response. The section of Appendix A 

entitled ‘‘Other Issues’’ discusses public 

comment on several issues of concern to 

the Department that were the subject of 

questions that are not specifically 

addressed in the Section-by-Section 

Analysis. The Department’s description of the 

2010 Standards, as well as a discussion 

of the public comments on specific 

sections of the 2004 ADAAG, is found 

in Appendix B of this final rule, 

‘‘Analysis and Commentary on the 2010 

ADA Standards for Accessible Design,’’ 

codified as Appendix B to 28 CFR part 

36. 

The provisions of this rule generally 

take effect six months from its 

publication in the Federal Register. The 

Department has determined, however, 

that compliance with the requirements 

related to new construction and 

alterations and reservations at a place of 

lodging shall not be required until 18 

months from the publication date of this 

rule. These exceptions are set forth in 

§§ 36.406(a) and 36.302(e)(3), 

respectively, and are discussed in 

greater detail in Appendix A. See 

discussions in Appendix A entitled 

‘‘Section 36.406 Standards for New 

Construction and Alterations’’ and 

‘‘Section 36.302(e) Hotel Reservations.’’ 

This final rule only addresses issues 

that were identified in the NPRM as 

subjects the Department intended to 

regulate through this rulemaking 

proceeding. Because the Department 

indicated in the NPRM that it did not 

intend to regulate certain areas, 

including equipment and furniture, 

accessible golf cars, and movie 

captioning and video description, as 

part of this rulemaking proceeding, the 

Department believes it would be 

appropriate to solicit more public 

comment about these areas prior to 

making them the subject of a 

rulemaking. The Department intends to 

engage in additional rulemaking in the 

near future addressing accessibility in 

these areas and others, including next 

generation 9–1–1 and accessibility of 

Web sites operated by covered public 

entities and public accommodations. 

ADDITIONAL INFORMATION: 

Regulatory Process Matters (SBREFA, 

Regulatory Flexibility Act, and 

Executive Orders) 

The Department must provide two 

types of assessments as part of its final 

rule: An analysis of the costs and 

benefits of adopting the changes 

contained in this rule, 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. See E.O. 

12866, 58 FR 51735, 3 CFR, 1994 

Comp., p. 638, as amended; Regulatory 

Flexibility Act of 1980 (RFA), 5 U.S.C. 

601 et seq., as amended by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996 (SBREFA), 5 U.S.C. 

610(a); OMB Circular A–4, available at 

http://www.whitehouse.gov/OMB/ 

circulars/a004/a-4.pdf (last visited June 

24, 2010); E.O. 13272, 67 FR 53461, 3 

CFR, 2003 Comp., p. 247. 

In the NPRM, the Department kept 

open the possibility that, if warranted 

by public comments received on an 

issue raised by the 2004 ADAAG or by 

the results of the Department’s Initial 

Regulatory Impact Analysis (Initial 

RIA), available at http://www.ada.gov/ 

NPRM2008/ria.htm, showing that the 

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2The analysis assumes these regulations will be 

in force for 15 years. Incremental costs and benefits 

are calculated for all construction, alterations, and 

barrier removal that is expected to occur during 

these 15 years. The analysis also assumes that any 

new or revised ADA rules enacted 15 years from 

now will include a safe harbor provision. Thus, any 

facilities constructed in year 14 of the final rules are 

assumed to continue to generate benefits to users, 

and to incur any operating or replacement costs for 

the life of these buildings, which is assumed to be 

40 years. 

likely costs of making a particular 

feature or facility accessible were 

disproportionate to the benefits 

(including both monetized and nonmonetized benefits) to persons with 

disabilities, the Attorney General, as a 

member of the Access Board, could 

return the issue to the Access Board for 

further consideration. After careful 

consideration, the Department has 

determined that it is unnecessary to 

return any issues to the Access Board 

for additional consideration. 

Executive Order 12866 

This rule has been reviewed by the 

Office of Management and Budget 

(OMB) under Executive Order 12866. 

The Department has evaluated its 

existing regulations for title II and title 

III section by section, and many of the 

provisions in the final rule for both 

titles reflect its efforts to mitigate any 

negative effects on small entities. A 

Final Regulatory Impact Analysis (Final 

RIA or RIA) was prepared by the 

Department’s contractor, HDR|HLB 

Decision Economics, Inc. (HDR). In 

accordance with Executive Order 12866, 

as amended, and OMB Circular A–4, the 

Department has reviewed and 

considered the Final RIA and has 

accepted the results of this analysis as 

its assessment of the benefits and costs 

of the final rules. 

Executive Order 12866 refers 

explicitly not only to monetizable costs 

and benefits but also to ‘‘distributive 

impacts’’ and ‘‘equity,’’ see E.O. 12866, 

section 1(a), and it is important to 

recognize that the ADA is intended to 

provide important benefits that are 

distributional and equitable in 

character. The ADA states, ‘‘[i]t is the 

purpose of this [Act] (1) to provide a 

clear and comprehensive national 

mandate for the elimination of 

discrimination against individuals with 

disabilities; [and] (2) to provide clear, 

strong, consistent, enforceable standards 

addressing discrimination against 

individuals with disabilities[.]’’ 42 

U.S.C. 12101(b). Many of the benefits of 

this rule stem from the provision of 

such standards, which will promote 

inclusion, reduce stigma and potential 

embarrassment, and combat isolation, 

segregation, and second-class 

citizenship of individuals with 

disabilities. Some of these benefits are, 

in the words of Executive Order 12866, 

‘‘difficult to quantify, but nevertheless 

essential to consider.’’ E.O. 12866, 

section 1(a). The Department has 

considered such benefits here. 

Final Regulatory Impact Analysis 

The Final RIA embodies a 

comprehensive benefit-cost analysis of 

the final rules for both title II and title 

III and assesses the incremental benefits 

and costs of the 2010 Standards relative 

to a primary baseline scenario (1991 

Standards). In addition, the Department 

conducted additional research and 

analyses for requirements having the 

highest negative net present values 

under the primary baseline scenario. 

This approach was taken because, while 

the 1991 Standards are the only uniform 

set of accessibility standards that apply 

to public accommodations, commercial 

facilities, and State and local 

government facilities nationwide, it is 

also understood that many State and 

local jurisdictions have already adopted 

IBC/ANSI model code provisions that 

mirror those in the 2004 ADAAG. The 

assessments based on this approach 

assume that covered entities currently 

implementing codes that mirror the 

2004 ADAAG will not need to modify 

their code requirements once the rules 

are finalized. They also assume that, 

even without the final rules, the current 

level of compliance would be 

unchanged. The Final RIA contains 

specific information, including data in 

chart form, detailing which States have 

already adopted the accessibility 

standards for this subset of six 

requirements. The Department believes 

that the estimates resulting from this 

approach represent a reasonable upper 

and lower measure of the likely effects 

these requirements will have that the 

Department was able to quantify and 

monetize. 

The Final RIA estimates the benefits 

and costs for all new (referred to as 

‘‘supplemental’’) requirements and 

revised requirements across all types of 

newly constructed and existing 

facilities. The Final RIA also 

incorporates a sophisticated risk 

analysis process that quantifies the 

inherent uncertainties in estimating 

costs and benefits and then assesses 

(through computer simulations) the 

relative impact of these factors when 

varied simultaneously. A copy of the 

Final RIA will be made available online 

for public review on the Department’s 

ADA Home Page (http://www.ada.gov). 

From an economic perspective (as 

specified in OMB Circular A–B4), the 

results of the Final RIA demonstrate that 

the Department’s final rules increase 

social resources and thus represent a 

public good because monetized benefits 

exceed monetized costs—that is, the 

regulations have a positive net present 

value (NPV). Indeed, under every 

scenario assessed in the Final RIA, the 

final rules have a positive NPV. The 

Final RIA’s first scenario examines the 

incremental impact of the final rules 

using the ‘‘main’’ set of assumptions (i.e., 

assuming a primary baseline (1991 

Standards), that the safe harbor applies, 

and that for title III entities barrier 

removal is readily achievable for 50 

percent of elements subject to 

supplemental requirements). 

EXPECTED IMPACT OF THE RULES 2

[In billions] 

Discount 

rate 

Expected 

NPV 

Total 

expected 

PV 

(benefits) 

Total 

expected 

PV 

(costs) 

3% ....... $40.4 $66.2 $25.8 

7 .......... 9.3 22.0 12.8 

Under this set of assumptions, the 

final rules have an expected NPV of $9.3 

billion (7 percent discount rate) and 

$40.4 billion (3 percent discount rate). 

See Final RIA, table ES–1 & figure ES– 

2. 

Water Closet Clearances 

The Department gave careful 

consideration to the costs and benefits 

of its adoption of the standards relating 

to water closet clearances in single-user 

toilet rooms. The primary effect of the 

Department’s proposed final rules 

governing water closet clearances in 

single-user toilet rooms with inswinging and out-swinging doors is to 

allow sufficient room for ‘‘side’’ or 

‘‘parallel’’ methods of transferring from a 

wheelchair to a toilet. Under the current 

1991 Standards, the requisite clearance 

space in single-user toilet rooms 

between and around the toilet and the 

lavatory does not permit these methods 

of transfer. Side or parallel transfers are 

used by large numbers of persons who 

use wheelchairs and are regularly taught 

in rehabilitation and occupational 

therapy. Currently, persons who use 

side or parallel transfer methods from 

their wheelchairs are faced with a stark 

choice at establishments with singleuser toilet rooms—i.e., patronize the 

establishment but run the risk of 

needing assistance when using the 

restroom, travel with someone who 

would be able to provide assistance in 

toileting, or forgo the visit entirely. The 

revised water closet clearance 

regulations would make single-user 

toilet rooms accessible to all persons 

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56242 Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 

who use wheelchairs, not just those 

with the physical strength, balance, and 

dexterity and the training to use a fronttransfer method. Single-user toilet 

rooms are located in a wide variety of 

public and private facilities, including 

restaurants, fast-food establishments, 

schools, retail stores, parks, sports 

stadiums, and hospitals. Final 

promulgation of these requirements 

might thus, for example, enable a person 

who uses a side or parallel transfer 

method to use the restroom (or use the 

restroom independently) at his or her 

local coffee shop for the first time. 

Because of the complex nature of its 

cost-benefit analysis, the Department is 

providing ‘‘plain language’’ descriptions 

of the benefits calculations for the two 

revised requirements with the highest 

estimated total costs: Water closet 

clearance in single-user toilet rooms 

with out-swinging doors (RIA Req. #28) 

(section 604.3 of the 2010 Standards) 

and water closet clearance in single-user 

toilet rooms with in-swinging doors 

(RIA Req. #32) (sections 604.3 and 

603.2.3 Exception 2 of the 2010 

Standards). Since many of the concepts 

and calculations in the Final RIA are 

highly technical, it is hoped that, by 

providing ‘‘lay’’ descriptions of how 

benefits are monetized for an illustrative 

set of requirements, the Final RIA will 

be more transparent and afford readers 

a more complete understanding of the 

benefits model generally. Because of the 

widespread adoption of the water closet 

clearance standards in existing State 

and local building codes, the following 

calculations use the IBC/ANSI baseline. 

General description of monetized 

benefits for water closet clearance in 

single-user toilet rooms—out-swinging 

doors (Req. #28). In order to assess 

monetized benefits for the requirement 

covering water closet clearances in 

single-user toilet rooms with outswinging doors, a determination needed 

to be made concerning the population of 

users with disabilities who would likely 

benefit from this revised standard. 

Based on input received from a panel of 

experts jointly convened by HDR and 

the Department to discuss benefitsrelated estimates and assumptions used 

in the RIA model, it was assumed that 

accessibility changes brought about by 

this requirement would benefit persons 

with any type of ambulatory (i.e., 

mobility-related) disability, such as 

persons who use wheelchairs, walkers, 

or braces. Recent census figures estimate 

that about 11.9 percent of Americans 

ages 15 and older have an ambulatory 

disability, or about 35 million people. 

This expert panel also estimated that 

single-user toilet rooms with outswinging doors would be used slightly 

less than once every other visit to a 

facility with such toilet rooms covered 

by the final rules (or, viewed another 

way, about once every two hours spent 

at a covered facility assumed to have 

one or more single-user toilet rooms 

with out-swinging doors) by an 

individual with an ambulatory 

disability. The expert panel further 

estimated that, for such individuals, the 

revised requirement would result in an 

average time savings of about five and 

a half minutes when using the restroom. 

This time savings is due to the revised 

water closet clearance standard, which 

permits, among other things, greater 

flexibility in terms of access to the toilet 

by parallel or side transfer, thereby 

perhaps reducing the wait for another 

person to assist with toileting and the 

need to twist or struggle to access the 

toilet independently. Based on average 

hourly wage rates compiled by the U.S. 

Department of Labor, the time savings 

for Req. #28 is valued at just under $10 

per hour. 

For public and private facilities 

covered by the final rules, it is estimated 

that there are currently about 11 million 

single-user toilet rooms with outswinging doors. The majority of these 

types of single-user toilet rooms, nearly 

7 million, are assumed to be located at 

‘‘Indoor Service Establishments,’’ a 

broad facility group that encompasses 

various types of indoor retail stores such 

as bakeries, grocery stores, clothing 

stores, and hardware stores. Based on 

construction industry data, it was 

estimated that approximately 3 percent 

of existing single-user toilet rooms with 

out-swinging doors would be altered 

each year, and that the number of newly 

constructed facilities with these types of 

toilet rooms would increase at the rate 

of about 1 percent each year. However, 

due to the widespread adoption at the 

State and local level of model code 

provisions that mirror Req. #28, it is 

further understood that about half of all 

existing facilities assumed to have 

single-user toilet rooms with outswinging doors already are covered by 

State or local building codes that require 

equivalent water closet clearances. Due 

to the general element-by-element safe 

harbor provision in the final rules, no 

unaltered single-user toilet rooms that 

comply with the current 1991 Standards 

will be required to retrofit to meet the 

revised clearance requirements in the 

final rules. 

With respect to new construction, it is 

assumed that each single-user toilet 

room with an out-swinging door will 

last the life of the building, about 40 

years. For alterations, the amount of 

time such a toilet room will be used 

depends upon the remaining life of the 

building (i.e., a period of time between 

1 and 39 years). 

Summing up monetized benefits to 

users with disabilities across all types of 

public and private facilities covered by 

the final rules, and assuming 46 percent 

of covered facilities nationwide are 

located in jurisdictions that have 

adopted the relevant equivalent IBC/ 

ANSI model code provisions, it is 

expected that the revised requirement 

for water closet clearance in single-user 

toilet rooms with out-swinging doors 

will result in net benefits of 

approximately $900 million over the life 

of these regulations. 

General description of monetized 

benefits for water closet clearance in 

single-user toilet rooms—in-swinging 

doors (Req. # 32). For the water closet 

clearance in single-user toilet rooms 

with the in-swinging door requirement 

(Req. #32), the expert panel determined 

that the primary beneficiaries would be 

persons who use wheelchairs. As 

compared to single-user toilet rooms 

with out-swinging doors, those with inswinging doors tend to be larger (in 

terms of square footage) in order to 

accommodate clearance for the inswinging door and, thus, are already 

likely to have adequate clear floor space 

for persons with disabilities who use 

other types of mobility aids such as 

walkers and crutches. 

The expert benefits panel estimated 

that single-user toilet rooms with inswinging doors are used less frequently 

on average—about once every 20 visits 

to a facility with such a toilet room by 

a person who uses a wheelchair—than 

their counterpart toilet rooms with outswinging doors. This panel also 

determined that, on average, each user 

would realize a time savings of about 9 

minutes as a result of the enhanced 

clearances required by this revised 

standard. 

The RIA estimates that there are about 

4 million single-user toilet rooms with 

in-swinging doors in existing facilities. 

About half of the single-user toilet 

rooms with in-swinging doors are 

assumed to be located in single-level 

stores, and about a quarter of them are 

assumed to be located in restaurants. 

Based on construction industry data, it 

was estimated that approximately 3 

percent of existing single-user toilet 

rooms with in-swinging doors would be 

altered each year, and that the number 

of newly constructed facilities with 

these types of toilet rooms would 

increase at the rate of about 1 percent 

each year. However, due to the 

widespread adoption at the State and 

local level of model code provisions that 

mirror Req. #32, it is further understood 

that slightly more than 70 percent of all 

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existing facilities assumed to have 

single-user toilet rooms with inswinging doors already are covered by 

State or local building codes that require 

equivalent water closet clearances. Due 

to the general element-by-element safe 

harbor provision in the final rules, no 

unaltered single-user toilet rooms that 

comply with the current 1991 Standards 

will be required to retrofit to meet the 

revised clearance requirements in the 

final rules. 

Similar to the assumptions for Req. 

#28, it is assumed that newly 

constructed single-user toilet rooms 

with in-swinging doors will last the life 

of the building, about 40 years. For 

alterations, the amount of time such a 

toilet room will be used depends upon 

the remaining life of the building (i.e., 

a period of time between 1 and 39 

years). Over this time period, the total 

estimated value of benefits to users of 

water closets with in-swinging doors 

from the time they will save and 

decreased discomfort they will 

experience is nearly $12 million. 

Additional benefits of water closet 

clearance standards. The standards 

requiring sufficient space in single-user 

toilet rooms for a wheelchair user to 

effect a side or parallel transfer are 

among the most costly (in monetary 

terms) of the new provisions in the 

Access Board’s guidelines that the 

Department adopts in this rule—but 

also, the Department believes, one of the 

most beneficial in non-monetary terms. 

Although the monetized costs of these 

requirements substantially exceed the 

monetized benefits, the additional 

benefits that persons with disabilities 

will derive from greater safety, 

enhanced independence, and the 

avoidance of stigma and humiliation— 

benefits that the Department’s economic 

model could not put in monetary 

terms—are, in the Department’s 

experience and considered judgment, 

likely to be quite high. Wheelchair 

users, including veterans returning from 

our Nation’s wars with disabilities, are 

taught to transfer onto toilets from the 

side. Side transfers are the safest, most 

efficient, and most independencepromoting way for wheelchair users to 

get onto the toilet. The opportunity to 

effect a side transfer will often obviate 

the need for a wheelchair user or 

individual with another type of mobility 

impairment to obtain the assistance of 

another person to engage in what is, for 

most people, among the most private of 

activities. Executive Order 12866 refers 

explicitly not only to monetizable costs 

and benefits but also to ‘‘distributive 

impacts’’ and ‘‘equity,’’ see E.O. 12866, 

section 1(a), and it is important to 

recognize that the ADA is intended to 

provide important benefits that are 

distributional and equitable in 

character. These water closet clearance 

provisions will have non-monetized 

benefits that promote equal access and 

equal opportunity for individuals with 

disabilities, and will further the ADA’s 

purpose of providing ‘‘a clear and 

comprehensive national mandate for the 

elimination of discrimination against 

individuals with disabilities.’’ 42 U.S.C. 

12101(b)(1). 

The Department’s calculations 

indicated that, in fact, people with the 

relevant disabilities would have to place 

only a very small monetary value on 

these quite substantial benefits for the 

costs and benefits of these water closet 

clearance standards to break even. To 

make these calculations, the Department 

separated out toilet rooms with outswinging doors from those with inswinging doors, because the costs and 

benefits of the respective water closet 

clearance requirements are significantly 

different. The Department estimates 

that, assuming 46 percent of covered 

facilities nationwide are located in 

jurisdictions that have adopted the 

relevant equivalent IBC/ANSI model 

code provisions, the costs of the 

requirement as applied to toilet rooms 

with out-swinging doors will exceed the 

monetized benefits by $454 million, an 

annualized net cost of approximately 

$32.6 million. But a large number of 

people with disabilities will realize 

benefits of independence, safety, and 

avoided stigma and humiliation as a 

result of the requirement’s application 

in this context. Based on the estimates 

of its expert panel and its own 

experience, the Department believes 

that both wheelchair users and people 

with a variety of other mobility 

disabilities will benefit. The Department 

estimates that people with the relevant 

disabilities will use a newly accessible 

single-user toilet room with an outswinging door approximately 677 

million times per year. Dividing the 

$32.6 million annual cost by the 677 

million annual uses, the Department 

concludes that for the costs and benefits 

to break even in this context, people 

with the relevant disabilities will have 

to value safety, independence, and the 

avoidance of stigma and humiliation at 

just under 5 cents per visit. The 

Department believes, based on its 

experience and informed judgment, that 

5 cents substantially understates the 

value people with the relevant 

disabilities would place on these 

benefits in this context. 

There are substantially fewer singleuser toilet rooms with in-swinging 

doors, and substantially fewer people 

with disabilities will benefit from 

making those rooms accessible. While 

both wheelchair users and individuals 

with other ambulatory disabilities will 

benefit from the additional space in a 

room with an out-swinging door, the 

Department believes, based on the 

estimates of its expert panel and its own 

experience, that wheelchair users likely 

will be the primary beneficiaries of the 

in-swinging door requirement. The 

Department estimates that people with 

the relevant disabilities will use a newly 

accessible single-user toilet room with 

an in-swinging door approximately 8.7 

million times per year. Moreover, the 

alteration costs to make a single-user 

toilet room with an in-swinging door 

accessible are substantially higher 

(because of the space taken up by the 

door) than the equivalent costs of 

making a room with an out-swinging 

door accessible. Thus, the Department 

calculates that, assuming 72 percent of 

covered facilities nationwide are located 

in jurisdictions that have adopted the 

relevant equivalent IBC/ANSI model 

code provisions, the costs of applying 

the toilet room accessibility standard to 

rooms with in-swinging doors will 

exceed the monetized benefits of doing 

so by $266.3 million over the life of the 

regulations, or approximately $19.14 

million per year. Dividing the $19.14 

million annual cost by the 8.7 million 

annual uses, the Department concludes 

that for the costs and benefits to break 

even in this context, people with the 

relevant disabilities will have to value 

safety, independence, and the avoidance 

of stigma and humiliation at 

approximately $2.20 per visit. The 

Department believes, based on its 

experience and informed judgment, that 

this figure approximates, and probably 

understates, the value wheelchair users 

place on safety, independence, and the 

avoidance of stigma and humiliation in 

this context. 

Alternate Scenarios 

Another scenario in the Final RIA 

explores the incremental impact of 

varying the assumptions concerning the 

percentage of existing elements subject 

to supplemental requirements for which 

barrier removal would be readily 

achievable. Readily achievable barrier 

removal rates are modeled at 0 percent, 

50 percent, and 100 percent levels. The 

results of this scenario show that the 

expected NPV is positive for each 

readily achievable barrier removal rate 

and that varying this assumed rate has 

little impact on expected NPV. See Final 

RIA, figure ES–3. 

A third set of analyses in the Final 

RIA demonstrates the impact of using 

alternate baselines based on model 

codes instead of the primary baseline. 

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56244 Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 

The IBC model codes, which have been 

widely adopted by State and local 

jurisdictions around the country, are 

significant because many of the 

requirements in the final rules mirror 

accessibility provisions in the IBC 

model codes (or standards incorporated 

therein by reference, such as ANSI 

A117.1). The actual economic impact of 

the Department’s final rules is, 

therefore, tempered by the fact that 

many jurisdictions nationwide have 

already adopted and are enforcing 

portions of the final rules—indeed, this 

was one of the goals underlying the 

Access Board’s efforts to harmonize the 

2004 ADAAG Standards with the model 

codes. However, capturing the economic 

impact of this reality poses a difficult 

modeling challenge due to the variety of 

methods by which States and localities 

have adopted the IBC/ANSI model 

codes (e.g., in whole, in part, and with 

or without amendments), as well as the 

lack of a national ‘‘facility census’’ 

establishing the location, type, and age 

of existing ADA-covered facilities. 

As a result, in the first set of alternate 

IBC baseline analyses, the Final RIA 

assumes that all of the three IBC model 

codes—IBC 2000, IBC 2003, and IBC 

2006—have been fully adopted by all 

jurisdictions and apply to all facilities 

nationwide. As with the primary 

baseline scenarios examined in the 

Final RIA, use of these three alternate 

IBC baselines results in positive 

expected NPVs in all cases. See Final 

RIA, figure ES–4. These results also 

indicate that IBC 2000 and IBC 2006 

respectively have the highest and lowest 

expected NPVs. These results are due to 

changes in the make-up of the set of 

requirements that is included in each 

alternative baseline. 

Additionally, a second, more limited 

alternate baseline analysis in the Final 

RIA uses a State-specific and 

requirement-specific alternate IBC/ANSI 

baseline in order to demonstrate the 

likely actual incremental impact of an 

illustrative subset of 20 requirements 

under current conditions nationwide. 

For this analysis, research was 

conducted on a subset of 20 

requirements in the final rules that have 

negative net present values under the 

primary baseline and readily 

identifiable IBC/ANSI counterparts to 

determine the extent to which they each 

respectively have been adopted at the 

State or local level. With respect to 

facilities, the population of adopting 

jurisdictions was used as a proxy for 

facility location. In other words, it was 

assumed that the number of ADAcovered facilities respectively compliant 

with these 20 requirements was equal to 

the percentage of the United States 

population (based on statistics from the 

Census Bureau) currently residing in 

those States or local jurisdictions that 

have adopted the IBC/ANSI 

counterparts to these requirements. The 

results of this more limited analysis, 

using State-specific and requirementspecific alternate IBC/ANSI baselines 

for these 20 requirements, demonstrate 

that the widespread adoption of IBC 

model codes by States and localities 

significantly lessens the financial 

impact of these specific requirements. 

Indeed, the Final RIA estimates that, if 

the NPVs for these 20 requirements 

resulting from the requirement-specific 

alternate IBC/ANSI baseline are 

substituted for their respective results 

under the primary baseline, the overall 

NPV for the final rules increases from 

$9.2 billion to $12.0 billion. See Final 

RIA, section 6.2.2 & table 10. 

Benefits Not Monetized in the Formal 

Analysis 

Finally, the RIA recognizes that 

additional benefits are likely to result 

from the new standards. Many of these 

benefits are more difficult to quantify. 

Among the potential benefits that have 

been discussed by researchers and 

advocates are reduced administrative 

costs due to harmonized guidelines, 

increased business opportunities, 

increased social development, and 

improved health benefits. For example, 

the final rules will substantially 

increase accessibility at newly scoped 

facilities such as recreation facilities 

and judicial facilities, which previously 

have been very difficult for persons with 

disabilities to access. Areas where the 

Department believes entities may incur 

benefits that are not monetized in the 

formal analysis include, but may not be 

limited to, the following: 

Use benefits accruing to persons with 

disabilities. The final rules should 

improve the overall sense of well-being 

of persons with disabilities, who will 

know that public entities and places of 

public accommodation are generally 

accessible, and who will have improved 

individual experiences. Some of the 

most frequently cited qualitative 

benefits of increased access are the 

increase in one’s personal sense of 

dignity that arises from increased access 

and the decrease in possibly humiliating 

incidents due to accessibility barriers. 

Struggling to join classmates on a stage, 

to use a bathroom with too little 

clearance, or to enter a swimming pool 

all negatively affect a person’s sense of 

independence and can lead to 

humiliating accidents, derisive 

comments, or embarrassment. These 

humiliations, together with feelings of 

being stigmatized as different or inferior 

from being relegated to use other, less 

comfortable or pleasant elements of a 

facility (such as a bathroom instead of 

a kitchen sink for rinsing a coffee mug 

at work), all have a negative effect on 

persons with disabilities. 

Use benefits accruing to persons 

without disabilities. Improved 

accessibility can affect more than just 

the rule’s target population; persons 

without disabilities may also benefit 

from many of the requirements. Even 

though the requirements were not 

designed to benefit persons without 

disabilities, any time savings or easier 

access to a facility experienced by 

persons without disabilities are also 

benefits that should properly be 

attributed to that change in accessibility. 

Curb cuts in sidewalks make life easier 

for those using wheeled suitcases or 

pushing a baby stroller. For people with 

a lot of luggage or a need to change 

clothes, the larger bathroom stalls can 

be highly valued. A ramp into a pool 

can allow a child (or adult) with a fear 

of water to ease into that pool. All are 

examples of ‘‘unintended’’ benefits of 

the rule. And ideally, all should be part 

of the calculus of the benefits to society 

of the rule. 

Social benefits. Evidence supports the 

notion that children with and without 

disabilities benefit in their social 

development from interaction with one 

another. Therefore, there will likely be 

social development benefits generated 

by an increase in accessible play areas. 

However, these benefits are nearly 

impossible to quantify for several 

reasons. First, there is no guarantee that 

accessibility will generate play 

opportunities between children with 

and without disabilities. Second, there 

may be substantial overlap between 

interactions at accessible play areas and 

interactions at other facilities, such as 

schools and religious facilities. Third, it 

is not certain what the unit of 

measurement for social development 

should be. 

Non-use benefits. There are 

additional, indirect benefits to society 

that arise from improved accessibility. 

For instance, resource savings may arise 

from reduced social service agency 

outlays when people are able to access 

centralized points of service delivery 

rather than receiving home-based care. 

Home-based and other social services 

may include home health care visits and 

welfare benefits. Third-party 

employment effects can arise when 

enhanced accessibility results in 

increasing rates of consumption by 

disabled and non-disabled populations, 

which in turn results in reduced 

unemployment. 

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Two additional forms of benefits are 

discussed less often, let alone 

quantified: Option value and existence 

value. Option value is the value that 

people with and without disabilities 

derive from the option of using 

accessible facilities at some point in the 

future. As with insurance, people derive 

benefit from the knowledge that the 

option to use the accessible facility 

exists, even if it ultimately goes unused. 

Simply because an individual is a nonuser of accessible elements today does 

not mean that he or she will remain so 

tomorrow. In any given year, there is 

some probability that an individual will 

develop a disability (either temporary or 

permanent) that will necessitate use of 

these features. For example, the 2000 

Census found that 41.9 percent of adults 

65 years and older identified themselves 

as having a disability. Census Bureau 

figures, moreover, project that the 

number of people 65 years and older 

will more than double between 2000 

and 2030—from 35 million to 71.5 

million. Therefore, even individuals 

who have no direct use for accessibility 

features today get a direct benefit from 

the knowledge of their existence should 

such individuals need them in the 

future. 

Existence value is the benefit that 

individuals get from the plain existence 

of a good, service or resource—in this 

case, accessibility. It can also be 

described as the value that people both 

with and without disabilities derive 

from the guarantees of equal treatment 

and non-discrimination that are 

accorded through the provision of 

accessible facilities. In other words, 

people value living in a country that 

affords protections to individuals with 

disabilities, whether or not they 

themselves are directly or indirectly 

affected. Unlike use benefits and option 

value, existence value does not require 

an individual ever to use the resource or 

plan on using the resource in the future. 

There are numerous reasons why 

individuals might value accessibility 

even if they do not require it now and 

do not anticipate needing it in the 

future. 

Costs Not Monetized in the Formal 

Analysis 

The Department also recognizes that 

in addition to benefits that cannot 

reasonably be quantified or monetized, 

there may be negative consequences and 

costs that fall into this category as well. 

The absence of a quantitative 

assessment of such costs in the formal 

regulatory analysis is not meant to 

minimize their importance to affected 

entities; rather, it reflects the inherent 

difficulty in estimating those costs. 

Areas where the Department believes 

entities may incur costs that are not 

monetized in the formal analysis 

include, but may not be limited to, the 

following: 

Costs from deferring or forgoing 

alterations. Entities covered by the final 

rules may choose to delay otherwise 

desired alterations to their facilities due 

to the increased incremental costs 

imposed by compliance with the new 

requirements. This may lead to facility 

deterioration and decrease in the value 

of such facilities. In extreme cases, the 

costs of complying with the new 

requirements may lead some entities to 

opt to not build certain facilities at all. 

For example, the Department estimates 

that the incremental costs of building a 

new wading pool associated with the 

final rules will increase by about 

$142,500 on average. Some facilities 

may opt to not build such pools to avoid 

incurring this increased cost. 

Loss of productive space while 

modifying an existing facility. During 

complex alterations, such as where 

moving walls or plumbing systems will 

be necessary to comply with the final 

rules, productive space may be 

unavailable until the alterations are 

complete. For example, a hotel altering 

its bathrooms to comply with the final 

rules will be unable to allow guests to 

occupy these rooms while construction 

activities are underway, and thus the 

hotel may forgo revenue from these 

rooms during this time. While the 

amount of time necessary to perform 

alterations varies significantly, the costs 

associated with unproductive space 

could be high in certain cases, 

especially if space is already limited or 

if an entity or facility is located in an 

area where real estate values are 

particularly high (e.g., New York or San 

Francisco). 

Expert fees. Another type of cost to 

entities that is not monetized in the 

formal analysis is legal fees to determine 

what, if anything, a facility needs to do 

in order to comply with the new rules 

or to respond to lawsuits. Several 

commenters indicated that entities will 

incur increased legal costs because the 

requirements are changing for the first 

time since 1991. Since litigation risk 

could increase, entities could spend 

more on legal fees than in the past. 

Likewise, covered entities may face 

incremental costs when undertaking 

alterations because their engineers, 

architects, or other consultants may also 

need to consider what modifications are 

necessary to comply with the new 

requirements. The Department has not 

quantified the incremental costs of the 

services of these kinds of experts. 

Reduction in facility value and losses 

to individuals without disabilities due to 

the new accessibility requirements. It is 

possible that some changes made by 

entities to their facilities in order to 

comply with the new requirements may 

result in fewer individuals without 

disabilities using such facilities 

(because of decreased enjoyment) and 

may create a disadvantage for 

individuals without disabilities, even 

though the change might increase 

accessibility for individuals with 

disabilities. For example, the new 

requirements for wading pools might 

decrease the value of the pool to the 

entity that owns it due to fewer 

individuals using it (because the new 

requirements for a sloped entry might 

make the pool too shallow). Similarly, 

several commenters from the miniature 

golf industry expressed concern that it 

would be difficult to comply with the 

regulations for accessible holes without 

significantly degrading the experience 

for other users. Finally, with respect to 

costs to individuals who do not have 

disabilities, a very tall person, for 

example, may be inconvenienced by 

having to reach further for a lowered 

light switch. 

Section 610 Review 

The Department also is required to 

conduct a periodic regulatory review 

pursuant to section 610 of the RFA, as 

amended by the SBREFA. 

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 is 

required to 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. See id. 610(a). 

In developing the 2010 Standards, the 

Department reviewed the 1991 

Standards section by section, and, as a 

result, has made several clarifications 

and amendments in both the title II and 

title III implementing regulations. The 

changes reflect the Department’s 

analysis and review of complaints or 

comments from the public, as well as 

changes in technology. Many of the 

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amendments aim to clarify and simplify 

the obligations of covered entities. As 

discussed in greater detail above, one 

significant goal of 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 also has 

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. 

The Department has consulted with 

the Small Business Administration’s 

Office of Advocacy about this process. 

The Office of Advocacy has advised that 

although the process followed by the 

Department was ancillary to the 

proposed adoption of revised ADA 

Standards, the steps taken to solicit 

public input and to respond to public 

concerns are functionally equivalent to 

the process required to complete a 

section 610 review. Therefore, this 

rulemaking fulfills the Department’s 

obligations under the RFA. 

Final Regulatory Flexibility Analysis 

This final rule also has been reviewed 

by the Small Business Administration’s 

Office of Advocacy (Advocacy) in 

accordance with Executive Order 13272, 

67 FR 53461, 3 CFR, 2003 Comp., p. 

247. Chapter Seven of the Final RIA 

demonstrates that the final rule will not 

have a significant economic impact on 

a substantial number of small entities. 

The Department has also conducted a 

final regulatory flexibility analysis 

(FRFA) as a component of this 

rulemaking. Collectively, the ANPRM, 

NPRM, Initial RIA, Final RIA, and 2010 

Standards include all of the elements of 

a FRFA required by the RFA. See 5 

U.S.C. 604(a)(1)–(5). 

Section 604(a) lists the specific 

requirements for a FRFA. The 

Department has addressed these RFA 

requirements throughout the ANPRM, 

NPRM, the 2010 Standards, and the 

RIA. In summary, the Department has 

satisfied its FRFA obligations under 

section 604(a) by providing the 

following: 

1. Succinct summaries of the need for, 

and objectives of, the final rule. The 

Department is issuing this final rule in 

order to comply with its obligations 

under both the ADA and the SBREFA. 

The Department is also updating or 

amending certain provisions of the 

existing title III regulation so that they 

are consistent with the title II 

regulations and comport with the 

Department’s legal and practical 

experiences in enforcing the ADA. 

The ADA requires the Department to 

adopt enforceable accessibility 

standards under the ADA that are 

consistent with the Access Board’s 

minimum accessibility guidelines and 

requirements. Accordingly, this rule 

adopts ADA Chapter 1, ADA Chapter 2, 

and Chapters 3 through 10 of the 2004 

ADA/ABA Guidelines as part of the 

2010 Standards, which will give the 

guidelines legal effect with respect to 

the Department’s title II and title III 

regulations. 

Under the SBREFA, the Department is 

required to perform a periodic review of 

its 1991 rule because the rule may have 

a significant economic impact on a 

substantial number of small entities. 

The SBREFA also requires the 

Department to make a regulatory 

assessment of the costs and benefits of 

any significant regulatory action. See 

preamble sections of the final rules for 

titles II and III entitled ‘‘Summary’’; 

Department of Justice Advanced Notice 

of Proposed Rulemaking, 69 FR 58768, 

58768B70, (Sept. 30, 2004) (outlining 

the regulatory history, goals, and 

rationale underlying the Department’s 

proposal to revise its regulations 

implementing titles II and III of the 

ADA); and Department of Justice Notice 

of Proposed Rulemaking, 73 FR 34508, 

34508B14 (June 17, 2008) (outlining the 

regulatory history and rationale 

underlying the Department’s proposal to 

revise its regulations implementing 

titles II and III of the ADA). 

2. Summaries of significant issues 

raised by public comments in response 

to the Department’s initial regulatory 

flexibility analysis (IRFA) and 

discussions of regulatory revisions made 

as a result of such comments. The 

majority of the comments received by 

the Department addressing its IRFA set 

forth in the title III NPRM were 

submitted by the Advocacy. Advocacy 

acknowledged that the Department took 

into account the comments and 

concerns of small businesses; however, 

Advocacy remained concerned about 

certain items in the Department’s NPRM 

and requested clarification or additional 

guidance on certain items. 

General Safe Harbor. Advocacy 

expressed support for the Department’s 

proposal to allow an element-byelement safe harbor for elements that 

now comply with the 1991 Standards 

and encouraged the Department to 

include specific technical assistance in 

the Small Business Compliance Guide 

that the Department is required to 

publish pursuant to section 212 of the 

SBREFA, 5 U.S.C. 610 et seq. Advocacy 

requested that technical assistance 

outlining which standards are subject to 

the safe harbor be included in the 

Department’s guidance. The Department 

has provided a list of the new 

requirements in the 2010 Standards that 

are not eligible for the safe harbor in 

§ 36.304(d)(2)(iii)(A)–(L) of the final rule 

and plans to include additional 

information about the application of the 

safe harbor in the Department’s Small 

Business Compliance Guide. Advocacy 

also requested that guidance regarding 

the two effective dates for regulations 

also be provided, and the Department 

plans to include such guidance in its 

Small Business Compliance Guide. 

Small Business Safe Harbor. 

Advocacy expressed disappointment 

that the Department did not include a 

small business safe harbor in the final 

rule. In the NPRM, the Department 

proposed to include a small business 

safe harbor. Advocacy conceptually 

supported this safe harbor but had 

concerns regarding its application. 

Commenters from both the disability 

community and the business 

community uniformly, and quite 

adamantly, opposed the Department’s 

proposal. Some business commenters 

suggested alternative safe harbors, but 

there was no common thread among 

their suggestions that would enable the 

Department to craft a proposal that 

would draw support from the affected 

communities. 

Advocacy recommended that the 

Department continue to study how the 

proposed small business safe harbor 

might be made workable in future 

rulemakings, and recommended that the 

Department also seek other alternatives 

that minimize the economic impact of 

the ADA rulemakings in the future. The 

Department is mindful of its obligations 

under the SBREFA and will be sensitive 

to the need to mitigate costs for small 

businesses in any future rulemaking; 

however, based on the information 

currently available, the Department has 

declined to commit to a specific 

regulatory approach in the final rule. 

Indirect Costs. Advocacy and other 

commenters representing business 

interests expressed concern that 

businesses would incur substantial 

indirect costs under the final rule for 

accessibility consultants, legal counsel, 

training, and the development of new 

policies and procedures. The 

Department believes that such ‘‘indirect 

costs,’’ even assuming they would occur 

as described by these commenters, are 

not properly attributed to the 

Department’s final rule implementing 

the ADA. 

The vast majority of the new 

requirements are incremental changes 

subject to a safe harbor. All businesses 

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currently in compliance with the 1991 

Standards will neither need to 

undertake further retrofits nor require 

the services of a consultant to tell them 

so. If, on the other hand, elements at an 

existing facility are not currently in 

compliance with the 1991 Standards, 

then the cost of making such a 

determination and bringing these 

elements into compliance are not 

properly attributed to the final rule, but 

to lack of compliance with the 1991 

Standards. 

For the limited number of 

requirements in the final rule that are 

supplemental, the Department believes 

that covered entities simply need to 

determine whether they have an 

element covered by a supplemental 

requirement (e.g., a swimming pool) and 

then conduct any necessary barrier 

removal work either in-house or by 

contacting a local contractor. 

Determining whether such an element 

exists is expected to take only a minimal 

amount of staff time. Nevertheless, 

Chapter 5 of the Final RIA has a highend estimate of the additional 

management costs of such evaluation 

(from 1 to 8 hours of staff time). 

The Department also anticipates that 

businesses will incur minimal costs for 

accessibility consultants to ensure 

compliance with the new requirements 

for New Construction and Alterations in 

the final rule. Both the 2004 ADAAG 

and the proposed requirements have 

been made public for some time and are 

already being incorporated into design 

plans by architects and builders. 

Further, in adopting the final rule, the 

Department has sought to harmonize, to 

the greatest extent possible, the ADA 

Standards with model codes that have 

been adopted on a widespread basis by 

State and local jurisdictions across the 

country. Accordingly, many of the 

requirements in the final rule are 

already incorporated into building 

codes nationwide. Additionally, it is 

assumed to be part of the regular course 

of business—and thereby incorporated 

into standard professional services or 

construction contracts—for architects 

and contractors to keep abreast of 

changes in applicable Federal, State, 

and local laws and building codes. 

Given these considerations, the 

Department has determined that the 

additional costs, if any, for architectural 

or contractor services that arise out of 

the final rule should be minimal. 

Some commenters stated that the final 

rule would require them to develop new 

policies or manuals to retrain employees 

on the revised ADA standards. 

However, it is the Department’s view 

that because the revised and 

supplemental requirements address 

architectural issues and features, the 

final rule would require minimal, if any, 

changes to the overall policies and 

procedures of covered entities. 

Finally, commenters representing 

business interests expressed the view 

that the final rule would cause 

businesses to incur significant legal 

costs in order to defend ADA lawsuits. 

However, regulatory impact analyses are 

not an appropriate forum for assessing 

the cost covered entities may bear, or 

the repercussions they may face, for 

failing to comply (or allegedly failing to 

comply) with current law. See Final 

RIA, Ch. 3, section 3.1.4, ‘‘Other 

Management Transition Costs’’; Ch. 5, 

‘‘Updates to the Regulatory Impact 

Analysis’’; and table 15, ‘‘Impact of NPV 

of Estimated Managerial Costs for 

Supplemental Requirements at All 

Facilities.’’ 

3. Estimates of the number and type 

of small entities to which the final rule 

will apply. The Department estimates 

that the final rule will apply to 

approximately three million small 

entities or facilities covered by title III. 

See Final RIA, Ch. 7, ‘‘Small Business 

Impact Analysis,’’ table 17, and app. 5, 

‘‘Small Business Data’’; see also 73 FR 

36964, 36996–37009 (June 30, 2008) 

(estimating the number of small entities 

the Department believes may be 

impacted by the NPRM and calculating 

the likely incremental economic impact 

of the rule on small facilities/entities 

versus ‘‘typical’’ (i.e., average-sized) 

facilities/entities). 

4. A description of the projected 

reporting, record-keeping, and other 

compliance requirements of the final 

rule, including an estimate of the 

classes of small entities that will be 

subject to the requirement and the type 

of professional skills necessary for 

preparation of the report or record. The 

final rule imposes no new recordkeeping or reporting requirements. See 

preamble section entitled ‘‘Paperwork 

Reduction Act.’’ Small entities may 

incur costs as a result of complying with 

the final rules. These costs are detailed 

in the Final RIA, Chapter 7, ‘‘Small 

Business Impact Analysis’’ and 

accompanying Appendix 5, ‘‘Small 

Business Data.’’ 

5. Descriptions of the steps taken by 

the Department to minimize any 

significant economic impact on small 

entities consistent with the stated 

objectives of the ADA, including the 

reasons for selecting the alternatives 

adopted in the final rule and for 

rejecting other significant alternatives. 

From the outset of this rulemaking, the 

Department has been mindful of small 

entities and has taken numerous steps to 

minimize the impact of the final rule on 

small businesses. Several of these steps 

are summarized below. 

As an initial matter, the Department— 

as a voting member of the Access 

Board—was extensively involved in the 

development of the 2004 ADAAG. 

These guidelines, which are 

incorporated into the 2010 Standards, 

reflect a conscious effort to mitigate any 

significant economic impact on small 

businesses in several respects. First, one 

of the express goals of the 2004 ADAAG 

is harmonization of Federal accessibility 

guidelines with industry standards and 

model codes that often form the basis of 

State and local building codes, thereby 

minimizing the impact of these 

guidelines on all covered entities, but 

especially small businesses. Second, the 

2004 ADAAG is the product of a 10-year 

rulemaking effort in which a host of 

private and public entities, including 

small business groups, worked 

cooperatively to develop accessibility 

guidelines that achieved an appropriate 

balance between accessibility and cost. 

For example, as originally 

recommended by the Access Board’s 

Recreation Access Advisory Committee, 

all holes on a miniature golf course 

would be required to be accessible 

except for sloped surfaces where the 

ball could not come to rest. See, e.g., 

‘‘ADA Accessibility Guidelines for 

Buildings and Facilities—Recreation 

Facilities and Outdoor Developed 

Areas,’’ Access Board Advance Notice of 

Proposed Rulemaking, 59 FR 48542 

(Sept. 21, 1994). Miniature golf trade 

groups and facility operators, who are 

nearly all small businesses, expressed 

significant concern that such 

requirements would be prohibitively 

expensive, would require additional 

space, and might fundamentally alter 

the nature of their courses. See, e.g., 

‘‘ADA Accessibility Guidelines for 

Buildings and Facilities—Recreation 

Facilities,’’ Access Board Notice of 

Proposed Rulemaking, 64 FR 37326 

(July 9, 1999). In consideration of such 

concerns and after holding 

informational meetings with miniature 

golf representatives and persons with 

disabilities, the Access Board 

significantly revised the final miniature 

golf guidelines. The final guidelines not 

only reduced significantly the number 

of holes required to be accessible to 50 

percent of all holes (with one break in 

the sequence of consecutive holes 

permitted), but also added an exemption 

for carpets used on playing surfaces, 

modified ramp landing slope and size 

requirements, and reduced the space 

required for start of play areas. See, e.g., 

Americans with Disabilities Act (ADA) 

Accessibility Guidelines for Buildings 

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and Facilities—Recreation Facilities 

Final Rule, 36 CFR parts 1190 and 1191. 

The Department also published an 

ANPRM to solicit public input on the 

adoption of the 2004 ADAAG as the 

revised Federal accessibility standards 

implementing titles II and III of the 

ADA. Among other things, the ANPRM 

specifically invited comment from small 

entities regarding the proposed rule’s 

potential economic impact and 

suggested regulatory alternatives to 

ameliorate any such impact. See 

‘‘Nondiscrimination on the Basis of 

Disability by Public Accommodations 

and in Commercial Facilities,’’ 

Department of Justice Advance Notice of 

Proposed Rulemaking, 69 FR 58768, 

58778–79 (Sept. 30, 2004). The 

Department received over 900 

comments, and small business interests 

figured prominently. See 

‘‘Nondiscrimination on the Basis of 

Disability by Public Accommodations 

and in Commercial Facilities,’’ 

Department of Justice Notice of 

Proposed Rulemaking, 73 FR 34508, 

34511, 34550 (June 17, 2008). 

Subsequently, when the Department 

published its NPRM in June 2008, 

several regulatory proposals were 

included to address concerns raised by 

the small business community in 

ANPRM comments. First, to mitigate 

costs to existing facilities, the 

Department proposed an element-byelement safe harbor that would exempt 

elements in compliance with applicable 

technical and scoping requirements in 

the 1991 Standards from any retrofit 

obligations under the revised title III 

rule. Id. at 34514–15, 34532–33. While 

this proposed safe harbor applied to title 

III covered entities irrespective of size, 

it was small businesses that especially 

stood to benefit since, according to 

comments from small business 

advocates, small businesses are more 

likely to operate in older buildings and 

facilities. The title III NPRM also offered 

for public comment a novel safe harbor 

provision specifically designed to 

address small business advocates’ 

request for clearer guidance on the 

readily achievable barrier removal 

requirement. This proposal provided 

that qualified small businesses would be 

deemed to have satisfied their readily 

achievable barrier removal obligations 

for a given year if, during that tax year, 

they had spent at least 1 percent of their 

respective gross revenues undertaking 

measures in compliance with title III 

barrier removal requirements. Id. at 

34538–39. Lastly, the NPRM sought 

public input on the inclusion of reduced 

scoping provisions for certain types of 

small existing recreation facilities (i.e., 

swimming pools, play areas, and 

saunas). Id. at 34515, 34534–37. 

During the NPRM comment period, 

the Department engaged in considerable 

public outreach to the small business 

community. A public hearing was held 

in Washington, D.C., during which 

nearly 50 persons, including several 

small business owners, testified in 

person or by phone. See Transcript of 

the Public Hearing on Notices of 

Proposed Rulemaking (July 15, 2008), 

available at www.ada.gov/NPRM2008/ 

public_hearing_transcript.htm. This 

hearing was also streamed live over the 

Internet. By the end of the 60-day 

comment period, the Department had 

also received nearly 4,500 public 

comments on the title III NPRM, 

including a significant number of 

comments reflecting small businesses’ 

perspectives on a wide range of 

regulatory issues. 

In addition to soliciting input from 

small entities through the formal 

process for public comment, the 

Department also targeted the small 

business community with less formal 

regulatory discussions, including a 

Small Business Roundtable convened by 

the Office of Advocacy and held at the 

offices of the Small Business 

Administration in Washington, D.C., 

and an informational question-andanswer session concerning the titles II 

and III NPRMs at the Department of 

Justice in which business 

representatives attended in-person and 

by telephone. These outreach efforts 

provided the small business community 

with information on the NPRM 

proposals being considered by the 

Department and gave small businesses 

the opportunity to ask questions of the 

Department and provide feedback. 

As a result of the feedback provided 

by representatives of small business 

interests on the title III NPRM, the 

Department was able to assess the 

impact of various alternatives on small 

businesses before adopting its final rule 

and took steps to minimize any 

significant impact on small entities. 

Most notably, the final rule retains the 

element-by-element safe harbor for 

which the small business community 

voiced strong support. See Appendix A 

discussion of removal of barriers 

(§ 36.304). The Department believes that 

this element-by-element safe harbor 

provision will go a long way toward 

mitigating the economic impact of the 

final rule on existing facilities owned or 

operated by small businesses. Indeed, as 

demonstrated in the Final RIA, the 

element-by-element safe harbor will 

provide substantial relief to small 

businesses that is estimated at $ 7.5 

billion over the expected life of the final 

rule. 

Additional regulatory measures 

mitigating the economic impact of the 

final rule on title III-covered entities 

(including small businesses) include 

deletion of the proposed requirement for 

captioning of safety and emergency 

information on scoreboards at sporting 

venues, retention of the proposed path 

of travel safe harbor, extension of the 

compliance date of the 2010 Standards 

as applied to new construction and 

alterations from 6 months to 18 months 

after publication of the final rule, and, 

in response to public comments, 

modification of the triggering event for 

application of the 2010 Standards to 

new construction and alterations from a 

unitary approach (commencement of 

physical construction) to a two-pronged 

approach (date of last application for 

building permit or commencement of 

physical construction) depending on 

whether a building permit is or is not 

required for the type of construction at 

issue by State or local building 

authorities. See Appendix A discussions 

of captioning at sporting venues 

(§ 36.303), alterations and path of travel 

(§ 36.403), and compliance dates and 

triggering events for new construction 

and alterations (§ 36.406). 

Two sets of proposed alternative 

measures that would have potentially 

provided some cost savings to small 

businesses—the safe harbor for qualified 

small businesses and reduced scoping 

for certain existing recreation 

facilities—were not adopted by the 

Department in the final rule. As 

discussed in more depth previously, the 

safe harbor for qualified small 

businesses was omitted from the final 

rule because the general safe harbor 

already provides significant relief for 

small businesses located in existing 

facilities, the proposed safe harbor 

provision lacked support from the small 

business community and no consensus 

emerged from business commenters 

concerning feasible bases for the final 

regulatory provision, and commenters 

noted practical considerations that 

would potentially make some small 

businesses incur greater expense or 

administrative burden. See Appendix A 

discussion of the safe harbor for 

qualified small businesses (§ 36.304). 

The Department also omitted the 

proposals to reduce scoping for certain 

existing recreation facilities in the final 

rule. While these proposals were not 

specific to small entities, they 

nonetheless might have mitigated the 

impact of the final rule for some small 

businesses that owned or operated 

existing facilities at which these 

recreational elements were located. See 

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Appendix A discussion of reduced 

scoping for play areas and other 

recreation facilities (§ 36.304). The 

Department gave careful consideration 

to how best to insulate small businesses 

from overly burdensome barrier removal 

costs under the 2010 Standards for 

existing small play areas, swimming 

pools, and saunas, while still providing 

accessible and integrated recreation 

facilities that are of great importance to 

persons with disabilities. The 

Department concluded that the existing 

readily achievable barrier removal 

standard, rather than specific 

exemptions for these types of existing 

facilities, is the most efficacious method 

by which to protect small businesses. 

Once the final rule is promulgated, 

small businesses will also have a wealth 

of documents to assist them in 

complying with the 2010 Standards. For 

example, accompanying the final rule in 

the Federal Register is the Department’s 

‘‘Analysis and Commentary on the 2010 

ADA Standards for Accessible Design,’’ 

which provides a plain language 

description of the revised scoping and 

technical requirements in these 

Standards and provides illustrative 

figures. The Department also expects to 

publish guidance specifically tailored to 

small businesses in the form of a small 

business compliance guide, as well as to 

publish technical assistance materials of 

general interest to all covered entities 

following promulgation of the final rule. 

Additionally, the Access Board has 

published a number of guides that 

discuss and illustrate application of the 

2010 Standards to play areas and 

various types of recreation facilities. 

Executive Order 13132: Federalism 

Executive Order 13132, 64 FR 43255, 

3 CFR, 2000 Comp., p. 206, requires 

executive branch agencies to consider 

whether a rule will have federalism 

implications. That is, the rulemaking 

agency must determine whether the rule 

is likely to have substantial direct 

effects on State and local governments, 

a substantial direct effect on the 

relationship between the Federal 

government and the States and 

localities, or a substantial direct effect 

on the distribution of power and 

responsibilities among the different 

levels of government. If an agency 

believes that a rule is likely to have 

federalism implications, it must consult 

with State and local elected officials 

about how to minimize or eliminate the 

effects. 

Title III of the ADA covers public 

accommodations and commercial 

facilities. These facilities are generally 

subject to regulation by different levels 

of government, including Federal, State, 

and local governments. The ADA and 

the 2010 Standards set minimum civil 

rights protections for individuals with 

disabilities that in turn may affect the 

implementation of State and local laws, 

particularly building codes. The 2010 

Standards address federalism concerns 

and mitigate federalism implications, 

particularly the provisions that 

streamline the administrative process 

for State and local governments seeking 

ADA code certification under title III. 

As a member of the Access Board, the 

Department was privy to substantial 

feedback from State and local 

governments throughout the 

development of the Board’s 2004 

guidelines. Before those guidelines were 

finalized as the 2004 ADA/ABA 

Guidelines, they addressed and 

minimized federalism concerns 

expressed by State and local 

governments during the development 

process. Because the Department 

adopted ADA Chapter 1, ADA Chapter 

2, and Chapters 3 through 10 of the 2004 

ADA/ABA Guidelines as part of the 

2010 Standards, the steps taken in the 

2004 ADA/ABA Guidelines to address 

federalism concerns are reflected in the 

2010 Standards. 

The Department also solicited and 

received input from public entities in 

the September 2004 ANPRM and the 

June 2008 NPRM. Through the ANPRM 

and NPRM processes, the Department 

solicited comments from elected State 

and local officials and their 

representative national organizations 

about the potential federalism 

implications. The Department received 

comments addressing whether the 

ANPRM and NPRM directly affected 

State and local governments, the 

relationship between the Federal 

government and the States, and the 

distribution of power and 

responsibilities among the various 

levels of government. The rule preempts 

State laws affecting entities subject to 

the ADA only to the extent that those 

laws conflict with the requirements of 

the ADA, as set forth in the rule. 

National Technology Transfer and 

Advancement Act of 1995 

The National Technology Transfer 

and Advancement Act of 1995 (NTTAA) 

directs that, as a general matter, all 

Federal agencies and departments shall 

use technical standards that are 

developed or adopted by voluntary 

consensus standards bodies, which are 

private, generally non-profit 

organizations that develop technical 

standards or specifications using welldefined procedures that require 

openness, balanced participation among 

affected interests and groups, fairness 

and due process, and an opportunity for 

appeal, as a means to carry out policy 

objectives or activities. Public Law 104– 

113 section 12(d)(1) (15 U.S.C. 272 

Note). In addition, the NTTAA directs 

agencies to consult with voluntary, 

private sector, consensus standards 

bodies and requires that agencies 

participate with such bodies in the 

development of technical standards 

when such participation is in the public 

interest and is compatible with agency 

and departmental missions, authorities, 

priorities, and budget resources. Id. 

section 12(d)(1). The Department, as a 

member of the Access Board, was an 

active participant in the lengthy process 

of developing the 2004 ADAAG, on 

which the 2010 Standards are based. As 

part of this update, the Board has made 

its guidelines more consistent with 

model building codes, such as the IBC, 

and industry standards. It coordinated 

extensively with model code groups and 

standard-setting bodies throughout the 

process so that differences could be 

reconciled. As a result, an historic level 

of harmonization has been achieved that 

has brought about improvements to the 

guidelines, as well as to counterpart 

provisions in the IBC and key industry 

standards, including those for accessible 

facilities issued through the American 

National Standards Institute. 

Plain Language Instructions 

The Department makes every effort to 

promote clarity and transparency in its 

rulemaking. In any regulation, there is a 

tension between drafting language that 

is simple and straightforward and 

drafting language that gives full effect to 

issues of legal interpretation. The 

Department operates a toll-free ADA 

Information Line (800) 514–0301 

(voice); (800) 514–0383 (TTY) that the 

public is welcome to call at any time to 

obtain assistance in understanding 

anything in this rule. If any commenter 

has suggestions for how the regulation 

could be written more clearly, please 

contact Janet L. Blizard, Deputy Chief, 

Disability Rights Section, whose contact 

information is provided in the 

introductory section of this rule, 

entitled FOR FURTHER INFORMATION

CONTACT. 

Paperwork Reduction Act 

The Paperwork Reduction Act of 1980 

(PRA) requires agencies to clear forms 

and recordkeeping requirements with 

OMB before they can be introduced. 44 

U.S.C. 3501 et seq. This rule does not 

contain any paperwork or recordkeeping 

requirements and does not require 

clearance under the PRA. 

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Unfunded Mandates Reform Act 

Section 4(2) of the Unfunded 

Mandates Reform Act of 1995, 2 U.S.C. 

1503(2), excludes from coverage under 

that Act any proposed or final Federal 

regulation that ‘‘establishes or enforces 

any statutory rights that prohibit 

discrimination on the basis of race, 

color, religion, sex, national origin, age, 

handicap, or disability.’’ Accordingly, 

this rulemaking is not subject to the 

provisions of the Unfunded Mandates 

Reform Act. 

List of Subjects for 28 CFR Part 36 

Administrative practice and 

procedure, Buildings and facilities, 

Business and industry, Civil rights, 

Individuals with disabilities, Penalties, 

Reporting and recordkeeping 

requirements. 

■ 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 of 1990, Public Law 

101–336 (42 U.S.C. 12186), and for the 

reasons set forth in Appendix A to 28 

CFR part 36, chapter I of title 28 of the 

Code of Federal Regulations is amended 

as follows: 

PART 36—NONDISCRIMINATION ON 

THE BASIS OF DISABILITY BY PUBLIC 

ACCOMMODATIONS AND IN 

COMMERCIAL FACILITIES 

Subpart A—General 

■ 1. The authority citation for 28 CFR 

part 36 is revised to read as follows: 

Authority: 5 U.S.C. 301; 28 U.S.C. 509, 

510; 42 U.S.C. 12186(b). 

■ 2. Amend § 36.104 by adding the 

following definitions of 1991 Standards, 

2004 ADAAG, 2010 Standards, direct 

threat, existing facility, housing at a 

place of education, other power-driven 

mobility device, qualified reader, video 

remote interpreting (VRI) service, and 

wheelchair in alphabetical order and 

revising the definitions of place of 

public accommodation, qualified 

interpreter, and service animal to read 

as follows: 

§ 36.104 Definitions. 

1991 Standards means requirements 

set forth in the ADA Standards for 

Accessible Design, originally published 

on July 26, 1991, and republished as 

Appendix D to this part. 

2004 ADAAG means the requirements 

set forth in appendices B and D to 36 

CFR part 1191 (2009). 

2010 Standards means the 2010 ADA 

Standards for Accessible Design, which 

consist of the 2004 ADAAG and the 

requirements contained in subpart D of 

this part. 

* * * * * 

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, as provided in § 36.208. 

* * * * * 

Existing facility means a facility in 

existence on any given date, without 

regard to whether the facility may also 

be considered newly constructed or 

altered under this part. 

* * * * * 

Housing at a place of education 

means housing operated by or on behalf 

of an elementary, secondary, 

undergraduate, or postgraduate school, 

or other place of education, including 

dormitories, suites, apartments, or other 

places of residence. 

* * * * * 

Other power-driven mobility device 

means any mobility device powered by 

batteries, fuel, or other engines— 

whether or not designed primarily for 

use by individuals with mobility 

disabilities—that is used by individuals 

with mobility disabilities for the 

purpose of locomotion, including golf 

cars, electronic personal assistance 

mobility devices (EPAMDs), such as the 

Segway® PT, or any mobility device 

designed to operate in areas without 

defined pedestrian routes, but that is not 

a wheelchair within the meaning of this 

section. This definition does not apply 

to Federal wilderness areas; wheelchairs 

in such areas are defined in section 

508(c)(2) of the ADA, 42 U.S.C. 

12207(c)(2). 

* * * * * 

Place of public accommodation 

means a facility operated by a private 

entity whose operations affect 

commerce and fall within at least one of 

the following categories— 

(1) Place of lodging, except for an 

establishment located within a facility 

that contains not more than five rooms 

for rent or hire and that actually is 

occupied by the proprietor of the 

establishment as the residence of the 

proprietor. For purposes of this part, a 

facility is a ‘‘place of lodging’’ if it is— 

(i) An inn, hotel, or motel; or 

(ii) A facility that— 

(A) Provides guest rooms for sleeping 

for stays that primarily are short-term in 

nature (generally 30 days or less) where 

the occupant does not have the right to 

return to a specific room or unit after 

the conclusion of his or her stay; and 

(B) Provides guest rooms under 

conditions and with amenities similar to 

a hotel, motel, or inn, including the 

following— 

(1) On- or off-site management and 

reservations service; 

(2) Rooms available on a walk-up or 

call-in basis; 

(3) Availability of housekeeping or 

linen service; and 

(4) Acceptance of reservations for a 

guest room type without guaranteeing a 

particular unit or room until check-in, 

and without a prior lease or security 

deposit. 

* * * * * 

Qualified interpreter means an 

interpreter who, via a video remote 

interpreting (VRI) service or an on-site 

appearance, is able to interpret 

effectively, accurately, and impartially, 

both receptively and expressively, using 

any necessary specialized vocabulary. 

Qualified interpreters include, for 

example, sign language interpreters, oral 

transliterators, and cued-language 

transliterators. 

* * * * * 

Qualified reader means a person who 

is able to read effectively, accurately, 

and impartially using any necessary 

specialized vocabulary. 

* * * * * 

Service animal means any dog that is 

individually trained to do work or 

perform tasks for the benefit of an 

individual with a disability, including a 

physical, sensory, psychiatric, 

intellectual, or other mental disability. 

Other species of animals, whether wild 

or domestic, trained or untrained, are 

not service animals for the purposes of 

this definition. The work or tasks 

performed by a service animal must be 

directly related to the handler’s 

disability. Examples of work or tasks 

include, but are not limited to, assisting 

individuals who are blind or have low 

vision with navigation and other tasks, 

alerting individuals who are deaf or 

hard of hearing to the presence of 

people or sounds, providing non-violent 

protection or rescue work, pulling a 

wheelchair, assisting an individual 

during a seizure, alerting individuals to 

the presence of allergens, retrieving 

items such as medicine or the 

telephone, providing physical support 

and assistance with balance and 

stability to individuals with mobility 

disabilities, and helping persons with 

psychiatric and neurological disabilities 

by preventing or interrupting impulsive 

or destructive behaviors. The crime 

deterrent effects of an animal’s presence 

and the provision of emotional support, 

well-being, comfort, or companionship 

do not constitute work or tasks for the 

purposes of this definition. 

* * * * * 

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Video remote interpreting (VRI) 

service means an interpreting service 

that uses video conference technology 

over dedicated lines or wireless 

technology offering high-speed, widebandwidth video connection that 

delivers high-quality video images as 

provided in § 36.303(f). 

* * * * * 

Wheelchair means a manuallyoperated or power-driven device 

designed primarily for use by an 

individual with a mobility disability for 

the main purpose of indoor or of both 

indoor and outdoor locomotion. This 

definition does not apply to Federal 

wilderness areas; wheelchairs in such 

areas are defined in section 508(c)(2) of 

the ADA, 42 U.S.C. 12207(c)(2). 

Subpart B—General Requirements 

■ 3. Amend § 36.208 by removing 

paragraph (b) and redesignating 

paragraph (c) as paragraph (b) and by 

revising redesignated paragraph (b) to 

read as follows: 

§ 36.208 Direct threat. 

* * * * * 

(b) In determining whether an 

individual poses a direct threat to the 

health or safety of others, a public 

accommodation must make an 

individualized assessment, based on 

reasonable judgment that relies on 

current medical knowledge or on the 

best available objective evidence, to 

ascertain: The nature, duration, and 

severity of the risk; the probability that 

the potential injury will actually occur; 

and whether reasonable modifications 

of policies, practices, or procedures or 

the provision of auxiliary aids or 

services will mitigate the risk. 

■ 4. Amend § 36.211 by adding 

paragraph (c) to read as follows: 

§ 36.211 Maintenance of accessible 

features. 

* * * * * 

(c) If the 2010 Standards reduce the 

technical requirements or the number of 

required accessible elements below the 

number required by the 1991 Standards, 

the technical requirements or the 

number of accessible elements in a 

facility subject to this part may be 

reduced in accordance with the 

requirements of the 2010 Standards. 

Subpart C—Specific Requirements 

■ 5. Amend § 36.302 as follows: 

■ a. Revise paragraph (c)(2); and 

■ b. Add paragraphs (c)(3) through (c)(9) 

and paragraphs (e) and (f) to read as 

follows: 

§ 36.302 Modifications in policies, 

practices, or procedures. 

(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; or 

(ii) The animal is not housebroken. 

(3) If an animal is properly excluded. 

If a public accommodation properly 

excludes a service animal under 

§ 36.302(c)(2), 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) Animal under handler’s control. A 

service animal shall be under the 

control of its handler. A service animal 

shall have a harness, leash, or other 

tether, unless either the handler is 

unable because of a disability to use a 

harness, leash, or other tether, or the use 

of a harness, leash, or other tether 

would interfere with the service 

animal’s safe, effective performance of 

work or tasks, in which case the service 

animal must be otherwise under the 

handler’s control (e.g., voice control, 

signals, or other effective means). 

(5) Care or supervision. A public 

accommodation is not responsible for 

the care or supervision of a service 

animal. 

(6) Inquiries. A public 

accommodation shall not ask about the 

nature or extent of a person’s disability, 

but may make two inquiries to 

determine whether an animal qualifies 

as a service animal. 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, trained, or 

licensed as a service animal. Generally, 

a public accommodation may not make 

these inquiries about a service animal 

when it is readily apparent that an 

animal is trained to do work or perform 

tasks for an individual with a disability 

(e.g., the dog is observed guiding an 

individual who is blind or has low 

vision, pulling a person’s wheelchair, or 

providing assistance with stability or 

balance to an individual with an 

observable mobility disability). 

(7) Access to areas of a public 

accommodation. Individuals with 

disabilities shall be permitted to be 

accompanied by their service animals in 

all areas of a place of public 

accommodation where members of the 

public, program participants, clients, 

customers, patrons, or invitees, as 

relevant, are allowed to go. 

(8) Surcharges. A public 

accommodation shall not ask or require 

an individual with a disability to pay a 

surcharge, even if people accompanied 

by pets are required to pay fees, or to 

comply with other requirements 

generally not applicable to people 

without pets. If a public accommodation 

normally charges individuals for the 

damage they cause, an individual with 

a disability may be charged for damage 

caused by his or her service animal. 

(9) Miniature horses. (i) A public 

accommodation shall make reasonable 

modifications in policies, practices, or 

procedures to permit the use of a 

miniature horse by an individual with a 

disability if the miniature horse has 

been individually trained to do work or 

perform tasks for the benefit of the 

individual with a disability. 

(ii) Assessment factors. In 

determining whether reasonable 

modifications in policies, practices, or 

procedures can be made to allow a 

miniature horse into a specific facility, 

a public accommodation shall 

consider— 

(A) The type, size, and weight of the 

miniature horse and whether the facility 

can accommodate these features; 

(B) Whether the handler has sufficient 

control of the miniature horse; 

(C) Whether the miniature horse is 

housebroken; and 

(D) Whether the miniature horse’s 

presence in a specific facility 

compromises legitimate safety 

requirements that are necessary for safe 

operation. 

(iii) Other requirements. Sections 

36.302(c)(3) through (c)(8), which apply 

to service animals, shall also apply to 

miniature horses. 

* * * * * 

(e)(1) Reservations made by places of 

lodging. A public accommodation that 

owns, leases (or leases to), or operates 

a place of lodging shall, with respect to 

reservations made by telephone, inperson, or through a third party— 

(i) Modify its policies, practices, or 

procedures to ensure that individuals 

with disabilities can make reservations 

for accessible guest rooms during the 

same hours and in the same manner as 

individuals who do not need accessible 

rooms; 

(ii) Identify and describe accessible 

features in the hotels and guest rooms 

offered through its reservations service 

in enough detail to reasonably permit 

individuals with disabilities to assess 

independently whether a given hotel or 

guest room meets his or her accessibility 

needs; 

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56252 Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 

(iii) Ensure that accessible guest 

rooms are held for use by individuals 

with disabilities until all other guest 

rooms of that type have been rented and 

the accessible room requested is the 

only remaining room of that type; 

(iv) Reserve, upon request, accessible 

guest rooms or specific types of guest 

rooms and ensure that the guest rooms 

requested are blocked and removed 

from all reservations systems; and 

(v) Guarantee that the specific 

accessible guest room reserved through 

its reservations service is held for the 

reserving customer, regardless of 

whether a specific room is held in 

response to reservations made by others. 

(2) Exception. The requirements in 

paragraphs (iii), (iv), and (v) of this 

section do not apply to reservations for 

individual guest rooms or other units 

not owned or substantially controlled by 

the entity that owns, leases, or operates 

the overall facility. 

(3) Compliance date. The 

requirements in this section will apply 

to reservations made on or after March 

15, 2012. 

(f) Ticketing. (1)(i) For the purposes of 

this section, ‘‘accessible seating’’ is 

defined as wheelchair spaces and 

companion seats that comply with 

sections 221 and 802 of the 2010 

Standards along with any other seats 

required to be offered for sale to the 

individual with a disability pursuant to 

paragraph (4) of this section. 

(ii) Ticket sales. A public 

accommodation that sells tickets for a 

single event or series of events shall 

modify its policies, practices, or 

procedures to ensure that individuals 

with disabilities have an equal 

opportunity to purchase tickets for 

accessible seating— 

(A) During the same hours; 

(B) During the same stages of ticket 

sales, including, but not limited to, presales, promotions, lotteries, wait-lists, 

and general sales; 

(C) Through the same methods of 

distribution; 

(D) 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; and 

(E) Under the same terms and 

conditions as other tickets sold for the 

same event or series of events. 

(2) Identification of available 

accessible seating. A public 

accommodation that sells or distributes 

tickets for a single event or series of 

events shall, upon inquiry— 

(i) Inform individuals with 

disabilities, their companions, and third 

parties purchasing tickets for accessible 

seating on behalf of individuals with 

disabilities of the locations of all unsold 

or otherwise available accessible seating 

for any ticketed event or events at the 

facility; 

(ii) Identify and describe the features 

of available accessible seating in enough 

detail to reasonably permit an 

individual with a disability to assess 

independently whether a given 

accessible seating location meets his or 

her accessibility needs; and 

(iii) Provide materials, such as seating 

maps, plans, brochures, pricing charts, 

or other information, that identify 

accessible seating and information 

relevant thereto with the same text or 

visual representations as other seats, if 

such materials are provided to the 

general public. 

(3) Ticket prices. The price of tickets 

for accessible seating for a single event 

or series of events shall not be set higher 

than the price for other tickets in the 

same seating section for the same event 

or series of events. Tickets for accessible 

seating must be made available at all 

price levels for every event or series of 

events. If tickets for accessible seating at 

a particular price level cannot be 

provided because barrier removal in an 

existing facility is not readily 

achievable, then the percentage of 

tickets for accessible seating that should 

have been available at that price level 

but for the barriers (determined by the 

ratio of the total number of tickets at 

that price level to the total number of 

tickets in the assembly area) shall be 

offered for purchase, at that price level, 

in a nearby or similar accessible 

location. 

(4) Purchasing multiple tickets. (i) 

General. For each ticket for a wheelchair 

space purchased by an individual with 

a disability or a third-party purchasing 

such a ticket at his or her request, a 

public accommodation shall make 

available for purchase three additional 

tickets for seats in the same row that are 

contiguous with the wheelchair space, 

provided that at the time of purchase 

there are three such seats available. A 

public accommodation is not required 

to provide more than three contiguous 

seats for each wheelchair space. Such 

seats may include wheelchair spaces. 

(ii) Insufficient additional contiguous 

seats available. If patrons are allowed to 

purchase at least four tickets, and there 

are fewer than three such additional 

contiguous seat tickets available for 

purchase, a public accommodation shall 

offer the next highest number of such 

seat tickets available for purchase and 

shall make up the difference by offering 

tickets for sale for seats that are as close 

as possible to the accessible seats. 

(iii) Sales limited to fewer than four 

tickets. If a public accommodation 

limits sales of tickets to fewer than four 

seats per patron, then the public 

accommodation is only obligated to 

offer as many seats to patrons with 

disabilities, including the ticket for the 

wheelchair space, as it would offer to 

patrons without disabilities. 

(iv) Maximum number of tickets 

patrons may purchase exceeds four. If 

patrons are allowed to purchase more 

than four tickets, a public 

accommodation shall allow patrons 

with disabilities to purchase up to the 

same number of tickets, including the 

ticket for the wheelchair space. 

(v) Group sales. If a group includes 

one or more individuals who need to 

use accessible seating because of a 

mobility disability or because their 

disability requires the use of the 

accessible features that are provided in 

accessible seating, the group shall be 

placed in a seating area with accessible 

seating 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. 

(5) Hold and release of tickets for 

accessible seating. (i) Tickets for 

accessible seating may be released for 

sale in certain limited circumstances. A 

public accommodation may release 

unsold tickets for accessible seating for 

sale to individuals without disabilities 

for their own use for a single event or 

series of events only under the 

following circumstances— 

(A) When all non-accessible tickets 

(excluding luxury boxes, club boxes, or 

suites) have been sold; 

(B) When all non-accessible tickets in 

a designated seating area have been sold 

and the tickets for accessible seating are 

being released in the same designated 

area; or 

(C) When all non-accessible tickets in 

a designated price category have been 

sold and the tickets for accessible 

seating are being released within the 

same designated price category. 

(ii) No requirement to release 

accessible tickets. Nothing in this 

paragraph requires a facility to release 

tickets for accessible seating to 

individuals without disabilities for their 

own use. 

(iii) Release of series-of-events tickets 

on a series-of-events basis. (A) Series-ofevents tickets sell-out when no 

ownership rights are attached. When 

series-of-events tickets are sold out and 

a public accommodation releases and 

sells accessible seating to individuals 

without disabilities for a series of 

events, the public accommodation shall 

establish a process that prevents the 

automatic reassignment of the accessible 

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seating to such ticket holders for future 

seasons, future years, or future series, so 

that individuals with disabilities who 

require the features of accessible seating 

and who become newly eligible to 

purchase tickets when these series-ofevents tickets are available for purchase 

have an opportunity to do so. 

(B) Series-of-events tickets when 

ownership rights are attached. When 

series-of-events tickets with an 

ownership right in accessible seating 

areas are forfeited or otherwise returned 

to a public accommodation, the public 

accommodation shall make reasonable 

modifications in its policies, practices, 

or procedures to afford individuals with 

mobility disabilities or individuals with 

disabilities that require the features of 

accessible seating an opportunity to 

purchase such tickets in accessible 

seating areas. 

(6) Ticket transfer. Individuals with 

disabilities who hold tickets for 

accessible seating shall be permitted to 

transfer tickets to third parties under the 

same terms and conditions and to the 

same extent as other spectators holding 

the same type of tickets, whether they 

are for a single event or series of events. 

(7) Secondary ticket market. (i) A 

public accommodation shall modify its 

policies, practices, or procedures to 

ensure that an individual with a 

disability may use a ticket acquired in 

the secondary ticket market under the 

same terms and conditions as other 

individuals who hold a ticket acquired 

in the secondary ticket market for the 

same event or series of events. 

(ii) If an individual with a disability 

acquires a ticket or series of tickets to 

an inaccessible seat through the 

secondary market, a public 

accommodation shall make reasonable 

modifications to its policies, practices, 

or procedures to allow the individual to 

exchange his ticket for one to an 

accessible seat in a comparable location 

if accessible seating is vacant at the time 

the individual presents the ticket to the 

public accommodation. 

(8) Prevention of fraud in purchase of 

tickets for accessible seating. A public 

accommodation may not require proof 

of disability, including, for example, a 

doctor’s note, before selling tickets for 

accessible seating. 

(i) Single-event tickets. For the sale of 

single-event tickets, it is permissible to 

inquire whether the individual 

purchasing the tickets for accessible 

seating has a mobility disability or a 

disability that requires the use of the 

accessible features that are provided in 

accessible seating, or is purchasing the 

tickets for an individual who has a 

mobility disability or a disability that 

requires the use of the accessible 

features that are provided in the 

accessible seating. 

(ii) Series-of-events tickets. For seriesof-events tickets, it is permissible to ask 

the individual purchasing the tickets for 

accessible seating to attest in writing 

that the accessible seating is for a person 

who has a mobility disability or a 

disability that requires the use of the 

accessible features that are provided in 

the accessible seating. 

(iii) Investigation of fraud. 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. 

■ 6. Amend § 36.303 as follows: 

■ a. Revise paragraphs (b)(1), (b)(2), (c), 

and (d); 

■ b. Redesignate paragraph (f) as 

paragraph (g); and 

■ c. Add paragraph (f) to read as 

follows: 

§ 36.303 Auxiliary aids and services. 

* * * * * 

(b) * * * 

(1) Qualified interpreters on-site or 

through video remote interpreting (VRI) 

services; notetakers; real-time computeraided 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, including 

real-time captioning; voice, text, and 

video-based telecommunications 

products and systems, including text 

telephones (TTYs), videophones, and 

captioned telephones, or equally 

effective telecommunications devices; 

videotext displays; 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. This 

includes an obligation to provide 

effective communication to companions 

who are individuals with disabilities. 

(i) For purposes of this section, 

‘‘companion’’ means a family member, 

friend, or associate of an individual 

seeking access to, or participating in, the 

goods, services, facilities, privileges, 

advantages, or accommodations of a 

public accommodation, who, along with 

such individual, 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. In order to 

be effective, auxiliary aids and services 

must be provided in accessible formats, 

in a timely manner, and in such a way 

as to protect the privacy and 

independence of the individual with a 

disability. 

(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 adult accompanying an 

individual with a disability to interpret 

or facilitate communication, except— 

(i) In an emergency involving an 

imminent threat to the safety or welfare 

of an individual or the public where 

there is no interpreter available; or 

(ii) Where the individual with a 

disability specifically requests that the 

accompanying adult interpret or 

facilitate communication, the 

accompanying adult agrees to provide 

such assistance, and reliance on that 

adult for such assistance is appropriate 

under the circumstances. 

(4) A public accommodation shall not 

rely on a minor child to interpret or 

facilitate communication, except in an 

emergency involving an imminent 

threat to the safety or welfare of an 

individual or the public where there is 

no interpreter available. 

(d) Telecommunications. (1) When a 

public accommodation uses an 

automated-attendant system, including, 

but not limited to, voicemail and 

messaging, or an interactive voice 

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response system, for receiving and 

directing incoming telephone calls, that 

system must provide effective real-time 

communication with individuals using 

auxiliary aids and services, including 

text telephones (TTYs) and all forms of 

FCC-approved telecommunications 

relay systems, including Internet-based 

relay systems. 

(2) A public accommodation that 

offers a customer, client, patient, or 

participant the opportunity to make 

outgoing telephone calls using the 

public accommodation’s equipment on 

more than an incidental convenience 

basis shall make available accessible 

public telephones, TTYs, or other 

telecommunications products and 

systems for use by an individual who is 

deaf or hard of hearing, or has a speech 

impairment. 

(3) A public accommodation may use 

relay services in place of direct 

telephone communication for receiving 

or making telephone calls incident to its 

operations. 

(4) A public accommodation shall 

respond to telephone calls from a 

telecommunications relay service 

established under title IV of the ADA in 

the same manner that it responds to 

other telephone calls. 

(5) This part does not require a public 

accommodation to use a TTY for 

receiving or making telephone calls 

incident to its operations. 

* * * * * 

(f) Video remote interpreting (VRI) 

services. A public accommodation that 

chooses to provide qualified interpreters 

via VRI service shall ensure that it 

provides— 

(1) Real-time, full-motion video and 

audio over a dedicated high-speed, 

wide-bandwidth video connection or 

wireless connection that delivers highquality video images that do not 

produce lags, choppy, blurry, or grainy 

images, or irregular pauses in 

communication; 

(2) A sharply delineated image that is 

large enough to display the interpreter’s 

face, arms, hands, and fingers, and the 

participating individual’s face, arms, 

hands, and fingers, regardless of his or 

her body position; 

(3) A clear, audible transmission of 

voices; and 

(4) Adequate training to users of the 

technology and other involved 

individuals so that they may quickly 

and efficiently set up and operate the 

VRI. 

* * * * * 

■ 7. Amend § 36.304 as follows: 

■ a. Revise paragraph (d)(1); 

■ b. Redesignate paragraph (d)(2) as 

(d)(3); 

■ c. Amend newly redesignated 

paragraph (d)(3) by removing the 

reference to ‘‘(d)(1)’’ and adding ‘‘(d)(1) 

and (d)(2)’’ in its place; 

■ d. Add paragraphs (d)(2) and (g)(4); 

and 

■ e. Add an Appendix to paragraph (d) 

to read as follows: 

§ 36.304 Removal of barriers. 

* * * * * 

(d) * * * (1) Except as provided in 

paragraph (d)(3) of this section, 

measures taken to comply with the 

barrier removal requirements of this 

section 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. The 

path of travel requirements of § 36.403 

shall not apply to measures taken solely 

to comply with the barrier removal 

requirements of this section. 

(d)(2)(i) Safe harbor. Elements that 

have not been altered in existing 

facilities on or after March 15, 2012 and 

that comply with the corresponding 

technical and scoping specifications for 

those elements in the 1991 Standards 

are not required to be modified in order 

to comply with the requirements set 

forth in the 2010 Standards. 

(ii)(A) Before March 15, 2012, 

elements in existing facilities that do 

not comply with the corresponding 

technical and scoping specifications for 

those elements in the 1991 Standards 

must be modified to the extent readily 

achievable to comply with either the 

1991 Standards or the 2010 Standards. 

Noncomplying newly constructed and 

altered elements may also be subject to 

the requirements of § 36.406(a)(5). 

(B) On or after March 15, 2012, 

elements in existing facilities that do 

not comply with the corresponding 

technical and scoping specifications for 

those elements in the 1991 Standards 

must be modified to the extent readily 

achievable to comply with the 

requirements set forth in the 2010 

Standards. Noncomplying newly 

constructed and altered elements may 

also be subject to the requirements of 

§ 36.406(a)(5). 

(iii) The safe harbor provided in 

§ 36.304(d)(2)(i) does not apply to those 

elements in existing facilities that are 

subject to supplemental requirements 

(i.e., elements for which there are 

neither technical nor scoping 

specifications in the 1991 Standards), 

and therefore those elements must be 

modified to the extent readily 

achievable to comply with the 2010 

Standards. Noncomplying newly 

constructed and altered elements may 

also be subject to the requirements of 

§ 36.406(a)(5). Elements in the 2010 

Standards not eligible for the elementby-element safe harbor are identified as 

follows— 

(A) Residential facilities and dwelling 

units, sections 233 and 809. 

(B) Amusement rides, sections 234 

and 1002; 206.2.9; 216.12. 

(C) Recreational boating facilities, 

sections 235 and 1003; 206.2.10. 

(D) Exercise machines and 

equipment, sections 236 and 1004; 

206.2.13. 

(E) Fishing piers and platforms, 

sections 237 and 1005; 206.2.14. 

(F) Golf facilities, sections 238 and 

1006; 206.2.15. 

(G) Miniature golf facilities, sections 

239 and 1007; 206.2.16. 

(H) Play areas, sections 240 and 1008; 

206.2.17. 

(I) Saunas and steam rooms, sections 

241 and 612. 

(J) Swimming pools, wading pools, 

and spas, sections 242 and 1009. 

(K) Shooting facilities with firing 

positions, sections 243 and 1010. 

(L) Miscellaneous. 

(1) Team or player seating, section 

221.2.1.4. 

(2) Accessible route to bowling lanes, 

section 206.2.11. 

(3) Accessible route in court sports 

facilities, section 206.2.12. 

* * * * * 

Appendix to § 36.304(d) 

COMPLIANCE DATES AND APPLICABLE STANDARDS FOR BARRIER REMOVAL AND SAFE HARBOR

Date Requirement Applicable standards 

Before March 15, 2012 ............................................. Elements that do not comply with the requirements for those elements in the 1991 Standards 

must be modified to the extent readily achievable.

1991 Standards or 2010 Standards. 

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COMPLIANCE DATES AND APPLICABLE STANDARDS FOR BARRIER REMOVAL AND SAFE HARBOR—Continued 

Date Requirement Applicable standards 

Note: Noncomplying newly constructed and altered elements may also be subject to the requirements of § 36.406(a)(5).

On or after March 15, 2012 ...................................... Elements that do not comply with the requirements for those elements in the 1991 Standards 

or that do not comply with the supplemental requirements (i.e., elements for which there are 

neither technical nor scoping specifications in 

the 1991 Standards) must be modified to the 

extent readily achievable.

2010 Standards. 

Note: Noncomplying newly constructed and altered elements may also be subject to the requirements of § 36.406(a)(5).

Elements not altered after March 15, 2012 ............. Elements that comply with the requirements for 

those elements in the 1991 Standards do not 

need to be modified.

Safe Harbor. 

* * * * * 

(g) * * * 

(4) This requirement does not apply to 

guest rooms in existing facilities that are 

places of lodging where the guest rooms 

are not owned by the entity that owns, 

leases, or operates the overall facility 

and the physical features of the guest 

room interiors are controlled by their 

individual owners. 

■ 8. Revise § 36.308 to read as follows: 

§ 36.308 Seating in assembly areas. 

A public accommodation shall ensure 

that wheelchair spaces and companion 

seats are provided in each specialty 

seating area that provides spectators 

with distinct services or amenities that 

generally are not available to other 

spectators. If it is not readily achievable 

for a public accommodation to place 

wheelchair spaces and companion seats 

in each such specialty seating area, it 

shall provide those services or amenities 

to individuals with disabilities and their 

companions at other designated 

accessible locations at no additional 

cost. The number of wheelchair spaces 

and companion seats 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 2010 Standards. 

■ 9. Amend § 36.309 by adding 

paragraphs (b)(1)(iv) through (vi) to read 

as follows: 

§ 36.309 Examinations and courses. 

* * * * * 

(b)(1)* * * 

(iv) Any request for documentation, if 

such documentation is required, is 

reasonable and limited to the need for 

the modification, accommodation, or 

auxiliary aid or service requested. 

(v) When considering requests for 

modifications, accommodations, or 

auxiliary aids or services, the entity 

gives considerable weight to 

documentation of past modifications, 

accommodations, or auxiliary aids or 

services received in similar testing 

situations, as well as such 

modifications, accommodations, or 

related aids and services provided in 

response to an Individualized Education 

Program (IEP) provided under the 

Individuals with Disabilities Education 

Act or a plan describing services 

provided pursuant to section 504 of the 

Rehabilitation Act of 1973, as amended 

(often referred to as a Section 504 Plan). 

(vi) The entity responds in a timely 

manner to requests for modifications, 

accommodations, or aids to ensure 

equal opportunity for individuals with 

disabilities. 

* * * * * 

10. Add § 36.311 to read as follows: 

§ 36.311 Mobility devices. 

(a) Use of wheelchairs and manuallypowered mobility aids. A public 

accommodation shall permit 

individuals with mobility disabilities to 

use wheelchairs and manually-powered 

mobility aids, such as walkers, crutches, 

canes, braces, or other similar devices 

designed for use by individuals with 

mobility disabilities in any areas open 

to pedestrian use. 

(b)(1) Use of other power-driven 

mobility devices. A public 

accommodation shall make reasonable 

modifications in its policies, practices, 

or procedures to permit the use of other 

power-driven mobility devices by 

individuals with mobility disabilities, 

unless the public accommodation can 

demonstrate that the class of other 

power-driven mobility devices cannot 

be operated in accordance with 

legitimate safety requirements that the 

public accommodation has adopted 

pursuant to § 36.301(b). 

(2) Assessment factors. In determining 

whether a particular other power-driven 

mobility device can be allowed in a 

specific facility as a reasonable 

modification under paragraph (b)(1) of 

this section, a public accommodation 

shall consider— 

(i) The type, size, weight, dimensions, 

and speed of the device; 

(ii) The facility’s volume of pedestrian 

traffic (which may vary at different 

times of the day, week, month, or year); 

(iii) The facility’s design and 

operational characteristics (e.g., whether 

its business is conducted indoors, its 

square footage, the density and 

placement of stationary devices, and the 

availability of storage for the device, if 

requested by the user); 

(iv) Whether legitimate safety 

requirements can be established to 

permit the safe operation of the other 

power-driven mobility device in the 

specific facility; and 

(v) Whether the use of the other 

power-driven mobility device creates a 

substantial risk of serious harm to the 

immediate environment or natural or 

cultural resources, or poses a conflict 

with Federal land management laws and 

regulations. 

(c)(1) Inquiry about disability. A 

public accommodation shall not ask an 

individual using a wheelchair or other 

power-driven mobility device questions 

about the nature and extent of the 

individual’s disability. 

(2) Inquiry into use of other powerdriven mobility device. A public 

accommodation may ask a person using 

an other power-driven mobility device 

to provide a credible assurance that the 

mobility device is required because of 

the person’s disability. A public 

accommodation that permits the use of 

an other power-driven mobility device 

by an individual with a mobility 

disability shall accept the presentation 

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of a valid, State-issued disability 

parking placard or card, or State-issued 

proof of disability, as a credible 

assurance that the use of the other 

power-driven mobility device is for the 

individual’s mobility disability. In lieu 

of a valid, State-issued disability 

parking placard or card, or State-issued 

proof of disability, a public 

accommodation shall accept as a 

credible assurance a verbal 

representation, not contradicted by 

observable fact, that the other powerdriven mobility device is being used for 

a mobility disability. A ‘‘valid’’ disability 

placard or card is one that is presented 

by the individual to whom it was issued 

and is otherwise in compliance with the 

State of issuance’s requirements for 

disability placards or cards. 

Subpart D—New Construction and 

Alterations 

■ 11. Amend § 36.403 by retaining the 

heading of paragraph (a), designating 

the text of paragraph (a) as paragraph 

(a)(1), adding paragraph (a)(2), and 

revising paragraph (f)(2)(iii) to read as 

follows: 

§ 36.403 Alterations: Path of travel. 

(a) General. (1) * * * 

(2) 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 the incremental changes in the 

2010 Standards solely because of an 

alteration to a primary function area 

served by that path of travel. 

* * * * * 

(f) * * * 

(2) * * * 

(iii) Costs associated with providing 

accessible telephones, such a relocating 

the telephone to an accessible height, 

installing amplification devices, or 

installing a text telephone (TTY); 

* * * * * 

■ 12. Revise § 36.405 to read as follows: 

§ 36.405 Alterations: Historic preservation. 

(a) Alterations to buildings or 

facilities that are eligible for listing in 

the National Register of Historic Places 

under the National Historic Preservation 

Act, 16 U.S.C. 470 et seq., or are 

designated as historic under State or 

local law, shall comply to the maximum 

extent feasible with this part. 

(b) If it is determined that it is not 

feasible to provide physical access to an 

historic property that is a place of 

public accommodation in a manner that 

will not threaten or destroy the historic 

significance of the building or the 

facility, alternative methods of access 

shall be provided pursuant to the 

requirements of subpart C of this part. 

■ 13. Revise § 36.406 to read as follows: 

§ 36.406 Standards for new construction 

and alterations. 

(a) Accessibility standards and 

compliance date. (1) New construction 

and alterations subject to §§ 36.401 or 

36.402 shall comply with the 1991 

Standards if the date when the last 

application for a building permit or 

permit extension is certified to be 

complete by a State, county, or local 

government (or, in those jurisdictions 

where the government does not certify 

completion of applications, if the date 

when the last application for a building 

permit or permit extension is received 

by the State, county, or local 

government) is before September 15, 

2010, or if no permit is required, if the 

start of physical construction or 

alterations occurs before September 15, 

2010. 

(2) New construction and alterations 

subject to §§ 36.401 or 36.402 shall 

comply either with the 1991 Standards 

or with the 2010 Standards if the date 

when the last application for a building 

permit or permit extension is certified to 

be complete by a State, county, or local 

government (or, in those jurisdictions 

where the government does not certify 

completion of applications, if the date 

when the last application for a building 

permit or permit extension is received 

by the State, county, or local 

government) is on or after September 15, 

2010 and before March 15, 2012, or if 

no permit is required, if the start of 

physical construction or alterations 

occurs on or after September 15, 2010 

and before March 15, 2012. 

(3) New construction and alterations 

subject to §§ 36.401 or 36.402 shall 

comply with the 2010 Standards if the 

date when the last application for a 

building permit or permit extension is 

certified to be complete by a State, 

county, or local government (or, in those 

jurisdictions where the government 

does not certify completion of 

applications, if the date when the last 

application for a building permit or 

permit extension is received by the 

State, county, or local government) is on 

or after March 15, 2012, or if no permit 

is required, if the start of physical 

construction or alterations occurs on or 

after March 15, 2012. 

(4) For the purposes of this section, 

‘‘start of physical construction or 

alterations’’ does not mean ceremonial 

groundbreaking or razing of structures 

prior to site preparation. 

(5) Noncomplying new construction 

and alterations. (i) Newly constructed or 

altered facilities or elements covered by 

§§ 36.401 or 36.402 that were 

constructed or altered before March 15, 

2012 and that do not comply with the 

1991 Standards shall, before March 15, 

2012, be made accessible in accordance 

with either the 1991 Standards or the 

2010 Standards. 

(ii) Newly constructed or altered 

facilities or elements covered by 

§§ 36.401 or 36.402 that were 

constructed or altered before March 15, 

2012 and that do not comply with the 

1991 Standards shall, on or after March 

15, 2012, be made accessible in 

accordance with the 2010 Standards. 

Appendix to § 36.406(a) 

Compliance dates for new construction and alterations Applicable standards 

On or after January 26, 1993 and before September 15, 2010 .............. 1991 Standards. 

On or after September 15, 2010 and before March 15, 2012 ................. 1991 Standards or 2010 Standards. 

On or after March 15, 2012 ...................................................................... 2010 Standards. 

(b) Scope of coverage. The 1991 

Standards and the 2010 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, the 

advisory notes, appendix notes, and 

figures contained in the 1991 Standards 

and 2010 Standards explain or illustrate 

the requirements of the rule; they do not 

establish enforceable requirements. 

(c) Places of lodging. Places of lodging 

subject to this part shall comply with 

the provisions of the 2010 Standards 

applicable to transient lodging, 

including, but not limited to, the 

requirements for transient lodging guest 

rooms in sections 224 and 806 of the 

2010 Standards. 

(1) Guest rooms. Guest rooms with 

mobility features in places of lodging 

subject to the transient lodging 

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Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 56257 

requirements of 2010 Standards shall be 

provided as follows— 

(i) Facilities that are subject to the 

same permit application on a common 

site that each have 50 or fewer guest 

rooms may be combined for the 

purposes of determining the required 

number of accessible rooms and type of 

accessible bathing facility in accordance 

with table 224.2 to section 224.2 of the 

2010 Standards. 

(ii) Facilities with more than 50 guest 

rooms shall be treated separately for the 

purposes of determining the required 

number of accessible rooms and type of 

accessible bathing facility in accordance 

with table 224.2 to section 224.2 of the 

2010 Standards. 

(2) Exception. Alterations to guest 

rooms in places of lodging where the 

guest rooms are not owned or 

substantially controlled by the entity 

that owns, leases, or operates the overall 

facility and the physical features of the 

guest room interiors are controlled by 

their individual owners are not required 

to comply with § 36.402 or the 

alterations requirements in section 

224.1.1 of the 2010 Standards. 

(3) Facilities with residential dwelling 

units and transient lodging units. 

Residential dwelling units that are 

designed and constructed for residential 

use exclusively are not subject to the 

transient lodging standards. 

(d) Social service center 

establishments. Group homes, halfway 

houses, shelters, or similar social 

service center establishments that 

provide either temporary sleeping 

accommodations or residential dwelling 

units that are subject to this part shall 

comply with the provisions of the 2010 

Standards applicable to residential 

facilities, including, but not limited to, 

the provisions in sections 233 and 809. 

(1) In sleeping rooms with more than 

25 beds covered by this part, a 

minimum of 5% of the beds shall have 

clear floor space complying with section 

806.2.3 of the 2010 Standards. 

(2) Facilities with more than 50 beds 

covered by this part that provide 

common use bathing facilities shall 

provide at least one roll-in shower with 

a seat that complies with the relevant 

provisions of section 608 of the 2010 

Standards. Transfer-type showers are 

not permitted in lieu of a roll-in shower 

with a seat, and the exceptions in 

sections 608.3 and 608.4 for residential 

dwelling units are not permitted. When 

separate shower facilities are provided 

for men and for women, at least one 

roll-in shower shall be provided for 

each group. 

(e) Housing at a place of education. 

Housing at a place of education that is 

subject to this part shall comply with 

the provisions of the 2010 Standards 

applicable to transient lodging, 

including, but not limited to, the 

requirements for transient lodging guest 

rooms in sections 224 and 806, subject 

to the following exceptions. For the 

purposes of the application of this 

section, the term ‘‘sleeping room’’ is 

intended to be used interchangeably 

with the term ‘‘guest room’’ as it is used 

in the transient lodging standards. 

(1) Kitchens within housing units 

containing accessible sleeping rooms 

with mobility features (including suites 

and clustered sleeping rooms) or on 

floors containing accessible sleeping 

rooms with mobility features shall 

provide turning spaces that comply with 

section 809.2.2 of the 2010 Standards 

and kitchen work surfaces that comply 

with section 804.3 of the 2010 

Standards. 

(2) Multi-bedroom housing units 

containing accessible sleeping rooms 

with mobility features shall have an 

accessible route throughout the unit in 

accordance with section 809.2 of the 

2010 Standards. 

(3) Apartments or townhouse facilities 

that are provided by or on behalf of a 

place of education, which are leased on 

a year-round basis exclusively to 

graduate students or faculty and do not 

contain any public use or common use 

areas available for educational 

programming, are not subject to the 

transient lodging standards and shall 

comply with the requirements for 

residential facilities in sections 233 and 

809 of the 2010 Standards. 

(f) Assembly areas. Assembly areas 

that are subject to this part shall comply 

with the provisions of the 2010 

Standards applicable to assembly areas, 

including, but not limited to, sections 

221 and 802. In addition, assembly areas 

shall ensure that— 

(1) In stadiums, arenas, and 

grandstands, wheelchair spaces and 

companion seats are dispersed to all 

levels that include seating served by an 

accessible route; 

(2) In assembly areas that are required 

to horizontally disperse wheelchair 

spaces and companion seats by section 

221.2.3.1 of the 2010 Standards and that 

have seating encircling, in whole or in 

part, a field of play or performance, 

wheelchair spaces and companion seats 

are dispersed around that field of play 

or performance area; 

(3) Wheelchair spaces and companion 

seats are not located on (or obstructed 

by) temporary platforms or other 

movable structures, except that when an 

entire seating section is placed on 

temporary platforms or other movable 

structures in an area where fixed seating 

is not provided, in order to increase 

seating for an event, wheelchair spaces 

and companion seats may be placed in 

that section. When wheelchair spaces 

and companion seats are not required to 

accommodate persons eligible for those 

spaces and seats, individual, removable 

seats may be placed in those spaces and 

seats; 

(4) In stadium-style movie theaters, 

wheelchair spaces and companion seats 

are located 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 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 that are subject to this part 

shall comply with the provisions of the 

2010 Standards 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 of the 2010 Standards in 

a manner that is proportionate by type 

of medical specialty. 

§ 36.407 [Removed and Reserved] 

■ 14. Remove and reserve § 36.407. 

Subpart F—Certification of State Laws 

or Local Building Codes 

§ 36.603 [Removed] 

■ 15. Remove § 36.603. 

■ 16. Redesignate § 36.604 as § 36.603 

and revise it to read as follows: 

§ 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, 

revise the introductory text to paragraph 

(a), and revise paragraphs (a)(2) and (b) 

to read as follows: 

§ 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 

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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 

provided previously 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 sentence of 

paragraph (a) to read as follows: 

§ 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 paragraph (d) to read as 

follows: 

§ 36.606 Effect of certification. 

* * * * * 

(d) When the standards of the Act 

against which a code is deemed 

equivalent are revised or amended 

substantially, 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. 

§ 36.608 [Redesignated as § 36.607] 

■ 20. Redesignate § 36.608 as § 36.607. 

■ 21. Redesignate Appendix A to part 

36 as Appendix D to part 36 and add 

Appendix A to part 36 to read as 

follows: 

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Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 56259 

Appendix A to Part 36—Guidance on 

Revisions to ADA Regulation on 

Nondiscrimination on the Basis of 

Disability by Public Accommodations 

and Commercial Facilities 

Note: This Appendix contains guidance 

providing a section-by-section analysis of the 

revisions to 28 CFR part 36 published on 

September 15, 2010. 

Section-By-Section Analysis and Response to 

Public Comments 

This section provides a detailed 

description of the Department’s changes to 

the title III regulation, the reasoning behind 

those changes, and responses to public 

comments received on these topics. The 

Section-by-Section Analysis follows the 

order of the title III regulation itself, except 

that if the Department has not changed a 

regulatory section, the unchanged section has 

not been mentioned. 

Subpart A—General 

Section 36.104 Definitions 

‘‘1991 Standards’’ and ‘‘2004 ADAAG’’ 

The Department has included in the final 

rule new definitions of both the ‘‘1991 

Standards’’ and the ‘‘2004 ADAAG.’’ The term 

‘‘1991 Standards’’ refers to the ADA 

Standards for Accessible Design, originally 

published on July 26, 1991, and republished 

as Appendix D to 28 CFR part 36. The term 

‘‘2004 ADAAG’’ refers to ADA Chapter 1, 

ADA Chapter 2, and Chapters 3 through 10 

of the Americans with Disabilities Act and 

the Architectural Barriers Act Accessibility 

Guidelines, which were issued by the Access 

Board on July 23, 2004, codified at 36 CFR 

1191, app. B and D (2009), and which the 

Department has adopted in this final rule. 

These terms are included in the definitions 

section for ease of reference. 

‘‘2010 Standards’’ 

The Department has added to the final rule 

a definition of the term ‘‘2010 Standards.’’ 

The term ‘‘2010 Standards’’ refers to the 2010 

ADA Standards for Accessible Design, which 

consist of the 2004 ADAAG and the 

requirements contained in subpart D of 28 

CFR part 36. 

‘‘Direct Threat’’ 

The final rule moves the definition of 

direct threat from § 36.208(b) to the 

definitions section at § 36.104. This is an 

editorial change. Consequently, § 36.208(c) 

becomes § 36.208(b) in the final rule. 

‘‘Existing Facility’’ 

The 1991 title III regulation provided 

definitions for ‘‘new construction’’ at 

§ 36.401(a) and ‘‘alterations’’ at § 36.402(b). In 

contrast, the term ‘‘existing facility’’ was not 

explicitly defined, although it is used in the 

statute and regulations for titles II and III. 

See, e.g., 42 U.S.C. 12182(b)(2)(A)(iv); 28 CFR 

35.150. It has been the Department’s view 

that newly constructed or altered facilities 

are also existing facilities subject to title III’s 

continuing barrier removal obligation, and 

that view is made explicit in this rule. 

The classification of facilities under the 

ADA is neither static nor mutually exclusive. 

Newly constructed or altered facilities are 

also existing facilities. A newly constructed 

facility remains subject to the accessibility 

standards in effect at the time of design and 

construction, with respect to those elements 

for which, at that time, there were applicable 

ADA Standards. That same facility, however, 

after construction, is also an existing facility, 

and subject to the public accommodation’s 

continuing obligation to remove barriers 

where it is readily achievable to do so. The 

fact that the facility is also an existing facility 

does not relieve the public accommodation of 

its obligations under the new construction 

requirements of this part. Rather, it means 

that in addition to the new construction 

requirements, the public accommodation has 

a continuing obligation to remove barriers 

that arise, or are deemed barriers, only after 

construction. Such barriers include but are 

not limited to the elements that are first 

covered in the 2010 Standards, as that term 

is defined in § 36.104. 

At some point, the same facility may 

undergo alterations, which are subject to the 

alterations requirements in effect at that time. 

This facility remains subject to its original 

new construction standards for elements and 

spaces not affected by the alterations; the 

facility is subject to the alterations 

requirements and standards in effect at the 

time of the alteration for the elements and 

spaces affected by the alteration; and, 

throughout, the facility remains subject to the 

continuing barrier removal obligation. 

The Department’s enforcement of the ADA 

is premised on a broad understanding of 

‘‘existing facility.’’ The ADA contemplates 

that as the Department’s knowledge and 

understanding of accessibility advances and 

evolves, this knowledge will be incorporated 

into and result in increased accessibility in 

the built environment. Title III’s barrier 

removal provisions strike the appropriate 

balance between ensuring that accessibility 

advances are reflected in the built 

environment and mitigating the costs of those 

advances to public accommodations. With 

adoption of the final rule, public 

accommodations engaged in barrier removal 

measures will now be guided by the 2010 

Standards, defined in § 36.104, and the safe 

harbor in § 36.304(d)(2). 

The NPRM included the following 

proposed definition of ‘‘existing facility’’: ‘‘[A] 

facility that has been constructed and 

remains in existence on any given date.’’ 73 

FR 34508, 34552 (June 17, 2008). While the 

Department intended the proposed definition 

to provide clarity with respect to public 

accommodations’ continuing obligation to 

remove barriers where it is readily achievable 

to do so, some commenters pointed out 

arguable ambiguity in the language and the 

potential for misapplication of the rule in 

practice. 

The Department received a number of 

comments on this issue. The commenters 

urged the Department to clarify that all 

buildings remain subject to the standards in 

effect at the time of their construction, that 

is, that a facility designed and constructed for 

first occupancy between January 26, 1993, 

and the effective date of the final rule is still 

considered ‘‘new construction’’ and that 

alterations occurring between January 26, 

1993, and the effective date of the final rule 

are still considered ‘‘alterations.’’ 

The final rule includes clarifying language 

to ensure that the Department’s interpretation 

is accurately reflected. As established by this 

rule, existing facility means a facility in 

existence on any given date, without regard 

to whether the facility may also be 

considered newly constructed or altered 

under this part. Thus, this definition reflects 

the Department’s longstanding interpretation 

that public accommodations have obligations 

in existing facilities that are independent of 

but may coexist with requirements imposed 

by new construction or alteration 

requirements in those same facilities. 

‘‘Housing at a Place of Education’’ 

The Department has added a new 

definition to § 36.104, ‘‘housing at a place of 

education,’’ to clarify the types of educational 

housing programs that are covered by this 

title. This section defines ‘‘housing at a place 

of education’’ as ‘‘housing operated by or on 

behalf of an elementary, secondary, 

undergraduate, or postgraduate school, or 

other place of education, including 

dormitories, suites, apartments, or other 

places of residence.’’ This definition does not 

apply to social service programs that 

combine residential housing with social 

services, such as a residential job training 

program. 

‘‘Other Power-Driven Mobility Device’’ and 

‘‘Wheelchair’’ 

Because relatively few individuals with 

disabilities were using nontraditional 

mobility devices in 1991, there was no 

pressing need for the 1991 title III regulation 

to define the terms ‘‘wheelchair’’ or ‘‘other 

power-driven mobility device,’’ to expound 

on what would constitute a reasonable 

modification in policies, practices, or 

procedures under § 36.302, or to set forth 

within that section specific requirements for 

the accommodation of mobility devices. 

Since the issuance of the 1991 title III 

regulation, however, the choices of mobility 

devices available to individuals with 

disabilities have increased dramatically. The 

Department has received complaints about 

and has become aware of situations where 

individuals with mobility disabilities have 

utilized devices that are not designed 

primarily for use by an individual with a 

mobility disability, including the Segway®

Personal Transporter (Segway® PT), golf cars, 

all-terrain vehicles (ATVs), and other 

locomotion devices. 

The Department also has received 

questions from public accommodations and 

individuals with mobility disabilities 

concerning which mobility devices must be 

accommodated and under what 

circumstances. Indeed, there has been 

litigation concerning the legal obligations of 

covered entities to accommodate individuals 

with mobility disabilities who wish to use an 

electronic personal assistance mobility 

device (EPAMD), such as the Segway® PT, as 

a mobility device. The Department has 

participated in such litigation as amicus 

curiae. See Ault v. Walt Disney World Co., 

No. 6:07–cv–1785–Orl–31KRS, 2009 WL 

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3242028 (M.D. Fla. Oct. 6, 2009). Much of the 

litigation has involved shopping malls where 

businesses have refused to allow persons 

with disabilities to use EPAMDs. See, e.g., 

McElroy v. Simon Property Group, No. 08– 

404 RDR, 2008 WL 4277716 (D. Kan. Sept. 

15, 2008) (enjoining mall from prohibiting 

the use of a Segway® PT as a mobility device 

where an individual agrees to all of a mall’s 

policies for use of the device, except 

indemnification); Shasta Clark, Local Man 

Fighting Mall Over Right to Use Segway, 

WATE 6 News, July 26, 2005, available at 

http://www.wate.com/Global/ 

story.asp?s=3643674 (last visited June 24, 

2010). 

In response to questions and complaints 

from individuals with disabilities and 

covered entities concerning which mobility 

devices must be accommodated and under 

what circumstances, the Department began 

developing a framework to address the use of 

unique mobility devices, concerns about 

their safety, and the parameters for the 

circumstances under which these devices 

must be accommodated. As a result, the 

Department’s NPRM proposed two new 

approaches to mobility devices. First, the 

Department proposed a two-tiered mobility 

device definition that defined the term 

‘‘wheelchair’’ separately from ‘‘other powerdriven mobility device.’’ Second, the 

Department proposed requirements to allow 

the use of devices in each definitional 

category. In § 36.311(a), the NPRM proposed 

that wheelchairs and manually-powered 

mobility aids used by individuals with 

mobility disabilities shall be permitted in any 

areas open to pedestrian use. Section 

36.311(b) of the NPRM proposed that 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.’’ 73 FR 

34508, 34556 (June 17, 2008). 

The Department sought public comment 

with regard to whether these steps would, in 

fact, achieve clarity on these issues. Toward 

this end, the Department’s NPRM asked 

several questions relating to the definitions of 

‘‘wheelchair,’’ ‘‘other power-driven mobility 

device,’’ and ‘‘manually-powered mobility 

aids’’; the best way to categorize different 

classes of mobility devices, the types of 

devices that should be included in each 

category; and the circumstances under which 

certain types of mobility devices must be 

accommodated or may be excluded pursuant 

to the policy adopted by the public 

accommodation. 

Because the questions in the NPRM that 

concerned mobility devices and their 

accommodation were interrelated, many of 

the commenters’ responses did not identify 

the specific question to which they were 

responding. Instead, commenters grouped the 

questions together and provided comments 

accordingly. Most commenters spoke to the 

issues addressed in the Department’s 

questions in broad terms and using general 

concepts. As a result, the responses to the 

questions posed are discussed below in 

broadly grouped issue categories rather than 

on a question-by-question basis. 

Two-tiered definitional approach. 

Commenters supported the Department’s 

proposal to use a two-tiered definition of 

mobility device. Commenters nearly 

universally said that wheelchairs always 

should be accommodated and that they 

should never be subject to an assessment 

with regard to their admission to a particular 

public accommodation. In contrast, the vast 

majority of commenters indicated they were 

in favor of allowing public accommodations 

to conduct an assessment as to whether, and 

under which circumstances, other powerdriven mobility devices will be allowed onsite. 

Many commenters also indicated their 

support for the two-tiered approach in 

responding to questions concerning the 

definition of ‘‘wheelchair’’ and ‘‘other powerdriven mobility device.’’ Nearly every 

disability advocacy group said that the 

Department’s two-tiered approach strikes the 

proper balance between ensuring access for 

individuals with disabilities and addressing 

fundamental alteration and safety concerns 

held by public accommodations; however, a 

minority of disability advocacy groups 

wanted other power-driven mobility devices 

to be included in the definition of 

‘‘wheelchair.’’ Most advocacy, nonprofit, and 

individual commenters supported the 

concept of a separate definition for ‘‘other 

power-driven mobility device’’ because a 

separate definition would maintain existing 

legal protections for wheelchairs while 

recognizing that some devices that are not 

designed primarily for individuals with 

mobility disabilities have beneficial uses for 

individuals with mobility disabilities. They 

also favored this concept because it 

recognizes technological developments and 

that innovative uses of varying devices may 

provide increased access to individuals with 

mobility disabilities. 

While two business associations indicated 

that they opposed the concept of ‘‘other 

power-driven mobility device’’ in its entirety, 

other business commenters expressed general 

and industry-specific concerns about 

permitting their use. They indicated that 

such devices create a host of safety, cost, and 

fraud issues that do not exist with 

wheelchairs. On balance, however, business 

commenters indicated that they support the 

establishment of a two-tiered regulatory 

approach because defining ‘‘other powerdriven mobility device’’ separately from 

‘‘wheelchair’’ means that businesses will be 

able to maintain some measure of control 

over the admission of the former. Virtually 

all of these commenters indicated that their 

support for the dual approach and the 

concept of other power-driven mobility 

devices was, in large measure, due to the 

other power-driven mobility device 

assessment factors in § 36.311(c) of the 

NPRM. 

By maintaining the two-tiered approach to 

mobility devices and defining ‘‘wheelchair’’ 

separately from ‘‘other power-driven mobility 

device,’’ the Department is able to preserve 

the protection users of traditional 

wheelchairs and other manually-powered 

mobility aids have had since the ADA was 

enacted, while also recognizing that human 

ingenuity, personal choice, and new 

technologies have led to the use of devices 

that may be more beneficial for individuals 

with certain mobility disabilities. 

Moreover, the Department believes the 

two-tiered approach gives public 

accommodations guidance to follow in 

assessing whether reasonable modifications 

can be made to permit the use of other 

power-driven mobility devices on-site and to 

aid in the development of policies describing 

the circumstances under which persons with 

disabilities may use such devices. The twotiered approach neither mandates that all 

other power-driven mobility devices be 

accommodated in every circumstance, nor 

excludes these devices from all protection. 

This approach, in conjunction with the factor 

assessment provisions in § 36.311(b)(2), will 

serve as a mechanism by which public 

accommodations can evaluate their ability to 

accommodate other power-driven mobility 

devices. As will be discussed in more detail 

below, the assessment factors in 

§ 36.311(b)(2) are specifically designed to 

provide guidance to public accommodations 

regarding whether it is permissible to bar the 

use of a specific other power-driven mobility 

device in a specific facility. In making such 

a determination, a public accommodation 

must consider the device’s type, size, weight 

dimensions, and speed; the facility’s volume 

of pedestrian traffic; the facility’s design and 

operational characteristics; whether the 

device conflicts with legitimate safety 

requirements; and whether the device poses 

a substantial risk of serious harm to the 

immediate environment or natural or cultural 

resources, or conflicts with Federal land 

management laws or regulations. In addition, 

under § 36.311(b)(i) if the public 

accommodation claims that it cannot make 

reasonable modifications to its policies, 

practices, or procedures to permit the use of 

other power-driven mobility devices by 

individuals with disabilities, the burden of 

proof to demonstrate that such devices 

cannot be operated in accordance with 

legitimate safety requirements rests upon the 

public accommodation. 

Categorization of wheelchair versus other 

power-driven mobility devices. Implicit in the 

creation of the two-tiered mobility device 

concept is the question of how to categorize 

which devices are wheelchairs and which are 

other power-driven mobility devices. Finding 

weight and size to be too restrictive, the vast 

majority of advocacy, nonprofit, and 

individual commenters opposed using the 

Department of Transportation’s definition of 

‘‘common wheelchair’’ to designate the 

mobility device’s appropriate category. 

Business commenters who generally 

supported using weight and size as the 

method of categorization did so because of 

their concerns about having to make physical 

changes to their facilities to accommodate 

oversized devices. The vast majority of 

business commenters also favored using the 

device’s intended use to categorize which 

devices constitute wheelchairs and which are 

other power-driven mobility devices. 

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Furthermore, the intended-use determinant 

received a fair amount of support from 

advocacy, nonprofit, and individual 

commenters, either because they sought to 

preserve the broad accommodation of 

wheelchairs or because they sympathized 

with concerns about individuals without 

mobility disabilities fraudulently bringing 

other power-driven mobility devices into 

places of public accommodation. 

Commenters seeking to have the Segway®

PT included in the definition of ‘‘wheelchair’’ 

objected to classifying mobility devices on 

the basis of their intended use because they 

felt that such a classification would be unfair 

and prejudicial to Segway® PT users and 

would stifle personal choice, creativity, and 

innovation. Other advocacy and nonprofit 

commenters objected to employing an 

intended-use approach because of concerns 

that the focus would shift to an assessment 

of the device, rather than the needs or 

benefits to the individual with the mobility 

disability. They were of the view that the 

mobility-device classification should be 

based on its function—whether it is used to 

address a mobility disability. A few 

commenters raised the concern that an 

intended-use approach might embolden 

public accommodations to assess whether an 

individual with a mobility disability really 

needs to use the other power-driven mobility 

device at issue or to question why a 

wheelchair would not provide sufficient 

mobility. Those citing objections to the 

intended-use determinant indicated it would 

be more appropriate to make the 

categorization determination based on 

whether the device is being used for a 

mobility disability in the context of the 

impact of its use in a specific environment. 

Some of these commenters preferred this 

approach because it would allow the 

Segway® PT to be included in the definition 

of ‘‘wheelchair.’’ 

Some commenters were inclined to 

categorize mobility devices by the way in 

which they are powered, such as batterypowered engines versus fuel or combustion 

engines. One commenter suggested using 

exhaust level as the determinant. Although 

there were only a few commenters who 

would make the determination based on 

indoor or outdoor use, there was nearly 

universal support for banning from indoor 

use devices that are powered by fuel or 

combustion engines. 

A few commenters thought it would be 

appropriate to categorize the devices based 

on their maximum speed. Others objected to 

this approach, stating that circumstances 

should dictate the appropriate speed at 

which mobility devices should be operated— 

for example, a faster speed may be safer 

when crossing streets than it would be for 

sidewalk use—and merely because a device 

can go a certain speed does not mean it will 

be operated at that speed. 

The Department has decided to maintain 

the device’s intended use as the appropriate 

determinant for which devices are 

categorized as ‘‘wheelchairs.’’ However, 

because wheelchairs may be intended for use 

by individuals who have temporary 

conditions affecting mobility, the Department 

has decided that it is more appropriate to use 

the phrase ‘‘primarily designed’’ rather than 

‘‘solely designed’’ in making such 

categorizations. The Department will not 

foreclose any future technological 

developments by identifying or banning 

specific devices or setting restrictions on 

size, weight, or dimensions. Moreover, 

devices designed primarily for use by 

individuals with mobility disabilities often 

are considered to be medical devices and are 

generally eligible for insurance 

reimbursement on this basis. Finally, devices 

designed primarily for use by individuals 

with mobility disabilities are less subject to 

fraud concerns because they were not 

designed to have a recreational component. 

Consequently, rarely, if ever, is any inquiry 

or assessment as to their appropriateness for 

use in a public accommodation necessary. 

Definition of ‘‘wheelchair.’’ In seeking 

public feedback on the NPRM’s definition of 

‘‘wheelchair,’’ the Department explained its 

concern that the definition of ‘‘wheelchair’’ in 

section 508(c)(2) of the ADA (formerly 

section 507(c)(2), July 26, 1990, 104 Stat. 372, 

42 U.S.C. 12207, renumbered section 

508(c)(2), Public Law 110–325 section 6(a)(2), 

Sept. 25, 2008, 122 Stat. 3558), which 

pertains to Federal wilderness areas, is not 

specific enough to provide clear guidance in 

the array of settings covered by title III and 

that the stringent size and weight 

requirements for the Department of 

Transportation’s definition of ‘‘common 

wheelchair’’ are not a good fit in the context 

of most public accommodations. The 

Department noted in the NPRM that it sought 

a definition of ‘‘wheelchair’’ that would 

include manually-operated and power-driven 

wheelchairs and mobility scooters (i.e., those 

that typically are single-user, have three to 

four wheels, and are appropriate for both 

indoor and outdoor pedestrian areas), as well 

as a variety of types of wheelchairs and 

mobility scooters with individualized or 

unique features or models with different 

numbers of wheels. The NPRM defined a 

wheelchair as ‘‘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.’’ 73 FR 

34508, 34553 (June 17, 2008). Although the 

NPRM’s definition of ‘‘wheelchair’’ excluded 

mobility devices that are not designed solely 

for use by individuals with mobility 

disabilities, the Department, noting that the 

use of the Segway® PT by individuals with 

mobility disabilities is on the upswing, 

inquired as to whether this device should be 

included in the definition of ‘‘wheelchair.’’ 

Most business commenters wished the 

definition of ‘‘wheelchair’’ had included size, 

weight, and dimension maximums. 

Ultimately, however, they supported the 

definition because it excludes other powerdriven mobility devices and enables them to 

engage in an assessment to determine 

whether a particular device can be allowed 

as a reasonable modification. These 

commenters felt this approach gave them 

some measure of control over whether, and 

under what circumstances, other powerdriven mobility devices may be used in their 

facilities by individuals with mobility 

disabilities. Two commenters noted that 

because many mobility scooters are 

oversized, they are misplaced in the 

definition of ‘‘wheelchair’’ and belong with 

other power-driven mobility devices. 

Another commenter suggested using 

maximum size and weight requirements to 

allocate which mobility scooters should be 

categorized as wheelchairs, and which 

should be categorized as other power-driven 

mobility devices. 

Many advocacy, nonprofit, and individual 

commenters indicated that as long as the 

Department intends the scope of the term 

‘‘mobility impairments’’ to include other 

disabilities that cause mobility impairments 

(e.g., respiratory, circulatory, stamina, etc.), 

they were in support of the language. Several 

commenters indicated a preference for the 

definition of ‘‘wheelchair’’ in section 

508(c)(2) of the ADA. One commenter 

indicated a preference for the term ‘‘assistive 

device,’’ as it is defined in the Rehabilitation 

Act of 1973, over the term ‘‘wheelchair.’’ A 

few commenters indicated that strollers 

should be added to the preamble’s list of 

examples of wheelchairs because parents of 

children with disabilities frequently use 

strollers as mobility devices until their 

children get older. 

In the final rule, the Department has 

rearranged some wording and has made some 

changes in the terminology used in the 

definition of ‘‘wheelchair,’’ but essentially has 

retained the definition, and therefore the 

rationale, that was set forth in the NPRM. 

Again, the text of the ADA makes the 

definition of ‘‘wheelchair’’ contained in 

section 508(c)(2) applicable only to the 

specific context of uses in designated 

wilderness areas, and therefore does not 

compel the use of that definition for any 

other purpose. Moreover, the Department 

maintains that limiting the definition to 

devices suitable for use in an ‘‘indoor 

pedestrian area’’ as provided for in section 

508(c)(2) of the ADA would ignore the 

technological advances in wheelchair design 

that have occurred since the ADA went into 

effect and that the inclusion of the phrase 

‘‘indoor pedestrian area’’ in the definition of 

‘‘wheelchair’’ would set back progress made 

by individuals with mobility disabilities 

who, for many years now, have been using 

devices designed for locomotion in indoor 

and outdoor settings. The Department has 

concluded that same rationale applies to 

placing limits on the size, weight, and 

dimensions of wheelchairs. 

With regard to the term ‘‘mobility 

impairments,’’ the Department intended a 

broad reading so that a wide range of 

disabilities, including circulatory and 

respiratory disabilities, that make walking 

difficult or impossible, would be included. In 

response to comments on this issue, the 

Department has revisited the issue and has 

concluded that the most apt term to achieve 

this intent is ‘‘mobility disability.’’ 

In addition, the Department has decided 

that it is more appropriate to use the phrase, 

‘‘primarily’’ designed for use by individuals 

with disabilities in the final rule, rather than, 

‘‘solely’’ designed for use by individuals with 

disabilities—the phrase, proposed in the 

NPRM. The Department believes that this 

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phrase more accurately covers the range of 

devices the Department intends to fall within 

the definition of ‘‘wheelchair.’’ 

After receiving comments that the word 

‘‘typical’’ is vague and the phrase ‘‘pedestrian 

areas’’ is confusing to apply, particularly in 

the context of similar, but not identical, 

terms used in the proposed Standards, the 

Department decided to delete the term 

‘‘typical indoor and outdoor pedestrian areas’’ 

from the final rule. Instead, the final rule 

references ‘‘indoor or * * * both indoor and 

outdoor locomotion,’’ to make clear that the 

devices that fall within the definition of 

‘‘wheelchair’’ are those that are used for 

locomotion on indoor and outdoor pedestrian 

paths or routes and not those that are 

intended exclusively for traversing 

undefined, unprepared, or unimproved paths 

or routes. Thus, the final rule defines the 

term ‘‘wheelchair’’ to mean ‘‘a manuallyoperated or power-driven device designed 

primarily for use by an individual with a 

mobility disability for the main purpose of 

indoor or of both indoor and outdoor 

locomotion.’’ 

Whether the definition of ‘‘wheelchair’’ 

includes the Segway® PT. As discussed 

above, because individuals with mobility 

disabilities are using the Segway® PT as a 

mobility device, the Department asked 

whether it should be included in the 

definition of ‘‘wheelchair.’’ The basic 

Segway® PT 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. Most Segway® PTs can 

travel up to 121⁄2 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 non-motorized 

transportation users including EPAMDs, the 

Federal Highway Administration (FHWA) 

found that the eye height of individuals using 

EPAMDs ranged from approximately 69 to 80 

inches. See Federal Highway Administration, 

Characteristics of Emerging Road and Trail 

Users and Their Safety (Oct. 14, 2004), 

available at http://www.tfhrc.gov/safety/ 

pubs/04103 (last visited June 24, 2010). Thus, 

the Segway® PT can operate at much greater 

speeds than wheelchairs, and the average 

user stands much taller than most wheelchair 

users. 

The Segway® PT has been the subject of 

debate among users, pedestrians, disability 

advocates, State and local governments, 

businesses, and bicyclists. The fact that the 

Segway® PT is not designed primarily for use 

by individuals with disabilities, nor used 

primarily by persons with disabilities, 

complicates the question of to what extent 

individuals with disabilities should be 

allowed to operate them in areas and 

facilities where other power-driven mobility 

devices are not allowed. Those who question 

the use of the Segway® PT 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. 

Comments regarding whether to include 

the Segway® PT in the definition of 

‘‘wheelchair’’ were, by far, the most numerous 

received in the category of comments 

regarding wheelchairs and other powerdriven mobility devices. Significant numbers 

of veterans with disabilities, individuals with 

multiple sclerosis, and those advocating on 

their behalf made concise statements of 

general support for the inclusion of the 

Segway® PT in the definition of 

‘‘wheelchair.’’ Two veterans offered extensive 

comments on the topic, along with a few 

advocacy and nonprofit groups and 

individuals with disabilities for whom sitting 

is uncomfortable or impossible. 

While there may be legitimate safety issues 

for EPAMD users and bystanders in some 

circumstances, EPAMDs and other nontraditional mobility devices can deliver real 

benefits to individuals with disabilities. 

Among the reasons given by commenters to 

include the Segway® PT in the definition of 

‘‘wheelchair’’ were that the Segway® PT is 

well-suited for individuals with particular 

conditions that affect mobility including 

multiple sclerosis, Parkinson’s disease, 

chronic obstructive pulmonary disease, 

amputations, spinal cord injuries, and other 

neurological disabilities, as well as 

functional limitations, such as gait limitation, 

inability to sit or discomfort in sitting, and 

diminished stamina issues. 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. Commenters specifically cited 

pressure relief, reduced spasticity, increased 

stamina, and improved respiratory, 

neurologic, and muscular health as 

secondary medical benefits from being able 

to stand. 

Other arguments for including the 

Segway® PT in the definition of ‘‘wheelchair’’ 

were based on commenters’ views that the 

Segway® PT offers benefits not provided by 

wheelchairs and mobility scooters, including 

its intuitive response to body movement, 

ability to operate with less coordination and 

dexterity than is required for many 

wheelchairs and mobility scooters, and 

smaller footprint and turning radius as 

compared to most wheelchairs and mobility 

scooters. Several commenters mentioned 

improved visibility, either due to the 

Segway® PT’s raised platform or simply by 

virtue of being in a standing position. And 

finally, some commenters advocated for the 

inclusion of the Segway® PT simply based on 

civil rights arguments and the empowerment 

and self-esteem obtained from having the 

power to select the mobility device of choice. 

Many commenters, regardless of their 

position on whether to include the Segway®

PT in the definition of ‘‘wheelchair,’’ noted 

that the Segway® PT’s safety record is as 

good as, if not better, than the record for 

wheelchairs and mobility scooters. 

Most business commenters were opposed 

to the inclusion of the Segway® PT in the 

definition of ‘‘wheelchair’’ but were 

supportive of its inclusion as an ‘‘other 

power-driven mobility device.’’ They raised 

industry- or venue-specific concerns about 

including the Segway® PT in the definition 

of ‘‘wheelchair.’’ For example, civic centers, 

arenas, and theaters were concerned about 

the impact on sight-line requirements if 

Segway® PT users remain on their devices in 

a designated wheelchair seating area; 

amusement parks expressed concern that 

rides have been designed, purchased, and 

installed to enable wheelchair users to 

transfer easily or to accommodate 

wheelchairs on the ride itself; and retail 

stores mentioned size constraints in some 

stores. Nearly all business commenters 

expressed concern—and perceived liability 

issues—related to having to store or stow the 

Segway® PT, particularly if it could not be 

stored in an upright position. These 

commenters cited concerns about possible 

damage to the device, injury to customers 

who may trip over it, and theft of the device 

as a result of not being able to stow the 

Segway® PT securely. 

Virtually every business commenter 

mentioned concerns about rider safety, as 

well as concerns for pedestrians 

unexpectedly encountering these devices or 

being hit or run over by these devices in 

crowded venues where maneuvering space is 

limited. Their main safety objection to the 

inclusion of the Segway® PT in the definition 

of ‘‘wheelchair’’ was that the maximum speed 

at which the Segway® PT can operate is far 

faster than that of motorized wheelchairs. 

There was a universal unease among these 

commenters with regard to relying on the 

judgment of the Segway® PT user to exercise 

caution because its top speed is far in excess 

of a wheelchair’s top speed. Many other 

safety concerns were industry-specific. For 

example, amusement parks were concerned 

that the Segway® PT is much taller than 

children; that it is too quiet to warn 

pedestrians, particularly those with low 

vision or who are blind, of their presence; 

that it may keep moving after a rider has 

fallen off or power system fails; and that it 

has a full-power override which 

automatically engages when an obstacle is 

encountered. Hotels and retail stores 

mentioned that maneuvering the Segway® PT 

through their tight quarters would create 

safety hazards. 

Business commenters also expressed 

concern that if the Segway® PT were 

included in the definition of ‘‘wheelchair’’ 

they would have to make physical changes to 

their facilities to accommodate Segway® PT 

riders who stand much taller in these devices 

than do users of wheelchairs. They also were 

concerned that if the Segway®7 PT was 

included in the definition of ‘‘wheelchair,’’ 

they would have no ability to assess whether 

it is appropriate to allow the entry of the 

Segway® PT into their facilities the way they 

would have if the device is categorized as an 

‘‘other power-driven mobility device.’’ 

Many disability advocacy and nonprofit 

commenters did not support the inclusion of 

the Segway® PT in the definition of 

‘‘wheelchair.’’ Paramount to these 

commenters was the maintenance of existing 

protections for wheelchair users. Because 

there was unanimous agreement that 

wheelchair use rarely, if ever, may be 

restricted, these commenters strongly favored 

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categorizing wheelchairs separately from the 

Segway® PT and other power-driven mobility 

devices and applying the intended-use 

determinant to assign the devices to either 

category. They indicated that while they 

support the greatest degree of access in 

public accommodations for all persons with 

disabilities who require the use of mobility 

devices, they recognize that under certain 

circumstances allowing the use of other 

power-driven mobility devices would result 

in a fundamental alteration or run counter to 

legitimate safety requirements necessary for 

the safe operation of a public 

accommodation. While these groups 

supported categorizing the Segway® PT as an 

‘‘other power-driven mobility device,’’ they 

universally noted that because the Segway®

PT does not present environmental concerns 

and is as safe to use as, if not safer than, a 

wheelchair, it should be accommodated in 

most circumstances. 

The Department has considered all the 

comments and has concluded that it should 

not include the Segway® PT in the definition 

of ‘‘wheelchair.’’ The final rule provides that 

the test for categorizing a device as a 

wheelchair or an other power-driven 

mobility device is whether the device is 

designed primarily for use by individuals 

with mobility disabilities. Mobility scooters 

are included in the definition of ‘‘wheelchair’’ 

because they are designed primarily for users 

with mobility disabilities. However, because 

the current generation of EPAMDs, including 

the Segway® PT, was designed for 

recreational users and not primarily for use 

by individuals with mobility disabilities, the 

Department has decided to continue its 

approach of excluding EPAMDs from the 

definition of ‘‘wheelchair’’ and including 

them in the definition of ‘‘other power-driven 

mobility device.’’ Although EPAMDs, such as 

the Segway® PT, are not included in the 

definition of a ‘‘wheelchair,’’ public 

accommodations must assess whether they 

can make reasonable modifications to permit 

individuals with mobility disabilities to use 

such devices on their premises. The 

Department recognizes that the Segway® PT 

provides many benefits to those who use 

them as mobility devices, including a 

measure of privacy with regard to the nature 

of one’s particular disability, and believes 

that in the vast majority of circumstances, the 

application of the factors described in 

§ 36.311 for providing access to otherpowered mobility devices will result in the 

admission of the Segway® PT. 

Treatment of ‘‘manually-powered mobility 

aids.’’ The Department’s NPRM did not 

define the term ‘‘manually-powered mobility 

aids.’’ Instead, the NPRM included a nonexhaustive list of examples in § 36.311(a). 

The NPRM queried whether the Department 

should maintain this approach to manuallypowered mobility aids or whether it should 

adopt a more formal definition. 

Only a few commenters addressed 

‘‘manually-powered mobility aids.’’ Virtually 

all commenters were in favor of maintaining 

a non-exhaustive list of examples of 

‘‘manually-powered mobility aids’’ rather 

than adopting a definition of the term. Of 

those who commented, a couple sought 

clarification of the term ‘‘manually-powered.’’ 

One commenter suggested that the term be 

changed to ‘‘human-powered.’’ Other 

commenters requested that the Department 

include ordinary strollers in the nonexhaustive list of manually-powered mobility 

aids. Since strollers are not devices designed 

primarily for individuals with mobility 

disabilities, the Department does not 

consider them to be manually-powered 

mobility aids; however, strollers used in the 

context of transporting individuals with 

disabilities are subject to the same 

assessment required by the ADA’s reasonable 

modification standards at § 36.302. The 

Department believes that because the existing 

approach is clear and understood easily by 

the public, no formal definition of the term 

‘‘manually-powered mobility aids’’ is 

required. 

Definition of ‘‘other power-driven mobility 

device.’’ The Department’s NPRM defined the 

term ‘‘other power-driven mobility device’’ in 

§ 36.104 as ‘‘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.’’ 73 FR 34508, 34552 (June 17, 2008). 

Business commenters mostly were 

supportive of the definition of ‘‘other powerdriven mobility device’’ because it gave them 

the ability to develop policies pertaining to 

the admission of these devices, but they 

expressed concern that individuals will feign 

mobility disabilities so that they can use 

devices that are otherwise banned in public 

accommodations. Advocacy, nonprofit, and 

several individual commenters supported the 

definition of ‘‘other power-driven mobility 

device’’ because it allows new technologies to 

be added in the future, maintains the existing 

legal protections for wheelchairs, and 

recognizes that some devices, particularly the 

Segway® PT, which are not designed 

primarily for individuals with mobility 

disabilities, have beneficial uses for 

individuals with mobility disabilities. 

Despite support for the definition of ‘‘other 

power-driven mobility device,’’ however, 

most advocacy and nonprofit commenters 

expressed at least some hesitation about the 

inclusion of fuel-powered mobility devices in 

the definition. While virtually all of these 

commenters noted that a blanket exclusion of 

any device that falls under the definition of 

‘‘other power-driven mobility device’’ would 

violate basic civil rights concepts, they also 

specifically stated that certain devices, 

particularly off-highway vehicles, cannot be 

permitted in certain circumstances. They also 

made a distinction between the Segway® PT 

and other power-driven mobility devices, 

noting that the Segway® PT should be 

accommodated in most circumstances 

because it satisfies the safety and 

environmental elements of the policy 

analysis. These commenters indicated that 

they agree that other power-driven mobility 

devices must be assessed, particularly as to 

their environmental impact, before they are 

accommodated. 

Business commenters were even less 

supportive of the inclusion of fuel-powered 

devices in the other power-driven mobility 

devices category. They sought a complete ban 

on fuel-powered devices because they believe 

they are inherently dangerous and pose 

environmental and safety concerns. 

Although many commenters had 

reservations about the inclusion of fuelpowered devices in the definition of other 

power-driven mobility devices, the 

Department does not want the definition to 

be so narrow that it would foreclose the 

inclusion of new technological 

developments, whether powered by fuel or 

by some other means. It is for this reason that 

the Department has maintained the phrase 

‘‘any mobility device designed to operate in 

areas without defined pedestrian routes’’ in 

the final rule’s definition of other powerdriven mobility devices. The Department 

believes that the limitations provided by 

‘‘fundamental alteration’’ and the ability to 

impose legitimate safety requirements will 

likely prevent the use of fuel and combustion 

engine-driven devices indoors, as well as in 

outdoor areas with heavy pedestrian traffic. 

The Department notes, however, that in the 

future technological developments may 

result in the production of safe fuel-powered 

mobility devices that do not pose 

environmental and safety concerns. The final 

rule allows consideration to be given as to 

whether the use of a fuel-powered device 

would create a substantial risk of serious 

harm to the environment or natural or 

cultural resources, and to whether the use of 

such a device conflicts with Federal land 

management laws or regulations; this aspect 

of the final rule will further limit the 

inclusion of fuel-powered devices where they 

are not appropriate. Consequently, the 

Department has maintained fuel-powered 

devices in the definition of ‘‘other powerdriven mobility devices.’’ The Department 

has also added language to the definition of 

‘‘other power-driven mobility device’’ to 

reiterate that the definition does not apply to 

Federal wilderness areas, which are not 

covered by title II of the ADA; the use of 

wheelchairs in such areas is governed by 

section 508(c)(2) of the ADA, 42 U.S.C. 

12207(c)(2). 

‘‘Place of Public Accommodation’’ 

Definition of ‘‘place of lodging.’’ The NPRM 

stated that a covered ‘‘place of lodging’’ is a 

facility that provides guest rooms for sleeping 

for stays that are primarily short-term in 

nature (generally two weeks or less), to 

which 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, and 

which operates under conditions and with 

amenities similar to a hotel, motel, or inn, 

particularly including factors such as: (1) An 

on-site proprietor and reservations desk; (2) 

rooms available on a walk-up basis; (3) linen 

service; and (4) a policy of accepting 

reservations for a room type without 

guaranteeing a particular unit or room until 

check-in, without a prior lease or security 

deposit. The NPRM stated that timeshares 

and condominiums or corporate hotels that 

did not meet this definition would not be 

covered by § 36.406(c) of the proposed 

regulation, but may be covered by the 

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requirements of the Fair Housing Act 

(FHAct). 

In the NPRM, the Department sought 

comment on its definition of ‘‘place of 

lodging,’’ specifically seeking public input on 

whether the most appropriate time period for 

identifying facilities used for stays that 

primarily are short-term in nature should be 

set at 2 weeks or 30 days. 

The vast majority of the comments 

received by the Department supported the 

use of a 30-day limitation on places of 

lodging as more consistent with building 

codes, local laws, and common real estate 

practices that treat stays of 30 days or less as 

transient rather than residential use. One 

commenter recommended using the phrase 

‘‘fourteen days or less.’’ Another commenter 

objected to any bright line standard, stating 

that the difference between two weeks and 30 

days for purposes of title III is arbitrary, 

viewed in light of conflicting regulations by 

the States. This commenter argued the 

Department should continue its existing 

practice under title III of looking to State law 

as one factor in determining whether a 

facility is used for stays that primarily are 

short-term in nature. 

The Department is persuaded by the 

majority of commenters to adopt a 30-day 

guideline for the purposes of identifying 

facilities that primarily are short-term in 

nature and has modified the section 

accordingly. The 30-day guideline is 

intended only to determine when the final 

rule’s transient lodging provisions apply to a 

facility. It does not alter an entity’s 

obligations under any other applicable 

statute. For example, the Department 

recognizes that the FHAct does not employ 

a bright line standard for determining which 

facilities qualify as residential facilities 

under that Act and that there are 

circumstances where units in facilities that 

meet the definition of places of lodging will 

be covered under both the ADA and the 

FHAct and will have to comply with the 

requirements of both laws. 

The Department also received comments 

about the factors used in the NPRM’s 

definition of ‘‘place of lodging.’’ One 

commenter proposed modifications to the 

definition as follows: changing the words 

‘‘guest rooms’’ to ‘‘accommodations for 

sleeping’’; and adding a fifth factor that states 

that ‘‘the in-room decor, furnishings and 

equipment being specified by the owner or 

operator of the lodging operation rather than 

generally being determined by the owner of 

the individual unit or room.’’ The Department 

does not believe that ‘‘guest room’’ should be 

changed to ‘‘accommodations for sleeping.’’ 

Such a change would create confusion 

because the transient lodging provisions in 

the 2004 ADAAG use the term ‘‘guest rooms’’ 

and not ‘‘accommodations for sleeping.’’ In 

addition, the Department believes that it 

would be confusing to add a factor relating 

to who dictates the in-room decor and 

furnishings in a unit or room, because there 

may be circumstances where particular rental 

programs require individual owners to use 

certain decor and furnishings as a condition 

of participating in that program. 

One commenter stated that the factors the 

Department has included for determining 

whether a rental unit is a place of lodging for 

the purposes of title III, and therefore a ‘‘place 

of public accommodation’’ under the ADA, 

address only the way an establishment 

appears to the public. This commenter 

recommended that the Department also 

consider the economic relationships among 

the unit owners, rental managers, and 

homeowners’ associations, noting that where 

revenues are not pooled (as they are in a 

hotel), the economic relationships do not 

make it possible to spread the cost of 

providing accessibility features over the 

entire business enterprise. Another 

commenter argued that private ownership of 

sleeping accommodations sets certain 

facilities apart from traditional hotels, 

motels, and inns, and that the Department 

should revise the definition of places of 

lodging to exempt existing places of lodging 

that have sleeping accommodations 

separately owned by individual owners (e.g., 

condominiums) from the accessible transient 

lodging guest room requirements in sections 

224 and 806 of the 2004 ADAAG, although 

the commenter agreed that newly constructed 

places of lodging should meet those 

standards. 

One commenter argued that the 

Department’s proposed definition of place of 

lodging does not reflect fully the nature of a 

timeshare facility and one single definition 

does not fit timeshares, condo hotels, and 

other types of rental accommodations. This 

commenter proposed that the Department 

adopt a separate definition for timeshare 

resorts as a subcategory of place of lodging. 

The commenter proposed defining timeshare 

resorts as facilities that provide the recurring 

right to occupancy for overnight 

accommodations for the owners of the 

accommodations, and other occupancy rights 

for owners exchanging their interests or 

members of the public for stays that 

primarily are short-term in nature (generally 

30 consecutive days or less), where neither 

the owner nor any other occupant has the 

right or intent to use the unit or room on 

other than a temporary basis for vacation or 

leisure purposes. This proposed definition 

also would describe factors for determining 

when a timeshare resort is operating in a 

manner similar to a hotel, motel, or inn, 

including some or all of the following: rooms 

being available on a walk-in or call-in basis; 

housekeeping or linen services being 

available; on-site management; and 

reservations being accepted for a room type 

without guaranteeing any guest or owner use 

of a particular unit or room until check-in, 

without a prior lease or security deposit. 

Timeshares that do not meet this definition 

would not be subject to the transient lodging 

standards. 

The Department has considered these 

comments and has revised the definition of 

‘‘place of accommodation’’ in § 36.104 to 

include a revised subcategory (B), which 

more clearly defines the factors that must be 

present for a facility that is not an inn, motel, 

or hotel to qualify as a place of lodging. 

These factors include conditions and 

amenities similar to an inn, motel, or hotel, 

including on- or off-site management and 

reservations service, rooms available on a 

walk-up or call-in basis, availability of 

housekeeping or linen service, and accepting 

reservations for a room type without 

guaranteeing a particular unit or room until 

check-in without a prior lease or security 

deposit. 

Although the Department understands 

some of the concerns about the application 

of the ADA requirements to places of lodging 

that have ownership structures that involve 

individually owned units, the Department 

does not believe that the definitional section 

of the regulation is the place to address these 

concerns and has addressed them in 

§ 36.406(c)(2) and the accompanying 

discussion in Appendix A. 

‘‘Qualified Interpreter’’ 

In the NPRM, the Department proposed 

adding language to the definition of 

‘‘qualified interpreter’’ to clarify that the term 

includes, but is not limited to, sign language 

interpreters, oral interpreters, and cuedspeech interpreters. As the Department 

explained, not all interpreters are qualified 

for all situations. For example, a qualified 

interpreter who uses American Sign 

Language (ASL) is not necessarily qualified 

to interpret orally. In addition, someone with 

only a rudimentary familiarity with sign 

language or finger spelling is not qualified, 

nor is someone who is fluent in sign language 

but unable to translate spoken 

communication into ASL or to translate 

signed communication into spoken words. 

As further explained, different situations 

will require different types of interpreters. 

For example, an oral interpreter who has 

special skill and training to mouth a 

speaker’s words silently for individuals who 

are deaf or hard of hearing may be necessary 

for an individual who was raised orally and 

taught to read lips or was diagnosed with 

hearing loss later in life and does not know 

sign language. An individual who is deaf or 

hard of hearing may need an oral interpreter 

if the speaker’s voice is unclear, if there is 

a quick-paced exchange of communication 

(e.g., in a meeting), or when the speaker does 

not directly face the individual who is deaf 

or hard of hearing. A cued-speech interpreter 

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. 

The Department received many comments 

regarding the proposed modifications to the 

definition of ‘‘qualified interpreter.’’ Many 

commenters requested that the Department 

include within the definition a requirement 

that interpreters be certified, particularly if 

they reside in a State that licenses or certifies 

interpreters. Other commenters opposed a 

certification requirement as unduly limiting, 

noting that an interpreter may well be 

qualified even if that same interpreter is not 

certified. These commenters noted the 

absence of nationwide standards or 

universally accepted criteria for certification. 

On review of this issue, the Department 

has decided against imposing a certification 

requirement under the ADA. It is sufficient 

under the ADA that the interpreter be 

qualified. With respect to the proposed 

additions to the rule, most commenters 

supported the expansion of the list of 

qualified interpreters, and some advocated 

for the inclusion of other types of interpreters 

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on the list as well, such as deaf-blind 

interpreters, certified deaf interpreters, and 

speech-to-speech interpreters. As these 

commenters explained, deaf-blind 

interpreters are interpreters who have 

specialized skills and training to interpret for 

individuals who are deaf and blind. Certified 

deaf interpreters are deaf or hard of hearing 

interpreters who work with hearing sign 

language interpreters to meet the specific 

communication needs of deaf individuals. 

Speech-to-speech interpreters have special 

skill and training to interpret for individuals 

who have speech disabilities. 

The list of interpreters in the definition of 

‘‘qualified interpreter’’ is illustrative, and the 

Department does not believe it is necessary 

or appropriate to attempt to provide an 

exhaustive list of qualified interpreters. 

Accordingly, the Department has decided not 

to expand the proposed list. However, if a 

deaf and blind individual needs interpreting 

services, an interpreter who is qualified to 

handle the interpreting needs of that 

individual may be required. The guiding 

criterion is that the public accommodation 

must provide appropriate auxiliary aids and 

services to ensure effective communication 

with the individual. 

Commenters also suggested various 

definitions for the term ‘‘cued-speech 

interpreters,’’ and different descriptions of 

the tasks they performed. After reviewing the 

various comments, the Department has 

determined that it is more accurate and 

appropriate to refer to such individuals as 

‘‘cued-language transliterators.’’ Likewise, the 

Department has changed the term ‘‘oral 

interpreters’’ to ‘‘oral transliterators.’’ These 

two changes have been made to distinguish 

between sign language interpreters, who 

translate one language into another language 

(e.g., ASL to English and English to ASL), 

from transliterators, who interpret within the 

same language between deaf and hearing 

individuals. A cued-language transliterator is 

an interpreter who has special skill and 

training in the use of the Cued Speech system 

of handshapes and placements, along with 

non-manual information, such as facial 

expression and body language, to show 

auditory information visually, including 

speech and environmental sounds. An oral 

transliterator is an interpreter who has 

special skill and training to mouth a 

speaker’s words silently for individuals who 

are deaf or hard of hearing. While the 

Department included definitions for ‘‘cuedspeech interpreter’’ and ‘‘oral interpreter’’ in 

the regulatory text proposed in the NPRM, 

the Department has decided that it is 

unnecessary to include such definitions in 

the text of the final rule. 

Many commenters questioned the 

proposed deletion of the requirement that a 

qualified interpreter be able to interpret both 

receptively and expressively, noting the 

importance of both these skills. Commenters 

noted that this phrase was carefully crafted 

in the original regulation to make certain that 

interpreters both (1) are capable of 

understanding what a person with a 

disability is saying and (2) have the skills 

needed to convey information back to that 

individual. These are two very different skill 

sets and both are equally important to 

achieve effective communication. For 

example, in a medical setting, a sign language 

interpreter must have the necessary skills to 

understand the grammar and syntax used by 

an ASL user (receptive skills) and the ability 

to interpret complicated medical 

information—presented by medical staff in 

English—back to that individual in ASL 

(expressive skills). The Department agrees 

and has put the phrase ‘‘both receptively and 

expressively’’ back in the definition. 

Several advocacy groups suggested that the 

Department make clear in the definition of 

qualified interpreter that the interpreter may 

appear either on-site or remotely using a 

video remote interpreting (VRI) service. 

Given that the Department has included in 

this rule both a definition of VRI services and 

standards that such services must satisfy, 

such an addition to the definition of qualified 

interpreter is appropriate. 

After consideration of all relevant 

information submitted during the public 

comment period, the Department has 

modified the definition from that initially 

proposed in the NPRM. The final definition 

now states that ‘‘[q]ualified interpreter means 

an interpreter who, via a video remote 

interpreting (VRI) service or an on-site 

appearance, is able to interpret effectively, 

accurately, and impartially, both receptively 

and expressively, using any necessary 

specialized vocabulary. Qualified interpreters 

include, for example, sign language 

interpreters, oral transliterators, and cuedlanguage transliterators.’’ 

‘‘Qualified Reader’’ 

The 1991 title III regulation identified a 

qualified reader as an auxiliary aid, but did 

not define the term. Based upon the 

Department’s investigation of complaints 

alleging that some entities have provided 

ineffective readers, the Department proposed 

in the NPRM to define ‘‘qualified reader’’ 

similarly to ‘‘qualified interpreter’’ to ensure 

that public accommodations select qualified 

individuals to read an examination or other 

written information in an effective, accurate, 

and impartial manner. This proposal was 

suggested in order to make clear to public 

accommodations that a failure to provide a 

qualified reader to a person with a disability 

may constitute a violation of the requirement 

to provide appropriate auxiliary aids and 

services. 

The Department received comments 

supporting the inclusion in the regulation of 

a definition of a ‘‘qualified reader.’’ Some 

commenters suggested the Department add to 

the definition a requirement prohibiting the 

use of a reader whose accent, diction, or 

pronunciation makes full comprehension of 

material being read difficult. Another 

commenter requested that the Department 

include a requirement that the reader ‘‘will 

follow the directions of the person for whom 

he or she is reading.’’ Commenters also 

requested that the Department define 

‘‘accurately’’ and ‘‘effectively’’ as used in this 

definition. 

While the Department believes that the 

regulatory definition proposed in the NPRM 

adequately addresses these concerns, the 

Department emphasizes that a reader, in 

order to be ‘‘qualified,’’ must be skilled in 

reading the language and subject matter and 

must be able to be easily understood by the 

individual with the disability. For example, 

if a reader is reading aloud the questions for 

a bar examination, that reader, in order to be 

qualified, must know the proper 

pronunciation of all legal terminology used 

and must be sufficiently articulate to be 

easily understood by the individual with a 

disability for whom he or she is reading. In 

addition, the terms ‘‘effectively’’ and 

‘‘accurately’’ have been successfully used and 

understood in the Department’s existing 

definition of ‘‘qualified interpreter’’ since 

1991 without specific regulatory definitions. 

Instead, the Department has relied upon the 

common use and understanding of those 

terms from standard English dictionaries. 

Thus, the definition of ‘‘qualified reader’’ has 

not been changed from that contained in the 

NPRM. The final rule defines a ‘‘qualified 

reader’’ to mean ‘‘a person who is able to read 

effectively, accurately, and impartially using 

any necessary specialized vocabulary.’’ 

‘‘Service Animal’’ 

Section 36.104 of the 1991 title III 

regulation defines a ‘‘service animal’’ as ‘‘any 

guide dog, signal dog, or other 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 with impaired vision, 

alerting individuals with impaired hearing to 

intruders or sounds, providing minimal 

protection or rescue work, pulling a 

wheelchair, or fetching dropped items.’’ 

Section 36.302(c)(1) of the 1991 title III 

regulation requires that ‘‘[g]enerally, a public 

accommodation shall modify policies, 

practices, or procedures to permit the use of 

a service animal by an individual with a 

disability.’’ Section 36.302(c)(2) of the 1991 

title III regulation states that ‘‘a public 

accommodation [is not required] to supervise 

or care for a service animal.’’ 

The Department has issued guidance and 

provided technical assistance and 

publications concerning service animals 

since the 1991 regulations became effective. 

In the NPRM, the Department proposed to 

modify the definition of service animal and 

asked for public input on several issues 

related to the service animal provisions of the 

1991 title III regulation: whether the 

Department should clarify the phrase 

‘‘providing minimal protection’’ in the 

definition or remove it; whether there are any 

circumstances where a service animal 

‘‘providing minimal protection’’ would be 

appropriate or expected; whether certain 

species should be eliminated from the 

definition of ‘‘service animal,’’ and, if so, 

which types of animals should be excluded; 

whether ‘‘common domestic animal’’ should 

be part of the definition; and whether a size 

or weight limitation should be imposed for 

common domestic animals, even if the 

animal satisfies the ‘‘common domestic 

animal’’ part of the NPRM definition. 

The Department received extensive 

comments on these issues, as well as requests 

to clarify the obligations of public 

accommodations to accommodate 

individuals with disabilities who use service 

animals, and has modified the final rule in 

response. In the interests of avoiding 

unnecessary repetition, the Department has 

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elected to discuss the issues raised in the 

NPRM questions about service animals and 

the corresponding public comments in the 

following discussion of the definition of 

‘‘service animal.’’ 

The Department’s final rule defines 

‘‘service animal’’ as ‘‘any dog that is 

individually trained to do work or perform 

tasks for the benefit of an individual with a 

disability, including a physical, sensory, 

psychiatric, intellectual, or other mental 

disability. Other species of animals, whether 

wild or domestic, trained or untrained, are 

not service animals for the purposes of this 

definition. The work or tasks performed by 

a service animal must be directly related to 

the handler’s disability. Examples of work or 

tasks include, but are not limited to, assisting 

individuals who are blind or have low vision 

with navigation and other tasks, alerting 

individuals who are deaf or hard of hearing 

to the presence of people or sounds, 

providing non-violent protection or rescue 

work, pulling a wheelchair, assisting an 

individual during a seizure, alerting 

individuals to the presence of allergens, 

retrieving items such as medicine or the 

telephone, providing physical support and 

assistance with balance and stability to 

individuals with mobility disabilities, and 

helping persons with psychiatric and 

neurological disabilities by preventing or 

interrupting impulsive or destructive 

behaviors. The crime deterrent effects of an 

animal’s presence and the provision of 

emotional support, well-being, comfort, or 

companionship do not constitute work or 

tasks for the purposes of this definition.’’ 

This definition has been designed to clarify 

a key provision of the ADA. Many covered 

entities indicated that they are confused 

regarding their obligations under the ADA 

with regard to individuals with disabilities 

who use service animals. Individuals with 

disabilities who use trained guide or service 

dogs are concerned that if untrained or 

unusual animals are termed ‘‘service 

animals,’’ their own right to use guide or 

service dogs may become unnecessarily 

restricted or questioned. Some individuals 

who are not individuals with disabilities 

have claimed, whether fraudulently or 

sincerely (albeit mistakenly), that their 

animals are service animals covered by the 

ADA, in order to gain access to hotels, 

restaurants, and other places of public 

accommodation. The increasing use of wild, 

exotic, or unusual species, many of which are 

untrained, as service animals has also added 

to the confusion. 

Finally, individuals with disabilities who 

have the legal right under the Fair Housing 

Act (FHAct) to use certain animals in their 

homes as a reasonable accommodation to 

their disabilities have assumed that their 

animals also qualify under the ADA. This is 

not necessarily the case, as discussed below. 

The Department recognizes the diverse 

needs and preferences of individuals with 

disabilities protected under the ADA, and 

does not wish to unnecessarily impede 

individual choice. Service animals play an 

integral role in the lives of many individuals 

with disabilities, and with the clarification 

provided by the final rule, individuals with 

disabilities will continue to be able to use 

their service animals as they go about their 

daily activities. The clarification will also 

help to ensure that the fraudulent or 

mistaken use of other animals not qualified 

as service animals under the ADA will be 

deterred. A more detailed analysis of the 

elements of the definition and the comments 

responsive to the service animal provisions 

of the NPRM follows. 

Providing minimal protection. The 1991 

title III regulation included language stating 

that ‘‘minimal protection’’ was a task that 

could be performed by an individually 

trained service animal for the benefit of an 

individual with a disability. In the 

Department’s ‘‘ADA Business Brief on Service 

Animals’’ (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). 

The Department received many comments in 

response to the question of whether the 

‘‘minimal protection’’ language should be 

clarified. Many commenters urged the 

removal of the ‘‘minimal protection’’ language 

from the service animal definition for two 

reasons: (1) The phrase can be interpreted to 

allow any dog that is trained to be aggressive 

to qualify as a service animal simply by 

pairing the animal with a person with a 

disability; and (2) The phrase can be 

interpreted to allow any untrained pet dog to 

qualify as a service animal, since many 

consider the mere presence of a dog to be a 

crime deterrent, and thus sufficient to meet 

the minimal protection standard. These 

commenters argued, and the Department 

agrees, that these interpretations were not 

contemplated under the original title III 

regulation. 

While many commenters stated that they 

believe that the ‘‘minimal protection’’ 

language should be eliminated, other 

commenters recommended that the language 

be clarified, but retained. Commenters 

favoring clarification of the term suggested 

that the Department explicitly exclude the 

function of attack or exclude those animals 

that are trained solely to be aggressive or 

protective. Other commenters identified nonviolent behavioral tasks that could be 

construed as minimally protective, such as 

interrupting self-mutilation, providing safety 

checks and room searches, reminding the 

handler to take medications, and protecting 

the handler from injury resulting from 

seizures or unconsciousness. 

Several commenters noted that the existing 

direct threat defense, which allows the 

exclusion of a service animal if the animal 

exhibits unwarranted or unprovoked violent 

behavior or poses a direct threat, prevents the 

use of ‘‘attack dogs’’ as service animals. One 

commenter noted that the use of a service 

animal trained to provide ‘‘minimal 

protection’’ may impede access to care in an 

emergency, for example, where the first 

responder is unable or reluctant to approach 

a person with a disability because the 

individual’s service animal is in a protective 

posture suggestive of aggression. 

Many organizations and individuals stated 

that in the general dog training community, 

‘‘protection’’ is code for attack or aggression 

training and should be removed from the 

definition. Commenters stated that there 

appears to be a broadly held misconception 

that aggression-trained animals are 

appropriate service animals for persons with 

post traumatic stress disorder (PTSD). While 

many individuals with PTSD may benefit by 

using a service animal, the work or tasks 

performed appropriately by such an animal 

would not involve unprovoked aggression 

but could include actively cuing the handler 

by nudging or pawing the handler to alert to 

the onset of an episode and removing the 

individual from the anxiety-provoking 

environment. 

The Department recognizes that despite its 

best efforts to provide clarification, the 

‘‘minimal protection’’ language appears to 

have been misinterpreted. While the 

Department maintains that protection from 

danger is one of the key functions that 

service animals perform for the benefit of 

persons with disabilities, the Department 

recognizes that an animal individually 

trained to provide aggressive protection, such 

as an attack dog, is not appropriately 

considered a service animal. Therefore, the 

Department has decided to modify the 

‘‘minimal protection’’ language to read ‘‘nonviolent protection,’’ thereby excluding socalled ‘‘attack dogs’’ or dogs with traditional 

‘‘protection training’’ as service animals. The 

Department believes that this modification to 

the service animal definition will eliminate 

confusion, without restricting unnecessarily 

the type of work or tasks that service animals 

may perform. The Department’s modification 

also clarifies that the crime-deterrent effect of 

a dog’s presence, by itself, does not qualify 

as work or tasks for purposes of the service 

animal definition. 

Alerting to intruders. The phrase ‘‘alerting 

to intruders’’ is related to the issues of 

minimal protection and the work or tasks an 

animal may perform to meet the definition of 

a service animal. In the original 1991 

regulatory text, this phrase was intended to 

identify service animals that alert individuals 

who are deaf or hard of hearing to the 

presence of others. This language has been 

misinterpreted by some to apply to dogs that 

are trained specifically to provide aggressive 

protection, resulting in the assertion that 

such training qualifies a dog as a service 

animal under the ADA. The Department 

reiterates that public accommodations are not 

required to admit any animal whose use 

poses a direct threat. In addition, the 

Department has decided to remove the word 

‘‘intruders’’ from the service animal definition 

and replace it with the phrase ‘‘the presence 

of people or sounds.’’ The Department 

believes this clarifies that so-called ‘‘attack 

training’’ or other aggressive response types 

of training that cause a dog to provide an 

aggressive response do not qualify a dog as 

a service animal under the ADA. 

Conversely, if an individual uses a breed 

of dog that is perceived to be aggressive 

because of breed reputation, stereotype, or 

the history or experience the observer may 

have with other dogs, but the dog is under 

the control of the individual with a disability 

and does not exhibit aggressive behavior, the 

public accommodation cannot exclude the 

individual or the animal from the place of 

public accommodation. The animal can only 

be removed if it engages in the behaviors 

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mentioned in § 36.302(c) (as revised in the 

final rule) or if the presence of the animal 

constitutes a fundamental alteration to the 

nature of the goods, services, facilities, and 

activities of the place of public 

accommodation. 

‘‘Doing work’’ or ‘‘performing tasks.’’ The 

NPRM proposed that the Department 

maintain the requirement first articulated in 

the 1991 title III regulation that in order to 

qualify as a service animal, the animal must 

‘‘perform tasks’’ or ‘‘do work’’ for the 

individual with a disability. The phrases 

‘‘perform tasks’’ and ‘‘do work’’ describe what 

an animal must do for the benefit of an 

individual with a disability in order to 

qualify as a service animal. 

The Department received a number of 

comments in response to the NPRM proposal 

urging the removal of the term ‘‘do work’’ 

from the definition of a service animal. These 

commenters argued that the Department 

should emphasize the performance of tasks 

instead. The Department disagrees. Although 

the common definition of work includes the 

performance of tasks, the definition of work 

is somewhat broader, encompassing activities 

that do not appear to involve physical action. 

One service dog user stated that, in some 

cases, ‘‘critical forms of assistance can’t be 

construed as physical tasks,’’ noting that the 

manifestations of ‘‘brain-based disabilities,’’ 

such as psychiatric disorders and autism, are 

as varied as their physical counterparts. The 

Department agrees with this statement but 

cautions that unless the animal is 

individually trained to do something that 

qualifies as work or a task, the animal is a 

pet or support animal and does not qualify 

for coverage as a service animal. A pet or 

support animal may be able to discern that 

the handler is in distress, but it is what the 

animal is trained to do in response to this 

awareness that distinguishes a service animal 

from an observant pet or support animal. 

The NPRM contained an example of ‘‘doing 

work’’ that stated ‘‘a psychiatric service dog 

can help some individuals with dissociative 

identity disorder to remain grounded in time 

or place.’’ 73 FR 34508, 34521 (June 17, 

2008). Several commenters objected to the 

use of this example, arguing that grounding 

was not a ‘‘task’’ and therefore the example 

inherently contradicted the basic premise 

that a service animal must perform a task in 

order to mitigate a disability. Other 

commenters stated that ‘‘grounding’’ should 

not be included as an example of ‘‘work’’ 

because it could lead to some individuals 

claiming that they should be able to use 

emotional support animals in public because 

the dog makes them feel calm or safe. By 

contrast, one commenter with experience in 

training service animals explained that 

grounding is a trained task based upon very 

specific behavioral indicators that can be 

observed and measured. These tasks are 

based upon input from mental health 

practitioners, dog trainers, and individuals 

with a history of working with psychiatric 

service dogs. 

It is the Department’s view that an animal 

that is trained to ‘‘ground’’ a person with a 

psychiatric disorder does work or performs a 

task that would qualify it as a service animal 

as compared to an untrained emotional 

support animal whose presence affects a 

person’s disability. It is the fact that the 

animal is trained to respond to the 

individual’s needs that distinguishes an 

animal as a service animal. The process must 

have two steps: Recognition and response. 

For example, if a service animal senses that 

a person is about to have a psychiatric 

episode and it is trained to respond, for 

example, by nudging, barking, or removing 

the individual to a safe location until the 

episode subsides, then the animal has indeed 

performed a task or done work on behalf of 

the individual with the disability, as opposed 

to merely sensing an event. 

One commenter suggested defining the 

term ‘‘task,’’ presumably to improve the 

understanding of the types of services 

performed by an animal that would be 

sufficient to qualify the animal for coverage. 

The Department believes that the common 

definition of the word ‘‘task’’ is sufficiently 

clear and that it is not necessary to add to 

the definitions section. However, the 

Department has added examples of other 

kinds of work or tasks to help illustrate and 

provide clarity to the definition. After careful 

evaluation of this issue, the Department has 

concluded that the phrases ‘‘do work’’ and 

‘‘perform tasks’’ have been effective during 

the past two decades to illustrate the varied 

services provided by service animals for the 

benefit of individuals with all types of 

disabilities. Thus, the Department declines to 

depart from its longstanding approach at this 

time. 

Species limitations. When the Department 

originally issued its title III regulation in the 

early 1990s, the Department did not define 

the parameters of acceptable animal species. 

At that time, few anticipated the variety of 

animals that would be promoted as service 

animals in the years to come, which ranged 

from pigs and miniature horses to snakes, 

iguanas, and parrots. The Department has 

followed this particular issue closely, 

keeping current with the many unusual 

species of animals represented to be service 

animals. Thus, the Department has decided 

to refine further this aspect of the service 

animal definition in the final rule. 

The Department received many comments 

from individuals and organizations 

recommending species limitations. Several of 

these commenters asserted that limiting the 

number of allowable species would help stop 

erosion of the public’s trust, which has 

resulted in reduced access for many 

individuals with disabilities who use trained 

service animals that adhere to high 

behavioral standards. Several commenters 

suggested that other species would be 

acceptable if those animals could meet 

nationally recognized behavioral standards 

for trained service dogs. Other commenters 

asserted that certain species of animals (e.g., 

reptiles) cannot be trained to do work or 

perform tasks, so these animals would not be 

covered. 

In the NPRM, the Department used the 

term ‘‘common domestic animal’’ in the 

service animal definition and excluded 

reptiles, rabbits, farm animals (including 

horses, miniature horses, ponies, pigs, and 

goats), ferrets, amphibians, and rodents from 

the service animal definition. 73 FR 34508, 

34553 (June 17, 2008). However, the term 

‘‘common domestic animal’’ is difficult to 

define with precision due to the increase in 

the number of domesticated species. Also, 

several State and local laws define a 

‘‘domestic’’ animal as an animal that is not 

wild. 

The Department is compelled to take into 

account the practical considerations of 

certain animals and to contemplate their 

suitability in a variety of public contexts, 

such as restaurants, grocery stores, hospitals, 

and performing arts venues, as well as 

suitability for urban environments. The 

Department agrees with commenters’ views 

that limiting the number and types of species 

recognized as service animals will provide 

greater predictability for public 

accommodations as well as added assurance 

of access for individuals with disabilities 

who use dogs as service animals. As a 

consequence, the Department has decided to 

limit this rule’s coverage of service animals 

to dogs, which are the most common service 

animals used by individuals with disabilities. 

Wild animals, monkeys, and other 

nonhuman primates. Numerous business 

entities endorsed a narrow definition of 

acceptable service animal species, and 

asserted that there are certain animals (e.g., 

reptiles) that cannot be trained to do work or 

perform tasks. Other commenters suggested 

that the Department should identify excluded 

animals, such as birds and llamas, in the 

final rule. Although one commenter noted 

that wild animals bred in captivity should be 

permitted to be service animals, the 

Department has decided to make clear that 

all wild animals, whether born or bred in 

captivity or in the wild, are eliminated from 

coverage as service animals. The Department 

believes that this approach reduces risks to 

health or safety attendant with wild animals. 

Some animals, such as certain nonhuman 

primates, including certain monkeys, pose a 

direct threat; their behavior can be 

unpredictably aggressive and violent without 

notice or provocation. The American 

Veterinary Medical Association (AVMA) 

issued a position statement advising against 

the use of monkeys as service animals, 

stating that ‘‘[t]he AVMA does not support 

the use of nonhuman primates as assistance 

animals because of animal welfare concerns, 

and the potential for serious injury and 

zoonotic [animal to human disease 

transmission] risks.’’ AVMA Position 

Statement, Nonhuman Primates as 

Assistance Animals (2005), available at 

http://www.avma.org/issues/policy/ 

nonhuman_primates.asp (last visited June 

24, 2010). 

An organization that trains capuchin 

monkeys to provide in-home services to 

individuals with paraplegia and quadriplegia 

was in substantial agreement with the 

AVMA’s views but requested a limited 

recognition in the service animal definition 

for the capuchin monkeys it trains to provide 

assistance for persons with disabilities. The 

organization commented that its trained 

capuchin monkeys undergo scrupulous 

veterinary examinations to ensure that the 

animals pose no health risks, and are used by 

individuals with disabilities exclusively in 

their homes. The organization acknowledged 

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that the capuchin monkeys it trains are not 

necessarily suitable for use in a place of 

public accommodation but noted that the 

monkeys may need to be used in 

circumstances that implicate title III 

coverage, e.g., in the event the handler had 

to leave home due to an emergency, to visit 

a veterinarian, or for the initial delivery of 

the monkey to the individual with a 

disability. The organization noted that 

several State and local government entities 

have local zoning, licensing, health, and 

safety laws that prohibit non-human 

primates, and that these prohibitions would 

prevent individuals with disabilities from 

using these animals even in their homes. 

The organization argued that including 

capuchin monkeys under the service animal 

umbrella would make it easier for 

individuals with disabilities to obtain 

reasonable modifications of State and local 

licensing, health, and safety laws that would 

permit the use of these monkeys. The 

organization argued that this limited 

modification to the service animal definition 

was warranted in view of the services these 

monkeys perform, which enable many 

individuals with paraplegia and quadriplegia 

to live and function with increased 

independence. 

The Department has carefully considered 

the potential risks associated with the use of 

nonhuman primates as service animals in 

places of public accommodation, as well as 

the information provided to the Department 

about the significant benefits that trained 

capuchin monkeys provide to certain 

individuals with disabilities in residential 

settings. The Department has determined, 

however, that nonhuman primates, including 

capuchin monkeys, will not be recognized as 

service animals for purposes of this rule 

because of their potential for disease 

transmission and unpredictable aggressive 

behavior. The Department believes that these 

characteristics make nonhuman primates 

unsuitable for use as service animals in the 

context of the wide variety of public settings 

subject to this rule. As the organization 

advocating the inclusion of capuchin 

monkeys acknowledges, capuchin monkeys 

are not suitable for use in public facilities. 

The Department emphasizes that it has 

decided only that capuchin monkeys will not 

be included in the definition of service 

animals for purposes of its regulation 

implementing the ADA. This decision does 

not have any effect on the extent to which 

public accommodations are required to allow 

the use of such monkeys under other Federal 

statutes, like the FHAct or the Air Carrier 

Access Act (ACAA). For example, a public 

accommodation that also is considered to be 

a ‘‘dwelling’’ may be covered under both the 

ADA and the FHAct. While the ADA does 

not require such a public accommodation to 

admit people with service monkeys, the 

FHAct may. Under the FHAct an individual 

with a disability may have the right to have 

an animal other than a dog in his or her home 

if the animal qualifies as a ‘‘reasonable 

accommodation’’ that is necessary to afford 

the individual equal opportunity to use and 

enjoy a dwelling, assuming that the use of the 

animal does not pose a direct threat. In some 

cases, the right of an individual to have an 

animal under the FHAct may conflict with 

State or local laws that prohibit all 

individuals, with or without disabilities, 

from owning a particular species. However, 

in this circumstance, an individual who 

wishes to request a reasonable modification 

of the State or local law must do so under 

the FHAct, not the ADA. 

Having considered all of the comments 

about which species should qualify as service 

animals under the ADA, the Department has 

determined the most reasonable approach is 

to limit acceptable species to dogs. 

Size or weight limitations. The vast 

majority of commenters did not support a 

size or weight limitation. Commenters were 

typically opposed to a size or weight limit 

because many tasks performed by service 

animals require large, strong dogs. For 

instance, service animals may perform tasks 

such as providing balance and support or 

pulling a wheelchair. Small animals may not 

be suitable for large adults. The weight of the 

service animal user is often correlated with 

the size and weight of the service animal. 

Others were concerned that adding a size and 

weight limit would further complicate the 

difficult process of finding an appropriate 

service animal. One commenter noted that 

there is no need for a limit because ‘‘if, as a 

practical matter, the size or weight of an 

individual’s service animal creates a direct 

threat or fundamental alteration to a 

particular public entity or accommodation, 

there are provisions that allow for the 

animal’s exclusion or removal.’’ Some 

common concerns among commenters in 

support of a size and weight limit were that 

a larger animal may be less able to fit in 

various areas with its handler, such as toilet 

rooms and public seating areas, and that 

larger animals are more difficult to control. 

Balancing concerns expressed in favor of 

and against size and weight limitations, the 

Department has determined that such 

limitations would not be appropriate. Many 

individuals of larger stature require larger 

dogs. The Department believes it would be 

inappropriate to deprive these individuals of 

the option of using a service dog of the size 

required to provide the physical support and 

stability these individuals may need to 

function independently. Since large dogs 

have always served as service animals, 

continuing their use should not constitute 

fundamental alterations or impose undue 

burdens on public accommodations. 

Breed limitations. A few commenters 

suggested that certain breeds of dogs should 

not be allowed to be used as service animals. 

Some suggested that the Department should 

defer to local laws restricting the breeds of 

dogs that individuals who reside in a 

community may own. Other commenters 

opposed breed restrictions, stating that the 

breed of a dog does not determine its 

propensity for aggression and that aggressive 

and non-aggressive dogs exist in all breeds. 

The Department does not believe that it is 

either appropriate or consistent with the 

ADA to defer to local laws that prohibit 

certain breeds of dogs based on local 

concerns that these breeds may have a 

history of unprovoked aggression or attacks. 

Such deference would have the effect of 

limiting the rights of persons with disabilities 

under the ADA who use certain service 

animals based on where they live rather than 

on whether the use of a particular animal 

poses a direct threat to the health and safety 

of others. Breed restrictions differ 

significantly from jurisdiction to jurisdiction. 

Some jurisdictions have no breed 

restrictions. Others have restrictions that, 

while well-meaning, have the unintended 

effect of screening out the very breeds of dogs 

that have successfully served as service 

animals for decades without a history of the 

type of unprovoked aggression or attacks that 

would pose a direct threat, e.g., German 

Shepherds. Other jurisdictions prohibit 

animals over a certain weight, thereby 

restricting breeds without invoking an 

express breed ban. In addition, deference to 

breed restrictions contained in local laws 

would have the unacceptable consequence of 

restricting travel by an individual with a 

disability who uses a breed that is acceptable 

and poses no safety hazards in the 

individual’s home jurisdiction but is 

nonetheless banned by other jurisdictions. 

Public accommodations have the ability to 

determine, on a case-by-case basis, whether 

a particular service animal can be excluded 

based on that particular animal’s actual 

behavior or history—not based on fears or 

generalizations about how an animal or breed 

might behave. This ability to exclude an 

animal whose behavior or history evidences 

a direct threat is sufficient to protect health 

and safety. 

Recognition of psychiatric service animals, 

but not ‘‘emotional support animals.’’ The 

definition of ‘‘service animal’’ in the NPRM 

stated the Department’s longstanding 

position that emotional support animals are 

not included in the definition of ‘‘service 

animal.’’ The proposed text provided that 

‘‘[a]nimals whose sole function is to provide 

emotional support, comfort, therapy, 

companionship, therapeutic benefits, or to 

promote emotional well-being are not service 

animals.’’ 73 FR 34508, 34553 (June 17, 

2008). 

Many advocacy organizations expressed 

concern and disagreed with the exclusion of 

comfort and emotional support animals. 

Others have been more specific, stating that 

individuals with disabilities may need their 

emotional support animals in order to have 

equal access. Some commenters noted that 

individuals with disabilities use animals that 

have not been trained to perform tasks 

directly related to their disability. These 

animals do not qualify as service animals 

under the ADA. These are emotional support 

or comfort animals. 

Commenters asserted that excluding 

categories such as ‘‘comfort’’ and ‘‘emotional 

support’’ animals recognized by laws such as 

the FHAct or the ACAA is confusing and 

burdensome. Other commenters noted that 

emotional support and comfort animals 

perform an important function, asserting that 

animal companionship helps individuals 

who experience depression resulting from 

multiple sclerosis. 

Some commenters explained the benefits 

emotional support animals provide, 

including emotional support, comfort, 

therapy, companionship, therapeutic 

benefits, and the promotion of emotional 

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well-being. They contended that without the 

presence of an emotional support animal in 

their lives they would be disadvantaged and 

unable to participate in society. These 

commenters were concerned that excluding 

this category of animals will lead to 

discrimination against and excessive 

questioning of individuals with non-visible 

or non-apparent disabilities. Other 

commenters expressing opposition to the 

exclusion of individually trained ‘‘comfort’’ 

or ‘‘emotional support’’ animals asserted that 

the ability to soothe or de-escalate and 

control emotion is ‘‘work’’ that benefits the 

individual with the disability. 

Many commenters requested that the 

Department carve out an exception that 

permits current or former members of the 

military to use emotional support animals. 

They asserted that a significant number of 

service members returning from active 

combat duty have adjustment difficulties due 

to combat, sexual assault, or other traumatic 

experiences while on active duty. 

Commenters noted that some current or 

former members of the military service have 

been prescribed animals for conditions such 

as PTSD. One commenter stated that service 

women who were sexually assaulted while in 

the military use emotional support animals to 

help them feel safe enough to step outside 

their homes. The Department recognizes that 

many current and former members of the 

military have disabilities as a result of 

service-related injuries that may require 

emotional support and that such individuals 

can benefit from the use of an emotional 

support animal and could use such animal in 

their home under the FHAct. However, 

having carefully weighed the issues, the 

Department believes that its final rule 

appropriately addresses the balance of issues 

and concerns of both the individual with a 

disability and the public accommodation. 

The Department also notes that nothing in 

this part prohibits a public entity from 

allowing current or former military members 

or anyone else with disabilities to utilize 

emotional support animals if it wants to do 

so. 

Commenters asserted the view that if an 

animal’s ‘‘mere presence’’ legitimately 

provides such benefits to an individual with 

a disability and if those benefits are 

necessary to provide equal opportunity given 

the facts of the particular disability, then 

such an animal should qualify as a ‘‘service 

animal.’’ Commenters noted that the focus 

should be on the nature of a person’s 

disability, the difficulties the disability may 

impose and whether the requested 

accommodation would legitimately address 

those difficulties, not on evaluating the 

animal involved. The Department 

understands this approach has benefitted 

many individuals under the FHAct and 

analogous State law provisions, where the 

presence of animals poses fewer health and 

safety issues and where emotional support 

animals provide assistance that is unique to 

residential settings. The Department believes, 

however, that the presence of such animals 

is not required in the context of public 

accommodations, such as restaurants, 

hospitals, hotels, retail establishments, and 

assembly areas. 

Under the Department’s previous 

regulatory framework, some individuals and 

entities 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 assumed that 

any person with a psychiatric condition 

whose pet provided comfort to them was 

covered by the 1991 title III regulation. The 

Department reiterates that psychiatric service 

animals that are trained to do work or 

perform a task 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 for persons with PTSD, interrupting 

self-mutilation, and removing disoriented 

individuals from dangerous situations. 

The difference between an emotional 

support animal and a psychiatric service 

animal is the work or tasks that the animal 

performs. Traditionally, service dogs worked 

as guides for individuals who were blind or 

had low vision. Since the original regulation 

was promulgated, service animals have been 

trained to assist individuals with many 

different types of disabilities. 

In the final rule, the Department has 

retained its position on the exclusion of 

emotional support animals from the 

definition of ‘‘service animal.’’ The definition 

states that ‘‘[t]he provision of emotional 

support, well-being, comfort, or 

companionship * * * do[es] not constitute 

work or tasks for the purposes of this 

definition.’’ The Department notes, however, 

that the exclusion of emotional support 

animals from coverage in the final rule does 

not mean that individuals with psychiatric or 

mental disabilities cannot use service 

animals that meet the regulatory definition. 

The final rule defines service animal as 

follows: ‘‘Service animal means any dog that 

is individually trained to do work or perform 

tasks for the benefit of an individual with a 

disability, including a physical, sensory, 

psychiatric, intellectual, or other mental 

disability.’’ This language simply clarifies the 

Department’s longstanding position. 

The Department’s position is based on the 

fact that the title II and title III regulations 

govern a wider range of public settings than 

the housing and transportation settings for 

which the Department of Housing and Urban 

Development (HUD) and the DOT regulations 

allow emotional support animals or comfort 

animals. The Department recognizes that 

there are situations not governed by the title 

II and title III regulations, particularly in the 

context of residential settings and 

transportation, where there may be a legal 

obligation to permit the use of animals that 

do not qualify as service animals under the 

ADA, but whose presence nonetheless 

provides necessary emotional support to 

persons with disabilities. Accordingly, other 

Federal agency regulations, case law, and 

possibly State or local laws governing those 

situations may provide appropriately for 

increased access for animals other than 

service animals as defined under the ADA. 

Public officials, housing providers, and 

others who make decisions relating to 

animals in residential and transportation 

settings should consult the Federal, State, 

and local laws that apply in those areas (e.g., 

the FHAct regulations of HUD and the 

ACAA) and not rely on the ADA as a basis 

for reducing those obligations. 

Retain term ‘‘service animal.’’ Some 

commenters asserted that the term 

‘‘assistance animal’’ is a term of art and 

should replace the term ‘‘service animal’’; 

however, the majority of commenters 

preferred the term ‘‘service animal’’ because 

it is more specific. The Department has 

decided to retain the term ‘‘service animal’’ in 

the final rule. While some agencies, like 

HUD, use the terms ‘‘assistance animal,’’ 

‘‘assistive animal,’’ or ‘‘support animal,’’ these 

terms are used to denote a broader category 

of animals than is covered by the ADA. The 

Department has decided that changing the 

term used in the final rule would create 

confusion, particularly in view of the broader 

parameters for coverage under the FHAct, cf. 

Preamble to HUD’s Final Rule for Pet 

Ownership for the Elderly and Persons with 

Disabilities, 73 FR 63834–38 (Oct. 27, 2008); 

HUD Handbook No. 4350.3 Rev–1, Chapter 2, 

Occupancy Requirements of Subsidized 

Multifamily Housing Programs (June 2007), 

available at http://www.hud.gov/offices/adm/ 

hudclips/handbooks/hsgh/4350.3 (last 

visited June 24, 2010). Moreover, as 

discussed above, the Department’s definition 

of ‘‘service animal’’ in the final rule does not 

affect the rights of individuals with 

disabilities who use assistance animals in 

their homes under the FHAct or who use 

‘‘emotional support animals’’ that are covered 

under the ACAA and its implementing 

regulations. See 14 CFR 382.7 et seq.; see also 

Department of Transportation, Guidance 

Concerning Service Animals in Air 

Transportation, 68 FR 24874, 24877 (May 9, 

2003) (discussing accommodation of service 

animals and emotional support animals on 

aircraft). 

‘‘Video Remote Interpreting (VRI) Services’’ 

In the NPRM, the Department proposed 

adding ‘‘Video Interpreting Services (VIS)’’ to 

the list of auxiliary aids available to provide 

effective communication. In the preamble to 

the NPRM, VIS was defined as ‘‘a technology 

composed of a video phone, video monitors, 

cameras, a high-speed Internet connection, 

and an interpreter. The video phone provides 

video transmission to a video monitor that 

permits the individual who is deaf or hard 

of hearing to view and sign to a video 

interpreter (i.e., a live interpreter in another 

location), who can see and sign to the 

individual through a camera located on or 

near the monitor, while others can 

communicate by speaking. The video 

monitor can display a split screen of two live 

images, with the interpreter in one image and 

the individual who is deaf or hard of hearing 

in the other image.’’ 73 FR 34508, 34522 (June 

17, 2008). Comments from advocacy 

organizations and individuals unanimously 

requested that the Department use the term 

‘‘video remote interpreting (VRI),’’ instead of 

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56270 Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 

VIS, for consistency with Federal 

Communications Commission (FCC) 

regulations, FCC Public Notice, DA–0502417 

(Sept. 7, 2005), and with common usage by 

consumers. The Department has made that 

change throughout the regulation to avoid 

confusion and to make the regulation more 

consistent with existing regulations. 

Many commenters also requested that the 

Department distinguish between VRI and 

‘‘video relay service (VRS).’’ Both VRI and 

VRS use a remote interpreter who is able to 

see and communicate with a deaf person and 

a hearing person, and all three individuals 

may be connected by a video link. VRI is a 

fee-based interpreting service conveyed via 

videoconferencing where at least one person, 

typically the interpreter, is at a separate 

location. VRI can be provided as an ondemand service or by appointment. VRI 

normally involves a contract in advance for 

the interpreter who is usually paid by the 

covered entity. 

VRS is a telephone service that enables 

persons with disabilities to use the telephone 

to communicate using video connections and 

is a more advanced form of relay service than 

the traditional voice to text telephones (TTY) 

relay systems that were recognized in the 

1991 title III regulation. More specifically, 

VRS is a video relay service using 

interpreters connected to callers by video 

hook-up and is designed to provide 

telephone services to persons who are deaf 

and use American Sign Language that are 

functionally equivalent to those services 

provided to users who are hearing. VRS is 

funded through the Interstate 

Telecommunications Relay Services Fund 

and overseen by the FCC. See 47 CFR 

64.601(a)(26). There are no fees for callers to 

use the VRS interpreters and the video 

connection, although there may be relatively 

inexpensive initial costs to the title III 

entities to purchase the videophone or 

camera for on-line video connection, or other 

equipment to connect to the VRS service. The 

FCC has made clear that VRS functions as a 

telephone service and is not intended to be 

used for interpreting services where both 

parties are in the same room; the latter is 

reserved for VRI. The Department agrees that 

VRS cannot be used as a substitute for inperson interpreters or for VRI in situations 

that would not, absent one party’s disability, 

entail use of the telephone. 

Many commenters strongly recommended 

limiting the use of VRI to circumstances 

where it will provide effective 

communication. Commenters from advocacy 

groups and persons with disabilities 

expressed concern that VRI may not always 

be appropriate to provide effective 

communication, especially in hospitals and 

emergency rooms. Examples were provided 

of patients who are unable to see the video 

monitor because they are semi-conscious or 

unable to focus on the video screen; other 

examples were given of cases where the 

video monitor is out of the sightline of the 

patient or the image is out of focus; still other 

examples were given of patients who could 

not see the image because the signal was 

interrupted, causing unnatural pauses in the 

communication, or the image was grainy or 

otherwise unclear. Many commenters 

requested more explicit guidelines on the use 

of VRI and some recommended requirements 

for equipment maintenance, high-speed, 

wide-bandwidth video links using dedicated 

lines or wireless systems, and training of staff 

using VRI, especially in hospital and health 

care situations. Several major organizations 

requested a requirement to include the 

interpreter’s face, head, arms, hands, and 

eyes in all transmissions. 

After consideration of the comments and 

the Department’s own research and 

experience, the Department has determined 

that VRI can be an effective method of 

providing interpreting services in certain 

circumstances, but not in others. For 

example, VRI should be effective in many 

situations involving routine medical care, as 

well as in the emergency room where urgent 

care is important, but no in-person 

interpreter is available; however, VRI may 

not be effective in situations involving 

surgery or other medical procedures where 

the patient is limited in his or her ability to 

see the video screen. Similarly, VRI may not 

be effective in situations where there are 

multiple people in a room and the 

information exchanged is highly complex 

and fast paced. The Department recognizes 

that in these and other situations, such as 

where communication is needed for persons 

who are deaf-blind, it may be necessary to 

summon an in-person interpreter to assist 

certain individuals. To ensure that VRI is 

effective in situations where it is appropriate, 

the Department has established performance 

standards in § 36.303(f). 

Subpart B—General Requirements 

Section 36.208(b) Direct Threat 

The Department has revised the language 

of § 36.208(b) (formerly § 36.208(c) in the 

1991 title III regulation) to include 

consideration of whether the provision of 

auxiliary aids or services will mitigate the 

risk that an individual will pose a direct 

threat to the health or safety of others. 

Originally, the reference to auxiliary aids or 

services as a mitigating factor was part of 

§ 36.208. However, that reference was 

removed from the section when, for editorial 

purposes, the Department removed the 

definition of ‘‘direct threat’’ from § 36.208 and 

placed it in § 36.104. The Department has put 

the reference to auxiliary aids or services as 

a mitigating factor back into § 36.208(b) in 

order to maintain consistency with the 

current regulation. 

Section 36.211 Maintenance of Accessible 

Features 

Section 36.211 of the 1991 title III 

regulation provides that a public 

accommodation must maintain in operable 

working condition those features of facilities 

and equipment that are required to be readily 

accessible to and usable by individuals with 

disabilities. 28 CFR 36.211. In the NPRM, the 

Department clarified the application of this 

provision and proposed one change to the 

section to address the discrete situation in 

which the scoping requirements provided in 

the 2010 Standards reduce the number of 

required elements below the requirements of 

the 1991 Standards. In that discrete event, a 

public accommodation may reduce such 

accessible features in accordance with the 

requirements in the 2010 Standards. 

The Department received only four 

comments on this proposed amendment. 

None of the commenters opposed the change. 

In the final rule, the Department has revised 

the section to make it clear that if the 2010 

Standards reduce either the technical 

requirements or the number of required 

accessible elements below that required by 

the 1991 Standards, then the public 

accommodation may reduce the technical 

requirements or the number of accessible 

elements in a covered facility in accordance 

with the requirements of the 2010 Standards. 

One commenter, an association of 

convenience stores, urged the Department to 

expand the language of the section to include 

restocking of shelves as a permissible activity 

for isolated or temporary interruptions in 

service or access. It is the Department’s 

position that a temporary interruption that 

blocks an accessible route, such as restocking 

of shelves, is already permitted by existing 

§ 36.211(b), which clarifies that ‘‘isolated or 

temporary interruptions in service or access 

due to maintenance or repairs’’ are permitted. 

Therefore, the Department will not make any 

additional changes in the language of 

§ 36.211 other than those discussed in the 

preceding paragraph. 

Subpart C—Specific Requirements 

Section 36.302 Modifications in 

Policies, Practices, or Procedures 

Section 36.302(c) Service Animals 

Section 36.302(c)(1) of the 1991 title III 

regulation states that ‘‘[g]enerally, a public 

accommodation shall modify [its] policies, 

practices, or procedures to permit the use of 

service animals by an individual with a 

disability.’’ Section 36.302(c)(2) of the 1991 

title III regulation states that ‘‘[n]othing in 

this part requires a public accommodation to 

supervise or care for a service animal.’’ The 

Department has decided to retain the scope 

of the 1991 title III regulation while clarifying 

the Department’s longstanding policies and 

interpretations. Toward that end, the final 

rule has been revised to include the 

Department’s policy interpretations as 

outlined in published technical assistance, 

Commonly Asked Questions about Service 

Animals in Places of Business (1996), 

available at http://www.ada.gov/qasrvc.htm, 

and ADA Guide for Small Businesses (1999), 

available at http://www.ada.gov/ 

smbustxt.htm, and to add that a public 

accommodation may exclude a service 

animal in certain circumstances where the 

service animal fails to meet certain 

behavioral standards. The Department 

received extensive comments in response to 

proposed § 36.302(c) from individuals, 

disability advocacy groups, organizations 

involved in training service animals, and 

public accommodations. Those comments 

and the Department’s response are discussed 

below. 

Exclusion of service animals. The 1991 

regulatory provision in § 36.302(c) addresses 

reasonable modification and remains 

unchanged in the final rule. However, based 

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on comments received and the Department’s 

analysis, the Department has decided to 

clarify those circumstances where otherwise 

eligible service animals may be excluded by 

public accommodations. 

In the NPRM, in § 36.302(c)(2)(i), the 

Department proposed that a public 

accommodation may ask an individual with 

a disability to remove a service animal from 

the place of public accommodation if ‘‘[t]he 

animal is out of control and the animal’s 

handler does not take effective action to 

control it.’’ 73 FR 34508, 34553 (June 17, 

2008). The Department has long held that a 

service animal must be under the control of 

the handler at all times. Commenters 

overwhelmingly were in favor of this 

language, but noted that there are occasions 

when service animals are provoked to 

disruptive or aggressive behavior by agitators 

or troublemakers, as in the case of a blind 

individual whose service dog is taunted or 

pinched. While all service animals are 

trained to ignore and overcome these types 

of incidents, misbehavior in response to 

provocation is not always unreasonable. In 

circumstances where a service animal 

misbehaves or responds reasonably to a 

provocation or injury, the public 

accommodation must give the handler a 

reasonable opportunity to gain control of the 

animal. Further, if the individual with a 

disability asserts that the animal was 

provoked or injured, or if the public 

accommodation otherwise has reason to 

suspect that provocation or injury has 

occurred, the public accommodation should 

seek to determine the facts and, if 

provocation or injury occurred, the public 

accommodation should take effective steps to 

prevent further provocation or injury, which 

may include asking the provocateur to leave 

the place of public accommodation. This 

language is unchanged in the final rule. 

The NPRM also proposed language at 

§ 36.302(c)(2)(ii) to permit a public 

accommodation to exclude a service animal 

if the animal is not housebroken (i.e., trained 

so that, absent illness or accident, the animal 

controls its waste elimination) 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). Several 

commenters were supportive of this NPRM 

language, but cautioned against overreaction 

by the public accommodation in these 

instances. One commenter noted that animals 

get sick, too, and that accidents occasionally 

happen. In these circumstances, simple clean 

up typically addresses the incident. 

Commenters noted that the public 

accommodation must be careful when it 

excludes a service animal on the basis of 

‘‘fundamental alteration,’’ asserting for 

example, that a public accommodation 

should not exclude a service animal for 

barking in an environment where other types 

of noise, such as loud cheering or a child 

crying, is tolerated. The Department 

maintains that the appropriateness of an 

exclusion can be assessed by reviewing how 

a public accommodation addresses 

comparable situations that do not involve a 

service animal. The Department has retained 

in § 36.302(c)(2) of the final rule the 

exception requiring animals to be 

housebroken. The Department has not 

retained the specific NPRM language stating 

that animals can be excluded if their 

presence or behavior fundamentally alters 

the nature of the service provided by the 

public accommodation, because the 

Department believes that this exception is 

covered by the general reasonable 

modification requirement contained in 

§ 36.302(c)(1). 

The NPRM also proposed in 

§ 36.302(c)(2)(iii) that a service animal can be 

excluded where ‘‘[t]he animal poses a direct 

threat to the health or safety of others that 

cannot be eliminated by reasonable 

modifications.’’ 73 FR 34508, 34553 (June 17, 

2008). Commenters were universally 

supportive of this provision as it makes 

express the discretion of a public 

accommodation to exclude a service animal 

that poses a direct threat. Several 

commenters cautioned against the overuse of 

this provision and suggested that the 

Department provide an example of the rule’s 

application. The Department has decided not 

to include regulatory language specifically 

stating that a service animal can be excluded 

if it poses a direct threat. The Department 

believes that the direct threat provision in 

§ 36.208 already provides this exception to 

public accommodations. 

Access to a public accommodation 

following the proper exclusion of a service 

animal. The NPRM proposed that in the 

event a public accommodation properly 

excludes a service animal, the public 

accommodation must give the individual 

with a disability the opportunity to obtain 

the goods and services of the public 

accommodation without having the service 

animal on the premises. Most commenters 

welcomed this provision as a common sense 

approach. These commenters noted that they 

do not wish to preclude individuals with 

disabilities from the full and equal enjoyment 

of the goods and services simply because of 

an isolated problem with a service animal. 

The Department has elected to retain this 

provision in § 36.302(c)(2). 

Other requirements. The NPRM also 

proposed that the regulation include the 

following requirements: that the work or 

tasks performed by the service animal must 

be directly related to the handler’s disability; 

that a service animal must be individually 

trained to do work or perform a task, be 

housebroken, and be under the control of the 

handler; and that a service animal must have 

a harness, leash, or other tether. Most 

commenters addressed at least one of these 

issues in their responses. Most agreed that 

these provisions are important to clarify 

further the 1991 service animal regulation. 

The Department has moved the requirement 

that the work or tasks performed by the 

service animal must be related directly to the 

handler’s disability to the definition of 

‘‘service animal’’ in § 36.104. In addition, the 

Department has modified the proposed 

language relating to the handler’s control of 

the animal with a harness, leash, or other 

tether to state that ‘‘[a] service animal shall 

have a harness, leash, or other tether, unless 

either the handler is unable because of a 

disability to use a harness, leash, or other 

tether, or the use of a harness, leash, or other 

tether would interfere with the service 

animal’s safe, effective performance of work 

or tasks, in which case the service animal 

must be otherwise under the handler’s 

control (e.g., voice control, signals, or other 

effective means).’’ The Department has 

retained the requirement that the service 

animal must be individually trained, as well 

as the requirement that the service animal be 

housebroken. 

Responsibility for supervision and care of 

a service animal. The 1991 title III regulation, 

in § 36.302(c)(2), states that ‘‘[n]othing in this 

part requires a public accommodation to 

supervise or care for a service animal.’’ The 

NPRM modified this language to state that 

‘‘[a] public accommodation is not responsible 

for caring for or supervising a service 

animal.’’ 73 FR 34508, 34553 (June 17, 2008). 

Most commenters did not address this 

particular provision. The Department notes 

that there are occasions when a person with 

a disability is confined to bed in a hospital 

for a period of time. In such an instance, the 

individual may not be able to walk or feed 

the service animal. In such cases, if the 

individual has a family member, friend, or 

other person willing to take on these 

responsibilities in the place of the individual 

with a disability, the individual’s obligation 

to be responsible for the care and supervision 

of the service animal would be satisfied. The 

language of this section is retained, with 

minor modifications, in § 36.302(c)(5) of the 

final rule. 

Inquiries about service animals. The NPRM 

proposed language at § 36.302(c)(6) setting 

forth parameters about how a public 

accommodation may determine whether an 

animal qualifies as a service animal. The 

proposed section stated that a public 

accommodation may ask if the animal is 

required because of a disability and what task 

or work the animal has been trained to do but 

may not require proof of service animal 

certification or licensing. Such inquiries are 

limited to eliciting the information necessary 

to make a decision without requiring 

disclosure of confidential disability-related 

information that a public accommodation 

does not need. 

This language is consistent with the policy 

guidance outlined in two Department 

publications, Commonly Asked Questions 

about Service Animals in Places of Business 

(1996), available at http://www.ada.gov/ 

qasrvc.htm, and ADA Guide for Small 

Businesses (1999), available at http:// 

www.ada.gov/smbustxt.htm. 

Although some commenters contended 

that the NPRM service animal provisions 

leave unaddressed the issue of how a public 

accommodation can distinguish between a 

psychiatric service animal, which is covered 

under the final rule, and a comfort animal, 

which is not, other commenters noted that 

the Department’s published guidance has 

helped public accommodations to 

distinguish between service animals and pets 

on the basis of an individual’s response to 

these questions. Accordingly, the Department 

has retained the NPRM language 

incorporating its guidance concerning the 

permissible questions into the final rule. 

Some commenters suggested that a title III 

entity be allowed to require current 

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documentation, no more than one year old, 

on letterhead from a mental health 

professional stating the following: (1) That 

the individual seeking to use the animal has 

a mental health-related disability; (2) that 

having the animal accompany the individual 

is necessary to the individual’s mental health 

or treatment or to assist the person otherwise; 

and (3) that the person providing the 

assessment of the individual is a licensed 

mental health professional and the 

individual seeking to use the animal is under 

that individual’s professional care. These 

commenters asserted that this will prevent 

abuse and ensure that individuals with 

legitimate needs for psychiatric service 

animals may use them. The Department 

believes that this proposal would treat 

persons with psychiatric, intellectual, and 

other mental disabilities less favorably than 

persons with physical or sensory disabilities. 

The proposal would also require persons 

with disabilities to obtain medical 

documentation and carry it with them any 

time they seek to engage in ordinary 

activities of daily life in their communities— 

something individuals without disabilities 

have not been required to do. Accordingly, 

the Department has concluded that a 

documentation requirement of this kind 

would be unnecessary, burdensome, and 

contrary to the spirit, intent, and mandates of 

the ADA. 

Service animal access to areas of a public 

accommodation. The NPRM proposed at 

§ 36.302(c)(7) that an individual with a 

disability who uses a service animal has the 

same right of access to areas of a public 

accommodation as members of the public, 

program participants, and invitees. 

Commenters indicated that allowing 

individuals with disabilities to go with their 

service animals into the same areas as 

members of the public, program participants, 

clients, customers, patrons, or invitees is 

accepted practice by most places of public 

accommodation. The Department has 

included a slightly modified version of this 

provision in § 36.302(c)(7) of the final rule. 

The Department notes that under the final 

rule, a healthcare facility must also permit a 

person with a disability to be accompanied 

by a service animal in all areas of the facility 

in which that person would otherwise be 

allowed. There are some exceptions, 

however. The Department follows the 

guidance of the Centers for Disease Control 

and Prevention (CDC) on the use of service 

animals in a hospital setting. Zoonotic 

diseases can be transmitted to humans 

through bites, scratches, direct contact, 

arthropod vectors, or aerosols. 

Consistent with CDC guidance, it is 

generally appropriate to exclude a service 

animal from limited-access areas that employ 

general infection-control measures, such as 

operating rooms and burn units. See Centers 

for Disease Control and Prevention, 

Guidelines for Environmental Infection 

Control in Health-Care Facilities: 

Recommendations of CDC and the 

Healthcare Infection Control Practices 

Advisory Committee (June 2003), available at 

http://www.cdc.gov/hicpac/pdf/guidelines/ 

eic_in_HCF_03.pdf (last visited June 24, 

2010). A service animal may accompany its 

handler to such areas as admissions and 

discharge offices, the emergency room, 

inpatient and outpatient rooms, examining 

and diagnostic rooms, clinics, rehabilitation 

therapy areas, the cafeteria and vending 

areas, the pharmacy, restrooms, and all other 

areas of the facility where healthcare 

personnel, patients, and visitors are 

permitted without taking added precautions. 

Prohibition against surcharges for use of a 

service animal. In the NPRM, the Department 

proposed to incorporate the previously 

mentioned policy guidance, which prohibits 

the assessment of a surcharge for the use of 

a service animal, into proposed 

§ 36.302(c)(8). Several commenters agreed 

that this provision makes clear the obligation 

of a place of public accommodation to admit 

an individual with a service animal without 

surcharges, and that any additional costs 

imposed should be factored into the overall 

cost of doing business and passed on as a 

charge to all participants, rather than an 

individualized surcharge to the service 

animal user. Commenters also noted that 

service animal users cannot be required to 

comply with other requirements that are not 

generally applicable to other persons. If a 

public accommodation normally charges 

individuals for the damage they cause, an 

individual with a disability may be charged 

for damage caused by his or her service 

animals. The Department has retained this 

language, with minor modifications, in the 

final rule at § 36.302(c)(8). 

Training requirement. Certain commenters 

recommended the adoption of formal training 

requirements for service animals. The 

Department has rejected this approach and 

will not impose any type of formal training 

requirements or certification process, but will 

continue to require that service animals be 

individually trained to do work or perform 

tasks for the benefit of an individual with a 

disability. While some groups have urged the 

Department to modify this position, the 

Department has determined that such a 

modification would not serve the full array 

of individuals with disabilities who use 

service animals, since individuals with 

disabilities may be capable of training, and 

some have trained, their service animal to 

perform tasks or do work to accommodate 

their disability. A training and certification 

requirement would increase the expense of 

acquiring a service animal and might limit 

access to service animals for individuals with 

limited financial resources. 

Some commenters proposed specific 

behavior or training standards for service 

animals, arguing that without such standards, 

the public has no way to differentiate 

between untrained pets and service animals. 

Many of the suggested behavior or training 

standards were lengthy and detailed. The 

Department believes that this rule addresses 

service animal behavior sufficiently by 

including provisions that address the 

obligations of the service animal user and the 

circumstances under which a service animal 

may be excluded, such as the requirements 

that an animal be housebroken and under the 

control of its handler. 

Miniature horses. The Department has been 

persuaded by commenters and the available 

research to include a provision that would 

require public accommodations to make 

reasonable modifications to policies, 

practices, or procedures to permit the use of 

a miniature horse by a person with a 

disability if the miniature horse has been 

individually trained to do work or perform 

tasks for the benefit of the individual with a 

disability. The traditional service animal is a 

dog, which has a long history of guiding 

individuals who are blind or have low vision, 

and over time dogs have been trained to 

perform an even wider variety of services for 

individuals with all types of disabilities. 

However, an organization that developed a 

program to train miniature horses, modeled 

on the program used for guide dogs, began 

training miniature horses in 1991. 

Although commenters generally supported 

the species limitations proposed in the 

NPRM, some were opposed to the exclusion 

of miniature horses from the definition of a 

service animal. These commenters noted that 

these animals have been providing assistance 

to persons with disabilities for many years. 

Miniature horses were suggested by some 

commenters as viable alternatives to dogs for 

individuals with allergies, or for those whose 

religious beliefs preclude the use of dogs. 

Another consideration mentioned in favor of 

the use of miniature horses is the longer life 

span and strength of miniature horses in 

comparison to dogs. Specifically, miniature 

horses can provide service for more than 25 

years while dogs can provide service for 

approximately seven years, and, because of 

their strength, miniature horses can provide 

services that dogs cannot provide. 

Accordingly, use of miniature horses reduces 

the cost involved to retire, replace, and train 

replacement service animals. 

The miniature horse is not one specific 

breed, but may be one of several breeds, with 

distinct characteristics that produce animals 

suited to service animal work. These animals 

generally range in height from 24 inches to 

34 inches measured to the withers, or 

shoulders, and generally weigh between 70 

and 100 pounds. These characteristics are 

similar to those of large breed dogs, such as 

Labrador Retrievers, Great Danes, and 

Mastiffs. Similar to dogs, miniature horses 

can be trained through behavioral 

reinforcement to be ‘‘housebroken.’’ Most 

miniature service horse handlers and 

organizations recommend that when the 

animals are not doing work or performing 

tasks, the miniature horses should be kept 

outside in a designated area instead of 

indoors in a house. 

According to information provided by an 

organization that trains service horses, these 

miniature horses are trained to provide a 

wide array of services to their handlers, 

primarily guiding individuals who are blind 

or have low vision, pulling wheelchairs, 

providing stability and balance for 

individuals with disabilities that impair the 

ability to walk, and supplying leverage that 

enables a person with a mobility disability to 

get up after a fall. According to the 

commenter, miniature horses are particularly 

effective for large stature individuals. The 

animal can be trained to stand (and in some 

cases, lie down) at the handler’s feet in 

venues where space is at a premium, such as 

assembly areas or inside some vehicles that 

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provide public transportation. Some 

individuals with disabilities have traveled by 

train and have flown commercially with their 

miniature horses. 

The miniature horse is not included in the 

definition of service animal, which is limited 

to dogs. However, the Department has added 

a specific provision at § 36.302(c)(9) of the 

final rule covering miniature horses. Under 

this provision, public accommodations must 

make reasonable modifications in policies, 

practices, or procedures to permit the use of 

a miniature horse by an individual with a 

disability if the miniature horse has been 

individually trained to do work or perform 

tasks for the benefit of the individual with a 

disability. The public accommodation may 

take into account a series of assessment 

factors in determining whether to allow a 

miniature horse into a specific facility. These 

include the type, size, and weight of the 

miniature horse, whether the handler has 

sufficient control of the miniature horse, 

whether the miniature horse is housebroken, 

and whether the miniature horse’s presence 

in a specific facility compromises legitimate 

safety requirements that are necessary for 

safe operation. In addition, paragraphs 

(c)(3)B–(8) of this section, which are 

applicable to dogs, also apply to miniature 

horses. 

Ponies and full-size horses are not covered 

by § 36.302(c)(9). Also, because miniature 

horses can vary in size and can be larger and 

less flexible than dogs, covered entities may 

exclude this type of service animal if the 

presence of the miniature horse, because of 

its larger size and lower level of flexibility, 

results in a fundamental alteration to the 

nature of the services provided. 

Section 36.302(e) Hotel Reservations 

Section 36.302 of the 1991 title III 

regulation requires public accommodations 

to make reasonable modifications in policies, 

practices, or procedures when such 

modifications are necessary to afford access 

to any goods, services, facilities, privileges, 

advantages, or accommodations, unless the 

entity can demonstrate that making such 

modifications would fundamentally alter the 

nature of such goods, services, facilities, 

privileges, advantages, or accommodations. 

Hotels, timeshare resorts, and other places of 

lodging are subject to this requirement and 

must make reasonable modifications to 

reservations policies, practices, or procedures 

when necessary to ensure that individuals 

with disabilities are able to reserve accessible 

hotel rooms with the same efficiency, 

immediacy, and convenience as those who 

do not need accessible guest rooms. 

Each year the Department receives many 

complaints concerning failed reservations. 

Most of these complaints involve individuals 

who have reserved an accessible hotel room 

only to discover upon arrival that the room 

they reserved is either not available or not 

accessible. Although problems with 

reservations services were not addressed in 

the ANPRM, commenters independently 

noted an ongoing problem with hotel 

reservations and urged the Department to 

provide regulatory guidance. In response, the 

Department proposed specific language in 

the NPRM to address hotel reservations. In 

addition, the Department posed several 

questions regarding the current practices of 

hotels and other reservations services 

including questions about room guarantees 

and the holding and release of accessible 

rooms. The Department also questioned 

whether public accommodations that provide 

reservations services for a place or places of 

lodging but do not own, lease (or lease to), 

or operate a place of lodging—referred to in 

this discussion as ‘‘third-party reservations 

services’’—should also be subject to the 

NPRM’s proposals concerning hotel 

reservations. 

Although reservations issues were 

discussed primarily in the context of 

traditional hotels, the new rule modifies the 

definition of ‘‘places of lodging’’ to clarify the 

scope of the rule’s coverage of rental 

accommodations in timeshare properties, 

condominium hotels, and mixed-use and 

corporate hotel facilities that operate as 

places of public accommodation (as that term 

is now defined in § 36.104), and the 

Department received detailed comments, 

discussed below, regarding the application of 

reservations requirements to this category of 

rental accommodations. 

General rule on reservations. Section 

36.302(e)(1) of the NPRM required a public 

accommodation that owns, leases (or leases 

to), or operates a place of lodging to: 

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. 

73 FR 34508, 34553 (June 17, 2008). 

Most individual commenters and 

organizations that represent individuals with 

disabilities strongly supported the 

requirement that individuals with disabilities 

should be able to make reservations for 

accessible guest rooms during the same hours 

and in the same manner as individuals who 

do not need accessible rooms. In many cases 

individuals with disabilities expressed 

frustration because, while they are aware of 

improvements in architectural access brought 

about as a result of the ADA, they are unable 

to take advantage of these improvements 

because of shortcomings in current hotel 

reservations systems. A number of these 

commenters pointed out that it can be 

difficult or impossible to obtain information 

about accessible rooms and hotel features 

and that even when information is provided 

it often is found to be incorrect upon arrival. 

They also noted difficulty reserving 

accessible rooms and the inability to 

guarantee or otherwise ensure that the 

appropriate accessible room is available 

when the guest arrives. The ability to obtain 

information about accessible guest rooms, to 

make reservations for accessible guest rooms 

in the same manner as other guests, and to 

be assured of an accessible room upon arrival 

was of critical importance to these 

commenters. 

Other commenters, primarily hotels, resort 

developers, travel agencies, and 

organizations commenting on their behalf, 

did not oppose the general rule on 

reservations, but recommended that the 

language requiring that reservations be made 

‘‘in the same manner’’ be changed to require 

that reservations be made ‘‘in a substantially 

similar manner.’’ These commenters argued 

that hotel reservations are made in many 

different ways and through a variety of 

systems. In general, they argued that current 

reservations database systems may not 

contain sufficient information to permit 

guests, travel agents, or other third-party 

reservations services to select the most 

appropriate room without consulting directly 

with the hotel, and that updating these 

systems might be expensive and time 

consuming. They also noted that in some 

cases, hotels do not always automatically 

book accessible rooms when requested to do 

so. Instead, guests may select from a menu 

of accessibility and other room options when 

making reservations. This information is 

transmitted to the hotel’s reservations staff, 

who then contact the individual to verify the 

guest’s accessibility needs. Only when such 

verification occurs will the accessible room 

be booked. 

The Department is not persuaded that 

individuals who need to reserve accessible 

rooms cannot be served in the same manner 

as those who do not, and it appears that there 

are hotels of all types and sizes that already 

meet this requirement. Further, the 

Department has been able to accomplish this 

goal in settlement agreements resolving 

complaints about this issue. As stated in the 

preamble to the NPRM, basic 

nondiscrimination principles mandate that 

individuals with disabilities should be able 

to reserve hotel rooms with the same 

efficiency, immediacy, and convenience as 

those who do not need accessible guest 

rooms. The regulation does not require 

reservations services to create new methods 

for reserving hotel rooms or available 

timeshare units; instead, covered entities 

must make the modifications needed to 

ensure that individuals who need accessible 

rooms are able to reserve them in the same 

manner as other guests. If, for example, hotel 

reservations are not final until all hotel 

guests have been contacted by the hotel to 

discuss the guest’s needs, a hotel may follow 

the same process when reserving accessible 

rooms. Therefore, the Department declines to 

change this language, which has been moved 

to § 36.302(e)(1)(i). However, in response to 

the commenters who recommended a 

transition period that would allow 

reservations services time to modify existing 

reservations systems to meet the 

requirements of this rule, § 36.302(e)(3) now 

provides a 18-month transition period before 

the requirements of § 36.302(e)(1) will be 

enforced. 

Hotels and organizations commenting on 

their behalf also requested that the language 

be changed to eliminate any liability for 

reservations made through third parties, 

arguing that they are unable to control the 

actions of unrelated parties. The rule, both as 

proposed and as adopted, requires covered 

public accommodations to ensure that 

reservations made on their behalf by third 

parties are made in a manner that results in 

parity between those who need accessible 

rooms and those who do not. 

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Hotels and other places of lodging that use 

third-party reservations services must make 

reasonable efforts to make accessible rooms 

available through at least some of these 

services and must provide these third-party 

services with information concerning the 

accessible features of the hotel and the 

accessible rooms. To the extent a hotel or 

other place of lodging makes available such 

rooms and information to a third-party 

reservation provider, but the third party fails 

to provide the information or rooms to 

people with disabilities in accordance with 

this section, the hotel or other place of 

lodging will not be responsible. 

Identification of accessible features in 

hotels and guest rooms. NPRM § 36.302(e)(2) 

required public accommodations that 

provide hotel reservations services to identify 

and describe the accessible features in the 

hotels and guest rooms offered through that 

service. This requirement is essential to 

ensure that individuals with disabilities 

receive the information they need to benefit 

from the services offered by the place of 

lodging. As a practical matter, a public 

accommodation’s designation of a guest room 

as ‘‘accessible’’ will not ensure necessarily 

that the room complies with all of the 1991 

Standards. In older facilities subject to barrier 

removal requirements, strict compliance with 

the 1991 Standards is not required. Instead, 

public accommodations must remove barriers 

to the extent that it is readily achievable to 

do so. 

Further, hotel rooms that are in full 

compliance with current standards may 

differ, and individuals with disabilities must 

be able to ascertain which features—in new 

and existing facilities—are included in the 

hotel’s accessible guest rooms. For example, 

under certain circumstances, an accessible 

hotel bathroom may meet accessibility 

requirements with either a bathtub or a rollin shower. The presence or absence of 

particular accessible features such as these 

may be the difference between a room that 

is usable by a particular person with a 

disability and one that is not. 

Individuals with disabilities strongly 

supported this requirement. In addition to 

the importance of information about specific 

access features, several commenters pointed 

out the importance of knowing the size and 

number of beds in a room. Many individuals 

with disabilities travel with family members, 

personal care assistants, or other companions 

and require rooms with at least two beds. 

Although most hotels provide this 

information when generally categorizing the 

type or class of room (e.g., deluxe suite with 

king bed), as described below, all hotels 

should consider the size and number of beds 

to be part of the basic information they are 

required to provide. 

Comments made on behalf of reservations 

services expressed concern that unless the 

word ‘‘hotels’’ is stricken from the text, 

§ 36.302(e)(2) of the NPRM essentially would 

require reservations systems to include a full 

accessibility report on each hotel or resort 

property in its system. Along these lines, 

commenters also suggested that the 

Department identify the specific accessible 

features of hotel rooms that must be 

described in the reservations system. For 

example, commenters suggested limiting 

features that must be included to bathroom 

type (tub or roll-in shower) and 

communications features. 

The Department recognizes that a 

reservations system is not intended to be an 

accessibility survey. However, specific 

information concerning accessibility features 

is essential to travelers with disabilities. 

Because of the wide variations in the level of 

accessibility that travelers will encounter, the 

Department cannot specify what information 

must be included in every instance. For 

hotels that were built in compliance with the 

1991 Standards, it may be sufficient to 

specify that the hotel is accessible and, for 

each accessible room, to describe the general 

type of room (e.g., deluxe executive suite), 

the size and number of beds (e.g., two queen 

beds), the type of accessible bathing facility 

(e.g., roll-in shower), and communications 

features available in the room (e.g., alarms 

and visual notification devices). Based on 

that information, many individuals with 

disabilities will be comfortable making 

reservations. 

For older hotels with limited accessibility 

features, information about the hotel should 

include, at a minimum, information about 

accessible entrances to the hotel, the path of 

travel to guest check-in and other essential 

services, and the accessible route to the 

accessible room or rooms. In addition to the 

room information described above, these 

hotels should provide information about 

important features that do not comply with 

the 1991 Standards. For example, if the door 

to the ‘‘accessible’’ room or bathroom is 

narrower than required, this information 

should be included (e.g., door to guest room 

measures 30 inches clear). This width may 

not meet current standards but may be 

adequate for some wheelchair users who use 

narrower chairs. In many cases, older hotels 

provide services through alternatives to 

barrier removal, for example, by providing 

check-in or concierge services at a different, 

accessible location. Reservations services for 

these entities should include this information 

and provide a way for guests to contact the 

appropriate hotel employee for additional 

information. To recognize that the 

information and level of detail needed will 

vary based on the nature and age of the 

facility, § 36.302(e)(2) has been moved to 

§ 36.302(e)(1)(ii) in the final rule and 

modified to require reservations services to: 

Identify and describe accessible features in 

the hotels and guest rooms offered through 

its reservations service in enough detail to 

reasonably permit individuals with 

disabilities to assess independently whether 

a given hotel or guest room meets his or her 

accessibility needs. [Emphasis added] 

As commenters representing hotels have 

described, once reservations are made, some 

hotels may wish to contact the guest to offer 

additional information and services. Or, 

many individuals with disabilities may wish 

to contact the hotel or reservations service for 

more detailed information. At that point, 

trained staff (including staff located on-site at 

the hotel and staff located off-site at a 

reservations center) should be available to 

provide additional information such as the 

specific layout of the room and bathroom, 

shower design, grab-bar locations, and other 

amenities available (e.g., bathtub bench). 

In the NPRM, the Department sought 

guidance concerning whether this 

requirement should be applied to third-party 

reservations services. Comments made by or 

on behalf of hotels, resort managers, and 

other members of the lodging and resort 

industry pointed out that, in most cases, 

these third parties do not have direct access 

to this information and must obtain it from 

the hotel or other place of lodging. Because 

third-party reservations services must rely on 

the place of lodging to provide the requisite 

information and to ensure that it is accurate 

and timely, the Department has declined to 

extend this requirement directly to thirdparty reservations services. 

Hold and release of accessible guest rooms. 

The Department has addressed the hold and 

release of accessible guest rooms in 

settlement agreements and recognizes that 

current practices vary widely. The 

Department is concerned about current 

practices by which accessible guest rooms are 

released to the general public even though 

the hotel is not sold out. In such instances, 

individuals with disabilities may be denied 

an equal opportunity to benefit from the 

services offered by the public 

accommodation, i.e., a hotel guest room. In 

the NPRM, the Department requested 

information concerning the current practices 

of hotels and third-party reservations services 

with respect to (1) holding accessible rooms 

for individuals with disabilities and (2) 

releasing accessible rooms to individuals 

without disabilities. 

Individuals with disabilities and 

organizations commenting on their behalf 

strongly supported requiring accessible 

rooms to be held back for rental by 

individuals with disabilities. In some cases 

commenters supported holding back all 

accessible rooms until all non-accessible 

rooms were rented. Others supported holding 

back accessible rooms in each category of 

rooms until all other rooms of that type were 

reserved. This latter position was also 

supported in comments received on behalf of 

the lodging industry; commenters also noted 

that this is the current practice of many 

hotels. In general, holding accessible rooms 

until requested by an individual who needs 

a room with accessible features or until it is 

the only available room of its type was 

viewed widely as a sensible approach to 

allocating scarce accessible rooms without 

imposing unnecessary costs on hotels. 

The Department agrees with this latter 

approach and has added § 36.302(e)(1)(iii), 

which requires covered entities to hold 

accessible rooms for use by individuals with 

disabilities until all other guest rooms of that 

type have been rented and the accessible 

room requested is the only remaining room 

of that type. For example, if there are 25 

rooms of a given type and two of these rooms 

are accessible, the reservations service is 

required to rent all 23 non-accessible rooms 

before it is permitted to rent these two 

accessible rooms to individuals without 

disabilities. If a one-of-a-kind room is 

accessible, that room is available to the first 

party to request it. The Department believes 

that this is the fairest approach available 

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since it reserves accessible rooms for 

individuals who require them until all nonaccessible rooms of that type have been 

reserved, and then provides equal access to 

any remaining rooms. It is also fair to hotels 

because it does not require them to forego 

renting a room that actually has been 

requested in favor of the possibility that an 

individual with a disability may want to 

reserve it at a later date. 

Requirement to block accessible guest 

room reservations. NPRM § 36.302(e)(3) 

required a public accommodation that owns, 

leases (or leases to), or operates a place of 

lodging to guarantee accessible guest rooms 

that are reserved through a reservations 

service to the same extent that it guarantees 

rooms that are not accessible. In the NPRM, 

the Department sought comment on the 

current practices of hotels and third party 

reservations services with respect to 

‘‘guaranteed’’ hotel reservations and on the 

impact of requiring a public accommodation 

to guarantee accessible rooms to the extent it 

guarantees other rooms. 

Comments received by the Department by 

and on behalf of both individuals with 

disabilities and public accommodations that 

provide reservations services made clear that, 

in many cases, when speaking of room 

guarantees, parties who are not familiar with 

hotel terminology actually mean to refer to 

policies for blocking and holding specific 

hotel rooms. Several commenters explained 

that, in most cases, when an individual 

makes ‘‘reservations,’’ hotels do not reserve 

specific rooms; rather the individual is 

reserving a room with certain features at a 

given price. When the hotel guest arrives, he 

or she is provided with a room that has those 

features. 

In most cases, this does not pose a problem 

because there are many available rooms of a 

given type. However, in comparison, 

accessible rooms are much more limited in 

availability and there may be only one room 

in a given hotel that meets a guest’s needs. 

As described in the discussion on the 

identification of accessible features in hotels 

and guest rooms, the presence or absence of 

particular accessible features may be the 

difference between a room that is usable by 

a particular person with a disability and one 

that is not. 

For that reason, the Department has added 

§ 36.302(e)(1)(iv) to the final rule. Section 

36.302(e)(1)(iv) requires covered entities to 

reserve, upon request, accessible guest rooms 

or specific types of guest rooms and ensure 

that the guest rooms requested are blocked 

and removed from all reservations systems 

(to eliminate double-booking, which is a 

common problem that arises when rooms are 

made available to be reserved through more 

than one reservations service). Of course, if 

a public accommodation typically requires a 

payment or deposit from its patrons in order 

to reserve a room, it may require the same 

payment or deposit from individuals with 

disabilities before it reserves an accessible 

room and removes it from all its reservations 

systems. These requirements should alleviate 

the widely-reported problem of arriving at a 

hotel only to discover that, although an 

accessible room was reserved, the room 

available is not accessible or does not have 

the specific accessible features needed. Many 

hotels already have a similar process in place 

for other guest rooms that are unique or oneof-a-kind, such as ‘‘Presidential’’ suites. The 

Department has declined to extend this 

requirement directly to third-party 

reservations services. Comments the 

Department received in response to the 

NPRM indicate that most of the actions 

required to implement these requirements 

primarily are within the control of the 

entities that own the place of lodging or that 

manage it on behalf of its owners. 

Guarantees of reservations for accessible 

guest rooms. The Department recognizes that 

not all reservations are guaranteed, and the 

rule does not impose an affirmative duty to 

guarantee reservations. When a public 

accommodation does guarantee hotel or other 

room reservations, it must provide the same 

guarantee for accessible guest rooms as it 

makes for other rooms, except that it must 

apply that guarantee to the specific room 

reserved and blocked, even if in other 

situations, its guarantee policy only 

guarantees that a room of a specific type will 

be available at the guaranteed price. Without 

this reasonable modification to its guarantee 

policy, any guarantee for accessible rooms 

would be meaningless. If, for example, a 

hotel makes reservations for an accessible 

‘‘Executive Suite’’ but, upon arrival, offers its 

guest an inaccessible Executive Suite that the 

guest is unable to enter, it would be 

meaningless to consider the hotel’s guarantee 

fulfilled. As with the requirements for 

identifying, holding, and blocking accessible 

rooms, the Department has declined to 

extend this requirement directly to thirdparty reservations services because the 

fulfillment of guarantees largely is beyond 

their power to control. 

Application to rental units in timeshare, 

vacation communities, and condo-hotels. 

Because the Department has revised the 

definition of ‘‘Places of Lodging’’ in the final 

rule, the reservations requirements now 

apply to guest rooms and other rental units 

in timeshares, vacation communities, and 

condo-hotels where some or all of the units 

are owned and controlled by individual 

owners and rented out some portion of time 

to the public, as compared to traditional 

hotels and motels that are owned, controlled, 

and rented to the public by one entity. If a 

reservations service owns and controls one or 

more of the guest rooms or other units in the 

rental property (e.g., a developer who retains 

and rents out unsold inventory), it is subject 

to the requirements set forth in § 36.302(e). 

Several commenters expressed concern 

about any rule that would require accessible 

units that are owned individually to be 

removed from the rental pool and rented last. 

Commenters pointed out that this would be 

a disadvantage to the owners of accessible 

units because they would be rented last, if at 

all. Further, certain vacation property 

managers consider holding specific units 

back to be a violation of their ethical 

responsibility to present all properties they 

manage at an equal advantage. To address 

these concerns, the Department has added 

§ 36.302(e)(2), which exempts reservations 

for individual guest rooms and other units 

that are not owned or substantially controlled 

by the entity that owns, leases, or operates 

the overall facility from the requirement that 

accessible guest rooms be held back from 

rental until all other guest rooms of that type 

have been rented. Section 36.302(e)(2) also 

exempts such rooms from requirements for 

blocking and guaranteeing reserved rooms. In 

resort developments with mixed ownership 

structures, such as a resort where some units 

are operated as hotel rooms and others are 

owned and controlled individually, a 

reservations service operated by the owner of 

the hotel portion may apply the exemption 

only to the rooms that are not owned or 

substantially controlled by the entity that 

owns, manages, or otherwise controls the 

overall facility. 

Other reservations-related comments made 

on behalf of these entities reflected concerns 

similar to the general concerns expressed 

with respect to traditional hotel properties. 

For example, commenters noted that because 

of the unique nature of the timeshare 

industry, additional flexibility is needed 

when making reservations for accessible 

units. One commenter explained that 

reservations are sometimes made through 

unusual entities such as exchange 

companies, which are not public 

accommodations and which operate to trade 

ownership interests of millions of individual 

owners. The commenter expressed concern 

that developers or resort owners would be 

held responsible for the actions of these 

exchange entities. If, as described, the choice 

to list a unit with an exchange company is 

made by the individual owner of the property 

and the exchange company does not operate 

on behalf of the reservations service, the 

reservations service is not liable for the 

exchange company’s actions. 

As with hotels, the Department believes 

that within the 18-month transition period 

these reservations services should be able to 

modify their systems to ensure that potential 

guests with disabilities who need accessible 

rooms can make reservations during the same 

hours and in the same manner as those who 

do not need accessible rooms. 

Section 36.302(f) Ticketing 

The 1991 title III regulation did not contain 

specific regulatory language on ticketing. The 

ticketing policies and practices of public 

accommodations, however, are subject to title 

III’s nondiscrimination provisions. Through 

the investigation of complaints, enforcement 

actions, and public comments related to 

ticketing, the Department became aware that 

some venue operators, ticket sellers, and 

distributors were violating title III’s 

nondiscrimination mandate by not providing 

individuals with disabilities the same 

opportunities to purchase tickets for 

accessible seating as provided to spectators 

purchasing conventional seats. In the NPRM, 

the Department proposed § 36.302(f) to 

provide explicit direction and guidance on 

discriminatory practices for entities involved 

in the sale or distribution of tickets. 

The Department received comments from 

advocacy groups, assembly area trade 

associations, public accommodations, and 

individuals. Many commenters supported the 

addition of regulatory language pertaining to 

ticketing and urged the Department to retain 

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it in the final rule. Several commenters, 

however, questioned why there were 

inconsistencies between the title II and title 

III provisions and suggested that the same 

language be used for both titles. The 

Department has decided to retain ticketing 

regulatory language and to ensure 

consistency between the ticketing provisions 

in title II and title III. 

Because many in the ticketing industry 

view season tickets and other multi-event 

packages differently from individual tickets, 

the Department bifurcated some season ticket 

provisions from those concerning singleevent tickets in the NPRM. This structure, 

however, resulted in some provisions being 

repeated for both types of tickets but not for 

others even though they were intended to 

apply to both types of tickets. The result was 

that it was not entirely clear that some of the 

provisions that were not repeated also were 

intended to apply to season tickets. The 

Department is addressing the issues raised by 

these commenters using a different approach. 

For the purposes of this section, a single 

event refers to an individual performance for 

which tickets may be purchased. In contrast, 

a series of events includes, but is not limited 

to, subscription events, event packages, 

season tickets, or any other tickets that may 

be purchased for multiple events of the same 

type over the course of a specified period of 

time whose ownership right reverts to the 

public accommodation at the end of each 

season or time period. Series-of-events tickets 

that give their holders an enhanced ability to 

purchase such tickets from the public 

accommodation in seasons or periods of time 

that follow, such as a right of first refusal or 

higher ranking on waiting lists for more 

desirable seats, are subject to the provisions 

in this section. In addition, the final rule 

merges together some NPRM paragraphs that 

dealt with related topics and has reordered 

and renamed some of the paragraphs that 

were in the NPRM. 

Ticket sales. In the NPRM, the Department 

proposed, in § 36.302(f)(1), a general rule that 

a public accommodation shall modify its 

policies, practices, or procedures to ensure 

that individuals with disabilities can 

purchase tickets for accessible seating for an 

event or series of events in the same way as 

others (i.e., during the same hours and 

through the same distribution methods as 

other seating is sold). ‘‘Accessible seating’’ is 

defined in § 36.302(f)(1)(i) of the final rule to 

mean ‘‘wheelchair spaces and companion 

seats that comply with sections 221 and 802 

of the 2010 Standards along with any other 

seats required to be offered for sale to the 

individual with a disability pursuant to 

paragraph (4) of this section.’’ The defined 

term does not include designated aisle seats. 

A ‘‘wheelchair space’’ refers to a space for a 

single wheelchair and its occupant. 

The NPRM proposed requiring that 

accessible seats be sold through the ‘‘same 

methods of distribution’’ as non-accessible 

seats. 73 FR 34508, 34554 (June 17, 2008). 

Comments from venue managers and others 

in the business community, in general, noted 

that multiple parties are involved in 

ticketing, and because accessible seats may 

not be allotted to all parties involved at each 

stage, such parties should be protected from 

liability. For example, one commenter noted 

that a third-party ticket vendor, like 

Ticketmaster, can only sell the tickets it 

receives from its client. Because § 36.302(f)(1) 

of the final rule requires venue operators to 

make available accessible seating through the 

same methods of distribution they use for 

their regular tickets, venue operators that 

provide tickets to third-party ticket vendors 

are required to provide accessible seating to 

the third-party ticket vendor. This provision 

will enhance third-party ticket vendors’ 

ability to acquire and sell accessible seating 

for sale in the future. The Department notes 

that once third-party ticket vendors acquire 

accessible tickets, they are obligated to sell 

them in accordance with these rules. 

The Department also has received frequent 

complaints that individuals with disabilities 

have not been able to purchase accessible 

seating over the Internet, and instead have 

had to engage in a laborious process of 

calling a customer service line, or sending an 

email to a customer service representative 

and waiting for a response. Not only is such 

a process burdensome, but it puts individuals 

with disabilities at a disadvantage in 

purchasing tickets for events that are popular 

and may sell out in minutes. Because 

§ 36.302(f)(5) of the final rule authorizes 

venues to release accessible seating in case of 

a sell-out, individuals with disabilities 

effectively could be cut off from buying 

tickets unless they also have the ability to 

purchase tickets in real time over the 

Internet. The Department’s new regulatory 

language is designed to address this problem. 

Several commenters representing assembly 

areas raised concerns about offering 

accessible seating for sale over the Internet. 

They contended that this approach would 

increase the incidence of fraud since anyone 

easily could purchase accessible seating over 

the Internet. They also asserted that it would 

be difficult technologically to provide 

accessible seating for sale in real time over 

the Internet, or that to do so would require 

simplifying the rules concerning the 

purchase of multiple additional 

accompanying seats. Moreover, these 

commenters argued that requiring an 

individual purchasing accessible seating to 

speak with a customer service representative 

would allow the venue to meet the patron’s 

needs most appropriately and ensure that 

wheelchair spaces are reserved for 

individuals with disabilities who require 

wheelchair spaces. Finally, these 

commenters argued that individuals who can 

transfer effectively and conveniently from a 

wheelchair to a seat with a movable armrest 

seat could instead purchase designated aisle 

seats. 

The Department considered these concerns 

carefully and has decided to continue with 

the general approach proposed in the NPRM. 

Although fraud is an important concern, the 

Department believes that it is best combated 

by other means that would not have the effect 

of limiting the ability of individuals with 

disabilities to purchase tickets, particularly 

since restricting the purchase of accessible 

seating over the Internet will, of itself, not 

curb fraud. In addition, the Department has 

identified permissible means for covered 

entities to reduce the incidence of fraudulent 

accessible seating ticket purchases in 

§ 36.302(f)(8) of the final rule. 

Several commenters questioned whether 

ticket Web sites themselves must be 

accessible to individuals who are blind or 

have low vision, and if so, what that requires. 

The Department has consistently interpreted 

the ADA to cover Web sites that are operated 

by public accommodations and stated that 

such sites must provide their services in an 

accessible manner or provide an accessible 

alternative to the Web site that is available 

24 hours a day, seven days a week. The final 

rule, therefore, does not impose any new 

obligation in this area. The accessibility of 

Web sites is discussed in more detail in the 

section entitled ‘‘Other Issues.’’ 

In § 36.302(f)(2) of the NPRM, the 

Department also proposed requiring public 

accommodations to make accessible seating 

available during all stages of tickets sales 

including, but not limited to, presales, 

promotions, lotteries, waitlists, and general 

sales. For example, if tickets will be presold 

for an event that is open only to members of 

a fan club, or to holders of a particular credit 

card, then tickets for accessible seating must 

be made available for purchase through those 

means. This requirement does not mean that 

any individual with a disability would be 

able to purchase those seats. Rather, it means 

that an individual with a disability who 

meets the requirement for such a sale (e.g., 

who is a member of the fan club or holds that 

credit card) will be able to participate in the 

special promotion and purchase accessible 

seating. The Department has maintained the 

substantive provisions of the NPRM’s 

§§ 36.302(f)(1) and (f)(2) but has combined 

them in a single paragraph at § 36.302(f)(1)(ii) 

of the final rule so that all of the provisions 

having to do with the manner in which 

tickets are sold are located in a single 

paragraph. 

Identification of available accessible 

seating. In the NPRM, the Department 

proposed § 36.302(f)(3), which, as modified 

and renumbered § 36.302(f)(2)(iii) in the final 

rule, requires a facility to identify available 

accessible seating through seating maps, 

brochures, or other methods if that 

information is made available about other 

seats sold to the general public. This rule 

requires public accommodations to provide 

information about accessible seating to the 

same degree of specificity that it provides 

information about general seating. For 

example, if a seating map displays colorcoded blocks pegged to prices for general 

seating, then accessible seating must be 

similarly color-coded. Likewise, if covered 

entities provide detailed maps that show 

exact seating and pricing for general seating, 

they must provide the same for accessible 

seating. 

The NPRM did not specify a requirement 

to identify prices for accessible seating. The 

final rule requires that if such information is 

provided for general seating, it must be 

provided for accessible seating as well. 

In the NPRM, the Department proposed in 

§ 36.302(f)(4) that a public accommodation, 

upon being asked, must inform persons with 

disabilities and their companions of the 

locations of all unsold or otherwise available 

seating. This provision is intended to prevent 

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the practice of ‘‘steering’’ individuals with 

disabilities to certain accessible seating so 

that the facility can maximize potential ticket 

sales by releasing unsold accessible seating, 

especially in preferred or desirable locations, 

for sale to the general public. The 

Department received no significant comment 

on this proposal. The Department has 

retained this provision in the final rule but 

has added it, with minor modifications, to 

§ 36.302(f)(2) as paragraph (i). 

Ticket prices. In the NPRM, the 

Department proposed § 36.302(f)(7) requiring 

that ticket prices for accessible seating be set 

no higher than the prices for other seats in 

that seating section for that event. The 

NPRM’s provision also required that 

accessible seating be made available at every 

price range, and if an existing facility has 

barriers to accessible seating within a 

particular price range, a proportionate 

amount of seating (determined by the ratio of 

the total number of seats at that price level 

to the total number of seats in the assembly 

area) must be offered in an accessible 

location at that same price. Under this rule, 

for example, if it is not readily achievable for 

a 20,000-seat facility built in 1980 to place 

accessible seating in the $20-price category, 

which is on the upper deck, it must place a 

proportionate number of seats in an 

accessible location for $20. If the upper deck 

has 2,000 seats, then the facility must place 

10 percent of its accessible seating in an 

accessible location for $20 provided that it is 

part of a seating section where ticket prices 

are equal to or more than $20—a facility may 

not place the $20-accessible seating in a $10- 

seating section. The Department received no 

significant comment on this rule, and it has 

been retained, as amended, in the final rule 

in § 36.302(f)(3). 

Purchase of multiple tickets. In the NPRM, 

the Department proposed § 36.302(f)(9) to 

address one of the most common ticketing 

complaints raised with the Department: that 

individuals with disabilities are not able to 

purchase more than two tickets. The 

Department proposed this provision to 

facilitate the ability of individuals with 

disabilities to attend events with friends, 

companions, or associates who may or may 

not have a disability by enabling individuals 

with disabilities to purchase the maximum 

number of tickets allowed per transaction to 

other spectators; by requiring venues to place 

accompanying individuals in general seating 

as close as possible to accessible seating (in 

the event that a group must be divided 

because of the large size of the group); and 

by allowing an individual with a disability to 

purchase up to three additional contiguous 

seats per wheelchair space if they are 

available at the time of sale. Section 

36.302(f)(9)(ii) of the NPRM required that a 

group containing one or more wheelchair 

users must be placed together, if possible, 

and that in the event that the group could not 

be placed together, the individuals with 

disabilities may not be isolated from the rest 

of the group. 

The Department asked in the NPRM 

whether this rule was sufficient to effectuate 

the integration of individuals with 

disabilities. Many advocates and individuals 

praised it as a welcome and much-needed 

change, stating that the trade-off of being able 

to sit with their family or friends was worth 

reducing the number of seats available for 

individuals with disabilities. Some 

commenters went one step further and 

suggested that the number of additional 

accompanying seats should not be restricted 

to three. 

Although most of the substance of the 

proposed provision on the purchase of 

multiple tickets has been maintained in the 

final rule, it has been renumbered as 

§ 36.302(f)(4), reorganized, and 

supplemented. To preserve the availability of 

accessible seating for other individuals with 

disabilities, the Department has not 

expanded the rule beyond three additional 

contiguous seats. Section 36.302(f)(4)(i) of the 

final rule requires public accommodations to 

make available for purchase three additional 

tickets for seats in the same row that are 

contiguous with the wheelchair space, 

provided that at the time of purchase there 

are three such seats available. The 

requirement that the additional seats be 

‘‘contiguous with the wheelchair space’’ does 

not mean that each of the additional seats 

must be in actual contact or have a border in 

common with the wheelchair space; 

however, at least one of the additional seats 

should be immediately adjacent to the 

wheelchair space. The Department 

recognizes that it will often be necessary to 

use vacant wheelchair spaces to provide for 

contiguous seating. 

The Department has added paragraphs 

(4)(ii) and (4)(iii) to clarify that in situations 

where there are insufficient unsold seats to 

provide three additional contiguous seats per 

wheelchair space or a ticket office restricts 

sales of tickets to a particular event to less 

than four tickets per customer, the obligation 

to make available three additional contiguous 

seats per wheelchair space would be affected. 

For example, if at the time of purchase, there 

are only two additional contiguous seats 

available for purchase because the third has 

been sold already, then the ticket purchaser 

would be entitled to two such seats. In this 

situation, the public entity would be required 

to make up the difference by offering one 

additional ticket for sale that is as close as 

possible to the accessible seats. Likewise, if 

ticket purchases for an event are limited to 

two per customer, a person who uses a 

wheelchair who seeks to purchase tickets 

would be entitled to purchase only one 

additional contiguous seat for the event. 

The Department has also added paragraph 

(4)(iv) to clarify that the requirement for three 

additional contiguous seats is not intended to 

serve as a cap if the maximum number of 

tickets that may be purchased by members of 

the general public exceeds the four tickets an 

individual with a disability ordinarily would 

be allowed to purchase (i.e., a wheelchair 

space and three additional contiguous seats). 

If the maximum number of tickets that may 

be purchased by members of the general 

public exceeds four, an individual with a 

disability is to be allowed to purchase the 

maximum number of tickets; however, 

additional tickets purchased by an individual 

with a disability beyond the wheelchair 

space and the three additional contiguous 

seats provided in § 36.302(f)(4)(i) do not have 

to be contiguous with the wheelchair space. 

The NPRM proposed at § 36.302(f)(9)(ii) 

that for group sales, if a group includes one 

or more individuals who use a wheelchair, 

then the group shall be placed in a seating 

area with accessible seating so that, if 

possible, the group can sit together. If it is 

necessary to divide the group, it should be 

divided so that the individuals in the group 

who use wheelchairs are not isolated from 

the rest of the members of their group. The 

final rule retains the NPRM language in 

paragraph (4)(v). 

Hold and release of unsold accessible 

seating. The Department recognizes that not 

all accessible seating will be sold in all 

assembly areas for every event to individuals 

with disabilities who need such seating and 

that public accommodations may have 

opportunities to sell such seating to the 

general public. The Department proposed in 

the NPRM a provision aimed at striking a 

balance between affording individuals with 

disabilities adequate time to purchase 

accessible seating and the entity’s desire to 

maximize ticket sales. In the NPRM, the 

Department proposed § 36.302(f)(6), which 

allowed for the release of accessible seating 

under the following circumstances: (i) When 

all seating in the facility has been sold, 

excluding luxury boxes, club boxes, or suites; 

(ii) when all seating in a designated area has 

been sold and the accessible seating being 

released is in the same area; or (iii) when all 

seating in a designated price range has been 

sold and the accessible seating being released 

is within the same price range. 

The Department’s NPRM asked ‘‘whether 

additional regulatory guidance is required or 

appropriate in terms of a more detailed or set 

schedule for the release of tickets in 

conjunction with the three approaches 

described above. For example, does the 

proposed regulation address the variable 

needs of assembly areas covered by the ADA? 

Is additional regulatory guidance required to 

eliminate discriminatory policies, practices 

and procedures related to the sale, hold, and 

release of accessible seating? What 

considerations should appropriately inform 

the determination of when unsold accessible 

seating can be released to the general 

public?’’ 73 FR 34508, 34527 (June 17, 2008). 

The Department received comments both 

supporting and opposing the inclusion of a 

hold-and-release provision. One side 

proposed loosening the restrictions on the 

release of unsold accessible seating. One 

commenter from a trade association 

suggested that tickets should be released 

regardless of whether there is a sell-out, and 

that these tickets should be released 

according to a set schedule. Conversely, 

numerous individuals, advocacy groups, and 

at least one public entity urged the 

Department to tighten the conditions under 

which unsold tickets for accessible seating 

may be released. These commenters 

suggested that venues should not be 

permitted to release tickets during the first 

two weeks of sale, or alternatively, that they 

should not be permitted to be released earlier 

than 48 hours before a sold-out event. Many 

of these commenters criticized the release of 

accessible seating under the second and third 

prongs of § 36.302(f)(6) in the NPRM (when 

there is a sell-out in general seating in a 

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designated seating area or in a price range), 

arguing that it would create situations where 

general seating would be available for 

purchase while accessible seating would not 

be. 

Numerous commenters—both from the 

industry and from advocacy groups—asked 

for clarification of the term ‘‘sell-out.’’ 

Business groups commented that industry 

practice is to declare a sell-out when there 

are only ‘‘scattered singles’’ available— 

isolated seats that cannot be purchased as a 

set of adjacent pairs. Many of those same 

commenters also requested that ‘‘sell-out’’ be 

qualified with the phrase ‘‘of all seating 

available for sale’’ since it is industry practice 

to hold back from release tickets to be used 

for groups connected with that event (e.g., 

the promoter, home team, or sports league). 

They argued that those tickets are not 

available for sale and any return of these 

tickets to the general inventory happens close 

to the event date. Noting the practice of 

holding back tickets, one advocacy group 

suggested that covered entities be required to 

hold back accessible seating in proportion to 

the number of tickets that are held back for 

later release. 

The Department has concluded that it 

would be inappropriate to interfere with 

industry practice by defining what 

constitutes a ‘‘sell-out’’ and that a public 

accommodation should continue to use its 

own approach to defining a ‘‘sell-out.’’ If, 

however, a public accommodation declares a 

sell-out by reference to those seats that are 

available for sale, but it holds back tickets 

that it reasonably anticipates will be released 

later, it must hold back a proportional 

percentage of accessible seating to be 

released as well. 

Adopting any of the alternatives proposed 

in the comments summarized above would 

have upset the balance between protecting 

the rights of individuals with disabilities and 

meeting venues’ concerns about lost revenue 

from unsold accessible seating. As a result, 

the Department has retained § 36.302(f)(6) 

renumbered as § 36.302(f)(5) in the final rule. 

The Department has, however, modified the 

regulation text to specify that accessible 

seating may be released only when ‘‘all nonaccessible tickets in a designated seating area 

have been sold and the tickets for accessible 

seating are being released in the same 

designated area.’’ As stated in the NPRM, the 

Department intended for this provision to 

allow, for example, the release of accessible 

seating at the orchestra level when all other 

seating at the orchestra level is sold. The 

Department has added this language to the 

final rule at § 36.302(f)(5)(B) to clarify that 

venues cannot designate or redesignate 

seating areas for the purpose of maximizing 

the release of unsold accessible seating. So, 

for example, a venue may not determine on 

an ad hoc basis that a group of seats at the 

orchestra level is a designated seating area in 

order to release unsold accessible seating in 

that area. 

The Department also has maintained the 

hold-and-release provisions that appeared in 

the NPRM, but has added a provision to 

address the release of accessible seating for 

series-of-events tickets on a series-of-events 

basis. Many commenters asked the 

Department whether unsold accessible 

seating may be converted to general seating 

and released to the general public on a 

season-ticket basis or longer when tickets 

typically are sold as a season-ticket package 

or other long-term basis. Several disability 

rights organizations and individual 

commenters argued that such a practice 

should not be permitted, and, if it were, that 

conditions should be imposed to ensure that 

individuals with disabilities have future 

access to those seats. 

The Department interprets the fundamental 

principle of the ADA as a requirement to give 

individuals with disabilities equal, not better, 

access to those opportunities available to the 

general public. Thus, for example, a public 

accommodation that sells out its facility on 

a season-ticket only basis is not required to 

leave unsold its accessible seating if no 

persons with disabilities purchase those 

season-ticket seats. Of course, public 

accommodations may choose to go beyond 

what is required by reserving accessible 

seating for individuals with disabilities (or 

releasing such seats for sale to the general 

public) on an individual-game basis. 

If a covered entity chooses to release 

unsold accessible seating for sale on a 

season-ticket or other long-term basis, it must 

meet at least two conditions. Under 

§ 36.302(f)(5)(iii) of the final rule, public 

accommodations must leave flexibility for 

game-day change-outs to accommodate ticket 

transfers on the secondary market. And 

public accommodations must modify their 

ticketing policies so that, in future years, 

individuals with disabilities will have the 

ability to purchase accessible seating on the 

same basis as other patrons (e.g., as season 

tickets). Put differently, releasing accessible 

seating to the general public on a seasonticket or other long-term basis cannot result 

in that seating being lost to individuals with 

disabilities in perpetuity. If, in future years, 

season tickets become available and persons 

with disabilities have reached the top of the 

waiting list or have met any other eligibility 

criteria for season ticket purchases, public 

accommodations must ensure that accessible 

seating will be made available to the eligible 

individuals. In order to accomplish this, the 

Department has added § 36.302(f)(5)(iii)(A) to 

require public accommodations that release 

accessible season tickets to individuals who 

do not have disabilities that require the 

features of accessible seating to establish a 

process to prevent the automatic 

reassignment of such ticket holders to 

accessible seating. For example, a public 

accommodation could have in place a system 

whereby accessible seating that was released 

because it was not purchased by individuals 

with disabilities is not in the pool of tickets 

available for purchase for the following 

season unless and until the conditions for 

ticket release have been satisfied in the 

following season. Alternatively, a public 

accommodation might release tickets for 

accessible seating only when a purchaser 

who does not need its features agrees that he 

or she has no guarantee of or right to the 

same seats in the following season, or that if 

season tickets are guaranteed for the 

following season, the purchaser agrees that 

the offer to purchase tickets is limited to nonaccessible seats with, to the extent 

practicable, comparable price, view, and 

amenities to the accessible seats such 

individuals held in the prior year. The 

Department is aware that this rule may 

require some administrative changes but 

believes that this process will not create 

undue financial and administrative burdens. 

The Department believes that this approach 

is balanced and beneficial. It will allow 

public accommodations to sell all of their 

seats and will leave open the possibility, in 

future seasons or series of events, that 

persons who need accessible seating may 

have access to it. 

The Department also has added 

§ 36.302(f)(5)(iii)(B) to address how season 

tickets or series-of-events tickets that have 

attached ownership rights should be handled 

if the ownership right returns to the public 

accommodation (e.g., when holders forfeit 

their ownership right by failing to purchase 

season tickets or sell their ownership right 

back to a public accommodation). If the 

ownership right is for accessible seating, the 

public accommodation is required to adopt a 

process that allows an eligible individual 

with a disability who requires the features of 

such seating to purchase the rights and 

tickets for such seating. 

Nothing in the regulatory text prevents a 

public accommodation from establishing a 

process whereby such ticket holders agree to 

be voluntarily reassigned from accessible 

seating to another seating area so that 

individuals with mobility disabilities or 

disabilities that require the features of 

accessible seating and who become newly 

eligible to purchase season tickets have an 

opportunity to do so. For example, a public 

accommodation might seek volunteers to 

relocate to another location that is at least as 

good in terms of its location, price, and 

amenities or a public accommodation might 

use a seat with forfeited ownership rights as 

an inducement to get a ticket holder to give 

up accessible seating he or she does not need. 

Ticket transfer. The Department received 

many comments asking whether accessible 

seating has the same transfer rights as general 

seats. The proposed regulation at 

§ 36.302(f)(5) required that individuals with 

disabilities must be allowed to purchase 

season tickets for accessible seating on the 

same terms and conditions as individuals 

purchasing season tickets for general seating, 

including the right—if it exists for other 

ticket-holders—to transfer individual tickets 

to friends or associates. Some commenters 

pointed out that the NPRM proposed 

explicitly allowing individuals with 

disabilities holding season tickets to transfer 

tickets but did not address the transfer of 

tickets purchased for individual events. 

Several commenters representing assembly 

areas argued that persons with disabilities 

holding tickets for an individual event 

should not be allowed to sell or transfer them 

to third parties because such ticket transfers 

would increase the risk of fraud or would 

make unclear the obligation of the entity to 

accommodate secondary ticket transfers. 

They argued that individuals holding 

accessible seating should either be required 

to transfer their tickets to another individual 

with a disability or return them to the facility 

for a refund. 

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Although the Department is sympathetic to 

concerns about administrative burden, 

curtailing transfer rights for accessible 

seating when other ticket holders are 

permitted to transfer tickets would be 

inconsistent with the ADA’s guiding 

principle that individuals with disabilities 

must have rights equal to others. Thus, the 

Department has added language in the final 

rule in § 36.302(f)(6) that requires that 

individuals with disabilities holding 

accessible seating for any event have the 

same transfer rights accorded other ticket 

holders for that event. Section 36.302(f)(6) 

also preserves the rights of individuals with 

disabilities who hold tickets to accessible 

seats for a series of events to transfer 

individual tickets to others, regardless of 

whether the transferee needs accessible 

seating. This approach recognizes the 

common practice of individuals splitting 

season tickets or other multi-event ticket 

packages with friends, colleagues, or other 

spectators to make the purchase of season 

tickets affordable; individuals with 

disabilities should not be placed in the 

burdensome position of having to find 

another individual with a disability with 

whom to share the package. 

This provision, however, does not require 

public accommodations to seat an individual 

who holds a ticket to an accessible seat in 

such seating if the individual does not need 

the accessible features of the seat. A public 

accommodation may reserve the right to 

switch these individuals to different seats if 

they are available, but a public 

accommodation is not required to remove a 

person without a disability who is using 

accessible seating from that seating, even if 

a person who uses a wheelchair shows up 

with a ticket from the secondary market for 

a non-accessible seat and wants accessible 

seating. 

Secondary ticket market. Section 

36.302(f)(7) is a new provision in the final 

rule that requires a public accommodation to 

modify its policies, practices, or procedures 

to ensure that an individual with a disability, 

who acquires a ticket in the secondary ticket 

market, may use that ticket under the same 

terms and conditions as other ticket holders 

who acquire a ticket in the secondary market 

for an event or series of events. This 

principle was discussed in the NPRM in 

connection with § 36.302(f)(5), pertaining to 

season-ticket sales. There, the Department 

asked for public comment regarding a public 

accommodation’s proposed obligation to 

accommodate the transfer of accessible 

seating tickets on the secondary ticket market 

to those who do not need accessible seating 

and vice versa. 

The secondary ticket market, for the 

purposes of this rule, broadly means any 

transfer of tickets after the public 

accommodation’s initial sale of tickets to 

individuals or entities. It thus encompasses 

a wide variety of transactions, from ticket 

transfers between friends to transfers using 

commercial exchange systems. Many 

commenters noted that the distinction 

between the primary and secondary ticket 

market has become blurred as a result of 

agreements between teams, leagues, and 

secondary market sellers. These commenters 

noted that the secondary market may operate 

independently of the public accommodation, 

and parts of the secondary market, such as 

ticket transfers between friends, undoubtedly 

are outside the direct jurisdiction of the 

public accommodation. To the extent that 

venues seat persons who have purchased 

tickets on the secondary market, they must 

similarly seat persons with disabilities who 

have purchased tickets on the secondary 

market. In addition, some public 

accommodations may acquire ADA 

obligations directly by formally entering the 

secondary ticket market. 

The Department’s enforcement experience 

with assembly areas also has revealed that 

venues regularly provide for and make lastminute seat transfers. As long as there are 

vacant wheelchair spaces, requiring venues 

to provide wheelchair spaces for patrons who 

acquired inaccessible seats and need 

wheelchair spaces is an example of a 

reasonable modification of a policy under 

title III of the ADA. Similarly, a person who 

has a ticket for a wheelchair space but who 

does not require its accessible features could 

be offered non-accessible seating if such 

seating is available. 

The Department’s longstanding position 

that title III of the ADA requires venues to 

make reasonable modifications in their 

policies to allow individuals with disabilities 

who acquired non-accessible tickets on the 

secondary ticket market to be seated in 

accessible seating, where such seating is 

vacant, is supported by the only Federal 

court to address this issue. See Independent 

Living Resources v. Oregon Arena Corp., 1 F. 

Supp. 2d 1159, 1171 (D. Or. 1998). The 

Department has incorporated this position 

into the final rule at § 36.302(f)(7)(ii). 

The NPRM contained two questions aimed 

at gauging concern with the Department’s 

consideration of secondary ticket market 

sales. The first question asked whether a 

secondary purchaser who does not have a 

disability and who buys an accessible seat 

should be required to move if the space is 

needed for someone with a disability. 

Many disability rights advocates answered 

that the individual should move provided 

that there is a seat of comparable or better 

quality available for him and his companion. 

Some venues, however, expressed concerns 

about this provision, and asked how they are 

to identify who should be moved and what 

obligations apply if there are no seats 

available that are equivalent or better in 

quality. 

The Department’s second question asked 

whether there are particular concerns about 

the obligation to provide accessible seating, 

including a wheelchair space, to an 

individual with a disability who purchases 

an inaccessible seat through the secondary 

market. 

Industry commenters contended that this 

requirement would create a ‘‘logistical 

nightmare,’’ with venues scrambling to reseat 

patrons in the short time between the 

opening of the venues’ doors and the 

commencement of the event. Furthermore, 

they argued that they might not be able to 

reseat all individuals and that even if they 

were able to do so, patrons might be moved 

to inferior seats (whether in accessible or 

non-accessible seating). These commenters 

also were concerned that they would be sued 

by patrons moved under such circumstances. 

These commenters seem to have 

misconstrued the rule. Covered entities are 

not required to seat every person who 

acquires a ticket for inaccessible seating but 

needs accessible seating, and are not required 

to move any individual who acquires a ticket 

for accessible seating but does not need it. 

Covered entities that allow patrons to buy 

and sell tickets on the secondary market must 

make reasonable modifications to their 

policies to allow persons with disabilities to 

participate in secondary ticket transfers. The 

Department believes that there is no one-sizefits-all rule that will suit all assembly areas. 

In those circumstances where a venue has 

accessible seating vacant at the time an 

individual with a disability who needs 

accessible seating presents his ticket for 

inaccessible seating at the box office, the 

venue must allow the individual to exchange 

his ticket for an accessible seat in a 

comparable location if such an accessible 

seat is vacant. Where, however, a venue has 

sold all of its accessible seating, the venue 

has no obligation to provide accessible 

seating to the person with a disability who 

purchased an inaccessible seat on the 

secondary market. Venues may encourage 

individuals with disabilities who hold tickets 

for inaccessible seating to contact the box 

office before the event to notify them of their 

need for accessible seating, even though they 

may not require ticketholders to provide such 

notice. 

The Department notes that public 

accommodations are permitted, though not 

required, to adopt policies regarding moving 

patrons who do not need the features of an 

accessible seat. If a public accommodation 

chooses to do so, it might mitigate 

administrative concerns by marking tickets 

for accessible seating as such, and printing 

on the ticket that individuals who purchase 

such seats but who do not need accessible 

seating are subject to being moved to other 

seats in the facility if the accessible seating 

is required for an individual with a 

disability. Such a venue might also develop 

and publish a ticketing policy to provide 

transparency to the general public and to put 

holders of tickets for accessible seating who 

do not require it on notice that they may be 

moved. 

Prevention of fraud in purchase of 

accessible seating. Assembly area managers 

and advocacy groups have informed the 

Department that the fraudulent purchase of 

accessible seating is a pressing concern. 

Curbing fraud is a goal that public 

accommodations and individuals with 

disabilities share. Steps taken to prevent 

fraud, however, must be balanced carefully 

against the privacy rights of individuals with 

disabilities. Such measures also must not 

impose burdensome requirements upon, nor 

restrict the rights of, individuals with 

disabilities. 

In the NPRM, the Department struck a 

balance between these competing concerns 

by proposing § 36.302(f)(8), which prohibited 

public accommodations from asking for proof 

of disability before the purchase of accessible 

seating but provided guidance in two 

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paragraphs on appropriate measures for 

curbing fraud. Paragraph (i) proposed 

allowing a public accommodation to ask 

individuals purchasing single-event tickets 

for accessible seating whether they are 

wheelchair users. Paragraph (ii) proposed 

allowing a public accommodation to require 

individuals purchasing accessible seating for 

season tickets or other multi-event ticket 

packages to attest in writing that the 

accessible seating is for a wheelchair user. 

Additionally, the NPRM proposed to permit 

venues, when they have good cause to 

believe that an individual has fraudulently 

purchased accessible seating, to investigate 

that individual. 

Several commenters objected to this rule 

on the ground that it would require a 

wheelchair user to be the purchaser of 

tickets. The Department has reworded this 

paragraph to reflect that the individual with 

a disability does not have to be the ticket 

purchaser. The final rule allows third parties 

to purchase accessible tickets at the request 

of an individual with a disability. 

Commenters also argued that other 

individuals with disabilities who do not use 

wheelchairs should be permitted to purchase 

accessible seating. Some individuals with 

disabilities who do not use wheelchairs 

urged the Department to change the rule, 

asserting that they, too, need accessible 

seating. The Department agrees that such 

seating, although designed for use by a 

wheelchair user, may be used by nonwheelchair users, if those persons are 

persons with a disability who need to use 

accessible seating because of a mobility 

disability or because their disability requires 

the use of the features that accessible seating 

provides (e.g., individuals who cannot bend 

their legs because of braces, or individuals 

who, because of their disability, cannot sit in 

a straight-back chair). 

Some commenters raised concerns that 

allowing venues to ask questions to 

determine whether individuals purchasing 

accessible seating are doing so legitimately 

would burden individuals with disabilities in 

the purchase of accessible seating. The 

Department has retained the substance of this 

provision in § 36.302(f)(8) of the final rule, 

but emphasizes that such questions should 

be asked at the initial time of purchase. For 

example, if the method of purchase is via the 

Internet, then the question(s) should be 

answered by clicking a yes or no box during 

the transaction. The public accommodation 

may warn purchasers that accessible seating 

is for individuals with disabilities and that 

individuals purchasing such tickets 

fraudulently are subject to relocation. 

One commenter argued that face-to-face 

contact between the venue and the ticket 

holder should be required in order to prevent 

fraud and suggested that individuals who 

purchase accessible seating should be 

required to pick up their tickets at the box 

office and then enter the venue immediately. 

The Department has declined to adopt that 

suggestion. It would be discriminatory to 

require individuals with disabilities to pick 

up tickets at the box office when other 

spectators are not required to do so. If the 

assembly area wishes to make face-to-face 

contact with accessible seating ticket holders 

to curb fraud, it may do so through its ushers 

and other customer service personnel located 

within the seating area. 

Some commenters asked whether it is 

permissible for assembly areas to have 

voluntary clubs where individuals with 

disabilities self-identify to the public 

accommodation in order to become a member 

of a club that entitles them to purchase 

accessible seating reserved for club members 

or otherwise receive priority in purchasing 

accessible seating. The Department agrees 

that such clubs are permissible, provided that 

a reasonable amount of accessible seating 

remains available at all prices and dispersed 

at all locations for individuals with 

disabilities who are non-members. 

Section 36.303 Auxiliary Aids and Services 

Section 36.303(a) of the 1991 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 customers, clients, patients, 

companions, or participants who have 

disabilities affecting hearing, vision, or 

speech. The Department notes that 

§ 36.303(a) does not require public 

accommodations to provide assistance to 

individuals with disabilities that is unrelated 

to effective communication, although 

requests for such assistance may be otherwise 

subject to the reasonable modifications or 

barrier removal requirements. 

The Department has investigated hundreds 

of complaints alleging that public 

accommodations have failed to provide 

effective communication, and many of these 

investigations have resulted in settlement 

agreements and consent decrees. During the 

course of these investigations, the 

Department has determined that public 

accommodations sometimes misunderstand 

the scope of their obligations under the 

statute and the regulation. Section 36.303 in 

the final rule codifies the Department’s 

longstanding policies in this area, and 

includes provisions based on technological 

advances and breakthroughs in the area of 

auxiliary aids and services that have 

occurred since the 1991 title III regulation 

was published. 

Video remote interpreting (VRI). Section 

36.303(b)(1) sets out examples of auxiliary 

aids and services. In the NPRM, the 

Department proposed adding video remote 

services (hereafter referred to as ‘‘video 

remote interpreting’’ or ‘‘VRI’’) and the 

exchange of written notes among the 

examples. The Department also proposed 

amending the provision to reflect 

technological advances, such as the wide 

availability of real-time capability in 

transcription services and captioning. 

VRI is defined in the final rule at § 36.104 

as ‘‘an interpreting service that uses video 

conference technology over dedicated lines 

or wireless technology offering high-speed, 

wide-bandwidth video connection or 

wireless connection that delivers highquality video images as provided in 

§ 36.303(f).’’ The Department notes that VRI 

generally consists of a videophone, monitors, 

cameras, a high-speed video connection, and 

an interpreter provided by the public 

accommodation pursuant to a contract for 

services. The term’s inclusion within the 

definition of ‘‘qualified interpreter’’ makes 

clear that a public accommodation’s use of 

VRI satisfies its title III obligations only 

where VRI affords effective communication. 

Comments from advocates and persons with 

disabilities expressed concern that VRI may 

not always provide effective communication, 

especially in hospitals and emergency rooms. 

Examples were provided of patients who are 

unable to see the video monitor because they 

are semi-conscious or unable to focus on the 

video screen; other examples were given of 

cases where the video monitor is out of the 

sightline of the patient or the image is out of 

focus; still other examples were given of 

patients who cannot see the screen because 

the signal is interrupted, causing unnatural 

pauses in communication, or the image is 

grainy or otherwise unclear. Many 

commenters requested more explicit 

guidelines on the use of VRI, and some 

recommended requirements for equipment 

maintenance, dedicated high-speed, widebandwidth video connections, and training of 

staff using VRI, especially in hospital and 

health care situations. Several major 

organizations requested a requirement to 

include the interpreter’s face, head, arms, 

hands, and eyes in all transmissions. 

The Department has determined that VRI 

can be an effective method of providing 

interpreting service in certain situations, 

particularly when a live interpreter cannot be 

immediately on the scene. To ensure that VRI 

is effective, the Department has established 

performance standards for VRI in § 36.303(f). 

The Department recognizes that reliance on 

VRI may not be effective in certain situations, 

such as those involving the exchange of 

complex information or involving multiple 

parties, and for some individuals, such as for 

persons who are deaf-blind, and using VRI in 

those circumstances would not satisfy a 

public accommodation’s obligation to 

provide effective communication. 

Comments from several disability advocacy 

organizations and individuals discouraged 

the Department from adding the exchange of 

written notes to the list of available auxiliary 

aids in § 36.303(b). The Department 

consistently has recognized that the exchange 

of written notes may provide effective 

communication in certain contexts. The 

NPRM proposed adding an explicit reference 

to written notes because some title III entities 

do not understand that exchange of written 

notes using paper and pencil may be an 

available option in some circumstances. 

Advocates and persons with disabilities 

requested explicit limits on the use of written 

notes as a form of auxiliary aid because, they 

argued, most exchanges are not simple, and 

handwritten notes do not afford effective 

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communication. One major advocacy 

organization, for example, noted that the 

speed at which individuals communicate 

orally or use sign language averages about 

200 words per minute or more, and thus, the 

exchange of notes may provide only 

truncated or incomplete communication. For 

persons whose primary language is American 

Sign Language (ASL), some commenters 

pointed out, using written English in 

exchange of notes often is ineffective because 

ASL syntax and vocabulary is dissimilar from 

English. By contrast, some commenters from 

professional medical associations sought 

more specific guidance on when notes are 

allowed, especially in the context of medical 

offices and health care situations. 

Exchange of notes likely will be effective 

in situations that do not involve substantial 

conversation, for example, when blood is 

drawn for routine lab tests or regular allergy 

shots are administered. However, interpreters 

should be used when the matter involves 

more complexity, such as in communication 

of medical history or diagnoses, in 

conversations about medical procedures and 

treatment decisions, or in communication of 

instructions for care at home or elsewhere. 

The Department discussed in the NPRM the 

kinds of situations in which use of 

interpreters or captioning is necessary. 

Additional guidance on this issue can be 

found in a number of agreements entered into 

with health care providers and hospitals that 

are available on the Department’s Web site at 

http://www.ada.gov. 

In addition, commenters requested that the 

Department include ‘‘real-time’’ before any 

mention of ‘‘computer-aided’’ or ‘‘captioning’’ 

technology to highlight the value of 

simultaneous translation of any 

communication. The Department has added 

to the final rule appropriate references to 

‘‘real-time’’ to recognize this aspect of 

effective communication. Lastly, in this 

provision and elsewhere in the title III 

regulation, the Department has replaced the 

term ‘‘telecommunications devices for deaf 

persons (TDD)’’ with ‘‘text telephones 

(TTYs).’’ As noted in the NPRM, TTY has 

become the commonly accepted term and is 

consistent with the terminology used by the 

Access Board in the 2004 ADAAG. 

Comments from advocates and persons with 

disabilities expressed approval of the 

substitution of TTY for TDD in the proposed 

regulation, but expressed the view that the 

Department should expand the definition to 

‘‘voice, text, and video-based 

telecommunications products and systems, 

including TTY’s, videophones, and 

captioned telephones, or equally effective 

telecommunications systems.’’ The 

Department has expanded its definition of 

‘‘auxiliary aids and services’’ in § 36.303 to 

include those examples in the final rule. 

Other additions proposed in the NPRM, and 

retained in the final rule, include Brailled 

materials and displays, screen reader 

software, magnification software, optical 

readers, secondary auditory programs (SAP), 

and accessible electronic and information 

technology. 

As the Department noted in the preamble 

to the NPRM, the list of auxiliary aids in 

§ 36.303(b) is merely illustrative. The 

Department does not intend that every public 

accommodation covered by title III must have 

access to every device or all new technology 

at all times, as long as the communication 

provided is effective. 

Companions who are individuals with 

disabilities. The Department has added 

several new provisions to § 36.303(c), but 

these provisions do not impose new 

obligations on places of public 

accommodation. Rather, these provisions 

simply codify the Department’s longstanding 

positions. Section 36.303(c)(1) now states 

that ‘‘[a] public accommodation shall furnish 

appropriate auxiliary aids and services where 

necessary to ensure effective communication 

with individuals with disabilities. This 

includes an obligation to provide effective 

communication to companions who are 

individuals with disabilities.’’ Section 

36.303(c)(1)(i) defines ‘‘companion’’ as ‘‘a 

family member, friend, or associate of an 

individual seeking access to, or participating 

in, the goods, services, facilities, privileges, 

advantages, or accommodations of a public 

accommodation, who, along with such 

individual, is an appropriate person with 

whom the public accommodation should 

communicate.’’ 

This provision makes clear that if the 

companion is someone with whom the 

public accommodation normally would or 

should communicate, then the public 

accommodation must provide appropriate 

auxiliary aids and services to that companion 

to ensure effective communication with the 

companion. This commonsense rule provides 

the necessary guidance to public 

accommodations to implement properly the 

nondiscrimination requirements of the ADA. 

Commenters also questioned why, in the 

NPRM, the Department defined companion 

as ‘‘a family member, friend, or associate of 

a program participant * * *,’’ noting that the 

scope of a public accommodation’s obligation 

is not limited to ‘‘program participants’’ but 

rather includes all individuals seeking access 

to, or participating in, the goods, services, 

facilities, privileges, advantages, or 

accommodations of the public 

accommodation. 73 FR 34508, 34554 (June 

17, 2008). The Department agrees and has 

amended the regulatory language 

accordingly. Many commenters supported 

inclusion of companions in the rule and 

requested that the Department clarify that a 

companion with a disability may be entitled 

to effective communication from the public 

accommodation, even though the individual 

seeking access to, or participating in, the 

goods, services, facilities, privileges, 

advantages, or accommodations of the public 

accommodation is not an individual with a 

disability. Some commenters asked the 

Department to make clear that if the 

individual seeking access to or participating 

in the public accommodation’s program or 

services is an individual with a disability and 

the companion is not, the public 

accommodation may not limit its 

communication to the companion, instead of 

communicating directly with the individual 

with a disability, when it would otherwise be 

appropriate to communicate with the 

individual with the disability. 

Most entities and individuals from the 

medical field objected to the Department’s 

proposal, suggesting that medical and health 

care providers, and they alone, should 

determine to whom medical information 

should be communicated and when auxiliary 

aids and services should be provided to 

companions. Others asked that the 

Department limit the public 

accommodation’s obligation to communicate 

effectively with a companion to situations 

where such communication is necessary to 

serve the interests of the person who is 

receiving the public accommodation’s 

services. It also was suggested that 

companions should receive auxiliary aids 

and services only when necessary to ensure 

effective communication with the person 

receiving the public accommodation’s 

services, with an emphasis on the particular 

needs of the patient requiring assistance, not 

the patient’s family or guardian. 

Some in the medical community objected 

to the inclusion of any regulatory language 

regarding companions, asserting that such 

language is overbroad, seeks services for 

individuals whose presence is neither 

required by the public accommodation nor 

necessary for the delivery of the services or 

good, places additional burdens on the 

medical community, and represents an 

uncompensated mandate. One medical 

association commenter stated that such a 

mandate was particularly burdensome in 

situations where a patient is fully and legally 

capable of participating in the decisionmaking process and needs little or no 

assistance in obtaining care and following 

through on physician’s instructions. 

The final rule codifies the Department’s 

longstanding interpretation of the ADA, and 

clarifies that public accommodations have 

effective communication obligations with 

respect to companions who are individuals 

with disabilities even where the individual 

seeking to participate in or benefit from what 

a public accommodation offers does not have 

a disability. There are many instances in 

which such an individual may not be an 

individual with a disability but his or her 

companion is an individual with a disability. 

The effective communication requirement 

applies equally to that companion. 

Effective communication with companions 

is particularly critical in health care settings 

where miscommunication may lead to 

misdiagnosis and improper or delayed 

medical treatment. The Department has 

encountered confusion and reluctance by 

medical care providers regarding the scope of 

their obligation with respect to such 

companions. Effective communication with a 

companion is necessary in a variety of 

circumstances. For example, a companion 

may be legally authorized to make health 

care decisions on behalf of the patient or may 

need to help the patient with information or 

instructions given by hospital personnel. In 

addition, a companion may be the patient’s 

next of kin or health care surrogate with 

whom hospital personnel need to 

communicate concerning the patient’s 

medical condition. Moreover, a companion 

could be designated by the patient to 

communicate with hospital personnel about 

the patient’s symptoms, needs, condition, or 

medical history. Furthermore, the companion 

could be a family member with whom 

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hospital personnel normally would 

communicate. It has been the Department’s 

longstanding position that public 

accommodations are required to provide 

effective communication to companions 

when they accompany patients to medical 

care providers for treatment. 

The individual with a disability does not 

need to be present physically to trigger the 

public accommodation’s obligation to 

provide effective communication to a 

companion. The controlling principle 

regarding whether appropriate auxiliary aids 

and services should be provided is whether 

the companion is an appropriate person with 

whom the public accommodation should 

communicate. Examples of such situations 

include back-to-school night or parentteacher conferences at a private school. If the 

faculty writes on the board or otherwise 

displays information in a visual context 

during back-to-school night, this information 

must be communicated effectively to parents 

or guardians who are blind or have low 

vision. At a parent-teacher conference, deaf 

parents or guardians are to be provided with 

appropriate auxiliary aids and service to 

communicate effectively with the teacher and 

administrators. Likewise, when a deaf spouse 

attempts to communicate with private social 

service agencies about the services necessary 

for the hearing spouse, appropriate auxiliary 

aids and services must be provided to the 

deaf spouse by the public accommodation to 

ensure effective communication. 

One medical association sought approval 

to impose a charge against an individual with 

a disability, either the patient or the 

companion, where that person had stated he 

or she needed an interpreter for a scheduled 

appointment, the medical provider had 

arranged for an interpreter to appear, and 

then the individual requiring the interpreter 

did not show up for the scheduled 

appointment. Section 36.301(c) of the 1991 

title III regulation prohibits the imposition of 

surcharges to cover the costs of necessary 

auxiliary aids and services. As such, medical 

providers cannot pass along to their patients 

with disabilities the cost of obtaining an 

interpreter, even in situations where the 

individual cancels his or her appointment at 

the last minute or is a ‘‘no-show’’ for the 

scheduled appointment. The medical 

provider, however, may charge for the missed 

appointment if all other patients are subject 

to such a charge in the same circumstances. 

Determining appropriate auxiliary aids. 

The type of auxiliary aid the public 

accommodation provides is dependent on 

which auxiliary aid is appropriate under the 

particular circumstances. Section 

36.303(c)(1)(ii) codifies the Department’s 

longstanding interpretation that 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. As 

the Department explained in the NPRM, this 

provision lists factors the public 

accommodation should consider in 

determining which type of auxiliary aids and 

services are necessary. For example, an 

individual with a disability who is deaf or 

hard of hearing may need a qualified 

interpreter to discuss with hospital personnel 

a diagnosis, procedures, tests, treatment 

options, surgery, or prescribed medication 

(e.g., dosage, side effects, drug interactions, 

etc.). In comparison, an individual who is 

deaf or hard of hearing who purchases an 

item in the hospital gift shop may need only 

an exchange of written notes to achieve 

effective communication. 

The language in the first sentence of 

§ 36.303(c)(1)(ii) is derived from the 

Department’s Technical Assistance Manual. 

See Department of Justice, Americans with 

Disabilities Act, ADA Title III Technical 

Assistance Manual Covering Public 

Accommodations and Commercial Facilities, 

III–4.3200, available at http://www.ada.gov/ 

taman3.html. There were few comments 

regarding inclusion of this policy in the 

regulation itself, and those received were 

positive. 

Many advocacy groups, particularly those 

representing blind individuals and those 

with low vision, urged the Department to add 

language in the final rule requiring the 

provision of accessible material in a manner 

that is timely, accurate, and private. This, 

they argued, would be especially important 

with regard to billing information, other 

time-sensitive material, or confidential 

information. The Department has added a 

provision in § 36.303(c)(1)(ii) stating that in 

‘‘order to be effective, auxiliary aids and 

services must be provided in accessible 

formats, in a timely manner, and in such a 

way so as to protect the privacy and 

independence of the individual with a 

disability.’’ 

The second sentence of § 36.303(c)(1)(ii) 

states that ‘‘[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.’’ Many commenters urged 

the Department to amend this provision to 

require public accommodations to give 

primary consideration to the expressed 

choice of an individual with a disability. 

However, as the Department explained when 

it initially promulgated the 1991 title III 

regulation, the Department believes that 

Congress did not intend under title III to 

impose upon a public accommodation the 

requirement that it give primary 

consideration to the request of the individual 

with a disability. See 28 CFR part 36, app. 

B at 726 (2009). The legislative history does, 

however, demonstrate congressional intent to 

strongly encourage consulting with persons 

with disabilities. Id. As the Department 

explained in the 1991 preamble, ‘‘the House 

Education and Labor Committee stated that it 

‘expects’ that ‘public accommodation(s) will 

consult with the individual with a disability 

before providing a particular auxiliary aid or 

service.’ (Education and Labor report at 

107).’’ Id. 

The commenters who urged that primary 

consideration be given to the individual with 

a disability noted, for example, that a public 

accommodation would not provide effective 

communication by using written notes where 

the individual requiring an auxiliary aid is in 

severe pain, or by providing a qualified ASL 

interpreter when an individual needs an oral 

interpreter instead. Both examples illustrate 

the importance of consulting with the 

individual with a disability in order to 

ensure that the communication provided is 

effective. When a public accommodation 

ignores the communication needs of the 

individual requiring an auxiliary aid or 

service, it does so at its peril, for if the 

communication provided is not effective, the 

public accommodation will have violated 

title III of the ADA. 

Consequently, the regulation strongly 

encourages the public accommodation to 

engage in a dialogue with the individual with 

a disability to determine what auxiliary aids 

and services are appropriate under the 

circumstances. This dialogue should include 

a communication assessment of the 

individual with a disability initially, 

regularly, and as needed, because the 

auxiliary aids and services necessary to 

provide effective communication to the 

individual may fluctuate. For example, a deaf 

individual may go to a private community 

health center with what is at first believed to 

be a minor medical emergency, such as a sore 

knee, and the individual with a disability 

and the community health center both may 

believe that exchanging written notes will be 

effective; however, during that individual’s 

visit, it may be determined that the 

individual is, in fact, suffering from an 

anterior cruciate ligament tear and must have 

surgery to repair the torn ligament. As the 

situation develops and the diagnosis and 

recommended course of action evolve into 

surgery, an interpreter likely will be 

necessary. The community health center has 

a continuing obligation to assess the auxiliary 

aids and services it is providing, and should 

consult with individuals with disabilities on 

a continuing basis to assess what measures 

are required to ensure effective 

communication. 

Similarly, the Department strongly 

encourages public accommodations to keep 

individuals with disabilities apprised of the 

status of the expected arrival of an interpreter 

or the delivery of other requested or 

anticipated auxiliary aids and services. Also, 

when the public accommodation decides not 

to provide the auxiliary aids and services 

requested by an individual with a disability, 

the public accommodation should provide 

that individual with the reason for its 

decision. 

Family members and friends as 

interpreters. Section 36.303(c)(2), which was 

proposed in the NPRM, has been included in 

the final rule to make clear that a public 

accommodation shall not require an 

individual with a disability to bring another 

individual to interpret for him or her. The 

Department has added this regulatory 

requirement to emphasize that when a public 

accommodation is interacting with a person 

with a disability, it is the public 

accommodation’s responsibility to provide 

an interpreter to ensure effective 

communication. It is not appropriate to 

require the person with a disability to bring 

another individual to provide such services. 

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Many commenters supported inclusion of 

this language in the new rule. A 

representative from a cruise line association 

opined, however, that if a guest chose to 

cruise without an interpreter or companion, 

the ship would not be compelled to provide 

an interpreter for the medical facility. On the 

contrary, when an individual with a 

disability goes on a cruise, the cruise ship 

has an obligation to provide effective 

communication, including, if necessary, a 

qualified interpreter as defined in the rule. 

Some representatives of pediatricians 

objected to this provision, stating that parents 

of children with disabilities often know best 

how to interpret their children’s needs and 

health status and relay that information to 

the child’s physician, and to remove that 

parent, or add a stranger into the examining 

room, may frighten children. These 

commenters requested clarification in the 

regulation that public accommodations 

should permit parents, guardians, or 

caregivers of children with disabilities to 

accompany them in medical settings to 

ensure effective communication. The 

regulation does not prohibit parents, 

guardians, or caregivers from being present or 

providing effective communication for 

children. Rather, it prohibits medical 

professionals (and other public 

accommodations) from requiring or forcing 

individuals with disabilities to bring other 

individuals with them to facilitate 

communication so that the public 

accommodation will not have to provide 

appropriate auxiliary aids and services. The 

public accommodation cannot avoid its 

obligation to provide an interpreter except 

under the circumstances described in 

§ 36.303(c)(3)–(4). 

A State medical association also objected 

to this provision, opining that medical 

providers should have the authority to ask 

patients to bring someone with them to 

provide interpreting services if the medical 

provider determines that such a practice 

would result in effective communication and 

that patient privacy and confidentiality 

would be maintained. While the public 

accommodation has the obligation to 

determine what type of auxiliary aids and 

services are necessary to ensure effective 

communication, it cannot unilaterally 

determine whether the patient’s privacy and 

confidentiality would be maintained. 

Section 36.303(c)(3) of the final rule 

codifies the Department’s position that there 

are certain limited instances when a public 

accommodation may rely on an 

accompanying adult to interpret or facilitate 

communication: (1) In an emergency 

involving an imminent threat to the safety or 

welfare of an individual or the public; or (2) 

if the individual with a disability specifically 

requests it, the accompanying adult agrees to 

provide the assistance, and reliance on that 

adult for this assistance is appropriate under 

the circumstances. In such instances, the 

public accommodation should first offer to 

provide appropriate auxiliary aids and 

services free of charge. 

Commenters requested that the Department 

make clear that the public accommodation 

cannot request, rely on, or coerce an 

accompanying adult to provide effective 

communication for an individual with a 

disability, and that only a voluntary offer of 

assistance is acceptable. The Department 

states unequivocally that consent of, and for, 

the accompanying adult to facilitate 

communication must be provided freely and 

voluntarily both by the individual with a 

disability and the accompanying adult— 

absent an emergency involving an imminent 

threat to the safety or welfare of an 

individual or the public. The public 

accommodation cannot coerce or attempt to 

persuade another adult to provide effective 

communication for the individual with a 

disability. 

Several commenters asked that the 

Department make clear that children are not 

to be used to provide effective 

communication for family members and 

friends and that it is the responsibility of the 

public accommodation to provide effective 

communication, stating that interpreters 

often are needed in settings where it would 

not be appropriate for children to be 

interpreting, such as those involving medical 

issues, domestic violence, or other situations 

involving the exchange of confidential or 

adult-related material. Children often are 

hesitant to decline requests to provide 

communication services, which puts them in 

a very difficult position vis-a-vis family 

members and friends. The Department 

agrees. It is the Department’s position that a 

public accommodation shall not rely on a 

minor child to facilitate communication with 

a family member, friend, or other individual 

except in an emergency involving an 

imminent threat to the safety or welfare of an 

individual or the public where no interpreter 

is available. Accordingly, the Department has 

revised the rule to state that ‘‘[a] public 

accommodation shall not rely on a minor 

child to interpret or facilitate 

communication, except in an emergency 

involving an imminent threat to the safety or 

welfare of an individual or the public where 

there is no interpreter available.’’ 

§ 36.303(c)(4). Sections 36.303(c)(3) and (c)(4) 

have no application in circumstances where 

an interpreter would not otherwise be 

required in order to provide effective 

communication (e.g., in simple transactions 

such as purchasing movie tickets at a 

theater). 

The Department stresses that privacy and 

confidentiality must be maintained but notes 

that covered entities, such as hospitals, that 

are subject to the Privacy Rules, 45 CFR parts 

160 and 164, of the Health Insurance 

Portability and Accountability Act of 1996 

(HIPAA), Public Law 104–191, are permitted 

to disclose to a patient’s relative, close friend, 

or any other person identified by the patient 

(such as an interpreter) relevant patient 

information if the patient agrees to such 

disclosures. See 45 CFR parts 160 and 164. 

The agreement need not be in writing. 

Covered entities should consult the HIPAA 

Privacy Rules regarding other ways 

disclosures may be made to such persons. 

With regard to emergency situations, 

proposed § 36.303(c)(3) permitted reliance on 

an individual accompanying an individual 

with a disability to interpret or facilitate 

communication in an emergency involving a 

threat to the safety or welfare of an 

individual or the public. Commenters 

requested that the Department make clear 

that often a public accommodation can 

obtain appropriate auxiliary aids and services 

in advance of an emergency, particularly in 

anticipated emergencies, such as predicted 

dangerous weather, or in certain medical 

situations, such as pending childbirth, by 

making necessary pre-arrangements. These 

commenters did not want public 

accommodations to be relieved of their 

responsibilities to provide effective 

communication in emergency situations, 

noting that the need for effective 

communication in emergencies is 

heightened. For the same reason, several 

commenters requested a separate rule that 

requires public accommodations to provide 

timely and effective communication in the 

event of an emergency. 

One group of commenters asked that the 

Department narrow the regulation permitting 

reliance on a companion to interpret or 

facilitate communication in emergency 

situations so that it is not available to entities 

with responsibilities for emergency 

preparedness and response. Some 

commenters noted that certain exigent 

circumstances, such as those that exist 

during and, perhaps, immediately after a 

major hurricane, temporarily may excuse 

public accommodations of their 

responsibilities to provide effective 

communication. However, they asked that 

the Department clarify that these obligations 

are ongoing, and that as soon as such 

situations begin to abate or become 

stabilized, the public accommodation must 

provide effective communication. 

The Department recognizes the need for 

effective communication is critical in 

emergency situations. After due 

consideration of all of these concerns raised 

by commenters, the Department has revised 

§ 36.303(c) to narrow the exception 

permitting reliance on individuals 

accompanying the individual with a 

disability during an emergency to make it 

clear that it applies only to emergencies 

involving an ‘‘imminent threat to the safety 

or welfare of an individual or the public 

* * *.’’ § 36.303(c)(3)–(4). The Department 

wishes to emphasize, however, that 

application of this exception is narrowly 

tailored to emergencies involving an 

imminent threat to the safety or welfare of 

individuals or the public. Arguably, all visits 

to an emergency room are by definition 

emergencies. Likewise, an argument can be 

made that most situations to which 

emergency workers respond involve, in one 

way or another, a threat to the safety or 

welfare of an individual or the public. The 

imminent threat exception in § 36.303(c)(3)– 

(4) is not intended to apply to typical and 

foreseeable emergency situations that are part 

of the normal operations of these institutions. 

As such, a public accommodation may rely 

on an accompanying individual to interpret 

or facilitate communication under the 

§ 36.303(c)(3)–(4) imminent threat exception 

only where there is a true emergency, i.e., 

where any delay in providing immediate 

services to the individual could have lifealtering or life-ending consequences. 

Telecommunications. In addition to the 

changes discussed in § 36.303(b) regarding 

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telecommunications, telephones, and text 

telephones, the Department has adopted 

provisions in § 36.303(d) of the final rule 

(which also were included in the NPRM) 

requiring that public accommodations must 

not disconnect or refuse to take calls from 

FCC-approved telecommunications relay 

systems, including Internet-based relay 

systems. Commenters from some State 

agencies, many advocacy organizations, and 

individuals strongly urged the Department to 

mandate such action because of the high 

proportion of TTY calls and relay service 

calls to title III entities that are not completed 

because of phone systems or employees not 

taking the calls. This refusal presents a 

significant obstacle for persons using TTYs 

who do business with public 

accommodations and denies persons with 

disabilities telephone access for business that 

typically is handled over the telephone. 

Section 36.303(d)(1)(ii) of the NPRM added 

public telephones equipped with volume 

control mechanisms and hearing aidcompatible telephones to the examples of 

types of telephone equipment to be provided. 

Commenters from the disability community 

and from telecommunications relay service 

providers argued that requirements for these 

particular features on telephones are obsolete 

not only because the deaf and hard of hearing 

community uses video technology more 

frequently than other types of 

telecommunication, but also because all 

public coin phones have been hearing aid 

compatible since 1983, pursuant to the 

Telecommunications for the Disabled Act of 

1982, 47 U.S.C. 610. The Hearing Aid 

Compatibility Act of 1988, 47 U.S.C. 610, 

extended this requirement to all wireline 

telephones imported into or manufactured in 

the United States since 1989. In 1997, the 

FCC further required that all such phones 

also be equipped with volume control. See 47 

CFR 68.6. Given these existing statutory 

obligations, the proposed language is 

unnecessary. Accordingly, the Department 

has deleted that language from the final rule. 

The Department understands that there are 

many new devices and advances in 

technology that should be included in the 

definition of available auxiliary aids and is 

including many of the telecommunications 

devices and some new technology. While 

much of this technology is not expensive and 

should be available to most title III entities, 

there may be legitimate reasons why in a 

particular situation some of these new and 

developing auxiliary aids may not be 

available, may be prohibitively costly (thus 

supporting an undue burden defense), or may 

otherwise not be suitable given other 

circumstances related to the particular 

terrain, situation, or functionality in 

specialized areas where security, among 

other things, may be a factor limiting the 

appropriateness of the use of a particular 

technology or device. The Department 

recognizes that the available new technology 

may provide more effective communication 

than existing technology and that providing 

effective communication often will include 

use of new technology and video relay 

services, as well as interpreters. However, the 

Department has not mandated that title III 

entities make all technology or services 

available upon demand in all situations. 

When a public accommodation provides the 

opportunity to make outgoing phone calls on 

more than an incidental-convenience basis, it 

shall make available accessible public 

telephones, TTYs, or other 

telecommunications products and systems 

for use by an individual who is deaf or hard 

of hearing, or has a speech impairment. 

Video remote interpreting (VRI) services. In 

§ 36.303(f) of the NPRM, the Department 

proposed the inclusion of four performance 

standards for VRI (which the NPRM termed 

video interpreting services (VIS)), for 

effective communication: (1) High-quality, 

clear, real-time, full-motion video, and audio 

over a dedicated high-speed Internet 

connection; (2) a clear, sufficiently large, and 

sharply delineated picture of the 

participants’ heads, arms, hands, and fingers, 

regardless of their body position; (3) clear 

transmission of voices; and (4) persons who 

are trained to set up and operate the VIS 

quickly and efficiently. 

Commenters generally approved of these 

proposed performance standards, but 

recommended that some additional standards 

be included in the final rule. For persons 

who are deaf with limited vision, 

commenters requested that the Department 

include an explicit requirement that 

interpreters wear high-contrast clothing with 

no patterns that might distract from their 

hands as they are interpreting, so that a 

person with limited vision could still see the 

signs made by the interpreter. While the 

Department reiterates the importance of such 

practices in the delivery of effective VRI as 

well as in-person interpreting, the 

Department declines to adopt such 

performance standards as part of this rule. In 

general, professional interpreters already 

follow such practices, as the Code of 

Professional Conduct for interpreters 

developed by the Registry of Interpreter for 

the Deaf and the National Association of the 

Deaf incorporates attire considerations into 

their standards of professionalism and 

conduct. Moreover, as a result of this code, 

many VRI agencies have adopted detailed 

dress standards that interpreters hired by the 

agency must follow. Commenters also urged 

explicit requirement of a clear image of the 

face and eyes of the interpreter and others. 

Because the face includes the eyes, the 

Department has amended § 36.303(f)(2) of the 

final rule to include a requirement that the 

interpreter’s face be displayed. Other 

commenters requested requirement of a 

wide-bandwidth video connection for the 

VRI system, and the Department has 

included this requirement in § 36.303(f)(1) of 

the final rule. 

ATMs. The 2010 Standards set out detailed 

requirements for ATMs, including 

communication-related requirements to make 

ATMs usable by individuals who are blind or 

have low vision. In the NPRM, the 

Department discussed the application of a 

safe harbor to the communication-related 

elements of ATMs. The NPRM explained that 

the Department considers the 

communication-related elements of ATMs to 

be auxiliary aids and services, to which the 

safe harbor for elements built in compliance 

with the 1991 standards does not apply. 

The Department received several 

comments regarding this issue. Several 

commenters representing banks objected to 

the exclusion of communication-related 

aspects of ATMs from the safe harbor 

provision. They explained that the useful life 

of ATMs—on average 10 years—was longer 

than the Department noted; thus, without the 

safe harbor, banks would be forced to retrofit 

many ATMs in order to comply with the 

proposed regulation. Such retrofitting, they 

noted, would be costly to the industry. A few 

representatives of the disability community 

commented that communication-related 

aspects of ATMs should be excluded from 

the safe harbor. 

The Department consistently has taken the 

position that the communication-related 

elements of ATMs are auxiliary aids and 

services, rather than structural elements. See 

28 CFR part 36, app. B at 728 (2009). Thus, 

the safe harbor provision does not apply to 

these elements. The Department believes that 

the limitations on the effective 

communication requirements, which provide 

that a covered entity does not have to take 

measures that would result in a fundamental 

alteration of its program or would cause 

undue burdens, provide adequate protection 

to covered entities that operate ATMs. 

Captioning at sporting venues. In 

§ 36.303(g) of the NPRM, the Department 

proposed that sports stadiums that have a 

capacity of 25,000 or more shall provide 

captioning for safety and emergency 

information on scoreboards and video 

monitors. In addition, the Department posed 

four questions about captioning of 

information, especially safety and emergency 

information announcements, provided over 

public address (PA) systems. The Department 

received many detailed and divergent 

responses to each of the four questions and 

the proposed regulatory text. Because 

comments submitted on the Department’s 

title II and title III proposals were 

intertwined, because of the similarity of 

issues involved for title II entities and title 

III entities, and in recognition of the fact that 

many large sports stadiums are covered by 

both title II and title III as joint operations of 

State or local government and one or more 

public accommodations, the Department 

presents here a single consolidated review 

and summary of the issues raised in 

comments. 

The Department asked whether requiring 

captioning of safety and emergency 

information made over the public address 

system in stadiums seating fewer than 25,000 

would create an undue burden for smaller 

entities, and whether it would be feasible for 

small stadiums to provide such captioning, 

or whether a larger threshold, such as sports 

stadiums with a capacity of 50,000 or more, 

would be appropriate. 

There was a consensus among the 

commenters, including disability advocates 

as well as venue owners and stadium 

designers and operators, that using the 

stadium size or seating capacity should not 

be the exclusive deciding factor for any 

obligation to provide captioning for safety 

and emergency information broadcast over 

the PA system. Most disability advocacy 

organizations and individuals with 

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disabilities complained that using size or 

seating capacity as a threshold for captioning 

safety and emergency information would 

undermine the ‘‘undue burden’’ defense 

found in both titles II and III. Many 

commenters provided examples of facilities 

such as professional hockey arenas that seat 

less than 25,000 fans but that, commenters 

argued, should be able to provide real-time 

captioning. Other commenters suggested that 

some high school or college stadiums, for 

example, may hold 25,000 fans or more and 

yet lack the resources to provide real-time 

captioning. Many commenters noted that 

real-time captioning would require use of 

trained stenographers, and that most high 

school and college sports facilities rely upon 

volunteers to operate scoreboards and PA 

systems and they would not be qualified 

stenographers, especially in case of an 

emergency. One national association noted 

that the typical stenographer expense for a 

professional football game in Washington, 

DC, is about $550 per game. Similarly, one 

trade association representing venues 

estimated that the cost for a professional 

stenographer at a sporting event runs 

between $500 and $1,000 per game or event, 

the cost of which, they argued, would be 

unduly burdensome in many cases. Some 

commenters posited that schools that do not 

sell tickets to athletic events would be 

challenged to meet such expenses, in contrast 

to major college athletic programs and 

professional sports teams, which would be 

less likely to prevail using an ‘‘undue 

burden’’ defense. 

Some venue owners and operators and 

other covered entities also argued that 

stadium size should not be the key 

consideration for whether scoreboard 

captioning will be required. Instead, these 

entities suggested that equipment already 

installed in the stadium, including necessary 

electrical equipment and backup power 

supply, should be the determining factor for 

whether captioning is mandated. Many 

commenters argued that the requirement to 

provide captioning should apply only to 

stadiums with scoreboards that meet the 

National Fire Protection Association (NFPA) 

National Fire Alarm Code. Commenters 

reported that NFPA 72 requires at least two 

independent and reliable power supplies for 

emergency information systems, including 

one source that is a generator or a battery 

sufficient to run the system in the event the 

primary power fails. Alternatively, some 

stadium designers and title II entities 

commented that the requirement should arise 

when the facility has at least one elevator 

providing firefighter emergency operation, 

along with approval of authorities with 

responsibility for fire safety. An organization 

concerned with fire safety codes commented 

that the Department lacks the expertise to 

regulate on this topic. Other commenters 

argued for flexibility in the requirements for 

providing captioning and contended that any 

requirement should apply only to stadiums 

constructed after the effective date of the 

regulation. 

In the NPRM, the Department also asked 

whether the rule should address the specific 

means of captioning equipment, whether 

captioning should be provided through any 

effective means (e.g., scoreboards, line 

boards, handheld devices, or other means), or 

whether some means, such as handheld 

devices, should be eliminated as options. 

This question elicited many comments from 

advocates for persons with disabilities as 

well as from covered entities. Advocacy 

organizations and individuals with 

experience using handheld devices argued 

that such devices do not provide effective 

communication. These commenters noted 

that information is often delayed in the 

transmission to such devices, making them 

hard to use when following action on the 

playing field or in the event of an emergency 

when the crowd is already reacting to aural 

information provided over the PA system 

well before it is received on the handheld 

device. 

Several venue owners and operators and 

others commented that handheld technology 

offers advantages of flexibility and portability 

so that it may be used successfully regardless 

of where in the facility the user is located, 

even when not in the line of sight of a 

scoreboard or other captioning system. Still 

other commenters urged the Department not 

to regulate in such a way as to limit 

innovation and use of such technology now 

and in the future. Cost considerations were 

included in comments from some stadium 

designers and venue owners and operators 

who reported that the cost of providing 

handheld systems is far less than the cost of 

providing real-time captioning on 

scoreboards, especially in facilities that do 

not currently have the capacity to provide 

real-time captions on existing equipment. 

Others noted that handheld technology is not 

covered by fire and safety model codes, 

including the NFPA, and thus would be more 

easily adapted into existing facilities if 

captioning were required by the Department. 

The Department also asked about requiring 

open captioning of all public address 

announcements, rather than limiting the 

captioning requirement to safety and 

emergency information. A variety of 

advocates and persons with disabilities 

argued that all information broadcast over a 

PA system should be captioned in real time 

at all facilities in order to provide effective 

communication, and that a requirement only 

to provide emergency and safety information 

would not be sufficient. A few organizations 

representing persons with disabilities 

commented that installation of new systems 

should not be required, but that all systems 

within existing facilities that are capable of 

providing captioning should provide 

captioning of information to the maximum 

extent possible. Several organizations for 

persons with disabilities commented that all 

facilities should include in their safety 

planning measures a requirement that all 

aurally provided information for patrons 

with communication disabilities be 

captioned. Some advocates suggested that 

demand for captions will only increase as the 

number of deaf and hard of hearing persons 

grows with the aging of the general 

population and with increasing numbers of 

veterans returning from war with disabilities. 

Multiple commenters noted that the 

captioning would benefit others as well as 

those with communication disabilities. 

By contrast, venue owners and operators 

and others commented that the action on the 

sports field is self-explanatory and does not 

require captioning. These commenters 

objected to an explicit requirement to 

provide real-time captioning for all 

information broadcast on the PA system at a 

sporting event. Other commenters objected to 

requiring captioning even for emergency and 

safety information over the scoreboard rather 

than through some other means. By contrast, 

venue operators, State government agencies, 

and some model code groups, including the 

NFPA, commented that emergency and safety 

information must be provided in an 

accessible format and that public safety is a 

paramount concern. Other commenters 

argued that the best method to deliver safety 

and emergency information would be 

television monitors showing local TV 

broadcasts with captions already mandated 

by the FCC. Some commenters posited that 

the most reliable information about a major 

emergency would be provided on the 

television news broadcasts. They argued that 

television monitors may be located 

throughout the facility, improving line of 

sight for patrons, some of whom might not 

be able to see the scoreboard from their seats 

or elsewhere in the facility. Some stadium 

designers, venue operators, and model code 

groups pointed out that video monitors are 

not regulated by the NFPA or other agencies, 

so that such monitors could be more easily 

provided. Video monitors may receive 

transmissions from within the facility and 

could provide real-time captions if there is 

the necessary software and equipment to feed 

the captioning signal to a closed video 

network within the facility. Several 

commenters suggested that using monitors 

would be preferable to requiring captions on 

the scoreboard if the regulation mandates 

real-time captioning. Some venue owners 

and operators argued that retrofitting existing 

stadiums with new systems could easily cost 

in the hundreds of thousands of dollars per 

scoreboard or system. Some stadium 

designers and others argued that captioning 

should be required only in stadiums built 

after the effective date of the regulation. For 

stadiums with existing systems that allow for 

real-time captioning, one commenter posited 

that dedicating the system exclusively to 

real-time captioning would lead to an annual 

loss of between two and three million dollars 

per stadium in revenue from advertising 

currently running in that space. 

After carefully considering the wide range 

of public comments on this issue, the 

Department has concluded that the final rule 

will not provide additional requirements for 

effective communication or emergency 

information provided at sports stadiums at 

this time. The 1991 title II and title III 

regulations and statutory requirements are 

not in any way affected by this decision. The 

decision to postpone rulemaking on this 

complex issue is based on a number of 

factors, including the multiple layers of 

existing regulations by various agencies and 

levels of government, and the wide array of 

information, requests, and recommendations 

related to developing technology offered by 

the public. The diversity of existing 

information and communication systems and 

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3 In the NPRM, the Department referred to this 

technology as ‘‘narrative description.’’ 73 FR 34508, 

34531 (June 17, 2008). Several commenters 

informed the Department that the more accurate 

and commonly understood term is ‘‘video 

description,’’ even though the subject is movies, not 

video, and so the Department decided to employ 

that term. 

4Other closed captioning technologies for movies 

that have been developed but are not in use at this 

time include hand-held displays similar to a PDA 

(personal digital assistant); eyeglasses fitted with a 

prism over one lens; and projected bitmap captions. 

The PDA and eyeglass systems use a wireless 

transmitter to send the captions to the display 

device. 

other characteristics among sports stadiums 

also complicates the regulation of captioning. 

The Department has concluded that further 

consideration and review is prudent before it 

issues specific regulatory requirements. 

Movie captioning. In the NPRM, the 

Department stated that options were being 

considered to require movie theater owners 

and operators to exhibit movies that are 

captioned for patrons who are deaf or hard 

of hearing. Captioning makes films accessible 

to individuals whose hearing is too limited 

to benefit from assistive listening devices. 

Both open and closed captioning are 

examples of auxiliary aids and services 

required under the Department’s 1991 title III 

regulation. See 28 CFR 36.303(b)(1). Open 

captions are similar to subtitles in that the 

text is visible to everyone in the theater, 

while closed captioning displays the written 

text of the audio only to those individuals 

who request it. 

In the NPRM, the Department also stated 

that options were being considered to require 

movie theater owners and operators to 

exhibit movies with video description,3 a 

technology that enables individuals who are 

blind or have low vision to enjoy movies by 

providing a spoken interpretation of key 

visual elements of a movie, such as actions, 

settings, facial expressions, costumes, and 

scene changes. The descriptions are narrated 

and recorded onto an audiotape or disk that 

can be synchronized with the film as it is 

projected. An audio recording is an example 

of an auxiliary aid and service required 

under the Department’s 1991 title III 

regulation. See 28 CFR 36.303(b)(2). 

The NPRM stated that technological 

advances since the early 1990s have made 

open and closed captioning and video 

description for movies more readily available 

and effective and noted that the Department 

was considering options to require 

captioning and video description for movies 

exhibited by public accommodations. The 

NPRM also noted that the Department is 

aware that the movie industry is 

transitioning, in whole or in part, to movies 

in digital format and that movie theater 

owners and operators are beginning to 

purchase digital projectors. The Department 

noted in the NPRM that movie theater 

owners and operators with digital projectors 

may have available to them different 

capabilities than those without digital 

projectors. The Department sought comment 

regarding whether and how to require 

captioning and video description while the 

film industry makes this transition. In 

addition, the NPRM stated the Department’s 

concern about the potential cost to exhibit 

captioned movies, noting that cost may vary 

depending upon whether open or closed 

captioning is used and whether or not digital 

projectors are used, and stated that the cost 

of captioning must stay within the 

parameters of the undue burden requirement 

in 28 CFR 36.303(a). The Department further 

noted that it understands the cost of video 

description equipment to be less than that for 

closed captioning. The Department then 

stated that it was considering the possibility 

of requiring public accommodations to 

exhibit all new movies in captioned format 

and with video description at every showing. 

The NPRM stated that the Department would 

not specify the types of captioning required, 

leaving such decisions to the discretion of 

the movie theater owners and operators. 

In the NPRM, the Department requested 

public comment as to whether public 

accommodations should be required to 

exhibit all new movies in captioned format 

at every showing, whether it would be more 

appropriate to require captioning less 

frequently, and, if so, with what frequency 

captioning should be provided. The 

Department also inquired as to whether the 

requirement for captioning should be tied to 

the conversion of movies from film to the use 

of a digital format. The Department also 

asked for public comment regarding the 

exhibition of all new movies with narrative 

description, whether it would it be more 

appropriate to require narrative description 

less frequently, and whether narrative 

description of movies should be tied to the 

use of a digital format. 

Representatives from the movie industry, a 

commenter from a non-profit organization, 

and a disability rights advocacy group 

provided information in their comments on 

the status of captioning and video 

description technology today as well as an 

update on the transition to digital cinema in 

the industry. A representative of major movie 

producers and distributors commented that 

traditionally open captions were created by 

‘‘burning’’ the captions onto a special print of 

a selected movie, which the studios would 

make available to the exhibitors (movie 

theater owners and operators). Releases with 

open captions typically would be presented 

at special screenings. More recently, 

according to this commenter, alternative 

methods have been developed for presenting 

movies with open captions, but their 

common feature is that the captions are 

visible to all theater-goers. Closed captioning 

is an innovation in technology that was first 

made available in a feature film presentation 

in late 1997. Closed captioning technology 

currently in use allows viewers to see 

captions using a clear panel that is mounted 

in front of the viewer’s seat.4 According to 

commenters from the industry, the panel 

reflects captions that are shown in reverse on 

an LED display in the back of the theater, 

with captions appearing on or near the movie 

image. Moviegoers may use this technology 

at any showing at a theater that has been 

equipped with the technology, so that the 

theater does not have to arrange limited 

special screenings. 

Video description technology also has 

existed since 1997, according to a commenter 

who works with the captioning and video 

description industry. According to a movie 

industry commenter, video description 

requires the creation of a separate script 

written by specially trained writers called 

‘‘describers.’’ As the commenter explained, a 

describer initially listens to the movie 

without watching it in order to approximate 

the experience of an audience member who 

is blind or has low vision. Using software to 

map out the pauses in the soundtrack, the 

describer writes a description in the space 

available. After an initial script is written for 

video description, it is edited and checked 

for timing, continuity, accuracy, and a 

natural flow. A narrator then records the new 

script to match the corresponding movie. 

This same industry commenter said that 

video description currently is provided in 

theaters through screens equipped with the 

same type of technology as that used for 

closed captioning. As commenters explained, 

technologies in use today deliver video 

descriptions via infrared or FM listening 

systems to headsets worn by individuals who 

are blind or have low vision. 

According to the commenter representing 

major movie producers and distributors, the 

percentage of motion pictures produced with 

closed captioning by its member studios had 

grown to 88 percent of total releases by 2007; 

the percentage of motion pictures produced 

with open captioning by its member studios 

had grown to 78 percent of total releases by 

2007; and the percentage of motion pictures 

provided with video description has ranged 

consistently between 50 percent and 60 

percent of total releases. It is the movie 

producers and distributors, not the movie 

theater owners and operators, who determine 

what to caption and describe, the type of 

captioning to use, and the content of the 

captions and video description script. These 

same producers and distributors also assume 

the costs of captioning and describing 

movies. Movie theater owners and operators 

simply purchase the equipment to display 

the captions and play the video description 

in their auditoria. 

The transition to digital cinema, 

considered by the industry to be one of the 

most profound advancements in motion 

picture production and technology of the last 

100 years, will provide numerous advantages 

both for the industry and the audience. 

According to one commenter, currently there 

are sufficient standards and interim solutions 

to support captioning and video description 

now in digital format. Additionally, movie 

studios are supporting those efforts by 

providing accessibility tracks (captioning and 

video description) in many digital cinema 

content packages. Moreover, a group of 

industry commenters composed in pertinent 

part of members of the motion picture 

industry, the central standards organizations 

for this industry, and key digital equipment 

vendors, noted that they are participating in 

a joint venture to establish the remaining 

accessibility specifications and standards for 

access audio tracks. Access audio tracks are 

supplemental sound audio tracks for the hard 

of hearing and narrative audio tracks for 

individuals who have vision disabilities. 

According to a commenter and to industry 

documents, these standards were expected to 

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Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 56287 

5Refreshed Accessibility Standards and 

Guidelines in Telecommunications and Electronic 

and Information Technology (April 2008), available 

at http://www.access-board.gov/sec508/refresh/ 

report/ (last visited June 24, 2010). 

be in place by spring 2009. According to a 

commenter, at that time, all of the major 

digital cinema equipment vendors were 

expected to have support for a variety of 

closed caption display and video description 

products. This same commenter stated that 

these technologies will be supported by the 

studios that produce and distribute feature 

films, by the theaters that show these films 

to the public, and by the full complement of 

equipment in the production, distribution, 

and display chain. 

The initial investment for movie theater 

owners and operators to convert to digital 

cinema is expensive. One industry 

commenter estimated that converting theaters 

to digital projection costs between $70,000 

and $100,000 per screen and that 

maintenance costs for digital projectors are 

estimated to run between $5,000 and $10,000 

a year—approximately five times as 

expensive as the maintenance costs for film 

projectors. According to this same 

commenter, while there has been progress in 

making the conversion, only approximately 

5,000 screens out of 38,794 nationwide have 

been converted, and the cost to make the 

remaining conversions involves a total 

investment of several billion dollars. 

According to another commenter, predictions 

as to when more than half of all screens will 

have been converted to digital projection are 

10 years or more, depending on the finances 

of the movie theater owners and operators, 

the state of the economy, and the incentives 

supporting conversion. That said, according 

to one commenter who represents movie 

theater owners and operators, the majority of 

screens in the United States were expected to 

enter into agreements by the end of 2008 to 

convert to digital cinema. Most importantly, 

however, according to a few commenters, the 

systems in place today for captioning and 

video description will not become obsolete 

once a theater has converted to digital 

cinema but still can be used by the movie 

theater owner and operator to exhibit 

captions and video description. The only 

difference for a movie theater owner or 

operator will be the way the data is delivered 

to the captioning and video description 

equipment in place in an auditorium. 

Despite the current availability of movies 

that are captioned and provide video 

description, movie theater owners and 

operators rarely exhibit the captions or 

descriptions. According to several 

commenters, less than 1 percent of all movies 

being exhibited in theaters are shown with 

captions. 

Individuals with disabilities, advocacy 

groups, the representative from a non-profit, 

and representatives of State governments, 

including 11 State attorneys general, 

overwhelmingly supported issuance of a 

regulation requiring movie theater owners 

and operators to exhibit captioned and video 

described movies at all showings unless 

doing so would result in an undue burden or 

fundamental alteration of the goods and 

services offered by the public 

accommodation. In addition, this same group 

of commenters urged that any such 

regulation should be made effective now, and 

should not be tied to the conversion to digital 

cinema by the movie theater owners and 

operators. In support of such arguments, 

these commenters stated that the technology 

exists now to display movies with captions 

and video descriptions, regardless of whether 

the movie is exhibited on film or using 

digital cinema. Moreover, since the 

technology in use for displaying captions and 

video descriptions on film will be compatible 

with digital projection systems, they argued, 

there is no need to postpone implementation 

of a captioning or video description 

regulation until the conversion to digital has 

been made. Furthermore, since the 

conversion to digital may take years, 

commenters urged the Department to issue a 

regulation requiring captioning and video 

description now, rather than several years 

from now. 

Advocacy groups and the 11 State 

attorneys general also requested that any 

regulation include factors describing what 

constitutes effective captioning and video 

description. Recommendations included 

requiring that captioning be within the same 

line of sight to the screen as the movie so that 

individuals who are deaf or hard of hearing 

can watch the movie and read the captions 

at the same time; that the captioning be 

accessible from each seat; that the captions 

be of sufficient size and contrast to the 

background so as to be readable easily; and 

that the recent recommendations of the 

Telecommunications and Electronics and 

Information Technology Advisory Committee 

Report to the Access Board that captions be 

‘‘timely, accurate, complete, and efficient’’ 5

also be included. 

The State attorneys general supported the 

Department’s statement in the NPRM that the 

Department did not anticipate specifying 

which type of captioning to provide or what 

type of technology to use to provide video 

description, but would instead leave that to 

the discretion of the movie theater owners 

and operators. These State attorneys general 

opined that such discretion in the selection 

of the type of technology was consistent with 

the statutory and regulatory scheme of the 

ADA and would permit any new regulation 

to keep pace with future advancements in 

captioning and video description technology. 

These same commenters stated that such 

discretion may result in a mixed use of both 

closed captioning and open captioning, 

affording more choices both for the movie 

theater owners and operators and for 

individuals who are deaf or hard of hearing. 

The representatives from the movie theater 

industry strongly urged the Department 

against issuing a regulation requiring 

captioning or video description. These 

commenters argued that the legislative 

history of the ADA expressly precluded 

regulating in the area of captioning. (These 

same commenters were silent with regard to 

video description on this issue.) The industry 

commenters also argued that to require movie 

theater owners and operators to exhibit 

captioned and video described movies would 

constitute a fundamental alteration in the 

nature of the goods and services offered by 

the movie theater owners and operators. In 

addition, some industry commenters argued 

that any such regulation by the Department 

would be inconsistent with the Access 

Board’s guidelines. Also, these commenters 

noted the progress that has been made in the 

industry in making cinema more accessible 

even though there is no mandate to caption 

or describe movies, and they questioned 

whether any mandate is necessary. Finally, 

all the industry commenters argued that to 

require captioning or video description in 

100 percent of movie theater screens for all 

showings would constitute an undue burden. 

The comments have provided the 

Department with significant information on 

the state of the movie industry with regard 

to the availability of captioning and video 

description, the status of closed captioning 

technology, and the status of the transition to 

digital cinema. The Department also has 

given due consideration to the comments it 

has received from individuals, advocacy 

groups, governmental entities, and 

representatives of the movie industry. 

Recently, the United States Court of Appeals 

for the Ninth Circuit held that the ADA 

requires a chain of movie theaters to exhibit 

movies with closed captioning and video 

description unless the theaters can show that 

to do so would amount to a fundamental 

alteration or undue burden. Arizona ex rel. 

Goddard v. Harkins Amusement Enterprises, 

Inc., 603 F.3d 666 (9th Cir. 2010). However, 

rather than issue specific regulatory text at 

this time, the Department has determined 

that it should obtain additional information 

regarding issues raised by commenters that 

were not contemplated at the time of the 

2008 NPRM, supplemental technical 

information, and updated information 

regarding the current and future status of the 

conversion to digital cinema by movie theater 

owners and operators. To this end, the 

Department is planning to engage in 

rulemaking relating specifically to movie 

captioning under the ADA in the near future. 

Section 36.304 Removal of Barriers 

With the adoption of the 2010 Standards, 

an important issue that the Department must 

address is the effect that the new (referred to 

as ‘‘supplemental’’) and revised 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. See 42 U.S.C. 12182(b)(2)(A)(iv). This 

issue was not addressed in the 2004 ADAAG 

because it was outside the scope of the 

Access Board’s statutory authority under the 

ADA and section 502 of the Rehabilitation 

Act of 1973. See 29 U.S.C. 792(b)(3)(A)–(B) 

(authorizing the Access Board to establish 

and maintain minimum guidelines for the 

standards issued pursuant to the 

Architectural Barriers Act of 1968 and titles 

II and III of the ADA). Responsibility for 

implementing title III’s requirement that 

public accommodations eliminate barriers in 

existing facilities where such removal is 

readily achievable rests solely with the 

Department. The term ‘‘existing facility’’ is 

defined in § 36.104 of the final rule. This 

definition is discussed in more detail above. 

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56288 Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations 

See Appendix A discussion of definitions 

(§ 36.104). 

The requirements for barrier removal by 

public accommodations are established in 

the Department’s title III regulation. 28 CFR 

36.304. Under this regulation, the 

Department used 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 

remove the barrier to the extent that such 

removal is readily achievable. 28 CFR 

36.304(d); 28 CFR part 36, app. A (2009). 

With adoption of the final rule, public 

accommodations will now be guided by the 

2010 Standards, defined in § 36.104 as the 

2004 ADAAG and the requirements 

contained in subpart D of 28 CFR part 36. 

The 2010 Standards include technical and 

scoping specifications for a number of 

elements that were not addressed specifically 

in the 1991 Standards; these new 

requirements were identified as 

‘‘supplemental requirements’’ in the NPRM. 

The 2010 Standards also include revisions to 

technical or scoping specifications for certain 

elements that were addressed in the 1991 

Standards, i.e., elements for which there 

already were technical and scoping 

specifications. Requirements for which there 

are revised technical or scoping 

specifications in the 2010 Standards are 

referred to in the NPRM as ‘‘incremental 

changes.’’ 

The Department expressed concern that 

requiring barrier removal for incremental 

changes might place unnecessary cost 

burdens on businesses that already had 

removed barriers in existing facilities in 

compliance with the 1991 Standards. With 

this rulemaking, the Department sought to 

strike an appropriate balance between 

ensuring that individuals with disabilities are 

provided access to facilities and mitigating 

potential financial burdens from barrier 

removal on existing places of public 

accommodation that satisfied their 

obligations under the 1991 Standards. 

In the NPRM, the Department proposed 

several potential additions to § 36.304(d) that 

might reduce such financial burdens. First, 

the Department proposed a safe harbor for 

elements in existing facilities that were 

compliant with the 1991 Standards. Under 

this approach, an element that is not altered 

after the effective date of the 2010 Standards 

and that complies with the scoping and 

technical requirements for that element in 

the 1991 Standards would not be required to 

undergo modification to comply with the 

2010 Standards to satisfy the ADA’s barrier 

removal obligations. The public 

accommodation would thus be deemed to 

have met its barrier removal obligation with 

respect to that element. 

The Department received many comments 

on this issue during the 60-day public 

comment period. After consideration of all 

relevant information presented on the issue, 

it is the Department’s view that this elementby-element safe harbor provision should be 

retained in the final rule. This issue is 

discussed further below. 

Second, the NPRM proposed several 

exceptions and exemptions from certain 

supplemental requirements to mitigate the 

barrier removal obligations of existing play 

areas and recreation facilities under the 2004 

ADAAG. These proposals elicited many 

comments from both the business and 

disability communities. After consideration 

of all relevant information presented on the 

issue, it is the Department’s view that these 

exceptions and exemptions should not be 

retained in the final rule. The specific 

proposals and comments, and the 

Department’s conclusions, are discussed 

below. 

Third, the NPRM proposed a new safe 

harbor approach to readily achievable barrier 

removal as applied to qualified small 

businesses. This proposed small business 

safe harbor was based on suggestions from 

small business advocacy groups that 

requested clearer guidance on the barrier 

removal obligations for small businesses. 

According to these groups, the Department’s 

traditional approach to barrier removal 

disproportionately affects small businesses. 

They argued that most small businesses 

owners neither are equipped to understand 

the ADA Standards nor can they afford the 

architects, consultants, and attorneys that 

might provide some level of assurance of 

compliance with the ADA. For these same 

reasons, these commenters contended, small 

business owners are vulnerable to litigation, 

particularly lawsuits arising under title III, 

and often are forced to settle because the 

ADA Standards’ complexity makes 

inadvertent noncompliance likely, even 

when a small business owner is acting in 

good faith, or because the business cannot 

afford the costs of litigation. 

To address these and similar concerns, the 

NPRM proposed a level of barrier removal 

expenditures at which qualified small 

businesses would be deemed to have met 

their readily achievable barrier removal 

obligations for certain tax years. This safe 

harbor would have provided some protection 

from litigation because compliance could be 

assessed easily. Such a rule, the Department 

believed, also could further accessibility, 

because qualified small businesses would 

have an incentive to incorporate barrier 

removal into short- and long-term planning. 

The Department recognized that a qualified 

small business safe harbor would be a 

significant change to the Department’s title III 

enforcement scheme. Accordingly, the 

Department sought comment on whether 

such an approach would further the aims 

underlying the statute’s barrier removal 

provisions, and, if so, the appropriate 

parameters of the provision. 

After consideration of the many comments 

received on this issue, the Department has 

decided not to include a qualified small 

business safe harbor in the final rule. This 

decision is discussed more fully below. 

Element-by-element safe harbor for public 

accommodations. Public accommodations 

have a continuing obligation to remove 

certain architectural, communications, and 

transportation barriers in existing facilities to 

the extent readily achievable. 42 U.S.C. 

12182(b)(2)(A)(iv). Because the Department 

uses the ADA Standards as a guide to 

identifying what constitutes an architectural 

barrier, the 2010 Standards, once they 

become effective, will provide a new 

reference point for assessing an entity’s 

barrier removal obligations. The 2010 

Standards introduce technical and scoping 

specifications for many elements that were 

not included in the 1991 Standards. 

Accordingly, public accommodations will 

have to consider these supplemental 

requirements when evaluating whether there 

are covered barriers in existing facilities, and, 

if so, remove them to the extent readily 

achievable. Also included in the 2010 

Standards are revised technical and scoping 

requirements for elements that were 

addressed in the 1991 Standards. These 

incremental changes were made to address 

technological changes that have occurred 

since the promulgation of the 1991 

Standards, to reflect additional study by the 

Access Board, and to harmonize ADAAG 

requirements with the model codes. 

In the NPRM, the Department sought input 

on a safe harbor in proposed § 36.304(d)(2) 

intended to address concerns about the 

practical effects of the incremental changes 

on public accommodations’ readily 

achievable barrier removal obligations. The 

proposed element-by-element safe harbor 

provided that in existing facilities elements 

that are, as of the effective date of the 2010 

Standards, fully compliant with the 

applicable technical and scoping 

requirements in the 1991 Standards, need not 

be modified or retrofitted to meet the 2010 

Standards, until and unless those elements 

are altered. The Department posited that it 

would be an inefficient use of resources to 

require covered entities that have complied 

with the 1991 Standards to retrofit already 

compliant elements when the change might 

only provide a minimal improvement in 

accessibility. In addition, the Department 

was concerned that covered entities would 

have a strong disincentive for voluntary 

compliance if every time the applicable 

standards were revised covered entities 

would be required once again to modify 

elements to keep pace with new 

requirements. The Department recognized 

that revisions to some elements might confer 

a significant benefit on some individuals 

with disabilities and because of the safe 

harbor these benefits would be unavailable 

until the facility undergoes alterations. 

The Department received many comments 

on this issue from the business and disability 

communities. Business owners and 

operators, industry groups and trade 

associations, and business advocacy 

organizations strongly supported the 

element-by-element safe harbor. By contrast, 

disability advocacy organizations and 

individuals commenting on behalf of the 

disability community were opposed to this 

safe harbor with near unanimity. 

Businesses and business groups agreed 

with the concerns outlined by the 

Department in the NPRM, and asserted that 

the element-by-element safe harbor is integral 

to ensuring continued good faith compliance 

efforts by covered entities. These commenters 

argued that the financial cost and business 

disruption resulting from retrofitting 

elements constructed or previously modified 

to comply with 1991 Standards would be 

detrimental to nearly all businesses and not 

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readily achievable for most. They contended 

that it would be fundamentally unfair to 

place these entities in a position where, 

despite full compliance with the 1991 

Standards, the entities would now, overnight, 

be vulnerable to barrier removal litigation. 

They further contended that public 

accommodations will have little incentive to 

undertake large barrier removal projects or 

incorporate barrier removal into long-term 

planning if there is no assurance that the 

actions taken and money spent for barrier 

removal would offer some protection from 

litigation. One commenter also pointed out 

that the proposed safe harbor would be 

consistent with practices under other Federal 

accessibility standards, including the 

Uniform Federal Accessibility Standards 

(UFAS) and the ADAAG. 

Some business commenters urged the 

Department to expand the element-byelement safe harbor to include supplemental 

requirements. These commenters argued that 

imposing the 2010 Standards on existing 

facilities will provide a strong incentive for 

such facilities to eliminate some elements 

entirely, particularly where the element is 

not critical to the public accommodation’s 

business or operations (e.g., play areas in fast 

food restaurants) or the cost of retrofitting is 

significant. Some of these same commenters 

urged the Department to include within the 

safe harbor those elements not covered by the 

1991 Standards, but which an entity had 

built in compliance with State or local 

accessibility laws. Other commenters 

requested safe harbor protection where a 

business had attempted barrier removal prior 

to the establishment of technical and scoping 

requirements for a particular element (e.g., 

play area equipment) if the business could 

show that the element now covered by the 

2010 Standards was functionally accessible. 

Other commenters noted ambiguity in the 

NPRM as to whether the element-by-element 

safe harbor applies only to elements that 

comply fully with the 1991 Standards, or also 

encompasses elements that comply with the 

1991 Standards to the extent readily 

achievable. Some commenters proposed that 

the safe harbor should exist in perpetuity— 

that an element subject to a safe harbor at one 

point in time also should be afforded the 

same protection with respect to all future 

revisions to the ADA Standards (as with 

many building codes). These groups 

contended that allowing permanent 

compliance with the 1991 Standards will 

ensure readily accessible and usable facilities 

while also mitigating the need for expensive 

and time-consuming documentation of 

changes and maintenance. 

A number of commenters inquired about 

the effect of the element-by-element safe 

harbor on elements that are not in strict 

compliance with the 1991 Standards, but 

conform to the terms of settlement 

agreements or consent decrees resulting from 

private litigation or Federal enforcement 

actions. These commenters noted that 

litigation or threatened litigation often has 

resulted in compromise among parties as to 

what is readily achievable. Business groups 

argued that facilities that have made 

modifications subject to those negotiated 

agreements should not be subject to the risk 

of further litigation as a result of the 2010 

Standards. 

Lastly, some business groups that 

supported the element-by-element safe 

harbor nevertheless contended that a better 

approach would be to separate barrier 

removal altogether from the 2010 Standards, 

such that the 2010 Standards would not be 

used to determine whether access to an 

existing facility is impeded by architectural 

barriers. These commenters argued that 

application of the 2010 Standards to barrier 

removal obligations is contrary to the ADA’s 

directive that barrier removal is required only 

where ‘‘easily accomplishable and able to be 

carried out without much difficulty or 

expense,’’ 42 U.S.C. 12181(9). 

Nearly all commenters from the disability 

community objected to the proposed 

element-by-element safe harbor. These 

commenters asserted that the adoption of this 

safe harbor would permit and sanction the 

retention of outdated access standards even 

in cases where retrofitting to the 2010 

Standards would be readily achievable. They 

argued that title III’s readily achievable 

defense is adequate to address businesses’ 

cost concerns, and rejected the premise that 

requiring businesses to retrofit currently 

compliant elements would be an inefficient 

use of resources where readily achievable to 

do so. The proposed regulations, these 

commenters asserted, incorporate advances 

in technology, design, and construction, and 

reflect congressional and societal 

understanding that accessibility is not a static 

concept and that the ADA is a civil rights law 

intended to maximize accessibility. 

Additionally, these commenters noted that 

since the 2004 revision of the ADAAG will 

not be the last, setting a precedent of safe 

harbors for compliant elements will have the 

effect of preserving and protecting layers of 

increasingly outdated accessibility standards. 

Many commenters objected to the 

Department’s characterization of the 

requirements subject to the safe harbor as 

reflecting only incremental changes and 

asserted that many of these incremental 

changes will result in significantly enhanced 

accessibility at little cost. The requirement 

concerning side-reach ranges was highlighted 

as an example of such requirements. 

Commenters from the disability community 

argued that the revised maximum side-reach 

range (from 54 inches to 48 inches) will 

result in a substantial increase in 

accessibility for many persons with 

disabilities—particularly individuals of short 

stature, for whom the revised reach range 

represents the difference between 

independent access to many features and 

dependence—and that the revisions should 

be made where readily achievable to do so. 

Business commenters, on the other hand, 

contended that application of the safe harbor 

to this requirement is critical because 

retrofitting items, such as light switches and 

thermostats often requires work (e.g., 

rewiring, patching, painting, and rewallpapering), that would be extremely 

burdensome for entities to undertake. These 

commenters argued that such a burden is not 

justified where many of the affected entities 

already have retrofitted to meet the 1991 

Standards. 

Some commenters that were opposed to 

the element-by-element safe harbor proposed 

that an entity’s past efforts to comply with 

the 1991 Standards might appropriately be a 

factor in the readily achievable analysis. 

Several commenters proposed a temporary 5- 

year safe harbor that would provide 

reassurance and stability to covered entities 

that have recently taken proactive steps for 

barrier removal, but would also avoid the 

problems of preserving access deficits in 

perpetuity and creating multiple standards as 

subsequent updates are adopted. 

After consideration of all relevant 

information presented on this issue during 

the comment period, the Department has 

decided to retain the proposed element-byelement safe harbor. Title III’s architecturalbarrier provisions place the most significant 

requirements of accessibility on new 

construction and alterations. The aim is to 

require businesses to make their facilities 

fully accessible at the time they are first 

constructing or altering those facilities, when 

burdens are less and many design elements 

will necessarily be in flux, and to impose a 

correspondingly lesser duty on businesses 

that are not changing their facilities. The 

Department believes that it would be 

consistent with this statutory structure not to 

change the requirements for design elements 

that were specifically addressed in our prior 

standards for those facilities that were built 

or altered in full compliance with those 

standards. The Department similarly believes 

it would be consistent with the statutory 

scheme not to change the requirements for 

design elements that were specifically 

addressed in our prior standards for those 

existing facilities that came into full 

compliance with those standards. 

Accordingly, the final rule at § 36.304(d)(2)(i) 

provides that elements that have not been 

altered in existing facilities on or after March 

15, 2012 and that comply with the 

corresponding technical and scoping 

specifications for those elements in the 1991 

Standards are not required to be modified in 

order to comply with the requirements set 

forth in the 2010 Standards. The safe harbor 

adopted is consistent in principle with the 

proposed provision in the NPRM, and 

reflects the Department’s determination that 

this approach furthers the statute’s barrier 

removal provisions and promotes continued 

good-faith compliance by public 

accommodations. 

The element-by-element safe harbor 

adopted in this final rule is a narrow one. 

The Department recognizes that this safe 

harbor will delay, in some cases, the 

increased accessibility that the incremental 

changes would provide and that for some 

individuals with disabilities the impact may 

be significant. This safe harbor, however, is 

not a blanket exemption for every element in 

existing facilities. Compliance with the 1991 

Standards is determined on an element-byelement basis in each existing facility. 

Section 36.304(d)(2)(ii)(A) provides that 

prior to the compliance date of the rule 

March 15, 2012, noncompliant elements that 

have not been altered are obligated to be 

modified to the extent readily achievable to 

comply with the requirements set forth in the 

1991 Standards or the 2010 Standards. 

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Section 36.304(d)(2)(ii)(B) provides that after 

the date the 2010 Standards take effect (18 

months after publication of the rule), 

noncompliant elements that have not been 

altered must be modified to the extent readily 

achievable to comply with the requirements 

set forth in the 2010 Standards. 

Noncomplying newly constructed and 

altered elements may also be subject to the 

requirements of § 36.406(a)(5). 

The Department has not expanded the 

scope of the element-by-element safe harbor 

beyond those elements subject to the 

incremental changes. The Department has 

added § 36.304(d)(2)(iii), explicitly clarifying 

that existing elements subject to 

supplemental requirements for which 

scoping and technical specifications are 

provided for the first time in the 2010 

Standards (e.g., play area requirements) are 

not covered by the safe harbor and, therefore, 

must be modified to comply with the 2010 

Standards to the extent readily achievable. 

Section 36.304(d)(2)(iii) also identifies the 

elements in the 2010 Standards that are not 

eligible for the element-by-element safe 

harbor. The safe harbor also does not apply 

to the accessible routes not previously 

scoped in the 1991 standards, such as those 

required to connect the boundary of each 

area of sport activity, including soccer fields, 

basketball courts, baseball fields, running 

tracks, skating rinks, and areas surrounding 

a piece of gymnastic equipment. See 

Advisory note to section F206.2.2 of the 2010 

Standards. The resource and fairness 

concerns underlying the element-by-element 

safe harbor are not implicated by barrier 

removal involving supplemental 

requirements. Public accommodations have 

not been subject previously to technical and 

scoping specifications for these supplemental 

requirements. Thus, with respect to 

supplemental requirements, the existing 

readily achievable standard best maximizes 

accessibility in the built environment 

without imposing unnecessary burdens on 

public accommodations. 

The Department also has declined to 

expand the element-by-element safe harbor to 

cover existing elements subject to 

supplemental requirements that also may 

have been built in compliance with State or 

local accessibility laws. Measures taken to 

remove barriers under a Federal accessibility 

provision logically must be considered in 

regard to Federal standards, in this case the 

2010 Standards. This approach is based on 

the Department’s determination that 

reference to ADA Standards for barrier 

removal will promote certainty, safety, and 

good design while still permitting slight 

deviations through readily achievable 

alternative methods. The Department 

continues to believe that this approach 

provides an appropriate and workable 

framework for implementation of title III’s 

barrier removal provisions. Because 

compliance with State or local accessibility 

codes is not a reliable indicator of effective 

access for purposes of the ADA Standards, 

the Department has decided not to include 

reliance on such codes as part of the safe 

harbor provision. 

Only elements compliant with the 1991 

Standards are eligible for the safe harbor. 

Thus, where a public accommodation 

attempted barrier removal but full 

compliance with the 1991 Standards was not 

readily achievable, the modified element 

does not fall within the scope of the safe 

harbor provision. A public accommodation at 

any point in time must remove barriers to the 

extent readily achievable. For existing 

elements, for which removal is not readily 

achievable at any given time, the public 

accommodation must provide its goods, 

services, facilities, privileges, advantages, or 

accommodations through alternative 

methods that are readily achievable. See 42 

U.S.C. 12182(b)(2)(A)(iv), (v). 

One-time evaluation and implementation 

of the readily achievable standard is not the 

end of the public accommodation’s barrierremoval obligation. Public accommodations 

have a continuing obligation to reevaluate 

barrier removal on a regular basis. For 

example, if a public accommodation 

identified barriers under the 1991 Standards 

but did not remove them because removal 

was not readily achievable based on cost 

considerations, it has a continuing obligation 

to remove these barriers if the economic 

considerations for the public accommodation 

change. The fact that the public 

accommodation has been providing its goods 

or services through alternative methods does 

not negate the continuing obligation to assess 

whether removal of the barrier at issue has 

become readily achievable. Public 

accommodations should incorporate 

consideration of their continuing barrier 

removal obligations in both short-term and 

long-term business planning. 

The Department notes that commenters 

across the board expressed concern with 

recordkeeping burdens implicated by the 

element-by-element safe harbor. Businesses 

noted the additional costs and administrative 

burdens associated with identifying elements 

that fall within the element-by-element safe 

harbor, as well as tracking, documenting, and 

maintaining data on installation dates. 

Disability advocates expressed concern that 

varying compliance standards will make 

enforcement efforts more difficult, and urged 

the Department to clarify that title III entities 

bear the burden of proof regarding 

entitlement to safe harbor protection. The 

Department emphasizes that public 

accommodations wishing to benefit from the 

element-by-element safe harbor must 

demonstrate their safe harbor eligibility. The 

Department encourages public 

accommodations to take appropriate steps to 

confirm and document the compliance of 

existing elements with the 1991 Standards. 

Finally, while the Department has decided 

not to adopt in this rulemaking the 

suggestion by some commenters to make the 

protection afforded by the element-byelement safe harbor temporary, the 

Department believes this proposal merits 

further consideration. The Department, 

therefore, will continue to evaluate the 

efficacy and appropriateness of a safe harbor 

expiration or sunset provision. 

Application to specific scenarios raised in 

comments. In response to the NPRM, the 

Department received a number of comments 

that raised issues regarding application of the 

element-by-element safe harbor to particular 

situations. Business commenters requested 

guidance on whether the replacement for a 

broken or malfunctioning element that is 

covered by the 1991 Standards would have 

to comply with the 2010 Standards. These 

commenters expressed concern that in some 

cases replacement of a broken fixture might 

necessitate moving a number of other 

accessible fixtures (such as in a bathroom) in 

order to comply with the fixture and space 

requirements of the 2010 Standards. Others 

questioned the effect of the new standards 

where an entity replaces an existing element 

currently protected by the safe harbor 

provision for water or energy conservation 

reasons. The Department intends to address 

these types of scenarios in technical 

guidance. 

Effective date for barrier removal. Several 

commenters expressed concern that the 

NPRM did not propose a transition period for 

applying the 2004 ADAAG to barrier removal 

in existing facilities in cases where the safe 

harbors do not apply. These commenters 

argued that for newly covered elements, they 

needed time to hire attorneys and consultants 

to assess the impact of the new requirements, 

determine whether they need to make 

additional retrofits, price those retrofits, 

assess whether the change actually is ‘‘readily 

achievable,’’ obtain approval for the removal 

from owners who must pay for the changes, 

obtain permits, and then do the actual work. 

The commenters recognized that there may 

be some barrier removal actions that require 

little planning, but stated that other actions 

cost significantly more and require more 

budgeting, planning, and construction time. 

Barrier removal has been an ongoing 

requirement that has applied to public 

accommodations since the original regulation 

took effect on January 26, 1992. The final rule 

maintains the existing regulatory provision 

that barrier removal does not have to be 

undertaken unless it is ‘‘readily achievable.’’ 

The Department has provided in 

§ 36.304(d)(2)(ii)(B) that public 

accommodations are not required to apply 

the 2010 Standards to barrier removal until 

18 months after the publication date of this 

rule. It is the Department’s view that 18 

months is a sufficient amount of time for 

application of the 2010 Standards to barrier 

removal for those elements not subject to the 

safe harbor. This is also consistent with the 

compliance date the Department has 

specified for applying the 2010 Standards to 

new construction and alterations. 

Reduced scoping for play areas and other 

recreation facilities. 

Play areas. The Access Board published 

final guidelines for play areas in October 

2000. 65 FR 62498 (Oct. 18, 2000). The 

guidelines include requirements for groundlevel and elevated play components, 

accessible routes connecting the components, 

accessible ground surfaces, and maintenance 

of those surfaces. They have been referenced 

in Federal playground construction and 

safety guidelines and in some State and local 

codes and have been used voluntarily when 

many play areas across the country have been 

altered or constructed. 

In adopting the 2004 ADAAG (which 

includes the play area guidelines published 

in 2000), the Department acknowledges both 

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the importance of integrated, full access to 

play areas for children and parents with 

disabilities as well as the need to avoid 

placing an untenable fiscal burden on 

businesses. Consequently, the Department 

asked seven questions in the NPRM related 

to existing play areas. Two questions related 

to safe harbors: one on the appropriateness of 

a general safe harbor for existing play areas 

and another on public accommodations that 

have complied with State or local standards 

specific to play areas. The others related to 

reduced scoping, limited exemptions, and 

whether there is a ‘‘tipping point’’ at which 

the costs of compliance with supplemental 

requirements would be so burdensome that a 

public accommodation would shut down a 

program rather than comply with the new 

requirements. In the nearly 100 comments 

received on title III play areas, the majority 

of commenters strongly opposed all safe 

harbors, exemptions, and reductions in 

scoping, and questioned the feasibility of 

determining a tipping point. A smaller 

number of commenters advocated for a safe 

harbor from compliance with the 2004 

ADAAG play area requirements along with 

reduced scoping and exemptions for both 

readily achievable barrier removal and 

alterations. 

Commenters were split as to whether the 

Department should exempt owners and 

operators of public accommodations from 

compliance with the supplemental 

requirements for play areas and recreation 

facilities and instead continue to determine 

accessibility in these facilities on a case-bycase basis under existing law. Many 

commenters were of the view that the 

exemption was not necessary because 

concerns of financial burden are addressed 

adequately by the defenses inherent in the 

standard for what constitutes readily 

achievable barrier removal. A number of 

commenters found the exemption 

inappropriate because no standards for play 

areas previously existed. Commenters also 

were concerned that a safe harbor applicable 

only to play areas and recreation facilities 

(but not to other facilities operated by a 

public accommodation) would create 

confusion, significantly limit access for 

children and parents with disabilities, and 

perpetuate the discrimination and 

segregation individuals with disabilities face 

in the important social arenas of play and 

recreation—areas where little access has been 

provided in the absence of specific standards. 

Many commenters suggested that instead of 

an exemption, the Department should 

provide guidance on barrier removal with 

respect to play areas and other recreation 

facilities. 

Several commenters supported the 

exemption, mainly on the basis of the cost of 

barrier removal. More than one commenter 

noted that the most expensive aspect of 

barrier removal on existing play areas is the 

surfaces for the accessible routes and use 

zones. Several commenters expressed the 

view that where a play area is ancillary to a 

public accommodation (e.g., in quick service 

restaurants or shopping centers), the play 

area should be exempt from compliance with 

the supplemental requirements because 

barrier removal would be too costly, and as 

a result, the public accommodation might 

eliminate the area. 

The Department has been persuaded that 

the ADA’s approach to barrier removal, the 

readily achievable standard, provides the 

appropriate balance for the application of the 

2010 Standards to existing play areas. Thus, 

in existing playgrounds, public 

accommodations will be required to remove 

barriers to access where these barriers can be 

removed without much difficulty or expense. 

The NPRM asked if there are State and 

local standards specifically regarding play 

and recreation area accessibility and whether 

facilities currently governed by, and in 

compliance with, such State and local 

standards or codes should be subject to a safe 

harbor from compliance with similar 

applicable requirements in the 2004 ADAAG. 

The Department also requested comments on 

whether it would be appropriate for the 

Access Board to consider the implementation 

of guidelines that would extend such a safe 

harbor to play and recreation areas 

undertaking alterations. In response, no 

comprehensive State or local codes were 

identified, and commenters generally noted 

that because the 2004 ADAAG contained 

comprehensive accessibility requirements for 

these unique areas, public accommodations 

should not be afforded a safe harbor from 

compliance with them when altering play 

and recreation areas. The Department is 

persuaded by these comments that there is 

insufficient basis to apply a safe harbor for 

readily achievable barrier removal or 

alterations for play areas built in compliance 

with State or local laws. 

In the NPRM, the Department requested 

that public accommodations identify a 

‘‘tipping point’’ at which the costs of 

compliance with the supplemental 

requirements for existing play areas would be 

so burdensome that the entity simply would 

shut down the playground. In response, no 

tipping point was identified. Some 

commenters noted, however, that the scope 

of the requirements may create the choice 

between wholesale replacement of play areas 

and discontinuance of some play areas, while 

others speculated that some public 

accommodations may remove play areas that 

are merely ancillary amenities rather than 

incur the cost of barrier removal under the 

2010 Standards. The Department has decided 

that the comments did not establish any clear 

tipping point and therefore that no regulatory 

response is appropriate in this area. 

The NPRM also asked for comment about 

the potential effect of exempting existing 

play areas of less than 1,000 square feet in 

size from the requirements applicable to play 

areas. Many trade and business associations 

favored exempting these small play areas, 

with some arguing that where the play areas 

are only ancillary amenities, the cost of 

barrier removal may dictate that they be 

closed down. Some commenters sought 

guidance on the definition of a 1,000-squarefoot play area, seeking clarification that 

seating and bathroom spaces associated with 

a play area are not included in the size 

definition. Disability rights advocates, by 

contrast, overwhelmingly opposed this 

exemption, arguing that these play areas may 

be some of the few available in a community; 

that restaurants and day care facilities are 

important places for socialization between 

children with disabilities and those without 

disabilities; that integrated play is important 

to the mission of day care centers and that 

many day care centers and play areas in large 

cities, such as New York City, have play 

areas that are less than 1,000 square feet in 

size; and that 1,000 square feet was an 

arbitrary size requirement. 

The Department agrees that children with 

disabilities are entitled to access to integrated 

play opportunities. However, the Department 

is aware that small public accommodations 

are concerned about the costs and efforts 

associated with barrier removal. The 

Department has given careful consideration 

as to how best to insulate small entities from 

overly burdensome costs and undertakings 

and has concluded that the existing readily 

achievable standard, not a separate 

exemption, is an effective and employable 

method by which to protect these entities. 

Under the existing readily achievable 

standard, small public accommodations 

would be required to comply only with the 

scoping and technical requirements of the 

2010 Standards that are easily 

accomplishable and able to be carried out 

without much difficulty or expense. Thus, 

concerns about prohibitive costs and efforts 

clearly are addressed by the existing readily 

achievable standard. Moreover, as evidenced 

by comments inquiring as to how 1,000- 

square-foot play areas are to be measured and 

complaining that the 1,000-square-foot cutoff is arbitrary, the exemption posited in the 

NPRM would have been difficult to apply. 

Finally, a separate exemption would have 

created confusion as to whether, or when, to 

apply the exemption or the readily 

achievable standard. Consequently, the 

Department has decided that an exemption, 

separate and apart from the readily 

achievable standard, is not appropriate or 

necessary for small private play areas. 

In the NPRM, the Department requested 

public comment as to whether existing play 

areas should be permitted to substitute 

additional ground-level play components for 

the elevated play components that they 

otherwise would have been required to make 

accessible. Most commenters opposed this 

substitution because the guidelines as well as 

considerations of ‘‘readily achievable barrier 

removal’’ inherently contain the flexibility 

necessary for a variety of situations. Such 

commenters also noted that the Access Board 

adopted extensive guidelines with ample 

public input, including significant 

negotiation and balancing of costs. In 

addition, commenters advised that including 

additional ground level play components 

might result in higher costs because more 

accessible route surfaces might be required. 

A limited number of commenters favored 

substitution. The Department is persuaded by 

these comments that the proposed 

substitution of elements may not be 

beneficial. The current rules applicable to 

readily achievable barrier removal will be 

used to determine the number and type of 

accessible elements appropriate for a specific 

facility. 

In the NPRM, the Department requested 

public comment on whether it would be 

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appropriate for the Access Board to consider 

issuing guidelines for alterations to play and 

recreation facilities that would permit 

reduced scoping of accessible components or 

substitution of ground level play components 

in lieu of elevated play components. The 

Department received little input on this 

issue, and most commenters disfavored the 

suggestion. One commenter that supported 

this approach conjectured that it would 

encourage public accommodations to 

maintain and improve their playgrounds as 

well as provide more accessibility. The 

Department is persuaded that it is not 

necessary to ask the Access Board to revisit 

this issue. 

The NPRM also asked whether only one 

play area of each type should be required to 

comply at existing sites with multiple play 

areas and whether there are other select 

requirements applicable to play areas in the 

2004 ADAAG for which the Department 

should consider exemptions or reduced 

scoping. Some commenters were opposed to 

the concept of requiring compliance at one 

play area of each type at a site with multiple 

play areas, citing lack of choice and ongoing 

segregation of children and adults with 

disabilities. Other commenters who 

supported an exemption and reduced 

scoping for alterations noted that the play 

equipment industry has adjusted to, and does 

not take issue with, the provisions of the 

2004 ADAAG; however, they asked for some 

flexibility in the barrier removal 

requirements as applied to play equipment, 

arguing that augmentation of the existing 

equipment and installation of accessible play 

surfacing equates to wholesale replacement 

of the play equipment. The Department is 

persuaded that the current rules applicable to 

readily achievable barrier removal should be 

used to decide which play areas must comply 

with the supplemental requirements 

presented in the 2010 Standards. 

Swimming pools, wading pools, saunas, 

and steam rooms. Section 36.304(d)(3)(ii) in 

the NPRM specified that for measures taken 

to comply with the barrier removal 

requirements, existing swimming pools with 

at least 300 linear feet of swimming pool wall 

would need to provide only one accessible 

means of entry that complies with section 

1009.2 or section 1009.3 of the 2004 ADAAG, 

instead of the two means required for new 

construction. Commenters opposed the 

Department’s reducing the scoping from that 

required in the 2004 ADAAG. The following 

were among the factors cited in comments: 

that swimming is a common therapeutic form 

of exercise for many individuals with 

disabilities; that the cost of a swimming pool 

lift or other options for pool access is readily 

achievable and can be accomplished without 

much difficulty or expense; and that the 

readily achievable standard already provides 

public accommodations with a means to 

reduce their scoping requirements. A few 

commenters cited safety concerns resulting 

from having just one accessible means of 

access, and stated that because pools 

typically have one ladder for every 75 linear 

feet of pool wall, they should have more than 

one accessible means of egress. Other 

commenters either approved or did not 

oppose providing one accessible means of 

access for larger pools so long as a lift was 

used. 

Section 36.304(d)(4)(ii) of the NPRM 

proposed to exempt existing swimming pools 

with fewer than 300 linear feet of swimming 

pool wall from the obligation to provide an 

accessible means of entry. Most commenters 

strongly opposed this provision, arguing that 

aquatic activity is a safe and beneficial form 

of exercise that is particularly appropriate for 

individuals with disabilities. Many argued 

that the readily achievable standard for 

barrier removal is available as a defense and 

is preferable to creating an exemption for 

pool operators for whom providing an 

accessible means of entry would be readily 

achievable. Commenters who supported this 

provision apparently assumed that providing 

an accessible means of entry would be 

readily achievable and that therefore the 

exemption is needed so that small pool 

operators do not have to provide an 

accessible means of entry. 

The Department has carefully considered 

all the information available to it as well as 

the comments submitted on these two 

proposed exemptions for swimming pools 

owned or operated by title III entities. The 

Department acknowledges that swimming 

provides important therapeutic, exercise, and 

social benefits for many individuals with 

disabilities and is persuaded that exemption 

of the vast majority of privately owned or 

operated pools from the 2010 Standards is 

neither appropriate nor necessary. The 

Department agrees with the commenters that 

title III already contains sufficient limitations 

on private entities’ obligations to remove 

barriers. In particular, the Department agrees 

that those public accommodations that can 

demonstrate that making particular existing 

swimming pools accessible in accordance 

with the 2010 Standards is not readily 

achievable are sufficiently protected from 

excessive compliance costs. Thus, the 

Department has eliminated proposed 

§ 36.304(d)(3)(ii) and (d)(4)(ii) from the final 

rule. 

Proposed § 36.304(d)(4)(iii) would have 

exempted existing saunas and steam rooms 

that seat only two individuals from the 

obligation to remove barriers. This provision 

generated far fewer comments than the 

provisions for swimming pools. People who 

commented were split fairly evenly between 

those who argued that the readily achievable 

standard for barrier removal should be 

applied to all existing saunas and steam 

rooms and those who argued that all existing 

saunas and steam rooms, regardless of size, 

should be exempt from any barrier removal 

obligations. The Department considered 

these comments and has decided to eliminate 

the exemption for existing saunas and steam 

rooms that seat only two people. Such an 

exemption for saunas and steam rooms that 

seat only two people is unnecessary because 

the readily achievable standard provides 

sufficient protection against barrier removal 

that is overly expensive or too difficult. 

Moreover, the Department believes barrier 

removal likely will not be readily achievable 

for most of these small saunas because the 

nature of their prefabricated forms, which 

include built-in seats, make it either 

technically infeasible or too difficult or 

expensive to remove barriers. Consequently a 

separate exemption for saunas and steam 

rooms would have been superfluous. Finally, 

employing the readily achievable standard 

for small saunas and steam rooms is 

consistent with the Department’s decisions 

regarding the proposed exemptions for play 

areas and swimming pools. 

Several commenters also argued in favor of 

a specific exemption for existing spas. The 

Department notes that the technically 

infeasible and readily achievable defenses are 

applicable equally to existing spas and 

declines to adopt such an exemption. 

The Department also solicited comment on 

the possibility of exempting existing wading 

pools from the obligation to remove barriers 

where readily achievable. Most commenters 

stated that installing a sloped entry in an 

existing wading pool is not likely to be 

feasible. Because covered entities are not 

required to undertake modifications that are 

not readily achievable or that would be 

technically infeasible, the Department 

believes that the rule as drafted provides 

sufficient protection from unwarranted 

expense to the operators of small existing 

wading pools. Other existing wading pools, 

particularly those large wading pools found 

in facilities such as water parks, must be 

assessed on a case-by-case basis. Therefore, 

the Department has not included an 

exemption for wading pools in its final rule. 

The Department received several 

comments recommending that existing wave 

pools be exempt from barrier removal 

requirements. The commenters pointed out 

that existing wave pools often have a sloped 

entry, but do not have the handrails, level 

landings, or edge protection required for 

accessible entry. Because pool bottom slabs 

are structural, they could be subject to 

catastrophic failure if the soil pressure 

stability or the under slab dewatering are not 

maintained during the installation of these 

accessibility features in an alreadyconstructed pool. They also argue that the 

only safe design scenario is to design the 

wheelchair ramp, pool lift, or transfer access 

in a side cove where the mean water level 

largely is unaffected by the wave action, and 

that this additional construction to an 

existing wave pool is not readily achievable. 

If located in the main pool area, the 

handrails, stanchions, and edge protection 

for sloped entry will become underwater 

hazards when the wave action is pushing 

onto pool users, and the use of a pool lift will 

not be safe without a means of stabilizing the 

person against the forces of the waves while 

using the lift. They also pointed out that a 

wheelchair would pose a hazard to all wave 

pool users, in that the wave action might 

push other pool users into the wheelchair or 

push the wheelchair into other pool users. 

The wheelchair would have to be removed 

from the pool after the user has entered (and 

has transferred to a flotation device if 

needed). The commenters did not specify if 

these two latter concerns are applicable to all 

wave pools or only to those with more 

aggressive wave action. The Department has 

decided that the issue of modifications to 

wave pools is best addressed on a case-bycase basis, and therefore, this rule does not 

contain barrier removal exemptions 

applicable to wave pools. 

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The Department also received comments 

suggesting that it is not appropriate to require 

two accessible means of entry to wave pools, 

lazy rivers, sand bottom pools, and other 

water amusements that have only one point 

of entry. The Department agrees. The 2010 

Standards (at section 242.2, Exception 2) 

provide that only one means of entry is 

required for wave pools, lazy rivers, sand 

bottom pools, and other water amusement 

where user access is limited to one area. 

Other recreation facilities. In the NPRM, 

the Department asked about a number of 

issues relating to recreation facilities, such as 

team or player seating areas, areas of sport 

activity, exercise machines, boating facilities, 

fishing piers and platforms, golf courses, and 

miniature golf courses. The Department 

asked for public comment on the costs and 

benefits of applying the 2004 ADAAG to 

these spaces and facilities. The discussion of 

the comments received by the Department on 

these issues and the Department’s response 

to those comments can be found in either the 

section entitled ‘‘Other Issues’’ of Appendix 

A to this final rule. 

Safe harbor for qualified small businesses. 

Section 36.304(d)(5) of the NPRM would 

have provided that a qualified small business 

would meet its obligation to remove 

architectural barriers where readily 

achievable for a given year if, during that tax 

year, the entity spent at least 1 percent of its 

gross revenue in the preceding tax year on 

measures undertaken in compliance with 

barrier removal requirements. Proposed 

§ 36.304(d)(5) has been omitted from the final 

rule. 

The qualified small business safe harbor 

was proposed in response to small business 

advocates’ requests for clearer guidance on 

when barrier removal is, and is not, readily 

achievable. According to these groups, the 

Department’s approach to readily achievable 

barrier removal disproportionately affects 

small business 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 determine how they relate to State and 

local building or accessibility codes; and (3) 

small businesses are vulnerable to title III 

litigation and often are compelled to settle 

because they cannot afford the litigation costs 

involved in proving that an action is not 

readily achievable. 

The 2010 Standards go a long way toward 

meeting the concern of small businesses with 

regard to achieving compliance with both 

Federal and State accessibility requirements, 

because the Access Board harmonized the 

2004 ADAAG with the model codes that form 

the basis of most State and local accessibility 

codes. Moreover, the element-by-element safe 

harbor will ensure that unless and until a 

small business engages in alteration of 

affected elements, the small business will not 

have to retrofit elements that were 

constructed in compliance with the 1991 

Standards or, with respect to elements in an 

existing facility, that were retrofitted to the 

1991 Standards in conjunction with the 

business’s barrier removal obligation prior to 

the rule’s compliance date. 

In proposing an additional safe harbor for 

small businesses, the Department had sought 

to promulgate a rule that would provide 

small businesses a level of certainty in shortterm and long-term planning with respect to 

barrier removal. This in turn would benefit 

individuals with disabilities in that it would 

encourage small businesses to consider and 

incorporate barrier removal in their yearly 

budgets. Such a rule also would provide 

some protection, through diminished 

litigation risks, to small businesses that 

undertake significant barrier removal 

projects. 

As proposed in the NPRM, the qualified 

small business safe harbor would provide 

that a qualified small business has met its 

readily achievable barrier removal 

obligations for a given year if, during that tax 

year, the entity has spent at least 1 percent 

of its gross revenue in the preceding tax year 

on measures undertaken to comply with title 

III barrier removal requirements. (Several 

small business advocacy organizations 

pointed out an inconsistency between the 

Department’s description of the small 

business safe harbor in the Section-bySection Analysis for § 36.304 and the 

proposed regulatory text for that provision. 

The proposed regulatory text sets out the 

correct parameters of the proposed rule. The 

Department does not believe that the error 

substantively affected the comments on this 

issue. Some commenters noted the 

discrepancy and commented on both; others 

commented more generally on the proposal, 

so the discrepancy was not relevant.) The 

Department noted that the efficacy of any 

proposal for a small business safe harbor 

would turn on the following two 

determinations: (1) The definition of a 

qualified small business, and (2) the formula 

for calculating what percentage of revenue is 

sufficient to satisfy the readily achievable 

presumption. 

As proposed in § 36.104 in the NPRM, a 

‘‘qualified small business’’ is a business entity 

defined as a small business concern under 

the regulations promulgated by the Small 

Business Administration (SBA) pursuant to 

the Small Business Act. See 15 U.S.C. 632; 

13 CFR part 121. The Department noted that 

under section 3(a)(2)(C) of the Small Business 

Act, Federal departments and agencies are 

prohibited from prescribing a size standard 

for categorizing a business concern as a small 

business unless the department or agency has 

been authorized specifically to do so or has 

proposed a size standard in compliance with 

the criteria set forth in the SBA regulations, 

has provided an opportunity for public 

notice and comment on the proposed 

standard, and has received approval from the 

Administrator of the SBA to use the standard. 

See 15 U.S.C. 632(a)(2)(C). The Department 

further noted that Federal agencies or 

departments promulgating regulations 

relating to small businesses usually use SBA 

size criteria, and they otherwise must be 

prepared to justify how they arrived at a 

different standard and why the SBA’s 

regulations do not satisfy the agency’s 

program requirements. See 13 CFR 121.903. 

The ADA does not define ‘‘small business’’ or 

specifically authorize the Department to 

prescribe size standards. 

In the NPRM, the Department indicated its 

belief that the size standards developed by 

the SBA are appropriate for determining 

which businesses subject to the ADA should 

be eligible for the small business safe harbor 

provisions, and proposed to adopt the SBA’s 

size standards to define small businesses for 

purposes of the qualified small business safe 

harbor. The SBA’s small business size 

standards define the maximum size that a 

concern, together with all of its affiliates, 

may be if it is to be eligible for Federal small 

business programs or to be considered a 

small business for the purpose of other 

Federal agency programs. Concerns primarily 

engaged in the same kind of economic 

activity are classified in the same industry 

regardless of their types of ownership (such 

as sole proprietorship, partnership, or 

corporation). Approximately 1200 industries 

are described in detail in the North American 

Industry Classification System—United 

States, 2007. For most businesses, the SBA 

has established a size standard based on 

average annual receipts. The majority of 

places of public accommodation will be 

classified as small businesses if their average 

annual receipts are less than $6.5 million. 

However, some will qualify with higher 

annual receipts. The SBA small business size 

standards should be familiar to many if not 

most small businesses, and using these 

standards in the ADA regulation would 

provide some certainty to owners, operators, 

and individuals because the SBA’s current 

size standards can be changed only after 

notice and comment rulemaking. 

The Department explained in the NPRM 

that the choice of gross revenue as the basis 

for calculating the safe harbor threshold was 

intended to avoid the effect of differences in 

bookkeeping practices and to maximize 

accessibility consistent with congressional 

intent. The Department recognized, however, 

that entities with similar gross revenue could 

have very different net revenue, and that this 

difference might affect what is readily 

achievable for a particular entity. The 

Department also recognized that adopting a 

small business safe harbor would effect a 

marked change to the Department’s current 

position on barrier removal. Accordingly, the 

Department sought public comment on 

whether a presumption should be adopted 

whereby qualifying small businesses are 

presumed to have done what is readily 

achievable for a given year if, during that tax 

year, the entity spent at least 1 percent of its 

gross revenue in the preceding tax year on 

barrier removal, and on whether 1 percent is 

an appropriate amount or whether gross 

revenue would be the appropriate measure. 

The Department received many comments 

on the proposed qualified small business safe 

harbor. From the business community, 

comments were received from individual 

business owners and operators, industry and 

trade groups, and advocacy organizations for 

business and industry. From the disability 

community, comments were received from 

individuals, disability advocacy groups, and 

nonprofit organizations involved in 

providing services for persons with 

disabilities or involved in disability-related 

fields. The Department has considered all 

relevant matter submitted on this issue 

during the 60-day public comment period. 

Small businesses and industry groups 

strongly supported a qualified small business 

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safe harbor of some sort, but none supported 

the structure proposed by the Department in 

the NPRM. All felt strongly that clarifications 

and modifications were needed to strengthen 

the provision and to provide adequate 

protection from litigation. 

Business commenters’ objections to the 

proposed qualified small business safe harbor 

fell generally into three categories: (1) That 

gross revenue is an inappropriate and 

inaccurate basis for determining what is 

readily achievable by a small business since 

it does not take into account expenses that 

may result in a small business operating at 

a loss; (2) that courts will interpret the 

regulation to mean that a small business must 

spend 1 percent of gross revenue each year 

on barrier removal, i.e., that expenditure of 

1 percent of gross revenue on barrier removal 

is always ‘‘readily achievable’’; and (3) that a 

similar misinterpretation of the 1 percent 

gross revenue concept, i.e., that 1 percent of 

gross revenue is always ‘‘readily achievable,’’ 

will be applied to public accommodations 

that are not small businesses and that have 

substantially larger gross revenue. Business 

groups also expressed significant concern 

about the recordkeeping burdens they viewed 

as inherent in the Department’s proposal. 

Across the board, business commenters 

objected to the Department’s proposed use of 

gross revenue as the basis for calculating 

whether the small business safe harbor has 

been met. All contended that 1 percent of 

gross revenue is too substantial a trigger for 

safe harbor protection and would result in 

barrier removal burdens far exceeding what 

is readily achievable or ‘‘easily 

accomplishable and able to be carried out 

without much difficulty or expense.’’ 42 

U.S.C. 12181(9). These commenters further 

pointed out that gross revenue and receipts 

vary considerably from industry to industry 

depending on the outputs sold in each 

industry, and that the use of gross revenue 

or receipts would therefore result in arbitrary 

and inequitable burdens on those subject to 

the rule. These commenters stated that the 

readily achievable analysis, and thus the safe 

harbor threshold, should be premised on a 

business’s net revenue so that operating 

expenses are offset before determining what 

amount might be available for barrier 

removal. Many business commenters 

contended that barrier removal is not readily 

achievable if an entity is operating at a loss, 

and that a spending formula premised on net 

revenue can reflect more accurately 

businesses’ ability to engage in barrier 

removal. 

There was no consensus among the 

business commenters as to a formula that 

would reflect more accurately what is readily 

achievable for small businesses with respect 

to barrier removal. Those that proposed 

alternative formulas offered little in the way 

of substantive support for their proposals. 

One advocacy organization representing a 

large cross-section of small businesses 

provided some detail on the gross and net 

revenue of various industry types and sizes 

in support of its position that for nearly all 

small businesses, net revenue is a better 

indicator of a business’s financial ability to 

spend money on barrier removal. The data 

also incidentally highlighted the importance 

and complexity of ensuring that each 

component in a safe harbor formula 

accurately informs and contributes to the 

ultimate question of what is and is not 

readily achievable for a small business. 

Several business groups proposed that a 

threshold of 0.5 percent (or one-half of 1 

percent) of gross revenue, or 2.5 percent of 

net revenue, spent on ADA compliance might 

be a workable measure of what is ‘‘readily 

achievable’’ for small businesses. Other 

groups proposed 3 to 5 percent of net 

revenue as a possible measure. Several 

commenters proposed affording small 

businesses an option of using gross or net 

revenue to determine safe harbor eligibility. 

Another commenter proposed premising the 

safe harbor threshold on a designated 

percentage of the amount spent on 

renovation in a given year. Others proposed 

averaging gross or net revenue over a number 

of years to account for cyclical changes in 

economic and business environments. 

Additionally, many proposed that an entity 

should be able to roll over expenditures in 

excess of the safe harbor for inclusion in safe 

harbor analysis in subsequent years, to 

facilitate barrier removal planning and 

encourage large-scale barrier removal 

measures. 

Another primary concern of many 

businesses and business groups is that the 1 

percent threshold for safe harbor protection 

would become a de facto ‘‘floor’’ for what is 

readily achievable for any small business 

entity. These commenters urged the 

Department to clarify that readily achievable 

barrier removal remains the standard, and 

that in any given case, an entity retains the 

right to assert that barrier removal 

expenditures below the 1 percent threshold 

are not readily achievable. Other business 

groups worried that courts would apply the 

1 percent calculus to questions of barrier 

removal by businesses too large to qualify for 

the small business safe harbor. These 

commenters requested clarification that the 

rationale underlying the Department’s 

determination that a percentage of gross 

revenue can appropriately approximate 

readily achievable barrier removal for small 

businesses does not apply outside the small 

business context. 

Small businesses and business groups 

uniformly requested guidance as to what 

expenses would be included in barrier 

removal costs for purposes of determining 

whether the safe harbor threshold has been 

met. These commenters contended that any 

and all expenses associated with ADA 

compliance—e.g., consultants, architects, 

engineers, staff training, and recordkeeping— 

should be included in the calculation. Some 

proposed that litigation-related expenses, 

including defensive litigation costs, also 

should be accounted for in a small business 

safe harbor. Additionally, several 

commenters urged the Department to issue a 

small business compliance guide with 

detailed guidance and examples regarding 

application of the readily achievable barrier 

removal standard and the safe harbor. Some 

commenters felt that the Department’s 

regulatory efforts should be focused on 

clarifying the readily achievable standard 

rather than on introducing a safe harbor 

based on a set spending level. 

Businesses and business groups expressed 

concern that the Department’s proposed 

small business safe harbor would not 

alleviate small business vulnerability to 

litigation. Individuals and advocacy groups 

were equally concerned that the practical 

effect of the Department’s proposal likely 

would be to accelerate or advance the 

initiation of litigation. These commenters 

pointed out that an individual encountering 

barriers in small business facilities will not 

know whether the entity is noncompliant or 

entitled to safe harbor protection. Safe harbor 

eligibility can be evaluated only after review 

of the small business’s barrier removal 

records and financial records. Individuals 

and advocacy groups argued that the 

Department should not promulgate a rule by 

which individuals must file suit to obtain the 

information needed to determine whether a 

lawsuit is appropriate in a particular case, 

and that, therefore, the rule should clarify 

that small businesses are required to produce 

such documentation to any individual upon 

request. 

Several commenters noted that a small 

business safe harbor based on net, rather than 

gross, revenue would complicate 

exponentially its efficacy as an affirmative 

defense, because accounting practices and 

asserted expenses would be subject to 

discovery and dispute. One business 

advocacy group representing a large crosssection of small businesses noted that some 

small business owners and operators likely 

would be uncomfortable with producing 

detailed financial information, or could be 

prevented from using the safe harbor because 

of inadvertent recordkeeping deficiencies. 

Individuals, advocacy groups, and 

nonprofit organizations commenting on 

behalf of the disability community uniformly 

and strongly opposed a safe harbor for 

qualified small businesses, saying it is 

fundamentally at odds with the intent of 

Congress and the plain language of the ADA. 

These commenters contended that the casespecific factors underlying the statute’s 

readily achievable standard cannot be 

reconciled with a formulaic accounting 

approach, and that a blanket formula 

inherently is less fair, less flexible, and less 

effective than the current case-by-case 

determination for whether an action is 

readily achievable. Moreover, they argued, a 

small business safe harbor for readily 

achievable barrier removal is unnecessary 

because the statutory standard explicitly 

provides that a business need only spend 

what is readily achievable—an amount that 

may be more or less than 1 percent of 

revenue in any given year. 

Several commenters opined that the 

formulaic approach proposed by the 

Department overlooks the factors that often 

prove most conducive and integral to readily 

achievable barrier removal—planning and 

prioritization. Many commenters expressed 

concern that the safe harbor creates an 

incentive for business entities to forego largescale barrier removal in favor of smaller, less 

costly removal projects, regardless of the 

relative access the measures might provide. 

Others commented that an emphasis on a 

formulaic amount rather than readily 

achievable barrier removal might result in 

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competition among types of disabilities as to 

which barriers get removed first, or 

discrimination against particular types of 

disabilities if barrier removal for those groups 

is more expensive. 

Many commenters opposed to the small 

business safe harbor proposed clarifications 

and limiting rules. A substantial number of 

commenters were strongly opposed to what 

they perceived as a vastly overbroad and 

overly complicated definition of ‘‘qualified 

small business’’ for purposes of eligibility for 

the safe harbor, and urged the Department to 

limit the qualified small business safe harbor 

to those businesses eligible for the ADA 

small business tax credit under section 44 of 

the Tax Code. Some commenters from the 

disability community contended that the 

spending level that triggers the safe harbor 

should be cumulative, to reflect the 

continuing nature of the readily achievable 

barrier obligation and to preclude a business 

from erasing years of unjustifiable inaction or 

insufficient action by spending up to the safe 

harbor threshold for one year. These 

commenters also sought explicit clarification 

that the small business safe harbor is an 

affirmative defense. 

A number of commenters proposed that a 

business seeking to use the qualified small 

business safe harbor should be required to 

have a written barrier removal plan that 

contains a prioritized list of significant access 

barriers, a schedule for removal, and a 

description of the methods used to identify 

and prioritize barriers. These commenters 

argued that only spending consistent with 

the plan should count toward the qualified 

small business threshold. 

After consideration of all relevant matter 

presented, the Department has concluded 

that neither the qualified small business safe 

harbor proposed in the NPRM nor any of the 

alternatives proposed by commenters will 

achieve the Department’s intended results. 

Business and industry commenters uniformly 

objected to a safe harbor based on gross 

revenue, argued that 1 percent of gross 

revenue was out of reach for most, if not all, 

small businesses, and asserted that a safe 

harbor based on net revenue would better 

capture whether and to what extent barrier 

removal is readily achievable for small 

businesses. Individuals and disability 

advocacy groups rejected a set formula as 

fundamentally inconsistent with the casespecific approach reflected in the statute. 

Commenters on both sides noted ambiguity 

as to which ADA-related costs appropriately 

should be included in the calculation of the 

safe harbor threshold, and expressed concern 

about the practical effect of the proposed safe 

harbor on litigation. Disability organizations 

expressed concern that the proposal might 

increase litigation because individuals with 

disabilities confronted with barriers in places 

of public accommodation would not be able 

to independently assess whether an entity is 

noncompliant or is, in fact, protected by the 

small business safe harbor. The Department 

notes that the concerns about enforcementrelated complexity and expense likely would 

increase exponentially with a small business 

safe harbor based on net revenue. 

The Department continues to believe that 

promulgation of a small business safe harbor 

would be within the scope of the Attorney 

General’s mandate under 42 U.S.C. 12186(b) 

to issue regulations to carry out the 

provisions of title III. Title III defines ‘‘readily 

achievable’’ to mean ‘‘easily accomplishable 

and able to be carried out without much 

difficulty or expense,’’ 42 U.S.C. 12181(9), 

and sets out factors to consider in 

determining whether an action is readily 

achievable. While the statutory factors reflect 

that whether an action is readily achievable 

is a fact-based determination, there is no 

inherent inconsistency with the Department’s 

proposition that a formula based on revenue 

and barrier removal expenditure could 

accurately approximate the high end of the 

level of expenditure that can be considered 

readily achievable for a circumscribed subset 

of title III entities defined, in part, by their 

maximum annual average receipts. Moreover, 

the Department’s obligation under the 

SBREFA to consider alternative means of 

compliance for small businesses, see 5 U.S.C. 

603(c), further supports the Department’s 

conclusion that a well-targeted formula is a 

reasonable approach to implementation of 

the statute’s readily achievable standard. 

While the Department ultimately has 

concluded that a small business safe harbor 

should not be included in the final rule, the 

Department continues to believe that it is 

within the Department’s authority to develop 

and implement such a safe harbor. 

As noted above, the business community 

strongly objected to a safe harbor premised 

on gross revenue, on the ground that gross 

revenue is an unreliable indicator of an 

entity’s ability to remove barriers, and urged 

the Department to formulate a safe harbor 

based on net revenue. The Department’s 

proposed use of gross revenue was intended 

to offer a measure of certainty for qualified 

small businesses while ensuring that those 

businesses continue to meet their ongoing 

obligation to remove architectural barriers 

where doing so is readily achievable. 

The Department believes that a qualified 

small business safe harbor based on net 

revenue would be an unreliable indicator of 

what is readily achievable and would be 

unworkable in practice. Evaluation of what is 

readily achievable for a small business 

cannot rest solely on a business’s net revenue 

because many decisions about expenses are 

inherently subjective, and in some cases a net 

loss may be more beneficial (in terms of 

taxes, for example) than a small net profit. 

The Department does not read the ADA’s 

readily achievable standard to mean 

necessarily that architectural barrier removal 

is to be, or should be, a business’s last 

concern, or that a business can claim that 

every barrier removal obligation is not 

readily achievable. Therefore, if a qualified 

small business safe harbor were to be 

premised on net revenue, assertion of the 

affirmative defense would trigger discovery 

and examination of the business’s accounting 

methods and the validity or necessity of 

offsetting expenses. The practical benefits 

and legal certainty intended by the NPRM 

would be lost. 

Because there was little to no support for 

the Department’s proposed use of gross 

revenue and no workable alternatives are 

available at this time, the Department will 

not adopt a small business safe harbor in this 

final rule. Small business public 

accommodations are subject to the barrier 

removal requirements set out in § 36.304 of 

the final rule. In addition, the Department 

plans to provide small businesses with more 

detailed guidance on assessing and meeting 

their barrier removal obligations in a small 

business compliance guide. 

Section 36.308 Seating in Assembly Areas 

In the 1991 rule, § 36.308 covered seating 

obligations for public accommodations in 

assembly areas. It was bifurcated into (a) 

existing facilities and (b) new construction 

and alterations. The new construction and 

alterations provision, § 36.308(b), merely 

stated that assembly areas should be built or 

altered in accordance with the applicable 

provisions in the 1991 Standards. Section 

36.308(a), by contrast, provided detailed 

guidelines on what barrier removal was 

required. 

The Department explained in the preamble 

to the 1991 rule that § 36.308 provided 

specific rules on assembly areas to ensure 

that wheelchair users, who typically were 

relegated to inferior seating in the back of 

assembly areas separate from their friends 

and family, would be provided access to 

seats that were integrated and equal in 

quality to those provided to the general 

public. Specific guidance on assembly areas 

was desirable because they are found in 

many different types of places of public 

accommodation, ranging from opera houses 

(places of exhibition or entertainment) to 

private university lecture halls (places of 

education), and include assembly areas that 

range in size from small movie theaters of 

100 or fewer seats to 100,000-seat sports 

stadiums. 

In the NPRM, the Department proposed to 

update § 36.308(a) by incorporating some of 

the applicable assembly area provisions from 

the 2010 Standards. Upon further review, 

however, the Department has determined 

that the need to provide special guidance for 

assembly areas in a separate section no 

longer exists, except for specialty seating 

areas, as discussed below. Since enactment of 

the ADA, the Department has interpreted the 

1991 Standards as a guide for determining 

the existence of barriers. Courts have 

affirmed this interpretation. See, e.g., 

Colorado Cross Disability Coalition v. Too, 

Inc., 344 F. Supp. 2d 707 (D. Colo. 2004); 

Access Now, Inc. v. AMH CGH, Inc., 2001 WL 

1005593 (S.D. Fla. 2001); Pascuiti v. New 

York Yankees, 87 F. Supp. 2d 221 (S.D.N.Y. 

1999). The 2010 Standards now establish 

detailed guidance for newly constructed and 

altered assembly areas, which is provided in 

§ 36.406(f), and these Standards will serve as 

a new guide for barrier removal. Accordingly, 

the former § 36.308(a) has been replaced in 

the final rule. Assembly areas will benefit 

from the same safe harbor provisions 

applicable to barrier removal in all places of 

public accommodations as provided in 

§ 36.304(d)(2) of the final rule. 

The Department has also decided to 

remove proposed § 36.308(c)(2) from the final 

rule. This provision would have required 

assembly areas with more than 5,000 seats to 

provide five wheelchair spaces with at least 

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three designated companion seats for each of 

those five wheelchair spaces. The 

Department agrees with commenters who 

asserted that group seating already is 

addressed more appropriately in ticketing 

under § 36.302(f). 

The Department has determined that 

proposed § 36.308(c)(1), addressing specialty 

seating in assembly areas, should remain as 

§ 36.308 in the final rule with additional 

language. This paragraph is designed to 

ensure that individuals with disabilities have 

an opportunity to access specialty seating 

areas that entitle spectators to distinct 

services or amenities not generally available 

to others. This provision is not, as several 

commenters mistakenly thought, designed to 

cover luxury boxes and suites. Those areas 

have separate requirements outlined in 

section 221 of the 2010 Standards. 

Section 36.308 requires only that 

accessible seating be provided in each area 

with distinct services or amenities. To the 

extent a covered entity provides multiple 

seating areas with the same services and 

amenities, each of those areas would not be 

distinct and thus all of them would not be 

required to be accessible. For example, if a 

facility has similar dining service in two 

areas, both areas would not need to be made 

accessible; however, if one dining service 

area is open to families, while the other is 

open only to individuals over the age of 21, 

both areas would need to be made accessible. 

Factors distinguishing specialty seating areas 

generally are dictated by the type of facility 

or event, but may include, for example, such 

distinct services and amenities as access to 

wait staff for in-seat food or beverage service; 

availability of catered food or beverages for 

pre-game, intermission, or post-game events; 

restricted access to lounges with special 

amenities, such as couches or flat-screen 

televisions; or access to team personnel or 

facilities for team-sponsored events (e.g., 

autograph sessions, sideline passes, or 

facility tours) not otherwise available to other 

spectators. 

The NPRM required public 

accommodations to locate wheelchair seating 

spaces and companion seats in each specialty 

seating area within the assembly area. The 

Department has added language in the final 

rule stating that public accommodations that 

cannot place wheelchair seating spaces and 

companion seats in each specialty area 

because it is not readily achievable to do so 

may meet their obligation by providing 

specialty services or amenities to individuals 

with disabilities and their companions at 

other designated accessible locations at no 

additional cost. For example, if a theater that 

only has barrier removal obligations provides 

wait service to spectators in the mezzanine, 

and it is not readily achievable to place 

accessible seating there, it may meet its 

obligation by providing wait service to 

patrons with disabilities who use 

wheelchairs and their companions at other 

designated accessible locations at no 

additional cost. This provision does not 

obviate the obligation to comply with 

applicable requirements for new construction 

and alterations, including dispersion of 

accessible seating. 

Section 36.309 Examinations and Courses 

Section 36.309(a) sets forth the general rule 

that any private entity that offers 

examinations or courses relating to 

applications, licensing, certification, or 

credentialing for secondary or postsecondary 

education, professional, or trade purposes 

shall offer such examinations or courses in a 

place and manner accessible to persons with 

disabilities or offer alternative accessible 

arrangements for such individuals. In the 

NPRM preamble and proposed regulatory 

amendment and in this final rule, the 

Department relied on its history of 

enforcement efforts, research, and body of 

knowledge of testing and modifications, 

accommodations, and aids in detailing steps 

testing entities should take to ensure that 

persons with disabilities receive appropriate 

modifications, accommodations, or auxiliary 

aids in examination and course settings as 

required by the ADA. The Department 

received comments from disability rights 

groups, organizations that administer tests, 

State governments, professional associations, 

and individuals on the language appearing in 

the NPRM preamble and amended regulation 

and has carefully considered these 

comments. 

The Department initially set out the 

parameters of appropriate documentation 

requests relating to examinations and courses 

covered by this section in the 1991 preamble 

at 28 CFR part 36, stating that ‘‘requests for 

documentation must be reasonable and must 

be limited to the need for the modification 

or aid requested.’’ See 28 CFR part 36, app. 

B at 735 (2009). Since that time, the 

Department, through its enforcement efforts 

pursuant to section 309, has addressed 

concerns that requests by testing entities for 

documentation regarding the existence of an 

individual’s disability and need for a 

modification or auxiliary aid or service were 

often inappropriate and burdensome. The 

Department proposed language stating that 

while it may be appropriate for a testing 

entity to request that an applicant provide 

documentation supporting the existence of a 

disability and the need for a modification, 

accommodation, or auxiliary aid or service, 

the request by the testing entity for such 

documentation must be reasonable and 

limited. The NPRM proposed that testing 

entities should narrowly tailor requests for 

documentation, limiting those requests to 

materials that will allow the testing entities 

to ascertain the nature of the disability and 

the individual’s need for the requested 

modification, accommodation, or auxiliary 

aid or service. This proposal codified the 

1991 rule’s preamble language regarding 

testing entities’ requests for information 

supporting applicants’ requests for testing 

modifications or accommodations. 

Overall, most commenters supported this 

addition to the regulation. These commenters 

generally agreed that documentation sought 

by testing entities to support requests for 

modifications and testing accommodations 

should be reasonable and tailored. 

Commenters noted, for example, that the 

proposal to require reasonable and tailored 

documentation requests ‘‘is not objectionable. 

Indeed, it largely tracks DOJ’s long-standing 

informal guidance that ‘requests for 

documentation must be reasonable and 

limited to the need for the modification or 

aid requested.’ ’’ 

Commenters including disability rights 

groups, State governments, professional 

associations, and individuals made it clear 

that, in addition to the proposed regulatory 

change, other significant problems remain for 

individuals with disabilities who seek 

necessary modifications to examinations and 

courses. These problems include detailed 

questions about the nature of documentation 

materials submitted by candidates, testing 

entities’ questioning of documentation 

provided by qualified professionals with 

expertise in the particular disability at issue, 

and lack of timeliness in determining 

whether to provide requested 

accommodations or modifications. Several 

commenters expressed enthusiasm for the 

preamble language addressing some of these 

issues, and some of these commenters 

recommended the incorporation of portions 

of this preamble language into the regulatory 

text. Some testing entities expressed 

concerns and uncertainty about the language 

in the preamble and sought clarifications 

about its meaning. These commenters 

focused most of their attention on the 

following language from the NPRM preamble: 

Generally, a testing entity should accept 

without further inquiry documentation 

provided by a qualified professional who has 

made an individualized assessment of the 

applicant. Appropriate documentation may 

include a letter from a qualified professional 

or evidence of a prior diagnosis, or 

accommodation, or classification, such as 

eligibility for a special education program. 

When an applicant’s documentation is recent 

and demonstrates a consistent history of a 

diagnosis, there is no need for further inquiry 

into the nature of the disability. A testing 

entity should consider an applicant’s past 

use of a particular auxiliary aid or service. 

73 FR 34508, 34539 (June 17, 2008). 

Professional organizations, State 

governments, individuals, and disability 

rights groups fully supported the 

Department’s preamble language and 

recommended further modification of the 

regulations to encompass the issues raised in 

the preamble. A disability rights group 

recommended that the Department 

incorporate the preamble language into the 

regulations to ensure that ‘‘documentation 

demands are strictly limited in scope and 

met per se when documentation of 

previously provided accommodations or aids 

is provided.’’ One professional education 

organization noted that many testing 

corporations disregard the documented 

diagnoses of qualified professionals, and 

instead substitute their own, often 

unqualified diagnoses of individuals with 

disabilities. Commenters confirmed that 

testing entities sometimes ask for 

unreasonable information that is either 

impossible, or extremely onerous, to provide. 

A disability rights organization supported the 

Department’s proposals and noted that 

private testing companies impose 

burdensome documentation requirements 

upon applicants with disabilities seeking 

accommodations and that complying with 

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the documentation requests is frequently so 

difficult, and negotiations over the requests 

so prolonged, that test applicants ultimately 

forgo taking the test. Another disability rights 

group urged the Department to ‘‘expand the 

final regulatory language to ensure that 

regulations accurately provide guidance and 

support the comments made about reducing 

the burden of documenting the diagnosis and 

existence of a disability.’’ 

Testing entities, although generally 

supportive of the proposed regulatory 

amendment, expressed concern regarding the 

Department’s proposed preamble language. 

The testing entities provided the Department 

with lengthy comments in which they 

suggested that the Department’s rationale 

delineated in the preamble potentially could 

limit them from gathering meaningful and 

necessary documentation to determine 

whether, in any given circumstance, a 

disability is presented, whether 

modifications are warranted, and which 

modifications would be most appropriate. 

Some testing entities raised concerns about 

individuals skewing testing results by falsely 

claiming or feigning disabilities as an 

improper means of seeking advantage on an 

examination. Several testing entities raised 

concerns about and sought clarification 

regarding the Department’s use of certain 

terms and concepts in the preamble, 

including ‘‘without further inquiry,’’ 

‘‘appropriate documentation,’’ ‘‘qualified 

professional,’’ ‘‘individualized assessment,’’ 

and ‘‘consider.’’ These entities discussed the 

preamble language at length, noting that 

testing entities need to be able to question 

some aspects of testing applicants’ 

documentation or to request further 

documentation from some candidates when 

the initial documentation is unclear or 

incomplete. One testing entity expressed 

concern that the Department’s preamble 

language would require the acceptance of a 

brief note on a doctor’s prescription pad as 

adequate documentation of a disability and 

the need for an accommodation. One medical 

examination organization stated that the 

Department’s preamble language would 

result in persons without disabilities 

receiving accommodations and passing 

examinations as part of a broad expansion of 

unwarranted accommodations, potentially 

endangering the health and welfare of the 

general public. Another medical board 

‘‘strenuously objected’’ to the ‘‘without further 

inquiry’’ language. Several of the testing 

entities expressed concern that the 

Department’s preamble language might 

require testing companies to accept 

documentation from persons with temporary 

or questionable disabilities, making test 

scores less reliable, harming persons with 

legitimate entitlements, and resulting in 

additional expense for testing companies to 

accommodate more test takers. 

It remains the Department’s view that, 

when testing entities receive documentation 

provided by a qualified professional who has 

made an individualized assessment of an 

applicant that supports the need for the 

modification, accommodation, or aid 

requested, they shall generally accept such 

documentation and provide the 

accommodation. 

Several commenters sought clarifications 

on what types of documentation are 

acceptable to demonstrate the existence of a 

disability and the need for a requested 

modification, accommodation, or aid. The 

Department believes that appropriate 

documentation may vary depending on the 

nature of the disability and the specific 

modification or aid requested, and 

accordingly, testing entities should consider 

a variety of types of information submitted. 

Examples of types of information to consider 

include recommendations of qualified 

professionals familiar with the individual, 

results of psycho-educational or other 

professional evaluations, an applicant’s 

history of diagnosis, participation in a special 

education program, observations by 

educators, or the applicant’s past use of 

testing accommodations. If an applicant has 

been granted accommodations post-high 

school by a standardized testing agency, 

there is no need for reassessment for a 

subsequent examination. 

Some commenters expressed concern 

regarding the use of the term ‘‘letter’’ in the 

proposed preamble sentence regarding 

appropriate documentation. The NPRM 

preamble language stated that ‘‘[a]ppropriate 

documentation may include a letter from a 

qualified professional or evidence of a prior 

diagnosis, accommodation, or classification, 

such as eligibility for a special education 

program.’’ 73 FR 34508, 34539 (June 17, 

2008). Some testing entities posited that the 

preamble language would require them to 

accept a brief letter from a doctor or even a 

doctor’s note on a prescription pad indicating 

‘‘I’ve been treating (student) for ADHD and 

he/she is entitled to extend time on the 

ACT.’’ The Department’s reference in the 

NPRM preamble to letters from physicians or 

other professionals was provided in order to 

offer examples of some types of acceptable 

documentation that may be considered by 

testing entities in evaluating the existence of 

an applicant’s disability and the need for a 

certain modification, accommodation, or aid. 

No one piece of evidence may be dispositive 

in make a testing accommodation 

determination. The significance of a letter or 

other communication from a doctor or other 

qualified professional would depend on the 

professional’s relationship with the 

candidate and the specific content of the 

communication, as well as how the letter fits 

in with the totality of the other factors used 

to determine testing accommodations under 

this rule. Similarly, an applicant’s failure to 

provide results from a specific test or 

evaluation instrument should not of itself 

preclude approval of requests for 

modifications, accommodations, or aids if the 

documentation provided by the applicant, in 

its entirety, is sufficient to demonstrate that 

the individual has a disability and requires 

a requested modification, accommodation, or 

aid on the relevant examination. This issue 

is discussed in more detail below. 

One disability rights organization noted 

that requiring a 25-year old who was 

diagnosed in junior high school with a 

learning disability and accommodated ever 

since ‘‘to produce elementary school report 

cards to demonstrate symptomology before 

the age of seven is unduly burdensome.’’ The 

same organization commented that requiring 

an individual with a long and early history 

of disability to be assessed within three years 

of taking the test in question is similarly 

burdensome, stating that ‘‘[t]here is no 

scientific evidence that learning disabilities 

abate with time, nor that Attention Deficits 

abate with time * * *.’’ This organization 

noted that there is no justification for 

repeatedly subjecting people to expensive 

testing regimens simply to satisfy a 

disbelieving industry. This is particularly 

true for adults with, for example, learning 

disabilities such as dyslexia, a persistent 

condition without the need for retesting once 

the diagnosis has been established and 

accepted by a standardized testing agency. 

Some commenters from testing entities 

sought clarification regarding who may be 

considered a ‘‘qualified professional.’’ 

Qualified professionals are licensed or 

otherwise properly credentialed and possess 

expertise in the disability for which 

modifications or accommodations are sought. 

For example, a podiatrist would not be 

considered to be a qualified professional to 

diagnose a learning disability or support a 

request for testing accommodations on that 

basis. Types of professionals who might 

possess the appropriate credentials and 

expertise are doctors (including 

psychiatrists), psychologists, nurses, physical 

therapists, occupational therapists, speech 

therapists, vocational rehabilitation 

specialists, school counselors, and licensed 

mental health professionals. Additionally, 

while testing applicants should present 

documentation from qualified professionals 

with expertise in the pertinent field, it also 

is critical that testing entities that review 

documentation submitted by prospective 

examinees in support of requests for testing 

modifications or accommodations ensure that 

their own reviews are conducted by qualified 

professionals with similarly relevant 

expertise. 

Commenters also sought clarification of the 

term individualized assessment. The 

Department’s intention in using this term is 

to ensure that documentation provided on 

behalf of a testing candidate is not only 

provided by a qualified professional, but also 

reflects that the qualified professional has 

individually and personally evaluated the 

candidate as opposed to simply considering 

scores from a review of documents. This is 

particularly important in the learning 

disabilities context, where proper diagnosis 

requires face-to-face evaluation. Reports from 

experts who have personal familiarity with 

the candidate should take precedence over 

those from, for example, reviewers for testing 

agencies, who have never personally met the 

candidate or conducted the requisite 

assessments for diagnosis and treatment. 

Some testing entities objected to the NPRM 

preamble’s use of the phrase ‘‘without further 

inquiry.’’ The Department’s intention here is 

to address the extent to which testing entities 

should accept documentation provided by an 

applicant when the testing entity is 

determining the need for modifications, 

accommodations, or auxiliary aids or 

services. The Department’s view is that 

applicants who submit appropriate 

documentation, e.g., documentation that is 

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based on the careful individual consideration 

of the candidate by a professional with 

expertise relating to the disability in 

question, should not be subjected to 

unreasonably burdensome requests for 

additional documentation. While some 

testing commenters objected to this standard, 

it reflects the Department’s longstanding 

position. When an applicant’s documentation 

demonstrates a consistent history of a 

diagnosis of a disability, and is prepared by 

a qualified professional who has made an 

individualized evaluation of the applicant, 

there is little need for further inquiry into the 

nature of the disability and generally testing 

entities should grant the requested 

modification, accommodation, or aid. 

After a careful review of the comments, the 

Department has decided to maintain the 

proposed regulatory language on the scope of 

appropriate documentation in 

§ 36.309(b)(1)(iv). The Department has also 

added new regulatory language at 

§ 36.309(b)(1)(v) that provides that testing 

entities shall give considerable weight to 

documentation of past modifications, 

accommodations, or auxiliary aids or services 

received in similar testing situations as well 

as such modifications, accommodations, or 

related aids and services provided in 

response to an Individualized Education 

Program (IEP) provided under the 

Individuals with Disabilities Education Act 

(IDEA) or a plan providing services pursuant 

to section 504 of the Rehabilitation Act of 

1973, as amended (often referred to as a 

Section 504 Plan). These additions to the 

regulation are necessary because the 

Department’s position on the bounds of 

appropriate documentation contained in 

Appendix B, 28 CFR part 36, app. B (2009), 

has not been implemented consistently and 

fully by organizations that administer tests. 

The new regulatory language clarifies that 

an applicant’s past use of a particular 

modification, accommodation, or auxiliary 

aid or service in a similar testing setting or 

pursuant to an IEP or Section 504 Plan 

provides critical information in determining 

those examination modifications that would 

be applicable in a given circumstance. The 

addition of this language and the appropriate 

weight to be accorded it is seen as important 

by the Department because the types of 

accommodations provided in both these 

circumstances are typically granted in the 

context of individual consideration of a 

student’s needs by a team of qualified and 

experienced professionals. Even though these 

accommodations decisions form a common 

sense and logical basis for testing entities to 

rely upon, they are often discounted and 

ignored by testing entities. 

For example, considerable weight is 

warranted when a student with a Section 504 

Plan in place since middle school that 

includes the accommodations of extra time 

and a quiet room for testing is seeking these 

same accommodations from a testing entity 

covered by section 309 of the Act. In this 

example, a testing entity receiving such 

documentation should clearly grant the 

request for accommodations. A history of test 

accommodations in secondary schools or in 

post-secondary institutions, particularly 

when determined through the rigors of a 

process required and detailed by Federal law, 

is as useful and instructive for determining 

whether a specific accommodation is 

required as accommodations provided in 

standardized testing situations. 

It is important to note, however, that the 

inclusion of this weight does not suggest that 

individuals without IEPs or Section 504 

Plans are not also entitled to receive testing 

accommodations. Indeed, it is recommended 

that testing entities must consider the 

entirety of an applicant’s history to 

determine whether that history, even without 

the context of a IEP or Section 504 Plan, 

indicates a need for accommodations. In 

addition, many students with learning 

disabilities have made use of informal, but 

effective accommodations. For example, such 

students often receive undocumented 

accommodations such as time to complete 

tests after school or at lunchtime, or being 

graded on content and not form or spelling 

of written work. Finally, testing entities shall 

also consider that because private schools are 

not subject to the IDEA, students at private 

schools may have a history of receiving 

accommodations in similar settings that are 

not pursuant to an IEP or Section 504 Plan. 

Some testing entities sought clarification 

that they should only be required to consider 

particular use of past modifications, 

accommodations, auxiliary aids or services 

received by testing candidates for prior 

testing and examination settings. These 

commenters noted that it would be unhelpful 

to consider the classroom accommodations 

for a testing candidate, as those 

accommodations would not typically apply 

in a standardized test setting. The 

Department’s history of enforcement in this 

area has demonstrated that a recent history 

of past accommodations is critical to an 

understanding of the applicant’s disability 

and the appropriateness of testing 

accommodations. 

The Department also incorporates the 

NPRM preamble’s ‘‘timely manner’’ concept 

into the new regulatory language at 

§ 36.309(b)(1)(vi). Under this provision, 

testing entities are required to respond in a 

timely manner to requests for testing 

accommodations in order to ensure equal 

opportunity for persons with disabilities. 

Testing entities are to ensure that their 

established process for securing testing 

accommodations provides applicants with a 

reasonable opportunity to supplement the 

testing entities’ requests for additional 

information, if necessary, and still be able to 

take the test in the same testing cycle. A 

disability rights organization commented that 

testing entities should not subject applicants 

to unreasonable and intrusive requests for 

information in a process that should provide 

persons with disabilities effective 

modifications in a timely manner, fulfilling 

the core objective of title III to provide equal 

access. Echoing this perspective, several 

disability rights organizations and a State 

government commenter urged that testing 

entities should not make unreasonably 

burdensome demands for documentation, 

particularly where those demands create 

impediments to receiving accommodations in 

a timely manner. Access to examinations 

should be offered to persons with disabilities 

in as timely a manner as it is offered to 

persons without disabilities. Failure by a 

testing entity to act in a timely manner, 

coupled with seeking unnecessary 

documentation, could result in such an 

extended delay that it constitutes a denial of 

equal opportunity or equal treatment in an 

examination setting for persons with 

disabilities. 

Section 36.311 Mobility Devices 

Section 36.311 of the NPRM clarified the 

scope and circumstances under which 

covered entities are legally obligated to 

accommodate various ‘‘mobility devices.’’ 

Section 36.311 set forth specific requirements 

for the accommodation of mobility devices, 

including wheelchairs, manually-powered 

mobility aids, and other power-driven 

mobility devices. 

In both the NPRM and the final rule, 

§ 36.311(a) states the general rule that in any 

areas open to pedestrians, public 

accommodations shall permit individuals 

with mobility disabilities to use wheelchairs 

and manually-powered mobility aids, 

including walkers, crutches, canes, braces, or 

similar devices. Because mobility scooters 

satisfy the definition of ‘‘wheelchair’’ (i.e., ‘‘a 

manually-operated or power-driven device 

designed primarily for use by an individual 

with a mobility disability for the main 

purpose of indoor, or of both indoor and 

outdoor locomotion’’), the reference to them 

in § 36.311(a) of the final rule has been 

omitted to avoid redundancy. 

Most business commenters expressed 

concern that permitting the use of other 

power-driven mobility devices by 

individuals with mobility disabilities would 

make such devices akin to wheelchairs and 

would require them to make physical 

changes to their facilities to accommodate 

their use. This concern is misplaced. If a 

facility complies with the applicable design 

requirements in the 1991 Standards or the 

2010 Standards, the public accommodation 

will not be required to exceed those 

standards to accommodate the use of 

wheelchairs or other power-driven mobility 

devices that exceed those requirements. 

Legal standard for other power-driven 

mobility devices. The NPRM version of 

§ 36.311(b) provided that a public 

accommodation ‘‘shall make reasonable 

modifications in its policies, practices, and 

procedures to permit the use of other powerdriven 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.’’ 73 FR 34508, 34556 (June 

17, 2008). In other words, public 

accommodations are by default required to 

permit the use of other power-driven 

mobility devices; the burden is on them to 

prove the existence of a valid exception. 

Most commenters supported the notion of 

assessing whether the use of a particular 

device is reasonable in the context of a 

particular venue. Commenters, however, 

disagreed about the meaning of the word 

‘‘reasonable’’ as it is used in § 36.311(b) of the 

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NPRM. Virtually every business and industry 

commenter took the use of the word 

‘‘reasonable’’ to mean that a general 

reasonableness standard would be applied in 

making such an assessment. Advocacy and 

nonprofit groups almost universally objected 

to the use of a general reasonableness 

standard with regard to the assessment of 

whether a particular device should be 

allowed at a particular venue. They argued 

that the assessment should be based on 

whether reasonable modifications could be 

made to allow a particular device at a 

particular venue, and that the only factors 

that should be part of the calculus that 

results in the exclusion of a particular device 

are undue burden, direct threat, and 

fundamental alteration. 

A few commenters opposed the proposed 

provision requiring public accommodations 

to assess whether reasonable modifications 

can be made to allow other power-driven 

mobility devices, preferring instead that the 

Department issue guidance materials so that 

public accommodations would not have to 

incur the cost of such analyses. Another 

commenter noted a ‘‘fox guarding the hen 

house’’-type of concern with regard to public 

accommodations developing and enforcing 

their own modification policy. 

In response to comments received, the 

Department has revised § 36.311(b) to 

provide greater clarity regarding the 

development of legitimate safety 

requirements regarding other power-driven 

mobility devices. The Department has not 

retained the proposed NPRM language stating 

that an other power-driven mobility device 

can be excluded if a public accommodation 

can demonstrate that the use of the device is 

not reasonable or that its use fundamentally 

alters the nature of the goods, services, 

facilities, privileges, advantages, or 

accommodations offered by the public 

accommodation because the Department 

believes that these exceptions are covered by 

the general reasonable modification 

requirement contained in § 36.302. 

Assessment factors. Section 36.311(c) of 

the NPRM required public accommodations 

to ‘‘establish policies to permit the use of 

other power-driven mobility devices’’ and 

articulated four factors upon which public 

accommodations must base decisions as to 

whether a modification is reasonable to allow 

the use of a class of other power-driven 

mobility devices by individuals with 

disabilities in specific venues (e.g., doctors’ 

offices, parks, commercial buildings, etc.). 73 

FR 34508, 34556 (June 17, 2008). 

The Department has relocated and 

modified the NPRM text that appeared in 

§ 36.311(c) to new paragraph § 36.311(b)(2) to 

clarify what factors the public 

accommodation shall use in determining 

whether a particular other power-driven 

mobility device can be allowed in a specific 

facility as a reasonable modification. Section 

36.311(b)(2) now states that ‘‘[i]n determining 

whether a particular other power-driven 

mobility device can be allowed in a specific 

facility as a reasonable modification under 

(b)(1), a public accommodation shall 

consider’’ certain enumerated factors. The 

assessment factors are designed to assist 

public accommodations in determining 

whether allowing the use of a particular other 

power-driven mobility device in a specific 

facility is reasonable. Thus, the focus of the 

analysis must be on the appropriateness of 

the use of the device at a specific facility, 

rather than whether it is necessary for an 

individual to use a particular device. 

The NPRM proposed the following specific 

assessment factors: (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. 

Factor 1 was designed to help public 

accommodations assess whether a particular 

device was appropriate, given its particular 

physical features, for a particular location. 

Virtually all commenters said the physical 

features of the device affected their view of 

whether a particular device was appropriate 

for a particular location. For example, while 

many commenters supported the use of an 

other power-driven mobility device if the 

device were a Segway® PT, because of 

environmental and health concerns they did 

not offer the same level of support if the 

device were an off-highway vehicle, allterrain vehicle (ATV), golf car, or other 

device with a fuel-powered or combustion 

engine. Most commenters noted that 

indicators such as speed, weight, and 

dimension really were an assessment of the 

appropriateness of a particular device in 

specific venues and suggested that factor 1 

say this more specifically. 

The term ‘‘in relation to a wheelchair’’ in 

the NPRM’s factor 1 apparently created some 

concern that the same legal standards that 

apply to wheelchairs would be applied to 

other power-driven mobility devices. The 

Department has omitted the term ‘‘in relation 

to a wheelchair’’ from § 36.311(b)(2)(i) to 

clarify that if a facility that is in compliance 

with the applicable provisions of the 1991 

Standards or the 2010 Standards grants 

permission for an other power-driven 

mobility device to go on-site, it is not 

required to exceed those standards to 

accommodate the use of other power-driven 

mobility devices. 

In response to requests that NPRM factor 

1 state more specifically that it requires an 

assessment of an other power-driven mobility 

device’s appropriateness under particular 

circumstances or in particular venues, the 

Department has added several factors and 

more specific language. In addition, although 

the NPRM made reference to the operation of 

other power-driven mobility devices in 

‘‘specific venues,’’ the Department’s intent is 

captured more clearly by referencing 

‘‘specific facility’’ in paragraph (b)(2). The 

Department also notes that while speed is 

included in factor 1, public accommodations 

should not rely solely on a device’s top speed 

when assessing whether the device can be 

accommodated; instead, public 

accommodations should also consider the 

minimum speeds at which a device can be 

operated and whether the development of 

speed limit policies can be established to 

address concerns regarding the speed of the 

device. Finally, since the ability of the public 

accommodation to stow the mobility device 

when not in use is an aspect of its design and 

operational characteristics, the text proposed 

as factor 4 in the NPRM has been 

incorporated in paragraph (b)(2)(iii). 

The NPRM’s version of factor 2 provided 

that the ‘‘potential risk of harm to others by 

the operation of the mobility device’’ is one 

of the determinants in the assessment of 

whether other power-driven mobility devices 

should be excluded from a site. With this 

language, the Department intended to 

incorporate the safety standard found in 

§ 36.301(b), which provides that public 

accommodations may ‘‘impose legitimate 

safety requirements that are necessary for 

safe operation’’ into the assessment. However, 

several commenters indicated that they read 

this language, particularly the phrase 

‘‘potential risk of harm’’ to mean that the 

Department had adopted a concept of risk 

analysis different from that which is in the 

existing standards. The Department did not 

intend to create a new standard and has 

changed the language in paragraphs (b)(1) 

and (b)(2) to clarify the applicable standards, 

thereby avoiding the introduction of new 

assessments of risk beyond those necessary 

for the safe operation of the public 

accommodation. 

While all applicable affirmative defenses 

are available to public accommodations in 

the establishment and execution of their 

policies regarding other power-driven 

mobility devices, the Department did not 

explicitly incorporate the direct threat 

defense into the assessment factors because 

§ 36.301(b) provides public accommodations 

the appropriate framework with which to 

assess whether legitimate safety requirements 

that may preclude the use of certain other 

power-driven mobility devices are necessary 

for the safe operation of the public 

accommodation. In order to be legitimate, the 

safety requirement must be based on actual 

risks and not mere speculation regarding the 

device or how it will be operated. Of course, 

public accommodations may enforce 

legitimate safety rules established for the 

operation of other-power driven mobility 

devices (e.g., reasonable speed restrictions). 

Finally, NPRM factor 3 concerning 

environmental resources and conflicts of law 

has been relocated to paragraph (b)(2)(v). 

As a result of these comments and 

requests, NPRM factors 1, 2, 3, and 4 have 

been revised and renumbered within 

paragraph 36.311(b)(2) in the final rule. 

Several commenters requested that the 

Department provide guidance materials or 

more explicit concepts of which 

considerations might be appropriate for 

inclusion in a policy that allows the use of 

other power-driven mobility devices. A 

public accommodation that has determined 

that reasonable modifications can be made in 

its policies, practices, or procedures to allow 

the use of other power-driven mobility 

devices should develop a policy that clearly 

states the circumstances under which the use 

of other power-driven mobility devices by 

individuals with a mobility disability will be 

permitted. It also should include clear, 

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concise statements of specific rules governing 

the operation of such devices. Finally, the 

public accommodation should endeavor to 

provide individuals with disabilities who use 

other power-driven mobility devices with 

advanced notice of its policy regarding the 

use of such devices and what rules apply to 

the operation of these devices. 

For example, the U.S. General Services 

Administration (GSA) has developed a policy 

allowing the use of the Segway® PT and 

other EPAMDs in all Federal buildings under 

GSA’s jurisdiction. See General Services 

Administration, Interim Segway® Personal 

Transporter Policy (Dec. 3, 2007), available at 

http://www.gsa.gov/graphics/pbs/ 

Interim_Segway_Policy_121007.pdf (last 

visited June 24, 2010). The GSA policy 

defines the policy’s scope of coverage by 

setting out what devices are and are not 

covered by the policy. The policy also sets 

out requirements for safe operation, such as 

a speed limit, prohibits the use of EPAMDs 

on escalators, and provides guidance 

regarding security screening of these devices 

and their operators. 

A public accommodation that determines 

that it can make reasonable modifications to 

permit the use of an other power-driven 

mobility device by an individual with a 

mobility disability might include in its policy 

the procedure by which claims that the other 

power-driven mobility device is being used 

for a mobility disability will be assessed for 

legitimacy (i.e., a credible assurance that the 

device is being used for a mobility disability, 

including a verbal representation by the 

person with a disability that is not 

contradicted by observable fact, or the 

presentation of a disability parking space 

placard or card, or State-issued proof of 

disability); the type or classes of other powerdriven mobility devices are permitted to be 

used by individuals with mobility 

disabilities; the size, weight, and dimensions 

of the other power-driven mobility devices 

that are permitted to be used by individuals 

with mobility disabilities; the speed limit for 

the other power-driven mobility devices that 

are permitted to be used by individuals with 

mobility disabilities; the places, times, or 

circumstances under which the use of the 

other power-driven mobility devices is or 

will be restricted or prohibited; safety, 

pedestrian, and other rules concerning the 

use of the other power-driven mobility 

devices; whether, and under which 

circumstances, storage for the other powerdriven mobility devices will be made 

available; and how and where individuals 

with a mobility disability can obtain a copy 

of the other power-driven mobility device 

policy. 

Public accommodations also might 

consider grouping other power-driven 

mobility devices by type (e.g., EPAMDs, golf 

cars, gasoline-powered vehicles, and other 

devices). For example, an amusement park 

may determine that it is reasonable to allow 

individuals with disabilities to use EPAMDs 

in a variety of outdoor programs and 

activities, but that it would not be reasonable 

to allow the use of golf cars as mobility 

devices in similar circumstances. At the same 

time, the entity may address its concerns 

about factors such as space limitations by 

disallowing use of EPAMDs by members of 

the general public who do not have mobility 

disabilities. 

The Department anticipates that in many 

circumstances, public accommodations will 

be able to develop policies that will allow the 

use of other power-driven mobility devices 

by individuals with mobility disabilities 

without resulting in a fundamental alteration 

of a public accommodation’s goods, services, 

facilities, privileges, advantages, or 

accommodations. Consider the following 

examples: 

Example 1: Although individuals who do 

not have mobility disabilities are prohibited 

from operating EPAMDs at a theme park, the 

park has developed a policy allowing 

individuals with mobility disabilities to use 

EPAMDs as their mobility device at the park. 

The policy states that EPAMDs are allowed 

in all areas of the theme park that are open 

to pedestrians as a reasonable modification to 

its general policy on EPAMDs. The public 

accommodation has determined that the 

facility provides adequate space for a taller 

device, such as an EPAMD, and that it does 

not fundamentally alter the nature of the 

theme park’s goods and services. The theme 

park’s policies do, however, require that 

EPAMDs be operated at a safe speed limit. A 

theme park employee may inquire at the 

ticket gate whether the device is needed due 

to the user’s disability or may request the 

presentation of a valid, State-issued, 

disability parking placard (though 

presentation of such a placard is not 

necessary), or other State-issued proof of 

disability or a credible assurance that the use 

of the EPAMD is for the individual’s mobility 

disability. The park employee also may 

inform an individual with a disability using 

an EPAMD that the theme park’s policy 

requires that it be operated at or below the 

park’s designated speed limit. 

Example 2: A shopping mall has developed 

a policy whereby EPAMDs may be operated 

by individuals with mobility disabilities in 

the common pedestrian areas of the mall if 

the operator of the device agrees to the 

following: to operate the device no faster 

than the speed limit set by the policy; to use 

the elevator, not the escalator, to transport 

the EPAMD to different levels; to yield to 

pedestrian traffic; not to leave the device 

unattended unless it can stand upright and 

has a locking system; to refrain from using 

the device temporarily if the mall manager 

determines that the volume of pedestrian 

traffic is such that the operation of the device 

would interfere with legitimate safety 

requirements; and to present the mall 

management office with a valid, State-issued, 

disability parking placard (though 

presentation of such a placard is not 

necessary), or State-issued proof of disability, 

as a credible assurance that the use of the 

EPAMD is for the individual’s mobility 

disability, upon entry to the mall. 

Inquiry into the use of other power-driven 

mobility device. Section 36.311(d) of the 

NPRM provided that 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.’’ 73 FR 34508, 34556 

(June 17, 2008). 

While business commenters did not take 

issue with applying this standard to 

individuals who use wheelchairs, they were 

not satisfied with the application of this 

standard to other power-driven mobility 

devices. Business commenters expressed 

concern about people feigning mobility 

disabilities to be able to use other powerdriven mobility devices in public 

accommodations in which their use is 

otherwise restricted. These commenters felt 

that a mere inquiry into whether the device 

is being used for a mobility disability was an 

insufficient mechanism by which to detect 

fraud by other power-driven mobility device 

users who do not have mobility disabilities. 

These commenters believed they should be 

given more latitude to make inquiries of 

other power-driven mobility device users 

claiming a mobility disability than they 

would be given for wheelchair users. They 

sought the ability to establish a policy or 

method by which public accommodations 

may assess the legitimacy of the mobility 

disability. They suggested some form of 

certification, sticker, or other designation. 

One commenter suggested a requirement that 

a sticker bearing the international symbol for 

accessibility be placed on the device or that 

some other identification be required to 

signal that the use of the device is for a 

mobility disability. Other suggestions 

included displaying a disability parking 

placard on the device or issuing EPAMDs, 

like the Segway® PT, a permit that would be 

similar to permits associated with parking 

spaces reserved for those with disabilities. 

Advocacy, nonprofit, and several 

individual commenters balked at the notion 

of allowing any inquiry beyond whether the 

device is necessary for a mobility disability 

and encouraged the Department to retain the 

NPRM’s language on this topic. Other 

commenters, however, were empathetic with 

commenters who had concerns about fraud. 

At least one Segway® PT advocate suggested 

it would be permissible to seek 

documentation of the mobility disability in 

the form of a simple sign or permit. 

The Department has sought to find 

common ground by balancing the needs of 

businesses and individuals with mobility 

disabilities wishing to use other powerdriven mobility devices with the 

Department’s longstanding, well-established 

policy of not allowing public 

accommodations or establishments to require 

proof of a mobility disability. There is no 

question that public accommodations have a 

legitimate interest in ferreting out fraudulent 

representations of mobility disabilities, 

especially given the recreational use of other 

power-driven mobility devices and the 

potential safety concerns created by having 

too many such devices in a specific facility 

at one time. However, the privacy of 

individuals with mobility disabilities and 

respect for those individuals are also vitally 

important. 

Neither § 36.311(d) of the NPRM nor 

§ 36.311(c) of the final rule permits inquiries 

into the nature of a person’s mobility 

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disability. However, the Department does not 

believe it is unreasonable or overly intrusive 

for an individual with a mobility disability 

seeking to use an other power-driven 

mobility device to provide a credible 

assurance to verify that the use of the other 

power-driven mobility device is for a 

mobility disability. The Department sought to 

minimize the amount of discretion and 

subjectivity exercised by public 

accommodations in assessing whether an 

individual has a mobility disability and to 

allow public accommodations to verify the 

existence of a mobility disability. The 

solution was derived from comments made 

by several individuals who said they have 

been admitted with their Segway® PTs into 

public entities and public accommodations 

that ordinarily do not allow these devices onsite when they have presented or displayed 

State-issued disability parking placards. In 

the examples provided by commenters, the 

parking placards were accepted as 

verification that the Segway® PTs were being 

used as mobility devices. 

Because many individuals with mobility 

disabilities avail themselves of State 

programs that issue disability parking 

placards or cards and because these programs 

have penalties for fraudulent representations 

of identity and disability, utilizing the 

parking placard system as a means to 

establish the existence of a mobility 

disability strikes a balance between the need 

for privacy of the individual and fraud 

protection for the public accommodation. 

Consequently, the Department has decided to 

include regulatory text in § 36.311(c)(2) of the 

final rule that requires public 

accommodations to accept the presentation 

of a valid, State-issued disability parking 

placard or card, or State-issued proof of 

disability, as verification that an individual 

uses the other power-driven mobility device 

for his or her mobility disability. A ‘‘valid’’ 

disability placard or card is one that is 

presented by the individual to whom it was 

issued and is otherwise in compliance with 

the State of issuance’s requirements for 

disability placards or cards. Public 

accommodations are required to accept a 

valid, State-issued disability parking placard 

or card, or State-issued proof of disability, as 

a credible assurance, but they cannot demand 

or require the presentation of a valid 

disability placard or card, or State-issued 

proof of disability, as a prerequisite for use 

of an other power-driven mobility device, 

because not all persons with mobility 

disabilities have such means of proof. If an 

individual with a mobility disability does not 

have such a placard or card, or State-issued 

proof of disability, he or she may present 

other information that would serve as a 

credible assurance of the existence of a 

mobility disability. 

In lieu of a valid, State-issued disability 

parking placard or card, or State-issued proof 

of disability, a verbal representation, not 

contradicted by observable fact, shall be 

accepted as a credible assurance that the 

other power-driven mobility device is being 

used because of a mobility disability. This 

does not mean, however, that a mobility 

disability must be observable as a condition 

for allowing the use of an other power-driven 

mobility device by an individual with a 

mobility disability, but rather that if an 

individual represents that a device is being 

used for a mobility disability and that 

individual is observed thereafter engaging in 

a physical activity that is contrary to the 

nature of the represented disability, the 

assurance given is no longer credible and the 

individual may be prevented from using the 

device. 

Possession of a valid, State-issued 

disability parking placard or card or a verbal 

assurance does not trump a public 

accommodation’s valid restrictions on the 

use of other power-driven mobility devices. 

Accordingly, a credible assurance that the 

other power-driven mobility device is being 

used because of a mobility disability is not 

a guarantee of entry to a public 

accommodation because notwithstanding 

such a credible assurance, use of the device 

in a particular venue may be at odds with the 

legal standard in § 36.311(b)(1) or with one 

or more of the § 36.311(b)(2) factors. Only 

after an individual with a disability has 

satisfied all of the public accommodation’s 

policies regarding the use of other powerdriven mobility devices does a credible 

assurance become a factor in allowing the use 

of the device. For example, if an individual 

seeking to use an other power-driven 

mobility device fails to satisfy any of the 

public accommodation’s stated policies 

regarding the use of other power-driven 

mobility devices, the fact that the individual 

legitimately possesses and presents a valid, 

State-issued disability parking placard or 

card, or State-issued proof of disability, does 

not trump the policy and require the public 

accommodation to allow the use of the 

device. In fact, in some instances, the 

presentation of a legitimately held placard or 

card, or State-issued proof of disability, will 

have no relevance or bearing at all on 

whether the other power-driven mobility 

device may be used, because the public 

accommodation’s policy does not permit the 

device in question on-site under any 

circumstances (e.g., because its use would 

create a substantial risk of serious harm to 

the immediate environment or natural or 

cultural resources). Thus, an individual with 

a mobility disability who presents a valid 

disability placard or card, or State-issued 

proof of disability, will not be able to use an 

ATV as an other power-driven mobility 

device in a mall or a restaurant if the mall 

or restaurant has adopted a policy banning 

their use for any or all of the abovementioned reasons. 

However, an individual with a mobility 

disability who has complied with a public 

accommodation’s stated policies cannot be 

refused use of the other power-driven 

mobility device if he or she has provided a 

credible assurance that the use of the device 

is for a mobility disability. 

Subpart D—New Construction and 

Alterations 

Subpart D establishes the title III 

requirements applicable to new construction 

and alterations. The Department has 

amended this subpart to adopt the 2004 

ADAAG, set forth the effective dates for 

implementation of the 2010 Standards, and 

make related revisions as described below. 

Section 36.403 Alterations: Path of Travel 

In the NPRM, the Department proposed 

one change to § 36.403 on alterations and 

path of travel by adding a path of travel safe 

harbor. Proposed § 36.403(a)(1) stated that if 

a private entity has constructed or altered 

required elements of a path of travel in 

accordance with the 1991 Standards, the 

private entity is not required to retrofit such 

elements to reflect incremental changes in 

the 2010 Standards solely because of an 

alteration to a primary function area served 

by that path of travel. 

A substantial number of commenters 

objected to the Department’s creation of a 

safe harbor for alterations to required 

elements of a path of travel that comply with 

the current 1991 Standards. These 

commenters argued that if a public 

accommodation already is in the process of 

altering its facility, there should be a legal 

requirement that individuals with disabilities 

are entitled to increased accessibility 

provided by the 2004 ADAAG for path of 

travel work. These commenters also stated 

that they did not believe there was a statutory 

basis for ‘‘grandfathering’’ facilities that 

comply with the 1991 Standards. Another 

commenter argued that the updates 

incorporated into the 2004 ADAAG provide 

very substantial improvements for access, 

and that since there already is a 20 percent 

cost limit on the amount that can be 

expended on path of travel alterations, there 

is no need for a further limitation. 

Some commenters supported the safe 

harbor as lessening the economic costs of 

implementing the 2004 ADAAG for existing 

facilities. One commenter also stated that 

without the safe harbor, entities that already 

have complied with the 1991 Standards will 

have to make and pay for compliance twice, 

as compared to those entities that made no 

effort to comply in the first place. Another 

commenter asked that the safe harbor be 

revised to include pre-ADA facilities that 

have been made compliant with the 1991 

Standards to the extent ‘‘readily achievable’’ 

or, in the case of alterations, ‘‘to the 

maximum extent feasible,’’ but that are not in 

full compliance with the 1991 Standards. 

The final rule retains the safe harbor for 

required elements of a path of travel to 

altered primary function areas for private 

entities that already have complied with the 

1991 Standards with respect to those 

required elements. As discussed with respect 

to § 36.304, the Department believes that this 

safe harbor strikes an appropriate balance 

between ensuring that individuals with 

disabilities are provided access to buildings 

and facilities and mitigating potential 

financial burdens on existing places of public 

accommodation that are undertaking 

alterations subject to the 2010 Standards. 

This safe harbor is not a blanket exemption 

for facilities. If a private entity undertakes an 

alteration to a primary function area, only the 

required elements of a path of travel to that 

area that already comply with the 1991 

Standards are subject to the safe harbor. If a 

private entity undertakes an alteration to a 

primary function area and the required 

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elements of a path of travel to the altered area 

do not comply with the 1991 Standards, then 

the private entity must bring those elements 

into compliance with the 2010 Standards. 

Section 36.405 Alterations: Historic 

Preservation 

In the 1991 rule, the Department provided 

guidance on making alterations to buildings 

or facilities that are eligible for listing in the 

National Register of Historic Places under the 

National Historic Preservation Act or that are 

designated as historic under State or local 

law. That provision referenced the 1991 

Standards. Because those cross-references to 

the 1991 Standards are no longer applicable, 

it is necessary in this final rule to provide 

new regulatory text. No substantive change in 

the Department’s approach in this area is 

intended by this revision. 

Section 36.406 Standards for New 

Construction and Alterations 

Applicable standards. Section 306 of the 

ADA, 42 U.S.C. 12186, directs the Attorney 

General to issue regulations to implement 

title III that are consistent with the guidelines 

published by the Access Board. As described 

in greater detail elsewhere in this Appendix, 

the Department is a statutory member of the 

Access Board and was involved significantly 

in the development of the 2004 ADAAG. 

Nonetheless, the Department has reviewed 

the standards and has determined that 

additional regulatory provisions are 

necessary to clarify how the Department will 

apply the 2010 Standards to places of 

lodging, social service center establishments, 

housing at a place of education, assembly 

areas, and medical care facilities. Those 

provisions are contained in § 36.406(c)–(g). 

Each of these provisions is discussed below. 

Section 36.406(a) adopts the 2004 ADAAG 

as part of the 2010 Standards and establishes 

the compliance date and triggering events for 

the application of those standards to both 

new construction and alterations. Appendix 

B of this final rule (Analysis and 

Commentary on the 2010 ADA Standards for 

Accessible Design) provides a description of 

the major changes in the 2010 Standards (as 

compared to the 1991 ADAAG) and a 

discussion of the public comments that the 

Department received on specific sections of 

the 2004 ADAAG. A number of commenters 

asked the Department to revise certain 

provisions in the 2004 ADAAG in a manner 

that would reduce either the required 

scoping or specific technical accessibility 

requirements. As previously stated, the ADA 

requires the Department to adopt standards 

consistent with the guidelines adopted by the 

Access Board. The Department will not adopt 

any standards that provide less accessibility 

than is provided under the guidelines 

contained in the 2004 ADAAG because the 

guidelines adopted by the Access Board are 

‘‘minimum guidelines.’’ 42 U.S.C. 12186(c). 

In the NPRM, the Department specifically 

proposed amending § 36.406(a) by dividing it 

into two sections. Proposed § 36.406(a)(1) 

specified that new construction and 

alterations subject to this part shall comply 

with the 1991 Standards if physical 

construction of the property commences less 

than six months after the effective date of the 

rule. Proposed § 36.406(a)(2) specified that 

new construction and alterations subject to 

this part shall comply with the proposed 

standards if physical construction of the 

property commences six months or more 

after the effective date of the rule. The 

Department also proposed deleting the 

advisory information now published in a 

table at § 36.406(b). 

Compliance date. When the ADA was 

enacted, the compliance dates for various 

provisions were delayed in order to provide 

time for covered entities to become familiar 

with their new obligations. Titles II and III 

of the ADA generally became effective on 

January 26, 1992, six months after the 

regulations were published. See 42 U.S.C. 

12131 note; 42 U.S.C. 12181 note. New 

construction under title II and alterations 

under either title II or title III had to comply 

with the design standards on that date. See 

42 U.S.C. 12131 note; 42 U.S.C. 12183(a)(2). 

For new construction under title III, the 

requirements applied to facilities designed 

and constructed for first occupancy after 

January 26, 1993—18 months after the 1991 

Standards were published by the 

Department. See 42 U.S.C. 12183(a)(1). 

The Department received numerous 

comments on the issue of effective date, 

many of them similar to those received in 

response to the ANPRM. A substantial 

number of commenters advocated a 

minimum of 18 months from publication of 

the final rule to the effective date for 

application of the standards to new 

construction, consistent with the time period 

used for implementation of the 1991 

Standards. Many of these commenters argued 

that the 18-month period was necessary to 

minimize the likelihood of having to redesign 

projects already in the design and permitting 

stages at the time that the final rule is 

published. According to these commenters, 

large projects take several years from design 

to occupancy, and can be subject to delays 

from obtaining zoning, site approval, thirdparty design approval (i.e., architectural 

review), and governmental permits. To the 

extent the new standards necessitate changes 

in any previous submissions or permits 

already issued, businesses might have to 

expend significant funds and incur delays 

due to redesign and resubmission. 

Some commenters also expressed concern 

that a six-month period would be hard to 

implement given that many renovations are 

planned around retail selling periods, 

holidays, and other seasonal concerns. For 

example, hotels plan renovations during their 

slow periods, retail establishments avoid 

renovations during the major holiday selling 

periods, and businesses in certain parts of the 

country cannot do any major construction 

during parts of the winter. 

Some commenters argued that chain 

establishments need additional time to 

redesign their ‘‘master facility’’ designs for 

replication at multiple locations, taking into 

account both the new standards and 

applicable State and local accessibility 

requirements. 

Other commenters argued for extending the 

effective date from six months to a minimum 

of 12 months for many of the same reasons, 

and one commenter argued that there should 

be a tolling of the effective date for those 

businesses that are in the midst of the 

permitting process if the necessary permits 

are delayed due to legal challenges or other 

circumstances outside the business’s control. 

Several commenters took issue with the 

Department’s characterization of the 2004 

ADAAG and the 1991 Standards as two 

similar rules. These commenters argued that 

many provisions in the 2004 ADAAG 

represent a ‘‘substantial and significant’’ 

departure from the 1991 Standards and that 

it will take a great deal of time and money 

to identify all the changes and implement 

them. In particular, they were concerned that 

small businesses lacked the internal 

resources to respond quickly to the new 

changes and that they would have to hire 

outside experts to assist them. One 

commenter expressed concern that regardless 

of familiarity with the 2004 ADAAG, since 

the 2004 ADAAG standards are organized in 

an entirely different manner from the 1991 

Standards, and contain, in the commenter’s 

view, extensive changes, it will make the 

shift from the old to the new standards quite 

complicated. 

Several commenters also took issue with 

the Department’s proffered rationale that by 

adopting a six-month effective date, the 

Department was following the precedent of 

other Federal agencies that have adopted the 

2004 ADAAG for facilities whose 

accessibility they regulate. These 

commenters argued that the Department’s 

title III regulation applies to a much broader 

range and number of facilities and programs 

than the other Federal agencies (i.e., 

Department of Transportation and the 

General Services Administration) and that 

those agencies regulate accessibility 

primarily in either governmental facilities or 

facilities operated by quasi-governmental 

authorities. 

Several commenters representing the 

travel, vacation, and golf industries argued 

that the Department should adopt a two-year 

effective date for new construction. In 

addition to many of the arguments made by 

commenters in support of an 18-month 

effective date, these commenters also argued 

that a two-year time frame would allow 

States with DOJ-certified building codes to 

have the time to amend their codes to meet 

the 2004 ADAAG so that design professionals 

can work from compatible codes and 

standards. 

Several commenters recommended treating 

alterations differently than new construction, 

arguing for a one-year effective date for 

alterations. Another commenter representing 

building officials argued that a minimum of 

a six-month phase-in for alterations was 

sufficient, since a very large percentage of 

alteration projects ‘‘are of a scale that they 

should be able to accommodate the phasein.’’ 

In contrast, many commenters argued that 

the proposed six-month effective date should 

be retained in the final rule. 

The Department has been persuaded by 

concerns raised by some of the commenters 

that the six month compliance date proposed 

in the NPRM for application of the 2010 

Standards may be too short for certain 

projects that are already in the midst of the 

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design and permitting process. The 

Department has determined that for new 

construction and alterations, compliance 

with the 2010 Standards will not be required 

until 18 months from the date the final rule 

is published. This is consistent with the 

amount of time given when the 1991 

regulation was published. Since many State 

and local building codes contain provisions 

that are consistent with 2004 ADAAG, the 

Department has decided that public 

accommodations that choose to comply with 

the 2010 Standards as defined in § 36.104 

before the compliance date will still be 

considered in compliance with the ADA. 

However, public accommodations that 

choose to comply with the 2010 Standards in 

lieu of the 1991 Standards prior to the 

compliance date described in this rule must 

choose one or the other standard, and may 

not rely on some of the requirements 

contained in one standard and some of the 

requirements contained in the other 

standard. 

Triggering event. In the NPRM, the 

Department proposed using the start of 

physical construction as the triggering event 

for applying the proposed standards to new 

construction under title III. This triggering 

event parallels that for the alterations 

provisions (i.e., the date on which 

construction begins), and would apply 

clearly across all types of covered public 

accommodations. The Department also 

proposed that for prefabricated elements, 

such as modular buildings and amusement 

park rides and attractions, or installed 

equipment, such as ATMs, the start of 

construction means the date on which the 

site preparation begins. Site preparation 

includes providing an accessible route to the 

element. 

The Department’s NPRM sought public 

comment on how to define the start of 

construction and the practicality of applying 

commencement of construction as a 

triggering event. The Department also 

requested input on whether the proposed 

definition of the start of construction was 

sufficiently clear and inclusive of different 

types of facilities. The Department also 

sought input about facilities subject to title III 

for which commencement of construction 

would be ambiguous or problematic. 

The Department received numerous 

comments recommending that the 

Department adopt a two-pronged approach to 

defining the triggering event. In those cases 

where permits are required, the Department 

should use ‘‘date of permit application’’ as the 

effective date triggering event, and if no 

permit is required, the Department should 

use ‘‘start of construction.’’ A number of these 

commenters argued that the date of permit 

application is appropriate because the 

applicant would have to consider the 

applicable State and Federal accessibility 

standards in order to submit the designs 

usually required with the application. 

Moreover, the date of permit application is a 

typical triggering event in other code 

contexts, such as when jurisdictions 

introduce an updated building code. Some 

commenters expressed concern that using the 

date of ‘‘start of construction’’ was 

problematic because the date can be affected 

by factors that are outside the control of the 

owner. For example, an owner can plan 

construction to start before the new standards 

take effect and therefore use the 1991 

Standards in the design. If permits are not 

issued in a timely manner, then the 

construction could be delayed until after the 

effective date, and then the project would 

have to be redesigned. This problem would 

be avoided if the permit application date was 

the triggering event. Two commenters 

expressed concern that the term ‘‘start of 

construction’’ is ambiguous, because it is 

unclear whether start of construction means 

the razing of structures on the site to make 

way for a new facility or means site 

preparation, such as regrading or laying the 

foundation. 

One commenter recommended using the 

‘‘signing date of a construction contract,’’ and 

an additional commenter recommended that 

the new standards apply only to ‘‘buildings 

permitted after the effective date of the 

regulations.’’ 

One commenter stated that for facilities 

that fall outside the building permit 

requirements (ATMs, prefabricated saunas, 

small sheds), the triggering event should be 

the date of installation, rather than the date 

the space for the facility is constructed. 

The Department is persuaded by the 

comments to adopt a two-pronged approach 

to defining the triggering event for new 

construction and alterations. The final rule 

states that in those cases where permits are 

required, the triggering event shall be the 

date when the last application for a building 

permit application or permit extension is 

certified to be complete by a State, county, 

or local government, or in those jurisdictions 

where the government does not certify 

completion of applications, the date when 

the last application for a building permit or 

permit extension is received by the State, 

county, or local government. If no permits are 

required, then the triggering event shall be 

the ‘‘start of physical construction or 

alterations.’’ The Department has also added 

clarifying language related to the term ‘‘start 

of physical construction or alterations’’ to 

make it clear that ‘‘start of physical 

construction or alterations’’ is not intended to 

mean the date of ceremonial groundbreaking 

or the date a structure is razed to make it 

possible for construction of a facility to take 

place. 

Amusement rides. Section 234 of the 2010 

Standards provides accessibility guidelines 

for newly designed and constructed 

amusement rides. The amusement ride 

provisions do not provide a ‘‘triggering event’’ 

for new construction or alteration of an 

amusement ride. An industry commenter 

requested that the triggering event of ‘‘first 

use’’ as noted in the Advisory note to section 

234.1 of the 2004 ADAAG be included in the 

final rule. The Advisory note provides that 

‘‘[a] custom designed and constructed ride is 

new upon its first use, which is the first time 

amusement park patrons take the ride.’’ The 

Department declines to treat amusement 

rides differently than other types of new 

construction and alterations and under the 

final rule, they are subject to § 36.406(a)(3). 

Thus, newly constructed and altered 

amusement rides shall comply with the 2010 

Standards if the start of physical construction 

or the alteration is on or after 18 months from 

the publication date of this rule. The 

Department also notes that section 234.4.2 of 

the 2010 Standards only applies where the 

structural or operational characteristics of an 

amusement ride are altered. It does not apply 

in cases where the only change to a ride is 

the theme. 

Noncomplying new construction and 

alterations. The element-by-element safe 

harbor referenced in § 36.304(d)(2) has no 

effect on new or altered elements in existing 

facilities that were subject to the 1991 

Standards on the date that they were 

constructed or altered, but do not comply 

with the technical and scoping specifications 

for those elements in the 1991 Standards. 

Section 36.406(a)(5) of the final rule sets 

forth the rules for noncompliant new 

construction or alterations in facilities that 

were subject to the requirements of this part. 

Under those provisions, noncomplying new 

construction and alterations constructed or 

altered after the effective date of the 

applicable ADA requirements and before 

March 15, 2012 shall, before March 15, 2012, 

be made accessible in accordance with either 

the 1991 Standards or the 2010 Standards. 

Noncomplying new construction and 

alterations constructed or altered after the 

effective date of the applicable ADA 

requirements and before March 15, 2012, 

shall, on or after March 15, 2012, be made 

accessible in accordance with the 2010 

Standards. 

Section 36.406(b) Application of Standards 

to Fixed Elements 

The final rule contains a new § 36.406(b) 

that clarifies that the requirements 

established by this section, including those 

contained in the 2004 ADAAG, prescribe the 

requirements necessary to ensure that fixed 

or built-in elements in new or altered 

facilities are accessible to individuals with 

disabilities. Once the construction or 

alteration of a facility has been completed, all 

other aspects of programs, services, and 

activities conducted in that facility are 

subject to the operational requirements 

established elsewhere in this final rule. 

Although the Department has often chosen to 

use the requirements of the 1991 Standards 

as a guide to determining when and how to 

make equipment and furnishings accessible, 

those coverage determinations fall within the 

discretionary authority of the Department. 

The Department is also clarifying that the 

advisory notes, appendix notes, and figures 

that accompany the 1991 and 2010 Standards 

do not establish separately enforceable 

requirements unless otherwise specified in 

the text of the standards. This clarification 

has been made to address concerns expressed 

by ANPRM commenters who mistakenly 

believed that the advisory notes in the 2004 

ADAAG established requirements beyond 

those established in the text of the guidelines 

(e.g., Advisory 504.4 suggests, but does not 

require, that covered entities provide visual 

contrast on stair tread nosings to make them 

more visible to individuals with low vision). 

The Department received no comments on 

this provision in the NPRM. 

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Section 36.406(c) Places of Lodging 

In the NPRM, the Department proposed a 

new definition for public accommodations 

that are ‘‘places of lodging’’ and a new 

§ 36.406(c) to clarify the scope of coverage for 

places of public accommodation that meet 

this definition. For many years the 

Department has received inquiries from 

members of the public seeking clarification of 

ADA coverage of rental accommodations in 

timeshares, condominium hotels, and mixeduse and corporate hotel facilities that operate 

as places of public accommodation (as that 

term is now defined in § 36.104). These 

facilities, which have attributes of both 

residential dwellings and transient lodging 

facilities, have become increasingly popular 

since the ADA’s enactment in 1990 and make 

up the majority of new hotel construction in 

some vacation destinations. The hybrid 

residential and lodging characteristics of 

these new types of facilities, as well as their 

ownership characteristics, complicate 

determinations of ADA coverage, prompting 

questions from both industry and individuals 

with disabilities. While the Department has 

interpreted the ADA to encompass these 

hotel-like facilities when they are used to 

provide transient lodging, the regulation 

previously has specifically not addressed 

them. In the NPRM, the Department 

proposed a new § 36.406(c), entitled ‘‘Places 

of Lodging,’’ which was intended to clarify 

that places of lodging, including certain 

timeshares, condominium hotels, and mixeduse and corporate hotel facilities, shall 

comply with the provisions of the proposed 

standards, including, but not limited to, the 

requirements for transient lodging in sections 

224 and 806 of the 2004 ADAAG. 

The Department’s NPRM sought public 

input on this proposal. The Department 

received a substantial number of comments 

on these issues from industry representatives, 

advocates for persons with disabilities, and 

individuals. A significant focus of these 

comments was on how the Department 

should define and regulate vacation rental 

units in timeshares, vacation communities, 

and condo-hotels where the units are owned 

and controlled by individual owners and 

rented out some portion of time to the public, 

as compared to traditional hotels and motels 

that are owned, controlled, and rented to the 

public by one entity. 

Scoping and technical requirements 

applicable to ‘‘places of lodging.’’ In the 

NPRM, the Department asked for public 

comment on its proposal in § 36.406(c) to 

apply to places of lodging the scoping and 

technical requirements for transient lodging, 

rather than the scoping and technical 

requirements for residential dwelling units. 

Commenters generally agreed that the 

transient lodging requirements should apply 

to places of lodging. Several commenters 

stated that the determination as to which 

requirements apply should be made based on 

the intention for use at the time of design and 

construction. According to these 

commenters, if units are intended for 

transient rentals, then the transient lodging 

standards should apply, and if they are 

intended to be used for residential purposes, 

the residential standards should apply. Some 

commenters agreed with the application of 

transient lodging standards to places of 

lodging in general, but disagreed about the 

characterization of certain types of facilities 

as covered places of lodging. 

The Department agrees that the scoping 

and technical standards applicable to 

transient lodging should apply to facilities 

that contain units that meet the definition of 

‘‘places of lodging.’’ 

Scoping for timeshare or condominium 

hotels. In the NPRM, the Department sought 

comment on the appropriate basis for 

determining scoping for a timeshare or 

condominium-hotel. A number of 

commenters indicated that scoping should be 

based on the usage of the facility. Only those 

units used for short-term stays should be 

counted for application of the transient 

lodging standards, while units sold as 

residential properties should be treated as 

residential units not subject to the ADA. One 

commenter stated that scoping should be 

based on the maximum number of sleeping 

units available for public rental. Another 

commenter pointed out that unlike 

traditional hotels and motels, the number of 

units available for rental in a facility or 

development containing individually owned 

units is not fixed over time. Owners have the 

right to participate in a public rental program 

some, all, or none of the time, and individual 

owner participation changes from year to 

year. 

The Department believes that the 

determination for scoping should be based on 

the number of units in the project that are 

designed and constructed with the intention 

that their owners may participate in a 

transient lodging rental program. The 

Department cautions that it is not the number 

of owners that actually exercise their right to 

participate in the program that determines 

the scoping. Rather it is the units that could 

be placed into an on-site or off-site transient 

lodging rental program. In the final rule, the 

Department has added a provision to 

§ 36.406(c)(3), which states that units 

intended to be used exclusively for 

residential purposes that are contained in 

facilities that also meet the definition of 

place of lodging are not covered by the 

transient lodging standards. Title III of the 

ADA does not apply to units designed and 

constructed with the intention that they be 

rented or sold as exclusively residential 

units. Such units are covered by the Fair 

Housing Act (FHAct), which contains 

requirements for certain features of accessible 

and adaptable design both for units and for 

public and common use areas. All units 

designed and constructed with the intention 

that they may be used for both residential 

and transient lodging purposes are covered 

by the ADA and must be counted for 

determining the required number of units 

that must meet the transient lodging 

standards in the 2010 Standards. Public use 

and common use areas in facilities 

containing units subject to the ADA also 

must meet the 2010 Standards. In some 

developments, units that may serve as 

residential units some of the time and rental 

units some of the time will have to meet both 

the FHAct and the ADA requirements. For 

example, all of the units in a vacation 

condominium facility whose owners choose 

to rent to the public when they are not using 

the units themselves would be counted for 

the purposes of determining the appropriate 

number of units that must comply with the 

2010 Standards. In a newly constructed 

condominium that has three floors with units 

dedicated to be sold solely as residential 

housing and three floors with units that may 

be used as residences or hotel units, only the 

units on the three latter floors would be 

counted for applying the 2010 Standards. In 

a newly constructed timeshare development 

containing 100 units, all of which may be 

made available to the public through an 

exchange or rental program, all 100 units 

would be counted for purposes of applying 

the 2010 Standards. 

One commenter also asked the Department 

for clarification of how to count individually 

owned ‘‘lock-off units.’’ Lock-off units are 

units that are multi-bedroom but can be 

‘‘locked off’’ into two separate units, each 

having individual external access. This 

commenter requested that the Department 

state in the final rule that individually owned 

lock-off units do not constitute multiple 

guest rooms for purposes of calculating 

compliance with the scoping requirements 

for accessible units, since for the most part 

the lock-off units are used as part of a larger 

accessible unit, and portions of a unit not 

locked off would constitute both an 

accessible one-bedroom unit or an accessible 

two-bedroom unit with the lock-off unit. 

It is the Department’s view that lock-off 

units that are individually owned that can be 

temporarily converted into two units do not 

constitute two separate guest rooms for 

purposes of calculating compliance with the 

scoping requirements. 

One commenter asked the Department how 

developers should scope units where 

buildings are constructed in phases over a 

span of years, recommending that the 

scoping be based on the total number of units 

expected to be constructed at the project and 

not on a building-by-building basis or on a 

phase-by-phase basis. The Department does 

not think scoping should be based on 

planned number of units, which may or may 

not be actually constructed over a period of 

years. However, the Department recognizes 

that resort developments may contain 

buildings and facilities that are of all sizes 

from single-unit cottages to facilities with 

hundreds of units. The Department believes 

it would be appropriate to allow designers, 

builders, and developers to aggregate the 

units in facilities with 50 or fewer units that 

are subject to a single permit application and 

that are on a common site or that are 

constructed at the same time for the purposes 

of applying the scoping requirements in table 

224.2. Facilities with more than 50 units 

should be scoped individually in accordance 

with the table. The regulation has been 

revised to reflect this application of the 

scoping requirements. 

One commenter also asked the Department 

to use the title III regulation to declare that 

timeshares subject to the transient lodging 

standards are exempt from the design and 

construction requirements of the FHAct. The 

coverage of the FHAct is set by Congress and 

interpreted by regulations issued by the 

Department of Housing and Urban 

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Development. The Department has no 

authority to exempt anyone from coverage of 

the FHAct. 

Application of ADA to places of lodging 

that contain individually owned units. The 

Department believes that regardless of 

ownership structure for individual units, 

rental programs (whether they are on- or offsite) that make transient lodging guest rooms 

available to the public must comply with the 

general nondiscrimination requirements of 

the ADA. In addition, as provided in 

§ 36.406(c), newly constructed facilities that 

contain accommodations intended to be used 

for transient lodging purposes must comply 

with the 2010 Standards. 

In the NPRM, the Department asked for 

public comment on several issues related to 

ensuring the availability of accessible units 

in a rental program operated by a place of 

lodging. The Department sought input on 

how it could address a situation in which a 

new or converted facility constructs the 

required number of accessible units, but the 

owners of those units choose not to 

participate in the rental program; whether the 

facility has an obligation to encourage or 

require owners of accessible units to 

participate in the rental program; and 

whether the facility developer, the 

condominium association, or the hotel 

operator has an obligation to retain 

ownership or control over a certain number 

of accessible units to avoid this problem. 

In the NPRM, the Department sought 

public input on how to regulate scoping for 

a timeshare or condominium-rental facility 

that decides, after the sale of units to 

individual owners, to begin a rental program 

that qualifies the facility as a place of 

lodging, and how the condominium 

association, operator, or developer should 

determine which units to make accessible. 

A number of commenters expressed 

concerns about the ability of the Department 

to require owners of accessible units to 

participate in the rental program, to require 

developers, condo associations, or 

homeowners associations to retain ownership 

of accessible units, and to impose 

accessibility requirements on individual 

owners who choose to place inaccessible 

units into a rental program after purchase. 

These commenters stated that individuals 

who purchase accessible vacation units in 

condominiums, individual vacation homes, 

and timeshares have ownership rights in 

their units and may choose lawfully to make 

their units available to the public some, all, 

or none of the time. Commenters advised the 

Department that the Securities and Exchange 

Commission takes the position that if 

condominium units are offered in connection 

with participation in a required rental 

program for any part of the year, require the 

use of an exclusive rental agent, or impose 

conditions otherwise restricting the 

occupancy or rental of the unit, then that 

offering will be viewed as an offering of 

securities in the form of an investment 

(rather than a real estate offering). SEC 

Release No. 33–5347, Guidelines as to the 

Applicability of the Federal Securities Laws 

to Offers and Sales of Condominiums or 

Units in a Real Estate Development (Jan. 4, 

1973). Consequently, most condominium 

developers do not impose such restrictions at 

the time of sale. Moreover, owners who 

choose to rent their units as a short-term 

vacation rental can select any rental or 

management company to lease and manage 

their unit, or they may rent them out on their 

own. They also may choose never to lease 

those units. Thus, there are no guarantees 

that at any particular time, accessible units 

will be available for rental by the public. 

According to this commenter, providing 

incentives for owners of accessible units to 

place their units in the rental program will 

not work, because it does not guarantee the 

availability of the requisite number of rooms 

dispersed across the development, and there 

is not any reasonable, identifiable source of 

funds to cover the costs of such incentives. 

A number of commenters also indicated 

that it potentially is discriminatory as well as 

economically infeasible to require that a 

developer hold back the accessible units so 

that the units can be maintained in the rental 

program year-round. One commenter pointed 

out that if a developer did not sell the 

accessible condominiums or timeshares in 

the building inventory, the developer would 

be subject to a potential ADA or FHAct 

complaint because persons with disabilities 

who wanted to buy accessible units rather 

than rent them each year would not have the 

option to purchase them. In addition, if a 

developer held back accessible units, the cost 

of those units would have to be spread across 

all the buyers of the inaccessible units, and 

in many cases would make the project 

financially infeasible. This would be 

especially true for smaller projects. Finally, 

this commenter argued that requiring units to 

be part of the common elements that are 

owned by all of the individual unit owners 

is infeasible because the common ownership 

would result in pooled rental income, which 

would transform the owners into participants 

in a rental pool, and thus turn the sale of the 

condominiums into the sale of securities 

under SEC Release 33–5347. 

Several commenters noted that requiring 

the operator of the rental program to own the 

accessible units is not feasible either because 

the operator of the rental program would 

have to have the funds to invest in the 

purchase of all of the accessible units, and it 

would not have a means of recouping its 

investment. One commenter stated that in 

Texas, it is illegal for on-site rental programs 

to own condominium units. Another 

commenter noted that such a requirement 

might lead to the loss of on-site rental 

programs, leaving owners to use individual 

third-party brokers, or rent the units 

privately. One commenter acknowledged that 

individual owners cannot be required to 

place their units in a rental pool simply to 

offer an accessible unit to the public, since 

the owners may be purchasing units for their 

own use. However, this commenter 

recommended that owners who choose to 

place their units in a rental pool be required 

to contribute to a fund that would be used 

to renovate units that are placed in the rental 

pool to increase the availability of accessible 

units. One commenter argued that the legal 

entity running the place of lodging has an 

obligation to retain control over the required 

number of accessible units to ensure that 

they are available in accordance with title III. 

A number of commenters also argued that 

the Department has no legal authority to 

require individual owners to engage in 

barrier removal where an existing 

development adds a rental program. One 

commenter stated that Texas law prohibits 

the operator of on-site rental program from 

demanding that alterations be made to a 

particular unit. In addition, under Texas law, 

condominium declarations may not require 

some units and not others to make changes, 

because that would lead to unequal treatment 

of units and owners, which is not 

permissible. 

One commenter stated that since it was not 

possible for operators of rental programs 

offering privately owned condominiums to 

comply with accessible scoping, the 

Department should create exemptions from 

the accessible scoping, especially for existing 

facilities. In addition, this commenter stated 

that if an operator of an on-site rental 

program were to require renovations as a 

condition of participation in the rental 

program, unit owners might just rent their 

units through a different broker or on their 

own, in which case such requirements would 

not apply. 

A number of commenters argued that if a 

development decides to create a rental 

program, it must provide accessible units. 

Otherwise the development would have to 

ensure that units are retrofitted. A 

commenter argued that if an existing building 

is being converted, the Department should 

require that if alterations of the units are 

performed by an owner or developer prior to 

sale of the units, then the alterations 

requirements should apply, in order to 

ensure that there are some accessible units in 

the rental pool. This commenter stated that 

because of the proliferation of these type of 

developments in Hawaii, mandatory 

alteration is the only way to guarantee the 

availability of accessible units in the long 

run. In this commenter’s view, since 

conversions almost always require makeover 

of existing buildings, this will not lead to a 

significant expense. 

The Department agrees with the 

commenters that it would not be feasible to 

require developers to hold back or purchase 

accessible units for the purposes of making 

them available to the public in a transient 

lodging rental program, nor would it be 

feasible to require individual owners of 

accessible units to participate in transient 

lodging rental programs. 

The Department recognizes that places of 

lodging are developed and financed under 

myriad ownership and management 

structures and agrees that there will be 

circumstances where there are legal barriers 

to requiring compliance with either the 

alterations requirements or the requirements 

related to barrier removal. The Department 

has added an exception to § 36.406(c), 

providing that in existing facilities that meet 

the definition of places of lodging, where the 

guest rooms are not owned or substantially 

controlled by the entity that owns, leases, or 

operates the overall facility and the physical 

features of the guest room interiors are 

controlled by their individual owners, the 

units are not subject to the alterations 

requirement, even where the owner rents the 

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unit out to the public through a transient 

lodging rental program. In addition, the 

Department has added an exception to the 

barrier removal requirements at § 36.304(g) 

providing that in existing facilities that meet 

the definition of places of lodging, where the 

guest rooms are not owned or substantially 

controlled by the entity that owns, leases, or 

operates the overall facility and the physical 

features of the guest room interiors are 

controlled by their individual owners, the 

units are not subject to the barrier removal 

requirement. The Department notes, 

however, that there are legal relationships for 

some timeshares and cooperatives where the 

ownership interests do not convey control 

over the physical features of units. In those 

cases, it may be the case that the facility has 

an obligation to meet the alterations or 

barrier removal requirements or to maintain 

accessible features. 

Section 36.406(d) Social Service Center 

Establishments 

In the NPRM, the Department proposed a 

new § 36.406(d) requiring group homes, 

halfway houses, shelters, or similar social 

service center establishments that provide 

temporary sleeping accommodations or 

residential dwelling units to comply with the 

provisions of the 2004 ADAAG that apply to 

residential facilities, including, but not 

limited to, the provisions in sections 233 and 

809. 

The NPRM explained that this proposal 

was based on two important changes in the 

2004 ADAAG. First, for the first time, 

residential dwelling units are explicitly 

covered in the 2004 ADAAG in section 233. 

Second, the 2004 ADAAG eliminates the 

language contained in the 1991 Standards 

addressing scoping and technical 

requirements for homeless shelters, group 

homes, and similar social service center 

establishments. Currently, such 

establishments are covered in section 9.5 of 

the transient lodging section of the 1991 

Standards. The deletion of section 9.5 creates 

an ambiguity of coverage that must be 

addressed. 

The NPRM explained the Department’s 

belief that transferring coverage of social 

service center establishments from the 

transient lodging standards to the residential 

facilities standards would alleviate 

conflicting requirements for social service 

providers. The Department believes that a 

substantial percentage of social service 

providers are recipients of Federal financial 

assistance from the Department of Housing 

and Urban Development (HUD). The 

Department of Health and Human Services 

(HHS) also provides financial assistance for 

the operation of shelters through the 

Administration for Children and Families 

programs. As such, they are covered both by 

the ADA and section 504. UFAS is currently 

the design standard for new construction and 

alterations for entities subject to section 504. 

The two design standards for accessibility— 

the 1991 Standards and UFAS—have 

confronted many social service providers 

with separate, and sometimes conflicting, 

requirements for design and construction of 

facilities. To resolve these conflicts, the 

residential facilities standards in the 2004 

ADAAG have been coordinated with the 

section 504 requirements. The transient 

lodging standards, however, are not similarly 

coordinated. The deletion of section 9.5 of 

the 1991 Standards from the 2004 ADAAG 

presented two options: (1) Require coverage 

under the transient lodging standards, and 

subject such facilities to separate, conflicting 

requirements for design and construction; or 

(2) require coverage under the residential 

facilities standards, which would harmonizes 

the regulatory requirements under the ADA 

and section 504. The Department chose the 

option that harmonizes the regulatory 

requirements: coverage under the residential 

facilities standards. 

In the NPRM, the Department expressed 

concern that the residential facilities 

standards do not include a requirement for 

clear floor space next to beds similar to the 

requirement in the transient lodging 

standards; as a result, the Department 

proposed adding a provision that would 

require certain social service center 

establishments that provide sleeping rooms 

with more than 25 beds to ensure that a 

minimum of 5 percent of the beds have clear 

floor space in accordance with section 

806.2.3 of the 2004 ADAAG. 

The Department requested information 

from providers who operate homeless 

shelters, transient group homes, halfway 

houses, and other social service center 

establishments, and from the clients of these 

facilities who would be affected by this 

proposed change. In the NPRM, the 

Department asked to what extent conflicts 

between the ADA and section 504 have 

affected these facilities and what the effect 

would be of applying the residential dwelling 

unit requirements to these facilities, rather 

than the requirements for transient lodging 

guest rooms. 

Many of the commenters supported 

applying the residential facilities 

requirements to social service center 

establishments stating that even though the 

residential facilities requirements are less 

demanding, in some instances, the existence 

of one clear standard will result in an overall 

increased level of accessibility by eliminating 

the confusion and inaction that are 

sometimes caused by the current existence of 

multiple requirements. One commenter 

stated that the residential facilities guidelines 

were more appropriate because individuals 

housed in social service center 

establishments typically stay for a prolonged 

period of time, and guests of a transient 

lodging facility typically are not housed to 

participate in a program or receive services. 

One commenter opposed to the proposed 

section argued for the application of the 

transient lodging standards to all social 

service center establishments except those 

that were ‘‘intended as a person’s place of 

abode,’’ referencing the Department’s 

question related to the definition of place of 

lodging in the title III NPRM. A second 

commenter stated that the use of transient 

lodging guidelines would lead to greater 

accessibility. 

The Department continues to be concerned 

about alleviating the challenges for social 

service providers that are also subject to 

section 504 and that would likely be subject 

to conflicting requirements if the transient 

lodging standard were applied. Thus, the 

Department has retained the requirement that 

social service center establishments comply 

with the residential dwelling standards. The 

Department did not receive comments 

regarding adding a requirement for bathing 

options, such as a roll-in shower, in social 

service center establishments operated by 

public accommodations. The Department 

did, however, receive comments in support 

of adding such a requirement regarding 

public entities under title II. The Department 

believes that social service center 

establishments that provide emergency 

shelter to large transient populations should 

be able to provide bathing facilities that are 

accessible to persons with mobility 

disabilities who need roll-in showers. 

Because of the transient nature of the 

population of these large shelters, it will not 

be feasible to modify bathing facilities in a 

timely manner when faced with a need to 

provide a roll-in shower with a seat when 

requested by an overnight visitor. As a result, 

the Department has added a requirement that 

social service center establishments with 

sleeping accommodations for more than 50 

individuals must provide at least one roll-in 

shower with a seat that complies with the 

relevant provisions of section 608 of the 2010 

Standards. Transfer-type showers are not 

permitted in lieu of a roll-in shower with a 

seat, and the exceptions in sections 608.3 and 

608.4 for residential dwelling units are not 

permitted. When separate shower facilities 

are provided for men and for women, at least 

one roll-in shower must be provided for each 

group. This supplemental requirement to the 

residential facilities standards is in addition 

to the supplemental requirement that was 

proposed in the NPRM for clear floor space 

in sleeping rooms with more than 25 beds. 

The Department also notes that while 

dwelling units at some social service center 

establishments are also subject to FHAct 

design and construction requirements that 

require certain features of adaptable and 

accessible design, FHAct units do not 

provide the same level of accessibility that is 

required for residential facilities under the 

2010 Standards. The FHAct requirements, 

where also applicable, should not be 

considered a substitute for the 2010 

Standards. Rather, the 2010 Standards must 

be followed in addition to the FHAct 

requirements. 

The Department also notes that while in 

the NPRM the Department used the term 

‘‘social service establishment,’’ the final rule 

uses the term ‘‘social service center 

establishment.’’ The Department has made 

this editorial change so that the final rule is 

consistent with the terminology used in the 

ADA. See 42 U.S.C. 12181(7)(K). 

Section 36.406(e) Housing at a Place of 

Education 

The Department of Justice and the 

Department of Education share responsibility 

for regulation and enforcement of the ADA in 

postsecondary educational settings, 

including architectural features. Housing 

types in educational settings range from 

traditional residence halls and dormitories to 

apartment or townhouse-style residences. In 

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addition to title III of the ADA, universities 

and schools that are recipients of Federal 

financial assistance also are subject to section 

504, which contains its own accessibility 

requirements currently through the 

application of UFAS. Residential housing, 

including housing in an educational setting, 

is also covered by the FHAct, which requires 

newly constructed multifamily housing to 

include certain features of accessible and 

adaptable design. Covered entities subject to 

the ADA must always be aware of, and 

comply with, any other Federal statutes or 

regulations that govern the operation of 

residential properties. 

Although the 1991 Standards mention 

dormitories as a form of transient lodging, 

they do not specifically address how the 

ADA applies to dormitories and other types 

of residential housing provided in an 

educational setting. The 1991 Standards also 

do not contain any specific provisions for 

residential facilities, allowing covered 

entities to elect to follow the residential 

standards contained in UFAS. Although the 

2004 ADAAG contains provisions for both 

residential facilities and transient lodging, 

the guidelines do not indicate which 

requirements apply to housing provided in 

an educational setting, leaving it to the 

adopting agencies to make that choice. After 

evaluating both sets of standards, the 

Department concluded that the benefits of 

applying the transient lodging standards 

outweighed the benefits of applying the 

residential facilities standards. Consequently, 

in the NPRM, the Department proposed a 

new § 36.406(e) that provided that residence 

halls or dormitories operated by or on behalf 

of places of education shall comply with the 

provisions of the proposed standards for 

transient lodging, including, but not limited 

to, the provisions in sections 224 and 806 of 

the 2004 ADAAG. 

Private universities and schools covered by 

title III as public accommodations are 

required to make their programs and 

activities accessible to persons with 

disabilities. The housing facilities that they 

provide have varied characteristics. College 

and university housing facilities typically 

provide housing for up to one academic year, 

but may be closed during school vacation 

periods. In the summer, they often are used 

for short-term stays of one to three days, a 

week, or several months. Graduate and 

faculty housing often is provided year-round 

in the form of apartments, which may serve 

individuals or families with children. These 

housing facilities are diverse in their layout. 

Some are double-occupancy rooms with a 

shared toilet and bathing room, which may 

be inside or outside the unit. Others may 

contain cluster, suite, or group arrangements 

where several rooms are located inside a 

defined unit with bathing, kitchen, and 

similar common facilities. In some cases, 

these suites are indistinguishable in features 

from traditional apartments. Universities may 

build their own housing facilities or enter 

into agreements with private developers to 

build, own, or lease housing to the 

educational institution or to its students. 

Academic housing may be located on the 

campus of the university or may be located 

in nearby neighborhoods. 

Throughout the school year and the 

summer, academic housing can become 

program areas in which small groups meet, 

receptions and educational sessions are held, 

and social activities occur. The ability to 

move between rooms—both accessible rooms 

and standard rooms—in order to socialize, to 

study, and to use all public use and common 

use areas is an essential part of having access 

to these educational programs and activities. 

Academic housing also is used for short-term 

transient educational programs during the 

time students are not in regular residence 

and may be rented out to transient visitors in 

a manner similar to a hotel for special 

university functions. 

The Department was concerned that 

applying the new construction requirements 

for residential facilities to educational 

housing facilities could hinder access to 

educational programs for students with 

disabilities. Elevators generally are not 

required under the 2004 ADAAG residential 

facilities standards unless they are needed to 

provide an accessible route from accessible 

units to public use and common use areas, 

while under the 2004 ADAAG as it applies 

to other types of facilities, multistory private 

facilities must have elevators unless they 

meet very specific exceptions. In addition, 

the residential facilities standards do not 

require accessible roll-in showers in 

bathrooms, while the transient lodging 

requirements require some of the accessible 

units to be served by bathrooms with roll-in 

showers. The transient lodging standards also 

require that a greater number of units have 

accessible features for persons with 

communication disabilities. The transient 

lodging standards provide for installation of 

the required accessible features so that they 

are available immediately, but the residential 

facilities standards allow for certain features 

of the unit to be adaptable. For example, only 

reinforcements for grab bars need to be 

provided in residential dwellings, but the 

actual grab bars must be installed under the 

transient lodging standards. By contrast, the 

residential facilities standards do require 

certain features that provide greater 

accessibility within units, such as usable 

kitchens and an accessible route throughout 

the dwelling. The residential facilities 

standards also require 5 percent of the units 

to be accessible to persons with mobility 

disabilities, which is a continuation of the 

same scoping that is currently required under 

UFAS and is therefore applicable to any 

educational institution that is covered by 

section 504. The transient lodging standards 

require a lower percentage of accessible 

sleeping rooms for facilities with large 

numbers of rooms than is required by UFAS. 

For example, if a dormitory has 150 rooms, 

the transient lodging standards would require 

7 accessible rooms, while the residential 

standards would require 8. In a large 

dormitory with 500 rooms, the transient 

lodging standards would require 13 

accessible rooms, and the residential 

facilities standards would require 25. There 

are other differences between the two sets of 

standards, including requirements for 

accessible windows, alterations, kitchens, an 

accessible route throughout a unit, and clear 

floor space in bathrooms allowing for a side 

transfer. 

In the NPRM, the Department requested 

public comment on how to scope educational 

housing facilities, and it asked whether the 

residential facilities requirements or the 

transient lodging requirements in the 2004 

ADAAG would be more appropriate for 

housing at places of education and asked 

how the different requirements would affect 

the cost of building new dormitories and 

other student housing. See 73 FR 34508, 

34545 (June 17, 2008). 

The Department received several 

comments on this issue under title III. One 

commenter stated that the Department 

should adopt the residential facilities 

standards for housing at a place of education. 

In the commenter’s view, the residential 

facilities standards are congruent with 

overlapping requirements imposed by HUD, 

and the residential facilities requirements 

would ensure dispersion of accessible 

features more effectively. This commenter 

also argued that while the increased number 

of required accessible units for residential 

facilities as compared to transient lodging 

may increase the cost of construction or 

alteration, this cost would be offset by a 

reduced need later to adapt rooms if the 

demand for accessible rooms exceeds the 

supply. The commenter also encouraged the 

Department to impose a visitability 

(accessible doorways and necessary clear 

floor space for turning radius) requirement 

for both the residential facilities and 

transient lodging requirements to allow 

students with mobility impairments to 

interact and socialize in a fully integrated 

fashion. Another commenter stated that 

while dormitories should be treated like 

residences as opposed to transient lodging, 

the Department should ensure that ‘‘all floors 

are accessible,’’ thus ensuring community 

integration and visitability. Another 

commenter argued that housing at a place of 

education is comparable to residential 

housing, and that most of the housing types 

used by schools do not have the same 

amenities and services or function like 

transient lodging and should not be treated 

as such. 

Several commenters focused on the length 

of stay at this type of housing and suggested 

that if the facilities are subject to occupancy 

for greater than 30 days, the residential 

standards should apply. Another commenter 

supported the Department’s adoption of the 

transient lodging standards, arguing this will 

provide greater accessibility and therefore 

increase opportunities for students with 

disabilities to participate. One commenter, 

while supporting the use of transient lodging 

standards in this area, argued that the 

Department also should develop regulations 

relating to the usability of equipment in 

housing facilities by persons who are blind 

or visually impaired. Another commenter 

argued that the Department should not 

impose the transient lodging requirements on 

K–12 schools because the cost of adding 

elevators can be prohibitive, and because 

there are safety concerns related to 

evacuating students in wheelchairs living on 

floors above the ground floor in emergencies 

causing elevator failures. 

The Department has considered the 

comments recommending the use of the 

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residential facilities standards and 

acknowledges that they require certain 

features that are not included in the transient 

lodging standards and that should be 

required for housing provided at a place of 

education. In addition, the Department notes 

that since educational institutions often use 

their academic housing facilities as shortterm transient lodging in the summers, it is 

important that accessible features be installed 

at the outset. It is not realistic to expect that 

the educational institution will be able to 

adapt a unit in a timely manner in order to 

provide accessible accommodations to 

someone attending a one-week program 

during the summer. 

The Department has determined that the 

best approach to this type of housing is to 

continue to require the application of 

transient lodging standards but, at the same 

time, to add several requirements drawn from 

the residential facilities standards related to 

accessible turning spaces and work surfaces 

in kitchens, and the accessible route 

throughout the unit. This will ensure the 

maintenance of the transient lodging 

standard requirements related to access to all 

floors of the facility, roll-in showers in 

facilities with more than 50 sleeping rooms, 

and other important accessibility features not 

found in the residential facilities standards, 

but also will ensure usable kitchens and 

access to all the rooms in a suite or 

apartment. 

The Department has added a new 

definition to § 36.104, ‘‘Housing at a Place of 

Education,’’ and has revised § 36.406(e) to 

reflect the accessible features that now will 

be required in addition to the requirements 

set forth under the transient lodging 

standards. The Department also recognizes 

that some educational institutions provide 

some residential housing on a year-round 

basis to graduate students and staff that is 

comparable to private rental housing but 

contains no facilities for educational 

programming. Section 36.406(e)(3) exempts 

from the transient lodging standards 

apartments or townhouse facilities that are 

provided with a lease on a year-round basis 

exclusively to graduate students or faculty 

and that do not contain any public use or 

common use areas available for educational 

programming; instead, such housing must 

comply with the requirements for residential 

facilities in sections 233 and 809 of the 2010 

Standards. 

The regulatory text uses the term ‘‘sleeping 

room’’ in lieu of the term ‘‘guest room,’’ which 

is the term used in the transient lodging 

standards. The Department is using this term 

because it believes that for the most part, it 

provides a better description of the sleeping 

facilities used in a place of education than 

‘‘guest room.’’ The final rule states in 

§ 36.406(e) that the Department intends the 

terms to be used interchangeably in the 

application of the transient lodging standards 

to housing at a place of education. 

Section 36.406(f) Assembly Areas 

In the NPRM, the Department proposed 

§ 36.406(f) to supplement the assembly area 

requirements of the 2004 ADAAG, which the 

Department is adopting as part of the 2010 

Standards. The NPRM proposed at 

§ 36.406(f)(1) to require wheelchair spaces 

and companion seating locations to be 

dispersed to all levels of the facility that are 

served by an accessible route. The 

Department received no significant 

comments on this paragraph and has decided 

to adopt the proposed language with minor 

modifications. 

Section 36.406(f)(1) ensures that there is 

greater dispersion of wheelchair spaces and 

companion seats throughout stadiums, 

arenas, and grandstands than would 

otherwise be required by sections 221 and 

802 of the 2004 ADAAG. In some cases, the 

accessible route may not be the same route 

that other individuals use to reach their seats. 

For example, if other patrons reach their 

seats on the field by an inaccessible route 

(e.g., by stairs), but there is an accessible 

route that complies with section 206.3 of the 

2004 ADAAG that could be connected to 

seats on the field, wheelchair spaces and 

companion seats must be placed on the field 

even if that route is not generally available 

to the public. 

Regulatory language that was included in 

the 2004 ADAAG advisory, but that did not 

appear in the NPRM, has been added by the 

Department in § 36.406(f)(2). Section 

36.406(f)(2) now requires an assembly area 

that has seating encircling, in whole or in 

part, a field of play or performance area, such 

as an arena or stadium, to place wheelchair 

spaces and companion seats around the 

entire facility. This rule, which is designed 

to prevent a public accommodation from 

placing wheelchair spaces and companion 

seats on one side of the facility only, is 

consistent with the Department’s 

enforcement practices and reflects its 

interpretation of section 4.33.3 of the 1991 

Standards. 

In the NPRM, the Department proposed 

§ 36.406(f)(2), which prohibits wheelchair 

spaces and companion seating locations from 

being ‘‘located on (or obstructed by) 

temporary platforms * * *.’’ 73 FR 34508, 

34557 (June 17, 2008). Through its 

enforcement actions, the Department 

discovered that some venues place 

wheelchair spaces and companion seats on 

temporary platforms that, when removed, 

reveal conventional seating underneath, or 

cover the wheelchair spaces and companion 

seats with temporary platforms on top of 

which they place risers of conventional 

seating. These platforms cover groups of 

conventional seats and are used to provide 

groups of wheelchair seats and companion 

seats. 

Several commenters requested an 

exception to the prohibition of the use of 

temporary platforms for public 

accommodations that sell most of their 

tickets on a season-ticket or other multi-event 

basis. Such commenters argued that they 

should be able to use temporary platforms 

because they know, in advance, that the 

patrons sitting in certain areas for the whole 

season do not need wheelchair spaces and 

companion seats. The Department declines to 

adopt such an exception. As it explained in 

detail in the NPRM, the Department believes 

that permitting the use of movable platforms 

that seat four or more wheelchair users and 

their companions have the potential to 

reduce the number of available wheelchair 

seating spaces below the level required, thus 

reducing the opportunities for persons who 

need accessible seating to have the same 

choice of ticket prices and amenities that are 

available to other patrons in the facility. In 

addition, use of removable platforms may 

result in instances where last minute requests 

for wheelchair and companion seating cannot 

be met because entire sections of accessible 

seating will be lost when a platform is 

removed. See 73 FR 34508, 34546 (June 17, 

2008). Further, use of temporary platforms 

allows facilities to limit persons who need 

accessible seating to certain seating areas, 

and to relegate accessible seating to less 

desirable locations. The use of temporary 

platforms has the effect of neutralizing 

dispersion and other seating requirements 

(e.g., line of sight) for wheelchair spaces and 

companion seats. Cf. Independent Living 

Resources v. Oregon Arena Corp., 1 F. Supp. 

2d 1159, 1171 (D. Or. 1998) (holding that 

while a public accommodation may ‘‘infill’’ 

wheelchair spaces with removable seats 

when the wheelchair spaces are not needed 

to accommodate individuals with 

disabilities, under certain circumstances 

‘‘[s]uch a practice might well violate the rule 

that wheelchair spaces must be dispersed 

throughout the arena in a manner that is 

roughly proportionate to the overall 

distribution of seating’’). In addition, using 

temporary platforms to convert unsold 

wheelchair spaces to conventional seating 

undermines the flexibility facilities need to 

accommodate secondary ticket market 

exchanges as required by § 36.302(f)(7) of the 

final rule. 

As the Department explained in the NPRM, 

however, this provision was not designed to 

prohibit temporary seating that increases 

seating for events (e.g., placing temporary 

seating on the floor of a basketball court for 

a concert). Consequently, the final rule, at 

§ 36.406(f)(3), has been amended to clarify 

that if an entire seating section is on a 

temporary platform for a particular event, 

then wheelchair spaces and companion seats 

may also be in that seating section. However, 

adding a temporary platform to create 

wheelchair spaces and companion seats that 

are otherwise dissimilar from nearby fixed 

seating and then simply adding a small 

number of additional seats to the platform 

would not qualify as an ‘‘entire seating 

section’’ on the platform. In addition, 

§ 36.406(f)(3) clarifies that facilities may fill 

in wheelchair spaces with removable seats 

when the wheelchair spaces are not needed 

by persons who use wheelchairs. 

The Department has been responsive to 

assembly areas’ concerns about reduced 

revenues due to unused accessible seating. 

Accordingly, the Department has reduced 

scoping requirements significantly—by 

almost half in large assembly areas—and 

determined that allowing assembly areas to 

in-fill unsold wheelchair spaces with readily 

removable temporary individual seats 

appropriately balances their economic 

concerns with the rights of individuals with 

disabilities. See section 221.1 of the 2010 

Standards. 

For stadium-style movie theaters, in 

§ 36.406(f)(4) of the NPRM the Department 

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proposed requiring placement of wheelchair 

seating spaces and companion seats on a riser 

or cross-aisle in the stadium section of the 

theater that satisfies at least one of the 

following criteria: (1) It is located within the 

rear 60 percent of the seats provided in the 

auditorium; or (2) It is located within the area 

of the auditorium where the vertical viewing 

angles are between the 40th and 100th 

percentile of vertical viewing angles for all 

seats in that theater as ranked from the first 

row (1st percentile) to the back row (100th 

percentile). The vertical viewing angle is the 

angle between a horizontal line 

perpendicular to the seated viewer’s eye to 

the screen and a line from the seated viewer’s 

eye to the top of the screen. 

The Department proposed this bright-line 

rule for two reasons: (1) the movie theater 

industry petitioned for such a rule; and (2) 

the Department has acquired expertise in the 

design of stadium-style theaters during its 

litigation with several major movie theater 

chains. See United States. v. AMC 

Entertainment, Inc., 232 F. Supp.2d 1092 

(C.D. Cal. 2002), rev’d in part, 549 F.3d 760 

(9th Cir. 2008); United States v. Cinemark 

USA, Inc., 348 F.3d 569 (6th Cir. 2003). Two 

industry commenters—at least one of whom 

otherwise supported this rule—requested 

that the Department explicitly state that this 

rule does not apply retroactively to existing 

theaters. Although this provision on its face 

applies to new construction and alterations, 

these commenters were concerned that the 

rule could be interpreted to apply 

retroactively because of the Department’s 

statements in the NPRM and ANPRM that 

this bright line rule, although newly 

articulated, is not a new standard but ‘‘merely 

codifi[es] longstanding Department 

requirement[s],’’ 73 FR 34508, 34534 (June 

17, 2008), and does not represent a 

‘‘substantive change from the existing line-ofsight requirements’’ of section 4.33.3 of the 

1991 Standards, 69 FR 58768, 58776 (Sept. 

30, 2004). 

Although the Department intends for 

§ 36.406(f)(4) of this rule to apply 

prospectively to new construction and 

alterations, this rule is not a departure from, 

and is consistent with, the line-of-sight 

requirements in the 1991 Standards. The 

Department has always interpreted the lineof-sight requirements in the 1991 Standards 

to require viewing angles provided to patrons 

who use wheelchairs to be comparable to 

those afforded to other spectators. Section 

36.406(f)(4) merely represents the application 

of these requirements to stadium-style movie 

theaters. 

One commenter from a trade association 

sought clarification whether § 36.406(f)(4) 

applies to stadium-style theaters with more 

than 300 seats, and argued that it should not 

since dispersion requirements apply in those 

theaters. The Department declines to limit 

this rule to stadium-style theaters with 300 

or fewer seats; stadium-style theaters of all 

sizes must comply with this rule. So, for 

example, stadium-style theaters that must 

vertically disperse wheelchair spaces and 

companion seats must do so within the 

parameters of this rule. 

The NPRM included a provision that 

required assembly areas with more than 

5,000 seats to provide at least five wheelchair 

spaces with at least three companion seats for 

each of those five wheelchair spaces. The 

Department agrees with commenters who 

asserted that group seating is better 

addressed through ticketing policies rather 

than design and has deleted that provision 

from this section of the final rule. 

Section 36.406(g) Medical Care Facilities 

In the 1991 title III regulation, there was no 

provision addressing the dispersion of 

accessible sleeping rooms in medical care 

facilities. The Department is aware, however, 

of problems that individuals with disabilities 

face in receiving full and equal medical care 

when accessible sleeping rooms are not 

adequately dispersed. When accessible rooms 

are not fully dispersed, a person with a 

disability is often placed in an accessible 

room in an area that is not medically 

appropriate for his or her condition, and is 

thus denied quick access to staff with 

expertise in that medical specialty and 

specialized equipment. While the Access 

Board did not establish specific design 

requirements for dispersion in the 2004 

ADAAG, in response to extensive comments 

in support of dispersion it added an advisory 

note, Advisory 223.1 General, encouraging 

dispersion of accessible rooms within the 

facility so that accessible rooms are more 

likely to be proximate to appropriate 

qualified staff and resources. 

In the NPRM, the Department sought 

additional comment on the issue, asking 

whether it should require medical care 

facilities, such as hospitals, to disperse their 

accessible sleeping rooms, and if so, by what 

method (by specialty area, floor, or other 

criteria). All of the comments the Department 

received on this issue supported dispersing 

accessible sleeping rooms proportionally by 

specialty area. These comments from 

individuals, organizations, and a building 

code association, argued that it would not be 

difficult for hospitals to disperse rooms by 

specialty area, given the high level of 

regulation to which hospitals are subject and 

the planning that hospitals do based on 

utilization trends. Further, comments suggest 

that without a requirement, it is unlikely that 

hospitals would disperse the rooms. In 

addition, concentrating accessible rooms in 

one area perpetuates segregation of 

individuals with disabilities, which is 

counter to the purpose of the ADA. 

The Department has decided to require 

medical care facilities to disperse their 

accessible sleeping rooms in a manner that is 

proportionate by type of medical specialty. 

This does not require exact mathematical 

proportionality, which at times would be 

impossible. However, it does require that 

medical care facilities disperse their 

accessible rooms by medical specialty so that 

persons with disabilities can, to the extent 

practical, stay in an accessible room within 

the wing or ward that is appropriate for their 

medical needs. The language used in this 

rule (‘‘in a manner that is proportionate by 

type of medical specialty’’) is more specific 

than that used in the NPRM (‘‘in a manner 

that enables patients with disabilities to have 

access to appropriate specialty services’’) and 

adopts the concept of proportionality 

proposed by the commenters. Accessible 

rooms should be dispersed throughout all 

medical specialties, such as obstetrics, 

orthopedics, pediatrics, and cardiac care. 

Subpart F—Certification of State Laws 

or Local Building Codes 

Subpart F contains procedures 

implementing section 308(b)(1)(A)(ii) of the 

ADA, which provides that on the application 

of a State or local jurisdiction, the Attorney 

General may certify that a State or local 

building code or similar ordinance meets or 

exceeds the minimum accessibility 

requirements of the Act. In enforcement 

proceedings, this certification will constitute 

rebuttable evidence that the law or code 

meets or exceeds the ADA’s requirements. In 

its NPRM, the Department proposed three 

changes in subpart F that would streamline 

the process for public entities seeking 

certification, all of which are adopted in this 

final rule. 

First, the Department proposed deleting 

the existing § 36.603, which establishes the 

obligations of a submitting authority that is 

seeking certification of its code, and issue in 

its place informal regulatory guidance 

regarding certification submission 

requirements. Due to the deletion of § 36.603, 

§§ 36.604 through 36.608 are renumbered, 

and § 36.603 in the final rule is modified to 

indicate that the Assistant Attorney General 

for the Civil Rights Division (Assistant 

Attorney General) shall make a preliminary 

determination of equivalency after ‘‘receipt 

and review of all information relevant to a 

request filed by a submitting official for 

certification of a code.’’ Second, the 

Department proposed that the requirement in 

renumbered § 36.604 (previously § 36.605) 

that an informal hearing be held in 

Washington, DC, if the Assistant Attorney 

General makes a preliminary determination 

of equivalency be changed to a requirement 

that the hearing be held in the State or local 

jurisdiction charged with administration and 

enforcement of the code. Third, the 

Department proposed adding language to 

renumbered § 36.606 (previously § 36.607) to 

explain the effect of the 2010 Standards on 

the codes of State or local jurisdictions that 

were determined in the past to meet or 

exceed the 1991 Standards. Once the 2010 

Standards take effect, certifications issued 

under the 1991 Standards would not have 

any future effect, and States and local 

jurisdictions with codes certified under the 

1991 Standards would need to reapply for 

certification under the 2010 Standards. With 

regard to elements of existing buildings and 

facilities constructed in compliance with a 

code when a certification of equivalency was 

in effect, the final rule requires that in any 

enforcement action this compliance would be 

treated as rebuttable evidence of compliance 

with the standards then in effect. The new 

provision added to § 36.606 may also have 

implications in determining an entity’s 

eligibility for the element-by-element safe 

harbor. 

No substantive comments were received 

regarding the Department’s proposed changes 

in subpart F, and no other changes have been 

made to this subpart in the final rule. The 

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Department did receive several comments 

addressing other issues raised in the NPRM 

that are related to subpart F. Because the 

2010 Standards include specific design 

requirements for recreation facilities and play 

areas that may be new to many title III 

facilities, the Department sought comments 

in the NPRM about how the certification 

review process would be affected if the State 

or local jurisdiction allocates the authority to 

implement the new requirements to State or 

local agencies that are not ordinarily 

involved in administering building codes. 

One commenter, an association of building 

owners and managers, suggested that because 

of the increased scope of the 2010 Standards, 

it is likely that parts of covered elements in 

the new standards will be under the 

jurisdiction of multiple State or local 

agencies. In light of these circumstances, the 

commenter recommended that the 

Department allow State or local agencies to 

seek certification even if only one State or 

local regulatory agency requests certification. 

For example, if a State agency that regulates 

buildings seeks certification of its building 

code, it should be able to do so, even if 

another State agency that regulates 

amusement rides and miniature golf courses 

does not seek certification. 

The Department’s discussion of this issue 

in the NPRM contemplated that all of a State 

or local government’s accessibility 

requirements for title III facilities would be 

the subject of a request for certification. Any 

other approach would require the 

Department to certify only part of a State or 

local government’s accessibility requirements 

as compared to the entirety of the revised 

ADA standards. As noted earlier, the 

Attorney General is authorized by section 

308(b)(1)(A)(ii) of the ADA to certify that a 

State or local building code meets or exceeds 

the ADA’s minimum accessibility 

requirements, which are contained in this 

regulation. The Department has concluded 

that this is a decision that must be made on 

a case-by-case basis because of the wide 

variety of enforcement schemes adopted by 

the States. Piecemeal certification of laws or 

codes that do not contain all of the minimum 

accessibility requirements could fail to 

satisfy the Attorney General’s responsibility 

to ensure that a State or local building code 

meets or exceeds the minimum accessibility 

requirements of the Act before granting 

certification. However, the Department wants 

to permit State and local code administrators 

to have maximum flexibility, so the 

Department will leave open the possibility 

for case-by-case review to determine if a State 

has successfully met the burden of 

demonstrating that its accessibility codes or 

other laws meet or exceed the ADA 

requirements. 

The commenter representing building 

owners and managers also urged the 

Department to extend the proposed effective 

date for the final rule. The commenter 

explained that a six-month phase-in period is 

inadequate for States to begin and complete 

a code amendment process. The commenter 

asserted that the inadequate phase-in period 

will place entities undertaking new 

construction and alterations, particularly in 

those States with certified codes, in a 

difficult position because State officials will 

continue to enforce previously certified State 

or local accessibility requirements that may 

be in conflict with the new 2010 Standards. 

The Department received numerous 

comments on the issue of the effective date, 

many of them similar to the concerns 

expressed above, in response to both the 

NPRM and the ANPRM. See Appendix A 

discussion of compliance dates for new 

construction and alterations (§ 36.406). The 

Department has been persuaded by the 

concerns raised by many commenters 

addressing the time and costs related to the 

design process for both new construction and 

alterations, and has determined that for new 

construction and alterations, compliance 

with the 2010 Standards will not be required 

until 18 months from the date the final rule 

is published. For more information on the 

issue of the compliance date, refer to subpart 

D—New Construction and Alterations. 

One commenter, an association of theater 

owners, recommended that the Department 

establish a training program for State 

building inspectors for those States that 

receive certification to ensure more 

consistent ADA compliance and to facilitate 

the review of builders’ architectural plans. 

The commenter also recommended that State 

building inspectors, once trained, review 

architectural plans, and after completion and 

inspection of facilities, be authorized to 

certify that the inspected building or facility 

meets both the certified State and the Federal 

accessibility requirements. Although 

supportive of the idea of additional training 

for State and local building code officials 

regarding ADA compliance, the Department 

believes that the approach suggested by the 

commenter of allowing State and local code 

officials to determine if a covered facility is 

in compliance with Federal accessibility 

requirements is not consistent with or 

permissible under the statutory enforcement 

scheme established by the ADA. As the 

Department stated in the NPRM, certification 

of State and local codes serves, to some 

extent, to mitigate the absence of a Federal 

mechanism for conducting at the national 

level a review of all architectural plans and 

inspecting all covered buildings under 

construction to ensure compliance with the 

ADA. In this regard, certification operates as 

a bridge between the obligation to comply 

with the 1991 Standards in new construction 

and alterations, and the administrative 

schemes of State and local governments that 

regulate the design and construction process. 

By ensuring consistency between State or 

local codes and Federal accessibility 

standards, certification has the additional 

benefit of streamlining the regulatory 

process, thereby making it easier for those in 

the design and construction industry to 

satisfy both State and Federal requirements. 

The Department notes, however, that 

although certification has the potential to 

increase compliance with the ADA, this 

result, however desirable, is not guaranteed. 

The ADA contemplated that there could be 

enforcement actions brought even in States 

with certified codes, and it provided some 

protection in litigation to builders who 

adhered to the provisions of the code 

certified to be ADA-equivalent. The 

Department’s certification determinations 

make it clear that to get the benefit of 

certification, a facility must comply with the 

applicable code requirements—without 

relying on waivers or variances. The certified 

code, however, remains within the authority 

of the adopting State or local jurisdiction to 

interpret and enforce: Certification does not 

transform a State’s building code into Federal 

law. Nor can certification alone authorize 

State and local building code officials 

implementing a certified code to do more 

than they are authorized to do under State or 

local law, and these officials cannot acquire 

authority through certification to render 

binding interpretations of Federal law. 

Therefore, the Department, while 

understanding the interest in obtaining 

greater assurance of compliance with the 

ADA through the interpretation and 

enforcement of a certified code by local code 

officials, declined in the NPRM to confer on 

local officials the authority not granted to 

them under the ADA to certify the 

compliance of individual facilities. The 

Department in the final rule finds no reason 

to alter its position on this issue in response 

to the comments that were received. 

The commenter representing theater 

owners also urged the Department to provide 

a safe harbor to facilities constructed in 

compliance with State or local building 

codes certified under the 1991 Standards. 

With regard to elements of facilities 

constructed in compliance with a certified 

code prior to the effective date of the 2010 

Standards, and during the period when a 

certification of equivalency was in effect, the 

Department noted in the NPRM that its 

approach would be consistent with the 

approach to the safe harbor discussed in 

subpart C, § 36.304 of the NPRM, with 

respect to elements in existing facilities 

constructed in compliance with the 1991 

Standards. For example, elements in existing 

facilities in States with codes certified under 

the 1991 Standards would be eligible for a 

safe harbor if they were constructed in 

compliance with an ADA-certified code. In 

this scenario, compliance with the certified 

code would be treated as evidence of 

compliance with the 1991 Standards for 

purposes of determining the application of 

the safe harbor provision to those elements. 

For more information on safe harbor, refer to 

subpart C, § 36.304 of the final rule. 

One commenter, an advocacy group for the 

blind, suggested that, similar to the 

procedures for certifying a State or local 

building code, the Department should 

establish a program to certify an entity’s 

obligation to make its goods and services 

accessible to persons with sensory 

disabilities. The Department believes that 

this commenter was suggesting that covered 

entities should be able to request that the 

Department review their business operations 

to determine if they have met their ADA 

obligations. As noted earlier, subpart F 

contains procedures implementing section 

308(b)(1)(A)(ii) of the ADA, which provides 

that on the application of a State or local 

jurisdiction, the Attorney General may certify 

that a State or local building code or similar 

ordinance meets or exceeds the minimum 

accessibility requirements of the ADA. The 

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only mechanism through which the 

Department is authorized to ensure a covered 

entity’s compliance with the ADA is the 

enforcement scheme established under 

section 308(b)(1)(A)(i) of the ADA. The 

Department notes, however, that title III of 

the ADA and its implementing regulation, 

which includes the standards for accessible 

design, already require existing, altered, and 

newly constructed places of public 

accommodation, such as retail stores, hotels, 

restaurants, movie theaters, and stadiums, to 

make their facilities readily accessible to and 

usable by individuals with disabilities, 

which includes individuals with sensory 

disabilities, so that individuals with 

disabilities have a full and equal opportunity 

to enjoy the benefits of a public 

accommodation’s goods, services, facilities, 

privileges and advantages. 

Other Issues 

Questions Posed in the NPRM Regarding 

Costs and Benefits of Complying With the 

2010 Standards 

In the NPRM, the Department requested 

comments on various cost and benefit issues 

related to eight requirements in the 

Department’s Initial RIA, that were projected 

to have incremental costs that exceeded 

monetized benefits by more than $100 

million when using the 1991 Standards as a 

comparative baseline, i.e., 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. 73 FR 34508, 34512 

(June 17, 2008). The Department was 

particularly concerned about how these costs 

applied to alterations. The Department noted 

that pursuant to the ADA, the Department 

does not have statutory authority to modify 

the 2004 ADAAG and is required instead to 

issue regulations implementing the ADA that 

are consistent with the Board’s guidelines. In 

that regard, the Department also requested 

comment about whether any of these eight 

elements in the 2010 Standards should be 

returned to the Access Board for further 

consideration, in particular as applied to 

alterations. Many of the comments received 

by the Department in response to these 

questions addressed both titles II and III. As 

a result, the Department’s discussion of these 

comments and its response are collectively 

presented for both titles. 

Side reach. The 1991 Standards at section 

4.2.6 establish a maximum side-reach height 

of 54 inches. The 2010 Standards at section 

308.3.1 reduce that maximum height to 48 

inches. The 2010 Standards also add 

exceptions for certain elements to the 

scoping requirement for operable parts. 

The vast majority of comments the 

Department received were in support of the 

lower side-reach maximum of 48 inches in 

the 2010 Standards. Most of these comments, 

but not all, were received from individuals of 

short stature, relatives of individuals of short 

stature, or organizations representing the 

interests of persons with disabilities, 

including individuals of short stature. 

Comments from individuals with disabilities 

and disability advocacy groups stated that 

the 48-inch side reach would permit 

independence in performing many activities 

of daily living for individuals with 

disabilities, including individuals of short 

stature, persons who use wheelchairs, and 

persons who have limited upper body 

strength. In this regard, one commenter who 

is a business owner pointed out that as a 

person of short stature there were many 

occasions when he was unable to exit a 

public restroom independently because he 

could not reach the door handle. The 

commenter said that often elevator control 

buttons are out of his reach, and, if he is 

alone, he often must wait for someone else 

to enter the elevator so that he can ask that 

person to press a floor button for him. 

Another commenter, who is also a person of 

short stature, said that he has on several 

occasions pulled into a gas station only to 

find that he was unable to reach the credit 

card reader on the gas pump. Unlike other 

customers who can reach the card reader, 

swipe their credit or debit cards, pump their 

gas, and leave the station, he must use 

another method to pay for his gas. Another 

comment from a person of short stature 

pointed out that as more businesses take 

steps to reduce labor costs—a trend expected 

to continue—staffed booths are being 

replaced with automatic machines for the 

sale, for example, of parking tickets and other 

products. He observed that the ‘‘ability to 

access and operate these machines becomes 

ever more critical to function in society,’’ 

and, on that basis, urged the Department to 

adopt the 48-inch side-reach requirement. 

Another individual commented that persons 

of short stature should not have to carry with 

them adaptive tools in order to access 

building or facility elements that are out of 

their reach, any more than persons in 

wheelchairs should have to carry ramps with 

them in order to gain access to facilities. 

Many of the commenters who supported 

the revised side-reach requirement pointed 

out that lowering the side-reach requirement 

to 48 inches would avoid a problem 

sometimes encountered in the built 

environment when an element was mounted 

for a parallel approach at 54 inches, only to 

find afterwards that a parallel approach was 

not possible. Some commenters also 

suggested that lowering the maximum 

unobstructed side reach to 48 inches would 

reduce confusion among design professionals 

by making the unobstructed forward and 

side-reach maximums the same (the 

unobstructed forward reach in both the 1991 

and 2010 Standards is 48 inches maximum). 

These commenters also pointed out that the 

ICC/ANSI A117.1 Standard, which is a 

private sector model accessibility standard, 

has included a 48-inch maximum high sidereach requirement since 1998. Many 

jurisdictions have already incorporated this 

requirement into their building codes, which 

these commenters believed would reduce the 

cost of compliance with the 2010 Standards. 

Because numerous jurisdictions have already 

adopted the 48-inch side-reach requirement, 

the Department’s failure to adopt the 48-inch 

side-reach requirement in the 2010 

Standards, in the view of many commenters, 

would result in a significant reduction in 

accessibility, and would frustrate efforts that 

have been made to harmonize private sector 

model construction and accessibility codes 

with Federal accessibility requirements. 

Given these concerns, they overwhelmingly 

opposed the idea of returning the revised 

side-reach requirement to the Access Board 

for further consideration. 

The Department also received comments in 

support of the 48-inch side-reach 

requirement from an association of 

professional commercial property managers 

and operators and from State governmental 

entities. The association of property 

managers pointed out that the revised sidereach requirement provided a reasonable 

approach to ‘‘regulating elevator controls and 

all other operable parts’’ in existing facilities 

in light of the manner in which the safe 

harbor, barrier removal, and alterations 

obligations will operate in the 2010 

Standards. One governmental entity, while 

fully supporting the 48-inch side-reach 

requirement, encouraged the Department to 

adopt an exception to the lower reach range 

for existing facilities similar to the exception 

permitted in the ICC/ANSI A117.1 Standard. 

In response to this latter concern, the 

Department notes that under the safe harbor, 

existing facilities that are in compliance with 

the 1991 Standards, which required a 54-inch 

side-reach maximum, would not be required 

to comply with the lower side-reach 

requirement, unless there is an alteration. See 

§ 36.304(d)(2)(i). 

A number of commenters expressed either 

concern with, or opposition to, the 48-inch 

side-reach requirement and suggested that it 

be returned to the Access Board for further 

consideration. These commenters included 

trade and business associations, associations 

of retail stores, associations of restaurant 

owners, retail and convenience store chains, 

and a model code organization. Several 

businesses expressed the view that the lower 

side-reach requirement would discourage the 

use of their products and equipment by most 

of the general public. In particular, concerns 

were expressed by a national association of 

pay phone service providers regarding the 

possibility that pay telephones mounted at 

the lower height would not be used as 

frequently by the public to place calls, which 

would result in an economic burden on the 

pay phone industry. The commenter 

described the lower height required for side 

reach as creating a new ‘‘barrier’’ to pay 

phone use, which would reduce revenues 

collected from pay phones and, 

consequently, further discourage the 

installation of new pay telephones. In 

addition, the commenter expressed concern 

that phone service providers would simply 

decide to remove existing pay phones rather 

than incur the costs of relocating them at the 

lower height. With regard to this latter 

concern, the commenter misunderstood the 

manner in which the safe harbor and barrier 

removal obligations under § 36.304 will 

operate in the revised title III regulation for 

elements that comply with the 1991 

Standards. The Department does not 

anticipate that wholesale relocation of pay 

telephones in existing facilities will be 

required under the final rule where the 

telephones in existing facilities already are in 

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compliance with the 1991 Standards. If the 

pay phones comply with the 1991 Standards, 

the adoption of the 2010 Standards does not 

require retrofitting of these elements to 

reflect incremental changes in the 2010 

Standards. See § 36.304(d)(2). However, pay 

telephones that were required to meet the 

1991 Standards as part of new construction 

or alterations, but do not in fact comply with 

those standards, will need to be brought into 

compliance with the 2010 Standards as of 18 

months from the publication date of this final 

rule. See § 36.406(a)(5). 

The Department does not agree with the 

concerns expressed by the commenter about 

reduced revenues from pay phones mounted 

at lower heights. The Department believes 

that while given the choice some individuals 

may prefer to use a pay phone that is at a 

higher height, the availability of some phones 

at a lower height will not deter individuals 

from making needed calls. 

The 2010 Standards will not require every 

pay phone to be installed or moved to a 

lowered height. The table accompanying 

section 217.2 of the 2010 Standards makes 

clear that where one or more telephones are 

provided on a floor, level, or an exterior site, 

only one phone per floor, level, or exterior 

site must be placed at an accessible height. 

Similarly, where there is one bank of phones 

per floor, level, or exterior site, only one 

phone per floor, level, or exterior site must 

be accessible. And if there are two or more 

banks of phones per floor, level, or exterior 

site, only one phone per bank must be placed 

at an accessible height. 

Another comment in opposition to the 

lower reach range requirement was submitted 

on behalf of a chain of convenience stores 

with fuel stops. The commenter expressed 

the concern that the 48-inch side reach ‘‘will 

make it uncomfortable for the majority of the 

public,’’ including persons of taller stature 

who would need to stoop to use equipment 

such as fuel dispensers mounted at the lower 

height. The commenter offered no objective 

support for the observation that a majority of 

the public would be rendered uncomfortable 

if, as required in the 2010 Standards, at least 

one of each type of fuel dispenser at a facility 

was made accessible in compliance with the 

lower reach range. Indeed, the Department 

received no comments from any individuals 

of tall stature expressing concern about 

accessible elements or equipment being 

mounted at the 48-inch height. 

Several retail, convenience store, 

restaurant, and amusement park commenters 

expressed concern about the burden the 

lower side-reach requirement would place on 

their businesses in terms of self-service food 

stations and vending areas if the 48-inch 

requirement were applied retroactively. The 

cost of lowering counter height, in 

combination with the lack of control 

businesses exercise over certain prefabricated 

service or vending fixtures, outweighed, they 

argued, any benefits to persons with 

disabilities. For this reason, they suggested 

the lower side-reach requirement be referred 

back to the Access Board. 

These commenters misunderstood the safe 

harbor and barrier removal obligations that 

will be in effect under the 2010 Standards. 

Those existing self-service food stations and 

vending areas that already are in compliance 

with the 1991 Standards will not be required 

to satisfy the 2010 Standards unless they 

engage in alterations. With regard to 

prefabricated vending machines and food 

service components that will be purchased 

and installed in businesses after the 2010 

Standards become effective, the Department 

expects that companies will design these 

machines and fixtures to comply with the 

2010 Standards in the future, as many have 

already done in the 10 years since the 48- 

inch side-reach requirement has been a part 

of the model codes and standards used by 

many jurisdictions as the basis for their 

construction codes. 

A model code organization commented 

that the lower side-reach requirement would 

create a significant burden if it required 

entities to lower the mounting height for light 

switches, environmental controls, and outlets 

when an alteration did not include the walls 

where these elements were located, such as 

when ‘‘an area is altered or as a path of travel 

obligation.’’ The Department believes that the 

final rule adequately addresses those 

situations about which the commenter 

expressed concern by not requiring the 

relocation of existing elements, such as light 

switches, environmental controls, and 

outlets, unless they are altered. Moreover, 

under § 36.403 of the 1991 rule, costs for 

altering the path of travel to an altered area 

of primary function that exceed 20 percent of 

the overall costs of the alteration will 

continue to be deemed disproportionate. 

The Department has determined that the 

revised side-reach requirement should not be 

returned to the Access Board for further 

consideration based in large part on the 

views expressed by a majority of the 

commenters regarding the need for, and 

importance of, the lower side-reach 

requirement to ensure access for persons 

with disabilities. 

Alterations and water closet clearances in 

single-user toilet rooms with in-swinging 

doors. The 1991 Standards allow a lavatory 

to be placed a minimum of 18 inches from 

the water closet centerline and a minimum 

of 36 inches from the side wall adjacent to 

the water closet, which precludes side 

transfers. The 1991 Standards do not allow 

an in-swinging door in a toilet or bathing 

room to overlap the required clear floor space 

at any accessible fixture. To allow greater 

transfer options, section 604.3.2 of the 2010 

Standards prohibits lavatories from 

overlapping the clear floor space at water 

closets, except in certain residential dwelling 

units. Section 603.2.3 of the 2010 Standards 

maintains the prohibition on doors swinging 

into the clear floor space or clearance 

required for any fixture, except that they 

permit the doors of toilet or bathing rooms 

to swing into the required turning space, 

provided that there is sufficient clearance 

space for the wheelchair outside the door 

swing. In addition, in single-user toilet or 

bathing rooms, exception 2 of section 603.2.3 

of the 2010 Standards permits the door to 

swing into the clear floor space of an 

accessible fixture if a clear floor space that 

measures at least 30 inches by 48 inches is 

available outside the arc of the door swing. 

The majority of commenters believed that 

this requirement would increase the number 

of toilet rooms accessible to individuals with 

disabilities who use wheelchairs or mobility 

scooters, and will make it easier for them to 

transfer. A number of commenters stated that 

there was no reason to return this provision 

to the Access Board. Numerous commenters 

noted that this requirement is already 

included in other model accessibility 

standards and many State and local building 

codes and that the adoption of the 2010 

Standards is an important part of 

harmonization efforts. 

Other commenters, mostly trade 

associations, opposed this requirement, 

arguing that the added cost to the industry 

outweighs any increase in accessibility. Two 

commenters stated that these proposed 

requirements would add two feet to the 

width of an accessible single-user toilet 

room; however, another commenter said the 

drawings in the proposed regulation 

demonstrated that there would be no 

substantial increase in the size of the toilet 

room. Several commenters stated that this 

requirement would require moving plumbing 

fixtures, walls, or doors at significant 

additional expense. Two commenters wanted 

the permissible overlap between the door 

swing and clearance around any fixture 

eliminated. One commenter stated that these 

new requirements will result in fewer 

alterations to toilet rooms to avoid triggering 

the requirement for increased clearances, and 

suggested that the Department specify that 

repairs, maintenance, or minor alterations 

would not trigger the need to provide 

increased clearances. Another commenter 

requested that the Department exempt 

existing guest room bathrooms and singleuser toilet rooms that comply with the 1991 

Standards from complying with the increased 

clearances in alterations. 

After careful consideration of these 

comments, the Department believes that the 

revised clearances for single-user toilet rooms 

will allow safer and easier transfers for 

individuals with disabilities, and will enable 

a caregiver, aide, or other person to 

accompany an individual with a disability 

into the toilet room to provide assistance. 

The illustrations in Appendix B to this final 

rule, ‘‘Analysis and Commentary on the 2010 

ADA Standards for Accessible Design,’’ 

describe several ways for public entities and 

public accommodations to make alterations 

while minimizing additional costs or loss of 

space. Further, in any isolated instances 

where existing structural limitations may 

entail loss of space, the public entity and 

public accommodation may have a technical 

infeasibility defense for that alteration. The 

Department has, therefore, decided not to 

return this requirement to the Access Board. 

Alterations to stairs. The 1991 Standards 

only require interior and exterior stairs to be 

accessible when they provide access to levels 

that are not connected by an elevator, ramp, 

or other accessible means of vertical access. 

In contrast, section 210.1 of the 2010 

Standards requires all newly constructed 

stairs that are part of a means of egress to be 

accessible. However, exception 2 of section 

210.1 of the 2010 Standards provides that in 

alterations, stairs between levels connected 

by an accessible route need not be accessible, 

except that handrails shall be provided. Most 

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commenters were in favor of this requirement 

for handrails in alterations, and stated that 

adding handrails to stairs during alterations 

was not only feasible and not cost 

prohibitive, but also provided important 

safety benefits. One commenter stated that 

making all points of egress accessible 

increased the number of people who could 

use the stairs in an emergency. A majority of 

the commenters did not want this 

requirement returned to the Access Board for 

further consideration. 

The International Building Code (IBC), 

which is a private sector model construction 

code, contains a similar provision, and most 

jurisdictions enforce a version of the IBC as 

their building code, thereby minimizing the 

impact of this provision on public entities 

and public accommodations. The Department 

believes that by requiring only the addition 

of handrails to altered stairs where levels are 

connected by an accessible route, the costs of 

compliance for public entities and public 

accommodations are minimized, while safe 

egress for individuals with disabilities is 

increased. Therefore, the Department has 

decided not to return this requirement to the 

Access Board. 

Alterations to elevators. Under the 1991 

Standards, if an existing elevator is altered, 

only that altered elevator must comply with 

the new construction requirements for 

accessible elevators to the maximum extent 

feasible. It is therefore possible that a bank 

of elevators controlled by a single call system 

may contain just one accessible elevator, 

leaving an individual with a disability with 

no way to call an accessible elevator and thus 

having to wait indefinitely until an accessible 

elevator happens to respond to the call 

system. In the 2010 Standards, when an 

element in one elevator is altered, section 

206.6.1 will require the same element to be 

altered in all elevators that are programmed 

to respond to the same call button as the 

altered elevator. Almost all commenters 

favored the proposed requirement. This 

requirement, according to these commenters, 

is necessary so a person with a disability 

need not wait until an accessible elevator 

responds to his or her call. One commenter 

suggested that elevator owners also could 

comply by modifying the call system so the 

accessible elevator could be summoned 

independently. One commenter suggested 

that this requirement would be difficult for 

small businesses located in older buildings, 

and one commenter suggested that this 

requirement be sent back to the Access 

Board. 

After considering the comments, the 

Department agrees that this requirement is 

necessary to ensure that when an individual 

with a disability presses a call button, an 

accessible elevator will arrive. The IBC 

contains a similar provision, and most 

jurisdictions enforce a version of the IBC as 

their building code, minimizing the impact of 

this provision on public entities and public 

accommodations. Public entities and small 

businesses located in older buildings need 

not comply with this requirement where it is 

technically infeasible to do so. Further, as 

pointed out by one commenter, modifying 

the call system so the accessible elevator can 

be summoned independently is another 

means of complying with this requirement in 

lieu of altering all other elevators 

programmed to respond to the same call 

button. Therefore, the Department has 

decided not to return this requirement to the 

Access Board. 

Location of accessible routes to stages. The 

1991 Standards, at section 4.33.5, require an 

accessible route to connect the accessible 

seating and the stage, as well as other 

ancillary spaces used by performers. The 

2010 Standards, at section 206.2.6, provide in 

addition that where a circulation path 

directly connects the seating area and the 

stage, the accessible route must connect 

directly the accessible seating and the stage, 

and, like the 1991 Standards, an accessible 

route must connect the stage with the 

ancillary spaces used by performers. 

In the NPRM, the Department asked 

operators of auditoria about the extent to 

which auditoria already provide direct access 

to stages and whether there were planned 

alterations over the next 15 years that 

included accessible direct routes to stages. 

The Department also asked how to quantify 

the benefits of this requirement for persons 

with disabilities, and invited commenters to 

provide illustrative anecdotal experiences 

about the requirement’s benefits. 

The Department received many comments 

regarding the costs and benefits of this 

requirement. Although little detail was 

provided, many industry and governmental 

entity commenters anticipated that the costs 

of this requirement would be great and that 

it would be difficult to implement. They 

noted that premium seats may have to be 

removed and that load-bearing walls may 

have to be relocated. These commenters 

suggested that the significant costs would 

deter alterations to the stage area for a great 

many auditoria. Some commenters suggested 

that ramps to the front of the stage may 

interfere with means of egress and emergency 

exits. Several commenters requested that the 

requirement apply to new construction only, 

and one industry commenter requested an 

exemption for stages used in arenas or 

amusement parks where there is no audience 

participation or where the stage is a work 

area for performers only. One commenter 

requested that the requirement not apply to 

temporary stages. 

The final rule does not require a direct 

accessible route to be constructed where a 

direct circulation path from the seating area 

to the stage does not exist. Consequently, 

those commenters who expressed concern 

about the burden imposed by the revised 

requirement (i.e., where the stage is 

constructed with no direct circulation path 

connecting the general seating and 

performing area) should note that the final 

rule will not require the provision of a direct 

accessible route under these circumstances. 

The final rule applies to permanent stages, as 

well as ‘‘temporary stages,’’ if there is a direct 

circulation path from the seating area to the 

stage. However, the Department recognizes 

that in some circumstances, such as an 

alteration to a primary function area, the 

ability to provide a direct accessible route to 

a stage may be costly or technically 

infeasible, and the auditorium owner is not 

precluded by the revised requirement from 

asserting defenses available under the 

regulation. In addition, the Department notes 

that since section 4.33.5 of the 1991 

Standards requires an accessible route to a 

stage, the safe harbor will apply to existing 

facilities whose stages comply with the 1991 

Standards. 

Several governmental entities supported 

accessible auditoria and the revised 

requirement. One governmental entity noted 

that its State building code already required 

direct access, that it was possible to provide 

direct access, and that creative solutions had 

been found to do so. 

Many advocacy groups and individual 

commenters strongly supported the revised 

requirement, discussing the acute need for 

direct access to stages, as such access has an 

impact on a great number of people at 

important life events, such as graduations 

and awards ceremonies, at collegiate and 

competitive performances and other school 

events, and at entertainment events that 

include audience participation. Many 

commenters expressed the belief that direct 

access is essential for integration mandates to 

be satisfied, and that separate routes are 

stigmatizing and unequal. The Department 

agrees with these concerns. 

Commenters described the impact felt by 

persons in wheelchairs who are unable to 

access the stage at all when others are able 

to do so. Some of these commenters also 

discussed the need for the performers and 

production staff who use wheelchairs to have 

direct access to the stage, and they provided 

a number of examples that illustrated the 

importance of the rule proposed in the 

NPRM. Personal anecdotes were provided in 

comments and at the Department’s public 

hearing on the NPRM. One mother spoke 

passionately and eloquently about the 

unequal treatment experienced by her 

daughter, who uses a wheelchair, at awards 

ceremonies and band concerts. Her daughter 

was embarrassed and ashamed to be carried 

by her father onto a stage at one band 

concert. When the venue had to be changed 

for another concert to an accessible 

auditorium, the band director made sure to 

comment that he was unhappy with the 

switch. Rather than endure the 

embarrassment and indignities, her child 

dropped out of band the following year. 

Another father commented about how he 

was unable to speak from the stage at a PTA 

meeting at his child’s school. Speaking from 

the floor limited his line of sight and his 

participation. Several examples were 

provided of children who could not 

participate on stage during graduation, 

awards programs, or special school events, 

such as plays and festivities. One student did 

not attend his college graduation because he 

would not be able to get on stage. Another 

student was unable to participate in the class 

Christmas programs or end-of-year parties 

unless her father could attend and lift her 

onto the stage. These commenters did not 

provide a method to quantify the benefits 

that would accrue by having direct access to 

stages. One commenter stated, however, that 

‘‘the cost of dignity and respect is without 

measure.’’ 

Many industry commenters and 

governmental entities suggested that the 

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requirement be sent back to the Access Board 

for further consideration. One industry 

commenter mistakenly noted that some 

international building codes do not 

incorporate the requirement and that, 

therefore, there is a need for further 

consideration. However, the Department 

notes that both the 2003 and 2006 editions 

of the IBC include scoping provisions that are 

almost identical to this requirement and that 

these editions of the model code are the most 

frequently used. Many individuals and 

advocacy group commenters requested that 

the requirement be adopted without further 

delay. These commenters spoke of the acute 

need for direct access to stages and the 

amount of time it would take to resubmit the 

requirement to the Access Board. Several 

commenters noted that the 2004 ADAAG 

tracks recent model codes, and that there is 

thus no need for further consideration. The 

Department agrees that no further delay is 

necessary and therefore has decided it will 

not return the requirement to the Access 

Board for further consideration. 

Assistive listening systems. The 1991 

Standards at sections 4.33.6 and 4.33.7 

require assistive listening systems (ALS) in 

assembly areas and prescribe general 

performance standards for ALS systems. In 

the NPRM, the Department proposed 

adopting the technical specifications in the 

2004 ADAAG for ALS that are intended to 

ensure better quality and effective delivery of 

sound and information for persons with 

hearing impairments, especially those using 

hearing aids. The Department noted in the 

NPRM that since 1991, advancements in ALS 

and the advent of digital technology have 

made these systems more amenable to 

uniform standards, which, among other 

things, should ensure that a certain 

percentage of required ALS systems are 

hearing-aid compatible. 73 FR 34508, 34513 

(June 17, 2008). The 2010 Standards at 

section 219 provide scoping requirements 

and at section 706 address receiver jacks, 

hearing aid compatibility, sound pressure 

level, signal-to-noise ratio, and peak clipping 

level. The Department requested comments 

specifically from arena and assembly area 

administrators on the cost and maintenance 

issues associated with ALS, and asked 

generally about the costs and benefits of ALS, 

and asked whether, based upon the expected 

costs of ALS, the issue should be returned to 

the Access Board for further consideration. 

Commenters from advocacy organizations 

noted that persons who develop significant 

hearing loss often discontinue their normal 

routines and activities, including meetings, 

entertainment, and large group events, due to 

a sense of isolation caused by the hearing 

loss or embarrassment. Individuals with 

longstanding hearing loss may never have 

participated in group activities for many of 

the same reasons. Requiring ALS may allow 

individuals with disabilities to contribute to 

the community by joining in government and 

public events, and through increased 

economic activity associated with 

community activities and entertainment. 

Making public events and entertainment 

accessible to persons with hearing loss also 

brings families and other groups that include 

persons with hearing loss into more 

community events and activities, thus 

exponentially increasing the benefit from 

ALS. 

Many commenters noted that when a 

person has significant hearing loss, that 

person may be able to hear and understand 

information in a quiet situation with the use 

of hearing aids or cochlear implants; 

however, as background noise increases and 

the distance between the source of the sound 

and the listener grows, and especially where 

there is distortion in the sound, an ALS 

becomes essential for basic comprehension 

and understanding. Commenters noted that 

among the 31 million Americans with 

hearing loss, and with a projected increase to 

over 78 million Americans with hearing loss 

by 2030, the benefit from ALS is huge and 

growing. Advocates for persons with 

disabilities and individuals commented that 

they appreciated the improvements in the 

2004 ADAAG standards for ALS, including 

specifications for the ALS systems and 

performance standards. They noted that 

providing neckloops that translate the signal 

from the ALS transmitter to a frequency that 

can be heard on a hearing aid or cochlear 

implant are much more effective than 

separate ALS system headsets, which 

sometimes create feedback, often 

malfunction, and may create distractions for 

others seated nearby. Comments from 

advocates and users of ALS systems 

consistently noted that the Department’s 

regulation should, at a minimum, be 

consistent with the 2004 ADAAG. Although 

there were requests for adjustments in the 

scoping requirements from advocates seeking 

increased scoping requirements, and from 

large venue operators seeking fewer 

requirements, there was no significant 

concern expressed by commenters about the 

technical specifications for ALS in the 2004 

ADAAG. 

Some commenters from trade associations 

and large venue owners criticized the 

scoping requirements as too onerous, and one 

commenter asked for a remand to the Access 

Board for new scoping rules. However, one 

State agency commented that the 2004 

ADAAG largely duplicates the requirements 

in the 2006 IBC and the 2003 ANSI codes, 

which means that entities that comply with 

those standards would not incur additional 

costs associated with ADA compliance. 

According to one State office of the courts, 

the costs to install either an infrared system 

or an FM system at average-sized facilities, 

including most courtrooms covered by title 

II, would be between $500 and $2,000, which 

the agency viewed as a small price in 

comparison to the benefits of inclusion. 

Advocacy organizations estimated wholesale 

costs of ALS systems at about $250 each, and 

individual neckloops to link the signal from 

the ALS transmitter to hearing aids or 

cochlear implants at less than $50 per unit. 

Many commenters pointed out that if a 

facility already is using induction neckloops, 

it would already be in compliance already 

and would not have any additional 

installation costs. One major city commented 

that annual maintenance is about $2,000 for 

the entire system of performance venues in 

the city. A trade association representing 

very large venues estimated annual 

maintenance and upkeep expenses, including 

labor and replacement parts, to be at most 

about $25,000 for a very large professional 

sports stadium. 

One commenter suggested that the scoping 

requirements for ALS in the 2004 ADAAG 

were too stringent and that the Department 

should refer them back to the Access Board 

for further review and consideration. Others 

commented that the requirement for new 

ALS systems should mandate multichannel 

receivers capable of receiving audio 

description for persons who are blind, in 

addition to a channel for amplification for 

persons who are hard of hearing. Some 

commenters suggested that the Department 

should require a set schedule and protocol of 

mandatory maintenance. Department 

regulations already require maintenance of 

accessible features at § 36.211(a) of the title 

III regulation, which obligates a title III entity 

to maintain ALS in good working order. The 

Department recognizes that maintenance of 

ALS is key to its usability. Necessary 

maintenance will vary dramatically from 

venue to venue based upon a variety of 

factors including frequency of use, number of 

units, quality of equipment, and other items. 

Accordingly, the Department has determined 

that it is not appropriate to mandate details 

of maintenance, but notes that failure to 

maintain ALS would violate § 36.211(a) of 

this rule. 

The NPRM asked whether the Department 

should return the issue of ALS requirements 

to the Access Board for further review. The 

Department has received substantial feedback 

on the technical and scoping requirements 

for ALS and is convinced that these 

requirements are reasonable—especially in 

light of the fact that the requirements largely 

duplicate those in the 2006 IBC and the 2003 

ANSI codes already adopted in many 

States—and that the benefits justify the 

requirements. In addition, the Department 

believes that the new specifications will 

make ALS work more effectively for more 

persons with disabilities, which, together 

with a growing population of new users, will 

increase demand for ALS, thus mooting 

criticism from some large venue operators 

about insufficient demand. Thus, the 

Department has determined that it is 

unnecessary to refer this issue back to the 

Access Board for reconsideration. 

Accessible teeing grounds, putting greens, 

and weather shelters. The Department’s 

NPRM sought public input on the proposed 

requirements for accessible golf courses. 

These requirements specifically relate to 

accessible routes within the boundaries of 

the courses, as well as the accessibility of 

golfing elements (e.g., teeing grounds, putting 

greens, weather shelters). 

In the NPRM, the Department sought 

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, and, if so, whether they 

intended to avail themselves of the proposed 

accessible route exception for golf car 

passages. 73 FR 34508, 34513 (June 17, 2008). 

Most commenters expressed support for 

the adoption of an accessible route 

requirement that includes an exception 

permitting golf car passage as all or part of 

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an accessible route. Comments in favor of the 

proposed standard came from golf course 

owners and operators, individuals, 

organizations, and disability rights groups, 

while comments opposing adoption of the 

golf course requirements generally came from 

golf courses and organizations representing 

the golf course industry. 

The majority of commenters expressed the 

general viewpoint that nearly all golf courses 

provide golf cars and have either welldefined paths or permit golf cars to drive on 

the course where paths are not present—and 

thus meet the accessible route requirement. 

Several commenters disagreed with the 

assumption in the Initial RIA that virtually 

every tee and putting green on an existing 

course would need to be regraded in order to 

provide compliant accessible routes. 

According to one commenter, many golf 

courses are relatively flat with little slope, 

especially those heavily used by recreational 

golfers. This commenter concurred with the 

Department that it is likely that most existing 

golf courses have a golf car passage to tees 

and greens, thereby substantially minimizing 

the cost of bringing an existing golf course 

into compliance with the proposed 

standards. One commenter reported that golf 

course access audits found that the vast 

majority of public golf courses would have 

little difficulty in meeting the proposed golf 

course requirements. In the view of some 

commenters, providing access to golf courses 

would increase golf participation by 

individuals with disabilities. 

The Department also received many 

comments requesting clarification of the term 

‘‘golf car passage.’’ For example, one 

commenter requesting clarification of the 

term ‘‘golf car passage’’ argued that golf 

courses typically do not provide golf car 

paths or pedestrian paths onto the actual 

teeing grounds or greens, many of which are 

higher or lower than the car path. This 

commenter argued that if golf car passages 

were required to extend onto teeing grounds 

and greens in order to qualify for an 

exception, then some golf courses would 

have to substantially regrade teeing grounds 

and greens at a high cost. 

After careful consideration of the 

comments, the Department has decided to 

adopt the 2010 Standards specific to golf 

facilities. The Department believes that in 

order for individuals with mobility 

disabilities to have an opportunity to play 

golf that is equal to golfers without 

disabilities, it is essential that golf courses 

provide an accessible route or accessible golf 

car passage to connect accessible elements 

and spaces within the boundary of the golf 

course, including teeing grounds, putting 

greens, and weather shelters. 

Public Comments on Other NPRM Issues 

Equipment and furniture. Equipment and 

furniture are covered under the Department’s 

ADA regulations, including under the 

provision requiring modifications in policies, 

practices, and procedures and the provision 

requiring barrier removal. See 28 CFR 36.302, 

36.304. The Department has not issued 

specific regulatory guidance on equipment 

and furniture, but proposed such regulations 

in 1991. The Department decided not to 

establish specific equipment requirements at 

that time because the requirements could be 

addressed under other sections of the 

regulation and because there were no 

appropriate accessibility standards 

applicable to many types of equipment at 

that time. See 28 CFR part 36, app. B (2009) 

(‘‘Proposed Section 36.309 Purchase of 

Furniture and Equipment’’). 

In the NPRM, the Department announced 

its intention not to regulate equipment, 

proposing instead to continue with the 

current approach. The Department received 

numerous comments objecting to this 

decision and urging the Department to issue 

equipment and furniture regulations. Based 

on these comments, the Department has 

decided that it needs to revisit the issuance 

of equipment and furniture regulations, and 

it intends to do so in future rulemaking. 

Among the commenters’ key concerns, 

many from the disability community objected 

to the Department’s earlier decision not to 

issue equipment regulations, especially for 

medical equipment. These groups 

recommended that the Department list by 

name certain types of medical equipment 

that must be accessible, including exam 

tables (that lower to 15 inches above the floor 

or lower), scales, medical and dental chairs, 

and radiologic equipment (including 

mammography equipment). These 

commenters emphasized that the provision of 

medically-related equipment and furniture 

also should be specifically regulated since 

they are not included in the 2004 ADAAG 

(while depositories, change machines, fuel 

dispensers, and ATMs are) and because of 

their crucial role in the provision of 

healthcare. Commenters described how the 

lack of accessible medical equipment 

negatively affects the health of individuals 

with disabilities. For example, some 

individuals with mobility disabilities do not 

get thorough medical care because their 

health providers do not have accessible 

examination tables or scales. 

Commenters also said that the 

Department’s stated plan to assess the 

financial impact of free-standing equipment 

on businesses was not necessary, as any 

regulations could include a financialbalancing test. Other commenters 

representing persons who are blind or have 

low vision urged the Department to mandate 

accessibility for a wide range of equipment— 

including household appliances (stoves, 

washers, microwaves, and coffee makers), 

audiovisual equipment (stereos and DVD 

players), exercise machines, vending 

equipment, ATMs, computers at Internet 

cafes or hotel business centers, reservations 

kiosks at hotels, and point-of-sale devices— 

through speech output and tactile labels and 

controls. They argued that modern 

technology allows such equipment to be 

made accessible at minimal cost. According 

to these commenters, the lack of such 

accessibility in point-of-sale devices is 

particularly problematic because it forces 

blind individuals to provide personal or 

sensitive information (such as personal 

identification numbers) to third parties, 

which exposes them to identity fraud. 

Because the ADA does not apply directly to 

the manufacture of products, the Department 

lacks the authority to issue design 

requirements for equipment designed 

exclusively for use in private homes. See 

Department of Justice, Americans with 

Disabilities Act, ADA Title III Technical 

Assistance Manual Covering Public 

Accommodations and Commercial Facilities, 

III–4.4200, available at 

http://www.ada.gov/taman3.html. To the 

extent that equipment intended for such use 

is used by a covered entity to facilitate a 

covered service or activity, that covered 

entity must make the equipment accessible to 

the extent that it can. See id.: 28 CFR part 

36, app. B (2009) (‘‘Proposed Section 36.309 

Purchase of Furniture and Equipment’’). 

Some commenters urged the Department to 

require swimming pool operators to provide 

aquatic wheelchairs for the use of persons 

with disabilities when the swimming pool 

has a sloped entry. If there is a sloped entry, 

a person who uses a wheelchair would 

require a wheelchair designed for use in the 

water in order to gain access to the pool since 

taking a personal wheelchair into water 

would rust and corrode the metal on the 

chair and damage any electrical components 

of a power wheelchair. Providing an aquatic 

wheelchair made of non-corrosive materials 

and designed for access into the water will 

protect the water from contamination and 

avoid damage to personal wheelchairs or 

other mobility aids. 

Additionally, many commenters urged the 

Department to regulate the height of beds in 

accessible hotel guest rooms and to ensure 

that such beds have clearance at the floor to 

accommodate a mechanical lift. These 

commenters noted that in recent years, hotel 

beds have become higher as hotels use 

thicker mattresses, thereby making it difficult 

or impossible for many individuals who use 

wheelchairs to transfer onto hotel beds. In 

addition, many hotel beds use a solid-sided 

platform base with no clearance at the floor, 

which prevents the use of a portable lift to 

transfer an individual onto the bed. 

Consequently, individuals who bring their 

own lift to transfer onto the bed cannot 

independently get themselves onto the bed. 

Some commenters suggested various design 

options that might avoid these situations. 

The Department intends to provide specific 

guidance relating to both hotel beds and 

aquatic wheelchairs in a future rulemaking. 

For the present, the Department reminds 

covered entities that they have the obligation 

to undertake reasonable modifications to 

their current policies and procedures and to 

undertake barrier removal or provide 

alternatives to barrier removal to make their 

facilities accessible to persons with 

disabilities. In many cases, providing aquatic 

wheelchairs or adjusting hotel bed heights 

may be necessary to comply with those 

requirements. 

Commenters from the business community 

objected to the lack of clarity from the NPRM 

as to which equipment must be accessible 

and how to make it accessible. Several 

commenters urged the Department to clarify 

that equipment located in a public 

accommodation need not meet the technical 

specifications of ADAAG so long as the 

service provided by the equipment can be 

provided by alternative means, such as an 

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employee. For example, the commenters 

suggested that a self-service check-in kiosk in 

a hotel need not comply with the reach range 

requirement so long as a guest can check in 

at the front desk nearby. Several commenters 

argued that the Department should not 

require that point-of-sale devices be 

accessible to individuals who are blind or 

have low vision (although complying with 

accessible route and reach range was 

acceptable), especially until the Department 

adopts specific standards governing such 

access. 

The Department has decided not to add 

specific scoping or technical requirements for 

equipment and furniture in this final rule. 

Other provisions of the regulation, including 

those requiring reasonable modifications of 

policies, practices, or procedures, readily 

achievable barrier removal, and effective 

communication will require the provision of 

accessible equipment in appropriate 

circumstances. Because it is clear that many 

commenters want the Department to provide 

additional specific requirements for 

accessible equipment, the Department plans 

to initiate a rulemaking to address these 

issues in the near future. 

Accessible golf cars. An accessible golf car 

means a device that is designed and 

manufactured to be driven on all areas of a 

golf course, is independently usable by 

individuals with mobility disabilities, has a 

hand-operated brake and accelerator, carries 

golf clubs in an accessible location, and has 

a seat that both swivels and raises to put the 

golfer in a standing or semi-standing 

position. The 1991 regulation contained no 

language specifically referencing accessible 

golf cars. After considering the comments 

addressing the ANPRM’s proposed 

requirement that golf courses make at least 

one specialized golf car available for the use 

of individuals with disabilities, and the 

safety of accessible golf cars and their use on 

golf course greens, the Department stated in 

the NPRM that it would not issue regulations 

specific to golf cars. 

The Department received many comments 

in response to its decision to propose no new 

regulation specific to accessible golf cars. The 

majority of commenters urged the 

Department to require golf courses to provide 

accessible golf cars. These comments came 

from individuals, disability advocacy and 

recreation groups, a manufacturer of 

accessible golf cars, and representatives of 

local government. Comments supporting the 

Department’s decision not to propose a new 

regulation came from golf course owners, 

associations, and individuals. 

Many commenters argued that while the 

existing title III regulation covered the issue, 

the Department should nonetheless adopt 

specific regulatory language requiring golf 

courses to provide accessible golf cars. Some 

commenters noted that many local 

governments and park authorities that 

operate public golf courses have already 

provided accessible golf cars. Experience 

indicates that such golf cars may be used 

without damaging courses. Some argued that 

having accessible golf cars would increase 

golf course revenue by enabling more golfers 

with disabilities to play the game. Several 

commenters requested that the Department 

adopt a regulation specifically requiring each 

golf course to provide one or more accessible 

golf cars. Other commenters recommended 

allowing golf courses to make ‘‘pooling’’ 

arrangements to meet demands for such cars. 

A few commenters expressed support for 

using accessible golf cars to accommodate 

golfers with and without disabilities. 

Commenters also pointed out that the 

Departments of the Interior and Defense have 

already mandated that golf courses under 

their jurisdictional control must make 

accessible golf cars available unless it can be 

demonstrated that doing so would change the 

fundamental nature of the game. 

While an industry association argued that 

at least two models of accessible golf cars 

meet the specifications recognized in the 

field, and that accessible golf cars cause no 

more damage to greens or other parts of golf 

courses than players standing or walking 

across the course, other commenters 

expressed concerns about the potential for 

damage associated with the use of accessible 

golf cars. Citing safety concerns, golf 

organizations recommended that an industry 

safety standard be developed. 

Although the Department declines to add 

specific scoping or technical requirements for 

golf cars to this final rule, the Department 

expects to address requirements for 

accessible golf cars in future rulemaking. In 

the meantime, the Department believes that 

golfers with disabilities who need accessible 

golf cars are protected by other existing 

provisions in the title III regulation, 

including those requiring reasonable 

modifications of policies, practices, or 

procedures, and readily achievable barrier 

removal. 

Web site accessibility. Many commenters 

expressed disappointment that the NPRM did 

not specifically require title III-covered 

entities to make their Web sites, through 

which they offer goods and services, 

accessible to individuals with disabilities. 

Commenters urged the Department to require 

specifically that entities that provide goods 

or services on the Internet make their Web 

sites accessible, regardless of whether or not 

these entities also have a ‘‘bricks and mortar’’ 

location. The commenters explained that 

such clarification was needed because of the 

current ambiguity caused by court decisions 

as to whether web-only businesses are 

covered under title III. Commenters argued 

that the cost of making Web sites accessible 

through Web site design is minimal, yet 

critical, to enabling individuals with 

disabilities to benefit from the goods and 

services an entity offers through its Web site. 

The Internet has become an essential tool for 

many Americans and, when accessible, 

provides individuals with disabilities great 

independence. Commenters recommended 

that, at a minimum, the Department require 

covered entities to meet the Electronic and 

Information Technology Accessibility 

Standards issued pursuant to section 508. 

Under section 508 of the Rehabilitation Act 

of 1973, Federal agencies are required to 

make their Web sites accessible. 29 U.S.C. 

794(d); 36 CFR Part 1194. 

The Department agrees that the ability to 

access the goods and services offered on the 

Internet through the Web sites of public 

accommodations is of great importance to 

individuals with disabilities, particularly 

those who are blind or who have low vision. 

When the ADA was enacted in 1990, the 

Internet was unknown to most of the public. 

Today, the Internet plays a critical role in 

daily life for personal, civic, commercial, and 

business purposes. In light of the growing 

importance of eBcommerce, ensuring 

nondiscriminatory access to the goods and 

services offered through the Web sites of 

covered entities can play a significant role in 

fulfilling the goals of the ADA. 

Although the language of the ADA does not 

explicitly mention the Internet, the 

Department has taken the position that title 

III covers access to Web sites of public 

accommodations. The Department has issued 

guidance on the ADA as applied to the Web 

sites of public entities, which includes the 

availability of standards for Web site 

accessibility. See Accessibility of State and 

Local Government Websites to People with 

Disabilities (June 2003), available at 

www.ada.gov/websites2.htm. As the 

Department stated in that publication, an 

agency (and similarly a public 

accommodation) with an inaccessible Web 

site also may meet its legal obligations by 

providing an accessible alternative for 

individuals to enjoy its goods or services, 

such as a staffed telephone information line. 

However, such an alternative must provide 

an equal degree of access in terms of hours 

of operation and range of options and 

programs available. For example, if retail 

goods or bank services are posted on an 

inaccessible Web site that is available 24 

hours a day, 7 days a week to individuals 

without disabilities, then the alternative 

accessible method must also be available 24 

hours a day, 7 days a week. Additional 

guidance is available in the Web Content 

Accessibility Guidelines (WCAG), available 

at http://www.w3.org/TR/WAIWEBCONTENT (last visited June 24, 2010), 

which are developed and maintained by the 

Web Accessibility Initiative, a subgroup of 

the World Wide Web Consortium (W3C®). 

The Department did not issue proposed 

regulations as part of its NPRM, and thus is 

unable to issue specific regulatory language 

on Web site accessibility at this time. 

However, the Department expects to engage 

in rulemaking relating to Web site 

accessibility under the ADA in the near 

future. 

Multiple chemical sensitivities. The 

Department received comments from a 

number of individuals asking the Department 

to add specific language to the final rule 

addressing the needs of individuals with 

chemical sensitivities. These commenters 

expressed concern that the presence of 

chemicals interferes with their ability to 

participate in a wide range of activities. 

These commenters also urged the Department 

to add multiple chemical sensitivities to the 

definition of a disability. 

The Department has determined not to 

include specific provisions addressing 

multiple chemical sensitivities in the final 

rule. In order to be viewed as a disability 

under the ADA, an impairment must 

substantially limit one or more major life 

activities. An individual’s major life 

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activities of respiratory or neurological 

functioning may be substantially limited by 

allergies or sensitivity to a degree that he or 

she is a person with a disability. When a 

person has this type of disability, a covered 

entity may have to make reasonable 

modifications in its policies and practices for 

that person. However, this determination is 

an individual assessment and must be made 

on a case-by-case basis. 

■ 22. Redesignate Appendix B to part 36 

as Appendix C to part 36 and add 

Appendix B to part 36 to read as 

follows: 

Appendix B to Part 36—Analysis and 

Commentary on the 2010 ADA 

Standards for Accessible Design 

Appendix B to Part 36 

Analysis and Commentary on the 2010 ADA 

Standards for Accessible Design 

The following is a discussion of 

substantive changes in the scoping and 

technical requirements for new construction 

and alterations resulting from the adoption of 

new ADA Standards for Accessible Design 

(2010 Standards) in the final rules for title II 

(28 CFR part 35) and title III (28 CFR part 36) 

of the Americans with Disabilities Act 

(ADA). The full text of the 2010 Standards is 

available for review at http://www.ada.gov. 

In the Department’s revised ADA title II 

regulation, 28 CFR 35.104 Definitions, the 

Department defines the term ‘‘2010 

Standards’’ to mean the 2010 ADA Standards 

for Accessible Design. The 2010 Standards 

consist of the 2004 ADA Accessibility 

Guidelines (ADAAG) and the requirements 

contained in 28 CFR 35.151. 

In the Department’s revised ADA title III 

regulation, 28 CFR 36.104 Definitions, the 

Department defines the term ‘‘2010 

Standards’’ to mean the 2010 ADA Standards 

for Accessible Design. The 2010 Standards 

consist of the 2004 ADA Accessibility 

Guidelines (ADAAG) and the requirements 

contained in 28 CFR part 36 subpart D. 

This summary addresses selected 

substantive changes between the 1991 ADA 

Standards for Accessible Design (1991 

Standards) codified at 28 CFR part 36, app. 

A (2009) and the 2010 Standards. 

Editorial changes are not discussed. 

Scoping and technical requirements are 

discussed together, where appropriate, for 

ease of understanding the requirements. In 

addition, this document addresses selected 

public comments received by the Department 

in response to its September 2004 Advance 

Notice of Proposed Rulemaking (ANPRM) 

and its June 2008 Notice of Proposed 

Rulemaking (NPRM). 

The ANPRM and NPRM issued by the 

Department concerning the proposed 2010 

Standards stated that comments received by 

the Access Board in response to its 

development of the ADAAG upon which the 

2010 Standards are based would be 

considered in the development of the final 

Standards. Therefore, the Department will 

not restate here all of the comments and 

responses to them issued by the Access 

Board. The Department is supplementing the 

Access Board’s comments and responses 

with substantive comments and responses 

here. Comments and responses addressed by 

the Access Board that also were separately 

submitted to the Department will not be 

restated in their entirety here. 

Section-by-Section Analysis With Public 

Comments 

Application and Administration 

102 Dimensions for Adults and Children 

Section 2.1 of the 1991 Standards stated 

that the specifications were based upon adult 

dimensions and anthropometrics. The 1991 

Standards did not provide specific 

requirements for children’s elements or 

facilities. 

Section 102 of the 2010 Standards states 

that the technical requirements are based on 

adult dimensions and anthropometrics. In 

addition, technical requirements are also 

provided based on children’s dimensions and 

anthropometrics for drinking fountains, 

water closets and other elements located in 

toilet compartments, lavatories and sinks, 

dining surfaces, and work surfaces. 

103 Equivalent Facilitation 

This section acknowledges that nothing in 

these requirements prevents the use of 

designs, products, or technologies as 

alternatives to those prescribed, provided 

that the alternatives result in substantially 

equivalent or greater accessibility and 

usability. 

A commenter encouraged the Department 

to include a procedure for determining 

equivalent facilitation. The Department 

believes that the responsibility for 

determining and demonstrating equivalent 

facilitation properly rests with the covered 

entity. The purpose of allowing for 

equivalent facilitation is to encourage 

flexibility and innovation while still ensuring 

access. The Department believes that 

establishing potentially cumbersome 

bureaucratic provisions for reviewing 

requests for equivalent facilitation is 

inappropriate. 

104 Conventions 

Dimensions. Section 104.1 of the 2010 

Standards notes that dimensions not stated as 

a ‘‘maximum’’ or ‘‘minimum’’ are absolute. 

Section 104.1.1 of the 2010 Standards 

provides that all dimensions are subject to 

conventional industry tolerances except 

where the requirement is stated as a range 

with specific minimum and maximum end 

points. A commenter stated that the 2010 

Standards restrict the application of 

construction tolerances only to those few 

requirements that are expressed as an 

absolute dimension. 

This is an incorrect interpretation of 

sections 104.1 and 104.1.1 of the 2010 

Standards. Construction and manufacturing 

tolerances apply to absolute dimensions as 

well as to dimensions expressed as a 

maximum or minimum. When the 

requirement states a specified range, such as 

in section 609.4 where grab bars must be 

installed between 33 inches and 36 inches 

above the finished floor, that range provides 

an adequate tolerance. Advisory 104.1.1 gives 

further guidance about tolerances. 

Section 104.2 of the 2010 Standards 

provides that where the required number of 

elements or facilities to be provided is 

determined by calculations of ratios or 

percentages and remainders or fractions 

result, the next greater whole number of such 

elements or facilities shall be provided. 

Where the determination of the required size 

or dimension of an element or facility 

involves ratios or percentages, rounding 

down for values less than one-half is 

permissible. 

A commenter stated that it is customary in 

the building code industry to round up rather 

than down for values less than one-half. As 

noted here, where the 2010 Standards 

provide for scoping, any resulting fractional 

calculations will be rounded to the next 

whole number. The Department is retaining 

the portion of section 104.2 that permits 

rounding down for values less than one-half 

where the determination of the required size 

or dimension of an element or facility 

involves ratios or percentages. Such practice 

is standard with the industry, and is in 

keeping with model building codes. 

105 Referenced Standards 

Section 105 lists the industry requirements 

that are referenced in the 2010 Standards. 

This section also clarifies that where there is 

a difference between a provision of the 2010 

Standards and the referenced requirements, 

the provision of the 2010 Standards applies. 

106 Definitions 

Various definitions have been added to the 

2010 Standards and some definitions have 

been deleted. 

One commenter asked that the term public 

right-of-way be defined; others asked that 

various terms and words defined by the 1991 

Standards, but which were eliminated from 

the 2010 Standards, plus other words and 

terms used in the 2010 Standards, be defined. 

The Department believes that it is not 

necessary to add definitions to this text 

because section 106.3 of the 2010 Standards 

provides that the meanings of terms not 

specifically defined in the 2010 Standards, in 

the Department’s ADA regulations, or in 

referenced standards are to be defined by 

collegiate dictionaries in the sense that the 

context implies. The Department believes 

that this provision adequately addresses 

these commenters’ concerns. 

Scoping and Technical Requirements 

202 Existing Buildings and Facilities 

Alterations. Under section 4.1.6(1)(c) of the 

1991 Standards if alterations to single 

elements, when considered together, amount 

to an alteration of a room or space in a 

building or facility, the entire room or space 

would have to be made accessible. This 

requirement was interpreted to mean that if 

a covered entity chose to alter several 

elements in a room there would come a point 

when so much work had been done that it 

would be considered that the entire room or 

space would have to be made accessible. 

Under section 202.3 of the 2010 Standards 

entities can alter as many elements within a 

room or space as they like without triggering 

a requirement to make the entire room or 

space accessible based on the alteration of 

individual elements. This does not, however, 

change the requirement that if the intent was 

to alter the entire room or space, the entire 

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room or space must be made accessible and 

comply with the applicable requirements of 

Chapter 2 of the 2010 Standards. 

Alterations to Primary Function Areas. 

Section 202.4 restates a current requirement 

under title III, and therefore represents no 

change for title III facilities or for those title 

II facilities that have elected to comply with 

the 1991 Standards. However, under the 

revised title II regulation, state and local 

government facilities that have previously 

elected to comply with the Uniform Federal 

Accessibility Standards (UFAS) instead of 

the 1991 Standards will no longer have that 

option, and thus will now be subject to the 

path of travel requirement. The path of travel 

requirement provides that when a primary 

function area of an existing facility is altered, 

the path of travel to that area (including 

restrooms, telephones, and drinking 

fountains serving the area) must also be made 

accessible, but only to the extent that the cost 

of doing so does not exceed twenty percent 

(20%) of the cost of the alterations to the 

primary function area. The UFAS 

requirements for a substantial alteration, 

though different, may have covered some of 

the items that will now be covered by the 

path of travel requirement. 

Visible Alarms in Alterations to Existing 

Facilities. The 1991 Standards, at sections 

4.1.3(14) and 4.1.6(1)(b), and sections 202.3 

and 215.1 of the 2010 Standards require that 

when existing elements and spaces of a 

facility are altered, the alterations must 

comply with new construction requirements. 

Section 215.1 of the 2010 Standards adds a 

new exception to the scoping requirement for 

visible alarms in existing facilities so that 

visible alarms must be installed only when 

an existing fire alarm system is upgraded or 

replaced, or a new fire alarm system is 

installed. 

Some commenters urged the Department 

not to include the exception and to make 

visible alarms a mandatory requirement for 

all spaces, both existing and new. Other 

commenters said that the exception will 

make the safety of individuals with 

disabilities dependent upon the varying age 

of existing fire alarm systems. Other 

commenters suggested that including this 

requirement, even with the exception, will 

result in significant cost to building owners 

and operators. 

The Department believes that the language 

of the exception to section 215.1 of the 2010 

Standards strikes a reasonable balance 

between the interests of individuals with 

disabilities and those of the business 

community. If undertaken at the time a 

system is installed, whether in a new facility 

or in a planned system upgrade, the cost of 

adding visible alarms is reasonable. Over 

time, existing facilities will become fully 

accessible to individuals who are deaf or 

hard of hearing, and will add minimal costs 

to owners and operators. 

203 General Exceptions 

Limited Access Spaces and Machinery 

Spaces. The 1991 Standards, at section 4.1.1, 

contain an exception that exempts ‘‘nonoccupiable’’ spaces that have limited means 

of access, such as ladders or very narrow 

passageways, and that are visited only by 

service personnel for maintenance, repair, or 

occasional monitoring of equipment, from all 

accessibility requirements. Sections 203.4 

and 203.5 of the 2010 Standards expand this 

exception by removing the condition that the 

exempt spaces be ‘‘non-occupiable,’’ and by 

separating the other conditions into two 

independent exceptions: one for spaces with 

limited means of access, and the other for 

machinery spaces. More spaces are exempted 

by the exception in the 2010 Standards. 

203, 206 and 215 Employee Work Areas 

Common Use Circulation Paths in 

Employee Work Areas. The 1991 Standards at 

section 4.1.1(3), and the 2010 Standards at 

section 203.9, require employee work areas 

in new construction and alterations only to 

be designed and constructed so that 

individuals with disabilities can approach, 

enter, and exit the areas. Section 206.2.8 of 

the 2010 Standards requires accessible 

common use circulation paths within 

employee work areas unless they are subject 

to exceptions in sections 206.2.8, 403.5, 

405.5, and 405.8. The ADA, 42 U.S.C. 12112 

(b)(5)(A) and (B), requires employers to make 

reasonable accommodations in the workplace 

for individuals with disabilities, which may 

include modifications to work areas when 

needed. Providing increased access in the 

facility at the time of construction or 

alteration will simplify the process of 

providing reasonable accommodations when 

they are needed. 

The requirement for accessible common 

use circulation paths will not apply to 

existing facilities pursuant to the readily 

achievable barrier removal requirement. The 

Department has consistently taken the 

position that barrier removal requirements do 

not apply to areas used exclusively by 

employees because the purpose of title III is 

to ensure that access is provided to clients 

and customers. See Appendix B to the 1991 

regulation implementing title III, 28 CFR part 

36. 

Several exceptions to section 206.2.8 of the 

2010 Standards exempt common use 

circulation paths in employee work areas 

from the requirements of section 402 where 

it may be difficult to comply with the 

technical requirements for accessible routes 

due to the size or function of the area: 

• Employee work areas, or portions of 

employee work areas, that are less than 300 

square feet and are elevated 7 inches or more 

above the ground or finish floor, where 

elevation is essential to the function of the 

space, are exempt. 

• Common use circulation paths within 

employee work areas that are less than 1,000 

square feet and are defined by permanently 

installed partitions, counters, casework, or 

furnishings are exempt. Kitchens in quick 

service restaurants, cocktail bars, and the 

employee side of service counters are 

frequently covered by this exception. 

• Common use circulation paths within 

exterior employee work areas that are fully 

exposed to the weather are exempt. Farms, 

ranches, and outdoor maintenance facilities 

are covered by this exception. 

The 2010 Standards in sections 403.5 and 

405.8 also contain exceptions to the technical 

requirements for accessible routes for 

circulation paths in employee work areas: 

• Machinery and equipment are permitted 

to reduce the clear width of common use 

circulation paths where the reduction is 

essential to the function of the work 

performed. Machinery and equipment that 

must be placed a certain way to work 

properly, or for ergonomics or to prevent 

workplace injuries are covered by this 

exception. 

• Handrails are not required on ramps, 

provided that they can be added in the 

future. 

Commenters stated that the requirements 

set out in the 2010 Standards for accessible 

common use circulation paths in employee 

work areas are inappropriate, particularly in 

commercial kitchens, storerooms, and behind 

cocktail bars where wheelchairs would not 

be easily accommodated. These commenters 

further urged the Department not to adopt a 

requirement that circulation paths in 

employee work areas be at least 36 inches 

wide, including those at emergency exits. 

These commenters misunderstand the 

scope of the provision. Nothing in the 2010 

Standards requires all circulation paths in 

non-exempt areas to be accessible. The 

Department recognizes that building codes 

and fire and life safety codes, which are 

adopted by all of the states, require primary 

circulation paths in facilities, including 

employee work areas, to be at least 36 inches 

wide for purposes of emergency egress. 

Accessible routes also are at least 36 inches 

wide. Therefore, the Department anticipates 

that covered entities will be able to satisfy 

the requirement to provide accessible 

circulation paths by ensuring that their 

required primary circulation paths are 

accessible. 

Individual employee work stations, such as 

a grocery checkout counter or an automobile 

service bay designed for use by one person, 

do not contain common use circulation paths 

and are not required to comply. Other work 

areas, such as stockrooms that typically have 

narrow pathways between shelves, would be 

required to design only one accessible 

circulation path into the stockroom. It would 

not be necessary to make each circulation 

path in the room accessible. In alterations it 

may be technically infeasible to provide 

accessible common use circulation paths in 

some employee work areas. For example, in 

a stock room of a department store significant 

existing physical constraints, such as having 

to move walls to avoid the loss of space to 

store inventory, may mean that it is 

technically infeasible (see section 106.5 

‘‘Defined Terms’’ of the 2010 Standards) to 

make even the primary common use 

circulation path in that stock room wide 

enough to be accessible. In addition, the 2010 

Standards include exceptions for common 

use circulation paths in employee work areas 

where it may be difficult to comply with the 

technical requirements for accessible routes 

due to the size or function of the areas. The 

Department believes that these exceptions 

will provide the flexibility necessary to 

ensure that this requirement does not 

interfere with legitimate business operations. 

Visible Alarms. Section 215.3 of the 2010 

Standards provides that where employee 

work areas in newly constructed facilities 

have audible alarm coverage they are 

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required to have wiring systems that are 

capable of supporting visible alarms that 

comply with section 702 of the 2010 

Standards. The 1991 Standards, at section 

4.1.1(3), require visible alarms to be provided 

where audible fire alarm systems are 

provided, but do not require areas used only 

by employees as work areas to be equipped 

with accessibility features. As applied to 

office buildings, the 1991 Standards require 

visible alarms to be provided in public and 

common use areas such as hallways, 

conference rooms, break rooms, and 

restrooms, where audible fire alarm systems 

are provided. 

Commenters asserted that the requirements 

of section 215.3 of the 2010 Standards would 

be burdensome to meet. These commenters 

also raised concerns that all employee work 

areas within existing buildings and facilities 

must be equipped with accessibility features. 

The commenters’ concerns about section 

215.3 of the 2010 Standards represent a 

misunderstanding of the requirements 

applicable to employee work areas. 

Newly constructed buildings and facilities 

merely are required to provide wiring so that 

visible alarm systems can be added as needed 

to accommodate employees who are deaf or 

hard of hearing. This is a minimal 

requirement without significant impact. 

The other issue in the comments represents 

a misunderstanding of the Department’s 

existing regulatory requirements. Employee 

common use areas in covered facilities (e.g., 

locker rooms, break rooms, cafeterias, toilet 

rooms, corridors to exits, and other common 

use spaces) were required to be accessible 

under the 1991 Standards; areas in which 

employees actually perform their jobs are 

required to enable a person using a 

wheelchair or mobility device to approach, 

enter, and exit the area. The 2010 Standards 

require increased access through the 

accessible common use circulation path 

requirement, but neither the 1991 Standards 

nor the 2010 Standards require employee 

work stations to be accessible. Access to 

specific employee work stations is governed 

by title I of the ADA. 

205 and 309 Operable Parts 

Section 4.1.3, and more specifically 

sections 4.1.3(13), 4.27.3, and 4.27.4 of the 

1991 Standards, require operable parts on 

accessible elements, along accessible routes, 

and in accessible rooms and spaces to 

comply with the technical requirements for 

operable parts, including height and 

operation. The 1991 Standards, at section 

4.27.3, contain an exception, ‘‘* * * where 

the use of special equipment dictates 

otherwise or where electrical and 

communications systems receptacles are not 

normally intended for use by building 

occupants,’’ from the technical requirement 

for the height of operable parts. Section 205.1 

of the 2010 Standards divides this exception 

into three exceptions covering operable parts 

intended only for use by service or 

maintenance personnel, electrical or 

communication receptacles serving a 

dedicated use, and floor electrical 

receptacles. Operable parts covered by these 

new exceptions are exempt from all of the 

technical requirements for operable parts in 

section 309. The 2010 Standards also add 

exceptions that exempt certain outlets at 

kitchen counters; heating, ventilating and air 

conditioning diffusers; redundant controls 

provided for a single element, other than 

light switches; and exercise machines and 

equipment from all of the technical 

requirements for operable parts. Exception 7, 

in section 205.1 of the 2010 Standards, 

exempts cleats and other boat securement 

devices from the accessible height 

requirement. Similarly, section 309.4 of the 

2010 Standards exempts gas pump nozzles, 

but only from the technical requirement for 

activating force. 

Reach Ranges. The 1991 Standards set the 

maximum height for side reach at 54 inches 

above the floor. The 2010 Standards, at 

section 308.3, lower that maximum height to 

48 inches above the finish floor or ground. 

The 2010 Standards also add exceptions, as 

discussed above, to the scoping requirement 

for operable parts for certain elements that, 

among other things, will exempt them from 

the reach range requirements in section 308. 

The 1991 Standards, at sections 4.1.3, 

4.27.3, and 4.2.6, and the 2010 Standards, at 

sections 205.1, 228.1, 228.2, 308.3, and 309.3, 

require operable parts of accessible elements, 

along accessible routes, and in accessible 

rooms and spaces to be placed within the 

forward or side-reach ranges specified in 

section 308. The 2010 Standards also require 

at least five percent (5%) of mailboxes 

provided in an interior location and at least 

one of each type of depository, vending 

machine, change machine, and gas pump to 

meet the technical requirements for a forward 

or a side reach. 

Section 4.2.6 of the 1991 Standards 

specifies a maximum 54-inch high side reach 

and a minimum 9-inch low side reach for an 

unobstructed reach depth of 10 inches 

maximum. Section 308.3.1 of the 2010 

Standards specifies a maximum 48-inch high 

side reach and a minimum 15-inch low side 

reach where the element being reached for is 

unobstructed. Section 308.3.1, Exception 1, 

permits an obstruction that is no deeper than 

10 inches between the edge of the clear floor 

or ground space and the element that the 

individual with a disability is trying to reach. 

Changes in the side-reach range for new 

construction and alterations in the 2010 

Standards will affect a variety of building 

elements such as light switches, electrical 

outlets, thermostats, fire alarm pull stations, 

card readers, and keypads. 

Commenters were divided in their views 

about the changes to the unobstructed sidereach range. Disability advocacy groups and 

others, including individuals of short stature, 

supported the modifications to the proposed 

reach range requirements. Other commenters 

stated that the new reach range requirements 

will be burdensome for small businesses to 

comply with. These comments argued that 

the new reach range requirements restrict 

design options, especially in residential 

housing. 

The Department continues to believe that 

data submitted by advocacy groups and 

others provides compelling evidence that 

lowered reach range requirements will better 

serve significantly greater numbers of 

individuals with disabilities, including 

individuals of short stature, persons with 

limited upper body strength, and others with 

limited use of their arms and fingers. The 

change to the side-reach range was developed 

by the Access Board over a prolonged period 

in which there was extensive public 

participation. This process did not produce 

any significant data to indicate that applying 

the new unobstructed side-reach range 

requirement in new construction or during 

alterations would impose a significant 

burden. 

206 and Chapter 4 Accessible Routes 

Slope. The 2010 Standards provide, at 

section 403.3, that the cross slope of walking 

surfaces not be steeper than 1:48. The 1991 

Standards’ cross slope requirement was that 

it not exceed 1:50. A commenter 

recommended increasing the cross slope 

requirement to allow a maximum of 1⁄2 inch 

per foot (1:24) to prevent imperfections in 

concrete surfaces from ponding water. The 

Department continues to believe that the 

requirement that a cross slope not be steeper 

than 1:48 adequately provides for water 

drainage in most situations. The suggested 

changes would double the allowable cross 

slope and create a significant impediment for 

many wheelchair users and others with a 

mobility disability. 

Accessible Routes from Site Arrival Points 

and Within Sites. The 1991 Standards, at 

sections 4.1.2(1) and (2), and the 2010 

Standards, at sections 206.2.1 and 206.2.2, 

require that at least one accessible route be 

provided within the site from site arrival 

points to an accessible building entrance and 

that at least one accessible route connect 

accessible facilities on the same site. The 

2010 Standards also add two exceptions that 

exempt site arrival points and accessible 

facilities within a site from the accessible 

route requirements where the only means of 

access between them is a vehicular way that 

does not provide pedestrian access. 

Commenters urged the Department to 

eliminate the exception that exempts site 

arrival points and accessible facilities from 

the accessible route requirements where the 

only means of access between them is a 

vehicular way not providing pedestrian 

access. The Department declines to accept 

this recommendation because the 

Department believes that its use will be 

limited. If it can be reasonably anticipated 

that the route between the site arrival point 

and the accessible facilities will be used by 

pedestrians, regardless of whether a 

pedestrian route is provided, then this 

exception will not apply. It will apply only 

in the relatively rare situations where the 

route between the site arrival point and the 

accessible facility dictates vehicular access— 

for example, an office complex on an isolated 

site that has a private access road, or a selfservice storage facility where all users are 

expected to drive to their storage units. 

Another commenter suggested that the 

language of section 406.1 of the 2010 

Standards is confusing because it states that 

curb ramps on accessible routes shall comply 

with 406, 405.2 through 405.5, and 405.10. 

The 1991 Standards require that curb ramps 

be provided wherever an accessible route 

crosses a curb. 

The Department declines to change this 

language because the change is purely 

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editorial, resulting from the overall changes 

in the format of the 2010 Standards. It does 

not change the substantive requirement. In 

the 2010 Standards all elements on a 

required accessible route must be accessible; 

therefore, if the accessible route crosses a 

curb, a curb ramp must be provided. 

Areas of Sport Activity. Section 206.2.2 of 

the 2010 Standards requires at least one 

accessible route to connect accessible 

buildings, facilities, elements, and spaces on 

the same site. Advisory section 206.2.2 adds 

the explanation that an accessible route must 

connect the boundary of each area of sport 

activity (e.g., courts and playing fields, 

whether indoor or outdoor). Section 206.2.12 

of the 2010 Standards further requires that in 

court sports the accessible route must 

directly connect both sides of the court. 

Limited-Use/Limited-Application 

Elevators, Destination-Oriented Elevators and 

Private Residence Elevators. The 1991 

Standards, at section 4.1.3(5), and the 2010 

Standards, at sections 206.2 and 206.6, 

include exceptions to the scoping 

requirement for accessible routes that exempt 

certain facilities from connecting each story 

with an elevator. If a facility is exempt from 

the scoping requirement, but nonetheless 

installs an elevator, the 1991 Standards 

require the elevator to comply with the 

technical requirements for elevators. The 

2010 Standards add a new exception that 

allows a facility that is exempt from the 

scoping requirement to install a limited-use/ 

limited-application (LULA) elevator. LULA 

elevators are also permitted in the 1991 

Standards and the 2010 Standards as an 

alternative to platform lifts. The 2010 

Standards also add a new exception that 

permits private residence elevators in multistory dwelling and transient lodging units. 

The 2010 Standards contain technical 

requirements for LULA elevators at section 

408 and private residence elevators at section 

409. 

Section 407.2.1.4 of the 2010 Standards 

includes an exception to the technical 

requirements for locating elevator call 

buttons for destination-oriented elevators. 

The advisory at section 407.2.1.4 describes 

lobby controls for destination-oriented 

elevator systems. Many elevator 

manufacturers have recently developed these 

new ‘‘buttonless’’ elevator control systems. 

These new, more efficient elevators are 

usually found in high-rise buildings that 

have several elevators. They require 

passengers to enter their destination floor on 

an entry device, usually a keypad, in the 

elevator lobby. The system then sends the 

most efficient car available to take all of the 

passengers going to the sixth floor, for 

example, only to the sixth floor, without 

making stops at the third, fourth, and fifth 

floors on the way to the sixth floor. The 

challenge for individuals who are blind or 

have low vision is how to know which 

elevator car to enter, after they have entered 

their destination floor into the keypad. 

Commenters requested that the Department 

impose a moratorium on the installation of 

destination-oriented elevators arguing that 

this new technology presents wayfinding 

challenges for persons who are blind or have 

low vision. 

Section 407.2.1.5 of the 2010 Standards 

allows destination-oriented elevators to not 

provide call buttons with visible signals to 

indicate when each call is registered and 

when each call is answered provided that 

visible and audible signals, compliant with 

407.2.2 of the 2010 Standards, indicating 

which elevator car to enter, are provided. 

This will require the responding elevator car 

to automatically provide audible and visible 

communication so that the system will 

always verbally and visually indicate which 

elevator car to enter. 

As with any new technology, all users 

must have time to become acquainted with 

how to use destination-oriented elevators. 

The Department will monitor the use of this 

new technology and work with the Access 

Board so that there is not a decrease in 

accessibility as a result of permitting this 

new technology to be installed. 

Accessible Routes to Tiered Dining Areas 

in Sports Facilities. The 1991 Standards, at 

sections 4.1.3(1) and 5.4, and section 206.2.5 

of the 2010 Standards require an accessible 

route to be provided to all dining areas in 

new construction, including raised or sunken 

dining areas. The 2010 Standards add a new 

exception for tiered dining areas in sports 

facilities. Dining areas in sports facilities are 

typically integrated into the seating bowl and 

are tiered to provide adequate lines of sight 

for individuals with disabilities. The new 

exception requires accessible routes to be 

provided to at least 25 percent (25%) of the 

tiered dining areas in sports facilities. Each 

tier must have the same services and the 

accessible routes must serve the accessible 

seating. 

Accessible Routes to Press Boxes. The 1991 

Standards, at sections 4.1.1(1) and 4.1.3(1), 

cover all areas of newly constructed facilities 

required to be accessible, and require an 

accessible route to connect accessible 

entrances with all accessible spaces and 

elements within the facility. Section 201.1 of 

the 2010 Standards requires that all areas of 

newly designed and constructed buildings 

and facilities and altered portions of existing 

buildings and facilities be accessible. 

Sections 206.2.7(1) and (2) of the 2010 

Standards add two exceptions that exempt 

small press boxes that are located in 

bleachers with entrances on only one level, 

and small press boxes that are free-standing 

structures elevated 12 feet or more above 

grade, from the accessible route requirement 

when the aggregate area of all press boxes in 

a sports facility does not exceed 500 square 

feet. The Department anticipates that this 

change will significantly reduce the 

economic impact on smaller sports facilities, 

such as those associated with high schools or 

community colleges. 

Public Entrances. The 1991 Standards, at 

sections 4.1.3(8) and 4.1.6(1)(h), require at 

least fifty percent (50%) of public entrances 

to be accessible. Additionally, the 1991 

Standards require the number of accessible 

public entrances to be equivalent to the 

number of exits required by applicable 

building and fire codes. With very few 

exceptions, building and fire codes require at 

least two exits to be provided from spaces 

within a building and from the building 

itself. Therefore, under the 1991 Standards 

where two public entrances are planned in a 

newly constructed facility, both entrances are 

required to be accessible. 

Instead of requiring accessible entrances 

based on the number of public entrances 

provided or the number of exits required 

(whichever is greater), section 206.4.1 of the 

2010 Standards requires at least sixty percent 

(60%) of public entrances to be accessible. 

The revision is intended to achieve the same 

result as the 1991 Standards. Thus, under the 

2010 Standards where two public entrances 

are planned in a newly constructed facility, 

both entrances must be accessible. 

Where multiple public entrances are 

planned to serve different site arrival points, 

the 1991 Standards, at section 4.1.2(1), and 

section 206.2.1 of the 2010 Standards require 

at least one accessible route to be provided 

from each type of site arrival point provided, 

including accessible parking spaces, 

accessible passenger loading zones, public 

streets and sidewalks, and public 

transportation stops, to an accessible public 

entrance that serves the site arrival point. 

Commenters representing small businesses 

recommended retaining the 1991 

requirement for fifty percent (50%) of public 

entrances of covered entities to be accessible. 

These commenters also raised concerns about 

the impact upon existing facilities of the new 

sixty percent (60%) requirement. 

The Department believes that these 

commenters misunderstand the 1991 

Standards. As explained above, the 

requirements of the 1991 Standards generally 

require more than fifty percent (50%) of 

entrances in small facilities to be accessible. 

Model codes require that most buildings have 

more than one means of egress. Most 

buildings have more than one entrance, and 

the requirements of the 1991 Standards 

typically resulted in these buildings having 

more than one accessible entrance. Requiring 

at least sixty percent (60%) of public 

entrances to be accessible is not expected to 

result in a substantial increase in the number 

of accessible entrances compared to the 

requirements of the 1991 Standards. In some 

very large facilities this change may result in 

fewer accessible entrances being required by 

the 2010 Standards. However, the 

Department believes that the realities of good 

commercial design will result in more 

accessible entrances being provided for the 

convenience of all users. 

The 1991 Standards and the 2010 

Standards also contain exceptions that limit 

the number of accessible entrances required 

in alterations to existing facilities. When 

entrances to an existing facility are altered 

and the facility has an accessible entrance, 

the entrance being altered is not required to 

be accessible, unless a primary function area 

also is altered and then an accessible path of 

travel must be provided to the primary 

function area to the extent that the cost to do 

so is not disproportionate to the overall cost 

of the alteration. 

Alterations to Existing Elevators. When a 

single space or element is altered, the 1991 

Standards, at sections 4.1.6(1)(a) and (b), 

require the space or element to be made 

accessible. When an element in one elevator 

is altered, the 2010 Standards, at section 

206.6.1, require the same element to be 

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altered in all elevators that are programmed 

to respond to the same call button as the 

altered elevator. 

The 2010 Standards, at sections 407.2.1– 

407.4.7.1.2, also contain exceptions to the 

technical requirements for elevators when 

existing elevators are altered that minimize 

the impact of this change. 

Commenters expressed concerns about the 

requirement that when an element in one 

elevator is altered, the 2010 Standards, at 

section 206.6.1, will require the same 

element to be altered in all elevators that are 

programmed to respond to the same call 

button as the altered elevator. Commenters 

noted that such a requirement is burdensome 

and will result in costly efforts without 

significant benefit to individuals with 

disabilities. 

The Department believes that this 

requirement is necessary to ensure that when 

an individual with a disability presses a call 

button, an accessible elevator will arrive. 

Without this requirement, individuals with 

disabilities would have to wait unnecessarily 

for an accessible elevator to make its way to 

them arbitrarily. The Department also 

believes that the effort required to meet this 

provision is minimal in the majority of 

situations because it is typical to upgrade all 

of the elevators in a bank at the same time. 

Accessible Routes in Dwelling Units with 

Mobility Features. Sections 4.34.1 and 4.34.2 

of the UFAS require the living area, kitchen 

and dining area, bedroom, bathroom, and 

laundry area, where provided, in covered 

dwelling units with mobility features to be 

on an accessible route. Where covered 

dwelling units have two or more bedrooms, 

at least two bedrooms are required to be on 

an accessible route. 

The 2010 Standards at sections 233.3.1.1, 

809.1, 809.2, 809.2.1, and 809.4 will require 

all spaces and elements within dwelling 

units with mobility features to be on an 

accessible route. These changes exempt 

unfinished attics and unfinished basements 

from the accessible route requirement. 

Section 233.3.5 of the 2010 Standards also 

includes an exception to the dispersion 

requirement that permits accessible singlestory dwelling units to be constructed, where 

multi-story dwelling units are one of the 

types of units provided. 

Location of Accessible Routes. Section 

4.3.2(1) of the 1991 Standards requires 

accessible routes connecting site arrival 

points and accessible building entrances to 

coincide with general circulation paths, to 

the maximum extent feasible. The 2010 

Standards require all accessible routes to 

coincide with or be located in the same 

general area as general circulation paths. 

Additionally, a new provision specifies that 

where a circulation path is interior, the 

required accessible route must also be 

located in the interior of the facility. The 

change affects a limited number of buildings. 

Section 206.3 of the 2010 Standards requires 

all accessible routes to coincide with or be 

located in the same general area as general 

circulation paths. Designing newly 

constructed interior accessible routes to 

coincide with or to be located in the same 

area as general circulation paths will not 

typically present a difficult design challenge 

and is expected to impose limited design 

constraints. The change will have no impact 

on exterior accessible routes. The 1991 

Standards and the 2010 Standards also 

require accessible routes to be located in the 

interior of the facility where general 

circulation paths are located in the interior 

of the facility. The revision affects a limited 

number of buildings. 

Location of Accessible Routes to Stages. 

The 1991 Standards at section 4.33.5 require 

an accessible route to connect the accessible 

seating and the performing area. Section 

206.2.6 of the 2010 Standards requires the 

accessible route to directly connect the 

seating area and the accessible seating, stage, 

and all areas of the stage, where a circulation 

path directly connects the seating area and 

the stage. Both the 1991 Standards and the 

2010 Standards also require an accessible 

route to connect the stage and ancillary areas, 

such as dressing rooms, used by performers. 

The 2010 Standards do not require an 

additional accessible route to be provided to 

the stage. Rather, the changes specify where 

the accessible route to the stage, which is 

required by the 1991 Standards, must be 

located. 

207 Accessible Means of Egress 

General. The 1991 Standards at sections 

4.1.3(9); 4.1.6(1)(g); and 4.3.10 establish 

scoping and technical requirements for 

accessible means of egress. Section 207.1 of 

the 2010 Standards reference the 

International Building Code (IBC) for scoping 

and technical requirements for accessible 

means of egress. 

The 1991 Standards require the same 

number of accessible means of egress to be 

provided as the number of exits required by 

applicable building and fire codes. The IBC 

requires at least one accessible means of 

egress and at least two accessible means of 

egress where more than one means of egress 

is required by other sections of the building 

code. The changes in the 2010 Standards are 

expected to have minimal impact since the 

model fire and life safety codes, which are 

adopted by all of the states, contain 

equivalent requirements with respect to the 

number of accessible means of egress. 

The 1991 Standards require areas of rescue 

assistance or horizontal exits in facilities 

with levels above or below the level of exit 

discharge. Areas of rescue assistance are 

spaces that have direct access to an exit, stair, 

or enclosure where individuals who are 

unable to use stairs can go to call for 

assistance and wait for evacuation. The 2010 

Standards incorporate the requirements 

established by the IBC. The IBC requires an 

evacuation elevator designed with standby 

power and other safety features that can be 

used for emergency evacuation of individuals 

with disabilities in facilities with four or 

more stories above or below the exit 

discharge level, and allows exit stairways 

and evacuation elevators to be used as an 

accessible means of egress in conjunction 

with areas of refuge or horizontal exits. The 

change is expected to have minimal impact 

since the model fire and life safety codes, 

adopted by most states, already contain 

parallel requirements with respect to 

evacuation elevators. 

The 1991 Standards exempt facilities 

equipped with a supervised automatic 

sprinkler system from providing areas of 

rescue assistance, and also exempt alterations 

to existing facilities from providing an 

accessible means of egress. The IBC exempts 

buildings equipped with a supervised 

automatic sprinkler system from certain 

technical requirements for areas of refuge, 

and also exempts alterations to existing 

facilities from providing an accessible means 

of egress. 

The 1991 and 2010 Standards require signs 

that provide direction to or information about 

functional spaces to meet certain technical 

requirements. The 2010 Standards, at section 

216.4, address exit signs. This section is 

consistent with the requirements of the IBC. 

Signs used for means of egress are covered 

by this scoping requirement. The 

requirements in the 2010 Standards require 

tactile signs complying with sections 703.1, 

703.2 and 703.5 at doors at exit passageways, 

exit discharge, and at exit stairways. 

Directional exit signs and signs at areas of 

refuge required by section 216.4.3 must have 

visual characters and features complying 

with section 703.5. 

Standby Power for Platform Lifts. The 2010 

Standards at section 207.2 require standby 

power to be provided for platform lifts that 

are permitted to serve as part of an accessible 

means of egress by the IBC. The IBC permits 

platform lifts to serve as part of an accessible 

means of egress in a limited number of places 

where platform lifts are allowed in new 

construction. The 1991 Standards, at 4.1.3(5) 

Exception 4(a) through (d), and the 2010 

Standards, at sections 206.7.1 through 

206.7.10, similarly limit the places where 

platform lifts are allowed in new 

construction. 

Commenters urged the Department to 

reconsider provisions that would require 

standby power to be provided for platform 

lifts. Concerns were raised that ensuring 

standby power would be too burdensome. 

The Department views this issue as a 

fundamental life safety issue. Lift users face 

the prospect of being trapped on the lift in 

the event of a power failure if standby power 

is not provided. The lack of standby power 

could be life-threatening in situations where 

the power failure is associated with a fire or 

other emergency. The use of a platform lift 

is generally only one of the options available 

to covered entities. Covered entities that are 

concerned about the costs associated with 

maintaining standby power for a lift may 

wish to explore design options that would 

incorporate the use of a ramp. 

208 and 502 Parking Spaces 

General. Where parking spaces are 

provided, the 1991 Standards, at sections 

4.1.2(5)(a) and (7) and 7(a), and the 2010 

Standards, at section 208.1, require a 

specified number of the parking spaces to be 

accessible. The 2010 Standards, at section 

208, include an exception that exempts 

parking spaces used exclusively for buses, 

trucks, delivery vehicles, law enforcement 

vehicles, or for purposes of vehicular 

impound, from the scoping requirement for 

parking spaces, provided that when these lots 

are accessed by the public the lot has an 

accessible passenger loading zone. 

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The 2010 Standards require accessible 

parking spaces to be identified by signs that 

display the International Symbol of 

Accessibility. Section 216.5, Exceptions 1 

and 2, of the 2010 Standards exempt certain 

accessible parking spaces from this signage 

requirement. The first exception exempts 

sites that have four or fewer parking spaces 

from the signage requirement. Residential 

facilities where parking spaces are assigned 

to specific dwelling units are also exempted 

from the signage requirement. 

Commenters stated that the first exception, 

by allowing a small parking lot with four or 

fewer spaces not to post a sign at its one 

accessible space, is problematic because it 

could allow all drivers to park in accessible 

parking spaces. The Department believes that 

this exception provides necessary relief for 

small business entities that may otherwise 

face the prospect of having between twentyfive percent (25%) and one hundred percent 

(100%) of their limited parking area 

unavailable to their customers because they 

are reserved for the exclusive use of persons 

whose vehicles display accessible tags or 

parking placards. The 2010 Standards still 

require these businesses to ensure that at 

least one of their available parking spaces is 

designed to be accessible. 

A commenter stated that accessible parking 

spaces must be clearly marked. The 

Department notes that section 502.6 of the 

2010 Standards provides that accessible 

parking spaces must be identified by signs 

that include the International Symbol of 

Accessibility. Also, section 502.3.3 of the 

2010 Standards requires that access aisles be 

marked so as to discourage parking in them. 

Access Aisle. Section 502.3 of the 2010 

Standards requires that an accessible route 

adjoin each access aisle serving accessible 

parking spaces. The accessible route connects 

each access aisle to accessible entrances. 

Commenters questioned why the 2010 

Standards would permit an accessible route 

used by individuals with disabilities to 

coincide with the path of moving vehicles. 

The Department believes that the 2010 

Standards appropriately recognize that not 

all parking facilities provide separate 

pedestrian routes. Section 502.3 of the 2010 

Standards provides the flexibility necessary 

to permit designers and others to determine 

the most appropriate location of the 

accessible route to the accessible entrances. 

If all pedestrians using the parking facility 

are expected to share the vehicular lanes, 

then the ADA permits covered entities to use 

the vehicular lanes as part of the accessible 

route. The advisory note in section 502.3 of 

the 2010 Standards, however, calls attention 

to the fact that this practice, while permitted, 

is not ideal. Accessible parking spaces must 

be located on the shortest accessible route of 

travel to an accessible entrance. Accessible 

parking spaces and the required accessible 

route should be located where individuals 

with disabilities do not have to cross 

vehicular lanes or pass behind parked 

vehicles to have access to an accessible 

entrance. If it is necessary to cross a 

vehicular lane because, for example, local 

fire engine access requirements prohibit 

parking immediately adjacent to a building, 

then a marked crossing running 

perpendicular to the vehicular route should 

be included as part of the accessible route to 

an accessible entrance. 

Van Accessible Parking Spaces. The 1991 

Standards, at sections 4.1.2(5)(b), 4.6.3, 4.6.4, 

and 4.6.5, require one in every eight 

accessible parking spaces to be van 

accessible. Section 208.2.4 of the 2010 

Standards requires one in every six 

accessible parking spaces to be van 

accessible. 

A commenter asked whether automobiles 

other than vans may park in van accessible 

parking spaces. The 2010 Standards do not 

prohibit automobiles other than vans from 

using van accessible parking spaces. The 

Department does not distinguish between 

vehicles that are actual ‘‘vans’’ versus other 

vehicles such as trucks, station wagons, sport 

utility vehicles, etc. since many vehicles 

other than vans may be used by individuals 

with disabilities to transport mobility 

devices. 

Commenters’ opinions were divided on 

this point. Facility operators and others 

asked for a reduction in the number of 

required accessible parking spaces, especially 

the number of van accessible parking spaces, 

because they claimed these spaces often are 

not used. Individuals with disabilities, 

however, requested an increase in the 

scoping requirements for these parking 

spaces. 

The Department is aware that a strong 

difference of opinion exists between those 

who use such spaces and those who must 

provide or maintain them. Therefore, the 

Department did not increase the total number 

of accessible spaces required. The only 

change was to increase the proportion of 

spaces that must be accessible to vans and 

other vehicles equipped to transport mobility 

devices. 

Direct Access Entrances From Parking 

Structures. Where levels in a parking garage 

have direct connections for pedestrians to 

another facility, the 1991 Standards, at 

section 4.1.3(8)(b)(i), require at least one of 

the direct connections to be accessible. The 

2010 Standards, at section 206.4.2, require all 

of these direct connections to be accessible. 

209 and 503 Passenger Loading Zones and 

Bus Stops 

Passenger Loading Zones at Medical Care 

and Long-Term Care Facilities. Sections 6.1 

and 6.2 of the 1991 Standards and section 

209.3 of the 2010 Standards require medical 

care and long-term care facilities, where the 

period of stay exceeds 24 hours, to provide 

at least one accessible passenger loading zone 

at an accessible entrance. The 1991 

Standards also require a canopy or roof 

overhang at this passenger loading zone. The 

2010 Standards do not require a canopy or 

roof overhang. 

Commenters urged the Department to 

reinstate the requirement for a canopy or roof 

overhang at accessible passenger loading 

zones at medical care and long-term care 

facilities. While the Department recognizes 

that a canopy or roof overhang may afford 

useful protection from inclement weather 

conditions to everyone using a facility, it is 

not clear that the absence of such protection 

would impede access by individuals with 

disabilities. Therefore, the Department 

declined to reinstate that requirement. 

Passenger Loading Zones. Where passenger 

loading zones are provided, the 1991 

Standards, at sections 4.1.2(5) and 4.6.6, 

require at least one passenger loading zone to 

be accessible. Sections 209.2.1 and 503 of the 

2010 Standards, require facilities such as 

airport passenger terminals that have long, 

continuous passenger loading zones to 

provide one accessible passenger loading 

zone in every continuous 100 linear feet of 

loading zone space. The 1991 Standards and 

the 2010 Standards both include technical 

requirements for the vehicle pull-up space 

(96 inches wide minimum and 20 feet long 

minimum). Accessible passenger loading 

zones must have an access aisle that is 60 

inches wide minimum and extends the full 

length of the vehicle pull-up space. The 1991 

Standards permit the access aisle to be on the 

same level as the vehicle pull-up space, or on 

the sidewalk. The 2010 Standards require the 

access aisle to be on the same level as the 

vehicle pull-up space and to be marked so as 

to discourage parking in the access aisle. 

Commenters expressed concern that 

certain covered entities, particularly airports, 

cannot accommodate the requirements of the 

2010 Standards to provide passenger loading 

zones, and urged a revision that would 

require one accessible passenger loading 

zone located in reasonable proximity to each 

building entrance served by the curb. 

Commenters raised a variety of issues 

about the requirements at section 503 of the 

2010 Standards stating that the requirements 

for an access aisle, width, length, and 

marking of passenger loading zones are not 

clear, do not fully meet the needs of 

individuals with disabilities, may run afoul 

of state or local requirements, or may not be 

needed because many passenger loading 

zones are typically staffed by doormen or 

valet parkers. The wide range of opinions 

expressed in these comments indicates that 

this provision is controversial. However, 

none of these comments provided sufficient 

data to enable the Department to determine 

that the requirement is not appropriate. 

Valet Parking and Mechanical Access 

Parking Garages. The 1991 Standards, at 

sections 4.1.2(5)(a) and (e), and sections 

208.2, 209.4, and 209.5 of the 2010 Standards 

require parking facilities that provide valet 

parking services to have an accessible 

passenger loading zone. The 2010 Standards 

extend this requirement to mechanical access 

parking garages. The 1991 Standards 

contained an exception that exempted valet 

parking facilities from providing accessible 

parking spaces. The 2010 Standards 

eliminate this exception. The reason for not 

retaining the provision is that valet parking 

is a service, not a facility type. 

Commenters questioned why the exception 

for valet parking facilities from providing 

accessible parking spaces was eliminated. 

The provision was eliminated because valet 

parkers may not have the skills necessary to 

drive a vehicle that is equipped to be 

accessible, including use of hand controls, or 

when a seat is not present to accommodate 

a driver using a wheelchair. In that case, 

permitting the individual with a disability to 

self-park may be a required reasonable 

modification of policy by a covered entity. 

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210 and 504 Stairways 

The 1991 Standards require stairs to be 

accessible only when they provide access to 

floor levels not otherwise connected by an 

accessible route (e.g., where the accessible 

route is provided by an elevator, lift, or 

ramp). The 2010 Standards, at sections 210.1 

and 504, require all newly constructed stairs 

that are part of a means of egress to comply 

with the requirements for accessible stairs, 

which include requirements for accessible 

treads, risers, and handrails. In existing 

facilities, where floor levels are connected by 

an accessible route, only the handrail 

requirement will apply when the stairs are 

altered. Exception 2 to section 210.1 of the 

2010 Standards permits altered stairs to not 

comply with the requirements for accessible 

treads and risers where there is an accessible 

route between floors served by the stairs. 

Most commenters were in favor of this 

requirement for handrails in alterations and 

stated that adding handrails to stairs during 

alterations would be feasible and not costly 

while providing important safety benefits. 

The Department believes that it strikes an 

appropriate balance by focusing the 

expanded requirements on new construction. 

The 2010 Standards apply to stairs which are 

part of a required means of egress. Few 

stairways are not part of a means of egress. 

The 2010 Standards are consistent with most 

building codes which do not exempt 

stairways when the route is also served by a 

ramp or elevator. 

211 and 602 Drinking Fountains 

Sections 4.1.3(10) and 4.15 of the 1991 

Standards and sections 211 and 602 of the 

2010 Standards require drinking fountains to 

be provided for persons who use wheelchairs 

and for others who stand. The 1991 

Standards require wall and post-mounted 

cantilevered drinking fountains mounted at a 

height for wheelchair users to provide clear 

floor space for a forward approach with knee 

and toe clearance and free standing or builtin drinking fountains to provide clear floor 

space for a parallel approach. The 2010 

Standards require drinking fountains 

mounted at a height for wheelchair users to 

provide clear floor space for a forward 

approach with knee and toe clearance, and 

include an exception for a parallel approach 

for drinking fountains installed at a height to 

accommodate very small children. The 2010 

Standards also include a technical 

requirement for drinking fountains for 

standing persons. 

212 and 606 Kitchens, Kitchenettes, 

Lavatories, and Sinks 

The 1991 Standards, at sections 4.24, and 

9.2.2(7), contain technical requirements for 

sinks and only have specific scoping 

requirements for sinks in transient lodging. 

Section 212.3 of the 2010 Standards requires 

at least five percent (5%) of sinks in each 

accessible space to comply with the technical 

requirements for sinks. The technical 

requirements address clear floor space, 

height, faucets, and exposed pipes and 

surfaces. The 1991 Standards, at section 4.24, 

and the 2010 Standards, at section 606, both 

require the clear floor space at sinks to be 

positioned for a forward approach and knee 

and toe clearance to be provided under the 

sink. The 1991 Standards, at section 9.2.2(7), 

allow the clear floor space at kitchen sinks 

and wet bars in transient lodging guest rooms 

with mobility features to be positioned for 

either a forward approach with knee and toe 

clearance or for a parallel approach. 

The 2010 Standards include an exception 

that permits the clear floor space to be 

positioned for a parallel approach at kitchen 

sinks in any space where a cook top or 

conventional range is not provided, and at a 

wet bar. 

A commenter stated that it is unclear what 

the difference is between a sink and a 

lavatory, and that this is complicated by 

requirements that apply to sinks (five percent 

(5%) accessible) and lavatories (at least one 

accessible). The term ‘‘lavatory’’ generally 

refers to the specific type of plumbing fixture 

required for hand washing in toilet and 

bathing facilities. The more generic term 

‘‘sink’’ applies to all other types of sinks 

located in covered facilities. 

A commenter recommended that the 

mounting height of sinks and lavatories 

should take into consideration the increased 

use of three-wheeled scooters and some 

larger wheelchairs. The Department is aware 

that the use of three-wheeled scooters and 

larger wheelchairs may be increasing and 

that some of these devices may require 

changes in space requirements in the future. 

The Access Board is funding research to 

obtain data that may be used to develop 

design guidelines that provide access to 

individuals using these mobility devices. 

213, 603, 604, and 608 Toilet and Bathing 

Facilities, Rooms, and Compartments 

General. Where toilet facilities and bathing 

facilities are provided, they must comply 

with section 213 of the 2010 Standards. 

A commenter recommended that all 

accessible toilet facilities, toilet rooms, and 

compartments should be required to have 

signage indicating that such spaces are 

restricted solely for the use of individuals 

with disabilities. The Department believes 

that it is neither necessary nor appropriate to 

restrict the use of accessible toilet facilities. 

Like many other facilities designed to be 

accessible, accessible toilet facilities can and 

do serve a wide range of individuals with 

and without disabilities. 

A commenter recommended that more 

than one wheelchair accessible compartment 

be provided in toilet rooms serving airports 

and train stations because these 

compartments are likely to be occupied by 

individuals with luggage and persons with 

disabilities often take longer to use them. The 

Access Board is examining airport terminal 

accessibility as part of an ongoing effort to 

facilitate accessibility and promote effective 

design. As part of these efforts, the Access 

Board will examine requirements for 

accessible toilet compartments in larger 

airport restrooms. The Department declines 

to change the scoping for accessible toilet 

compartments at this time. 

Ambulatory Accessible Toilet 

Compartments. Section 213.3.1 of the 2010 

Standards requires multi-user men’s toilet 

rooms, where the total of toilet compartments 

and urinals is six or more, to contain at least 

one ambulatory accessible compartment. The 

1991 Standards count only toilet stalls 

(compartments) for this purpose. The 2010 

Standards establish parity between multiuser women’s toilet rooms and multi-user 

men’s toilet rooms with respect to 

ambulatory accessible toilet compartments. 

Urinals. Men’s toilet rooms with only one 

urinal will no longer be required to provide 

an accessible urinal under the 2010 

Standards. Such toilet rooms will still be 

required to provide an accessible toilet 

compartment. 

Commenters urged that the exception be 

eliminated. The Department believes that this 

change will provide flexibility to many small 

businesses and it does not alter the 

requirement that all common use restrooms 

must be accessible. 

Multiple Single-User Toilet Rooms. Where 

multiple single-user toilet rooms are 

clustered in a single location, fifty percent 

(50%), rather than the one hundred percent 

(100%) required by the 1991 Standards, are 

required to be accessible by section 213.2, 

Exception 4 of the 2010 Standards. Section 

216.8 of the 2010 Standards requires that 

accessible single-user toilet rooms must be 

identified by the International Symbol of 

Accessibility where all single-user toilet 

rooms are not accessible. 

Hospital Patient Toilet Rooms. An 

exception was added in section 223.1 of the 

2010 Standards to allow toilet rooms that are 

part of critical or intensive care patient 

sleeping rooms to no longer be required to 

provide mobility features. 

Water Closet Location and Rear Grab Bar. 

Section 604.2 of the 2010 Standards allows 

greater flexibility for the placement of the 

centerline of wheelchair accessible and 

ambulatory accessible water closets. Section 

604.5.2, Exception 1 permits a shorter grab 

bar on the rear wall where there is not 

enough wall space due to special 

circumstances (e.g., when a lavatory or other 

recessed fixture is located next to the water 

closet and the wall behind the lavatory is 

recessed so that the lavatory does not overlap 

the required clear floor space at the water 

closet). The 1991 Standards contain no 

exception for grab bar length, and require the 

water closet centerline to be exactly 18 

inches from the side wall, while the 2010 

Standards requirement allows the centerline 

to be between 16 and 18 inches from the side 

wall in wheelchair accessible toilet 

compartments and 17 to 19 inches in 

ambulatory accessible toilet compartments. 

Water Closet Clearance. Section 604.3 of 

the 2010 Standards represents a change in 

the accessibility requirements where a 

lavatory is installed adjacent to the water 

closet. The 1991 Standards allow the nearest 

side of a lavatory to be placed 18 inches 

minimum from the water closet centerline 

and 36 inches minimum from the side wall 

adjacent to the water closet. However, 

locating the lavatory so close to the water 

closet prohibits many individuals with 

disabilities from using a side transfer. To 

allow greater transfer options, including side 

transfers, the 2010 Standards prohibit 

lavatories from overlapping the clear floor 

space at water closets, except in covered 

residential dwelling units. 

A majority of commenters, including 

persons who use wheelchairs, strongly 

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agreed with the requirement to provide 

enough space for a side transfer. These 

commenters believed that the requirement 

will increase the usability of accessible 

single-user toilet rooms by making side 

transfers possible for many individuals who 

use wheelchairs and would have been unable 

to transfer to a water closet using a side 

transfer even if the water closet complied 

with the 1991 Standards. In addition, many 

commenters noted that the additional clear 

floor space at the side of the water closet is 

also critical for those providing assistance 

with transfers and personal care for persons 

with disabilities. Numerous comments noted 

that this requirement is already included in 

other model accessibility standards and 

many state and local building codes and its 

adoption in the 2010 Standards is a 

important part of harmonization efforts. The 

Department agrees that the provision of 

enough clear floor space to permit side 

transfers at water closets is an important 

feature that must be provided to ensure 

access for persons with disabilities in toilet 

and bathing facilities. Furthermore, the 

adoption of this requirement closely 

harmonizes with the model codes and many 

state and local building codes. 

Other commenters urged the Department 

not to adopt section 604.3 of the 2010 

Standards claiming that it will require singleuser toilet rooms to be two feet wider than 

the 1991 Standards require, and this 

additional requirement will be difficult to 

meet. Multiple commentators also expressed 

concern that the size of single-user toilet 

rooms would be increased but they did not 

specify how much larger such toilet rooms 

would have to be in their estimation. In 

response to these concerns, the Department 

developed a series of single-user toilet room 

floor plans demonstrating that the total 

square footage between representative 

layouts complying with the 1991 Standards 

and the 2010 Standards are comparable. The 

Department believes the floor plan 

comparisons clearly show that size 

differences between the two Standards are 

not substantial and several of the 2010 

Standards-compliant plans do not require 

additional square footage compared to the 

1991 Standards plans. These single-user 

toilet room floor plans are shown below. 

Several commenters concluded that 

alterations of single-user toilet rooms should 

be exempt from the requirements of section 

604.3 of the 2010 Standards because of the 

significant reconfiguration and 

reconstruction that would be required, such 

as moving plumbing fixtures, walls, and/or 

doors at significant additional expense. The 

Department disagrees with this conclusion 

since it fails to take into account several key 

points. The 2010 Standards contain 

provisions for in-swinging doors, 603.2.3, 

Exception 2, and recessed fixtures adjacent to 

water closets, 604.5.2, Exception 1. These 

provisions give flexibility to create more 

compact room designs and maintain required 

clearances around fixtures. As with the 1991 

Standards, any alterations must comply to 

the extent that it is technically feasible to do 

so. 

The requirements at section 604.3.2 of the 

2010 Standards specify how required 

clearance around the water closet can overlap 

with specific elements and spaces. An 

exception that applies only to covered 

residential dwelling units permits a lavatory 

to be located no closer than 18 inches from 

the centerline of the water closet. The 

requirements at section 604.3.2 of the 2010 

Standards increase accessibility for 

individuals with disabilities. One commenter 

expressed concern about other items that 

might overlap the clear floor space, such as 

dispensers, shelves, and coat hooks on the 

side of the water closet where a wheelchair 

would be positioned for a transfer. Section 

604.3.2 of the 2010 Standards allows items 

such as associated grab bars, dispensers, 

sanitary napkin disposal units, coat hooks, 

and shelves to overlap the clear floor space. 

These are items that typically do not affect 

the usability of the clear floor space. 

Toilet Room Doors. Sections 4.22.2 and 

4.22.3 of the 1991 Standards and Section 

603.2.3 of the 2010 Standards permit the 

doors of all toilet or bathing rooms with inswinging doors to swing into the required 

turning space, but not into the clear floor 

space required at any fixture. In single-user 

toilet rooms or bathing rooms, Section 

603.2.3 Exception 2 of the 2010 Standards 

permits the door to swing into the clear floor 

space of an accessible fixture if a clear floor 

space that measures at least 30 inches by 48 

inches is provided outside of the door swing. 

Several commenters expressed reservations 

about Exception 2 of Section 603.2.3. 

Concerns were raised that permitting doors of 

single-user toilet or bathing rooms with inswinging doors to swing into the clearance 

around any fixture will result in 

inaccessibility to individuals using larger 

wheelchairs and scooters. Additionally, a 

commenter stated that the exception would 

require an unacceptable amount of precision 

maneuvering by individuals who use 

standard size wheelchairs. The Department 

believes that this provision achieves 

necessary flexibility while providing a 

minimum standard for maneuvering space. 

The standard does permit additional 

maneuvering space to be provided, if needed. 

In the NPRM, the Department provided a 

series of plan drawings illustrating 

comparisons of the minimum size single-user 

toilet rooms. These floor plans showed 

typical examples that met the minimum 

requirements of the proposed ADA 

Standards. A commenter was of the opinion 

that the single-user toilet plans shown in the 

NPRM demonstrated that the new 

requirements will not result in a substantial 

increase in room size. Several other 

commenters representing industry offered 

criticisms of the single-user toilet floor plans 

to support their assertion that a 2010 

Standards-compliant single-user toilet room 

will never be smaller and will likely be larger 

than such a toilet room required under the 

1991 Standards. Commenters also asserted 

that the floor plans prepared by the 

Department were of a very basic design 

which could be accommodated in a minimal 

sized space whereas the types of facilities 

their customers demand would require 

additional space to be added to the rooms 

shown in the floor plans. The Department 

recognizes that there are many design choices 

that can affect the size of a room or space. 

Choices to install additional features may 

result in more space being needed to provide 

sufficient clear floor space for that additional 

feature to comply. However, many facilities 

that have these extra features also tend to 

have ample space to meet accessibility 

requirements. Other commenters asserted 

that public single-user toilet rooms always 

include a closer and a latch on the entry 

door, requiring a larger clear floor space than 

shown on the push side of the door shown 

in Plan 1B. The Department acknowledges 

that in instances where a latch is provided 

and a closer is required by other regulations 

or codes, the minimum size of a room with 

an out-swinging door may be slightly larger 

than as shown in Plan 1C. 

Additional floor plans of single-user toilet 

rooms are now included in further response 

to the commentary received. 

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BILLING CODE 4410–13–C 


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BILLING CODE 4410–13–C 

Toilet Paper Dispensers. The provisions for 

toilet paper dispensers at section 604.7 of the 

2010 Standards require the dispenser to be 

located seven inches minimum and nine 

inches maximum in front of the water closet 

measured to the centerline of the dispenser. 

The paper outlet of the dispenser must be 

located 15 inches minimum and 48 inches 

maximum above the finish floor. In the 1991 

Standards the location of the toilet paper 

dispenser is determined by the centerline 

and forward edge of the dispenser. In the 

2010 Standards the mounting location of the 

toilet paper dispenser is determined by the 

centerline of the dispenser and the location 

of the outlet for the toilet paper. 


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One commenter discussed the difficulty of 

using large roll toilet paper dispensers and 

dispensers with two standard size rolls 

stacked on top of each other. The size of the 

large dispensers can block access to the grab 

bar and the outlet for the toilet paper can be 

too low or too high to be usable. Some 

dispensers also control the delivery of the 

toilet paper which can make it impossible to 

get the toilet paper. Toilet paper dispensers 

that control delivery or do not allow 

continuous paper flow are not permitted by 

the 1991 Standards or the 2010 Standards. 

Also, many of the large roll toilet paper 

dispensers do not comply with the 2010 

Standards since their large size does not 

allow them to be mounted 12 inches above 

or 11⁄2 inches below the side grab bar as 

required by section 609.3. 

Shower Spray Controls. In accessible 

bathtubs and shower compartments, sections 

607.6 and 608.6 of the 2010 Standards 

require shower spray controls to have an on/ 

off control and to deliver water that is 120 

°F (49 °C) maximum. Neither feature was 

required by the 1991 Standards, but may be 

required by plumbing codes. Delivering 

water that is no hotter than 120 °F (49 °C) 

will require controlling the maximum 

temperature at each accessible shower spray 

unit. 

Shower Compartments. The 1991 

Standards at sections 4.21 and 9.1.2 and the 

2010 Standards at section 608 contain 

technical requirements for transfer-type and 

roll-in shower compartments. The 2010 

Standards provide more flexibility than the 

1991 Standards as follows: 

• Transfer-type showers are exactly 36 

inches wide by 36 inches long. 

• The 1991 Standards and the 2010 

Standards permit a 1⁄2-inch maximum curb in 

transfer-type showers. The 2010 Standards 

add a new exception that permits a 2-inch 

maximum curb in transfer-type showers in 

alterations to existing facilities, where 

recessing the compartment to achieve a 

1⁄2-inch curb will disturb the structural 

reinforcement of the floor slab. 

• Roll-in showers are 30 inches wide 

minimum by 60 inches long minimum. 

Alternate roll-in showers are 36 inches wide 

by 60 inches long minimum, and have a 36- 

inch minimum wide opening on the long 

side of the compartment. The 1991 Standards 

require alternate roll-in showers in a portion 

of accessible transient lodging guest rooms, 

but provision of this shower type in other 

facilities is generally permitted as an 

equivalent facilitation. The 1991 Standards 

require a seat to be provided adjacent to the 

opening; and require the controls to be 

located on the side adjacent to the seat. The 

2010 Standards permit alternate roll-in 

showers to be used in any facility, only 

require a seat in transient lodging guest 

rooms, and allow location of controls on the 

back wall opposite the seat as an alternative. 

Commenters raised concerns that adding a 

new exception that permits a 2-inch 

maximum curb in transfer-type showers in 

alterations to existing facilities, where 

recessing the compartment to achieve a 

1⁄2-inch curb will disturb the structural 

reinforcement of the floor slab, will impair 

the ability of individuals with disabilities to 

use transfer-type showers. 

The exception in section 608.7 of the 2010 

Standards permitting a 2-inch maximum curb 

in transfer-type showers is allowed only in 

existing facilities where provision of a 

1⁄2-inch high threshold would disturb the 

structural reinforcement of the floor slab. 

Whenever this exception is used the least 

high threshold that can be used should be 

provided, up to a maximum height of 2 

inches. This exception is intended to provide 

some flexibility where the existing structure 

precludes full compliance. 

Toilet and Bathing Rooms. Section 213 of 

the 2010 Standards sets out the scoping 

requirements for toilet and bathing rooms. 

Commenters recommended that section 

213, Toilet Facilities and Bathing Facilities, 

of the 2010 Standards include requirements 

that unisex toilet and bathing rooms be 

provided in certain facilities. These 

commenters suggested that unisex toilet and 

bathing rooms are most useful as companion 

care facilities. 

Model plumbing and building codes 

require single-user (unisex or family) toilet 

facilities in certain occupancies, primarily 

assembly facilities, covered malls, and 

transportation facilities. These types of toilet 

rooms provide flexibility for persons needing 

privacy so that they can obtain assistance 

from family members or persons of the 

opposite sex. When these facilities are 

provided, both the 1991 Standards and 2010 

Standards require that they be accessible. 

The 2010 Standards do not scope unisex 

toilet facilities because plumbing codes 

generally determine the number and type of 

plumbing fixtures to be provided in a 

particular occupancy and often determine 

whether an occupancy must provide separate 

sex facilities in addition to single-user 

facilities. However, the scoping at section 

213.2.1 of the 2010 Standards coordinates 

with model plumbing and building code 

requirements which will permit a small toilet 

room with two water closets or one water 

closet and one urinal to be considered a 

single-user toilet room provided that the 

room has a privacy latch. In this way, a 

person needing assistance from a person of 

the opposite sex can lock the door to use the 

facility while temporarily inconveniencing 

only one other potential user. These 

provisions strike a reasonable balance and 

impose less impact on covered entities. 

A commenter recommended that in shower 

compartments rectangular seats as provided 

in section 610.3.1 of the 2010 Standards 

should not be permitted as a substitute for Lshaped seats as provided in 610.3.2. 

The 2010 Standards do not indicate a 

preference for either rectangular or L-shaped 

seats in shower compartments. L-shaped 

seats in transfer and certain roll-in showers 

have been used for many years to provide 

users with poor balance additional support 

because they can position themselves in the 

corner while showering. 

214 and 611 Washing Machines and 

Clothes Dryers 

Sections 214.2 (washing machines) and 

214.3 (clothes dryers) of the 2010 Standards 

specify the number of each type of these 

machines required to be accessible (one to 

two depending upon the total number of 

machines provided) and section 611 specifies 

the technical requirements. An exception 

will permit the maximum height for the tops 

of these machines to be 2 inches higher than 

the general requirement for maximum high 

reach over an obstruction. 

A commenter objected to the scoping 

provision for accessible washing machines 

and clothes dryers stating that the probability 

is low that more than one accessible machine 

would be needed at the same time in the 

laundry facility of a place of transient 

lodging. 

The scoping in this provision is based on 

the relative size of the facility. The 

Department assumes that the size of the 

facility (and, therefore, the number of 

accessible machines provided) will be 

determined by the covered entity’s 

assessment of the demand for laundry 

facilities. The Department declines to assume 

that persons with disabilities will have less 

use for accessible facilities in transient 

lodging than in other public 

accommodations. 

216 and 703 Signs 

The following types of signs, though they 

are not specifically subject to the 1991 

Standards requirement for signs, will now be 

explicitly exempted by sections 216 and 703 

of the 2010 Standards. These types of signs 

include: seat and row designations in 

assembly areas; occupant names, building 

addresses; company names and logos; signs 

in parking facilities (except those identifying 

accessible parking spaces and means of 

egress); and exterior signs identifying 

permanent rooms and spaces that are not 

located at the door to the space they serve. 

This requirement also clarifies that the 

exception for temporary signs applies to 

signs used for seven days or less. 

The 2010 Standards retain the option to 

provide one sign where both visual and 

tactile characters are provided or two signs, 

one with visual, and one with tactile 

characters. 

217 and 704 Telephones 

Drive-up Public Telephones. Where public 

telephones are provided, the 1991 Standards, 

at section 4.1.3(17)(a), and section 217.2 of 

the 2010 Standards, require a certain number 

of telephones to be wheelchair accessible. 

The 2010 Standards add a new exception that 

exempts drive-up public telephones. 

Text Telephones (TTY). Section 4.1.3(17) 

of the 1991 Standards requires a public TTY 

to be provided if there are four or more 

public pay telephones at a site and at least 

one is in an interior location. Section 217.4.2 

of the 2010 Standards requires that a building 

or facility provide a public TTY on each floor 

that has four or more public telephones, and 

in each telephone bank that has four or more 

telephones. Additionally, section 217.4.4 of 

the 2010 Standards requires that at least one 

public TTY be installed where four or more 

public pay telephones are provided on an 

exterior site. Section 217.4.5 of the 2010 

Standards also requires that a public TTY be 

provided where at least one public pay 

telephone is provided at a public rest stop, 

emergency roadside stop, or service plaza. 

Section 217.4.6 of the 2010 Standards also 

requires that a public TTY be provided at 

each location where at least one public pay 

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telephone is provided serving a hospital 

emergency room, a hospital recovery room, 

or a hospital waiting room. Section 217.4.7 

of the 2010 Standards also requires that, in 

addition to the requirements for a public TTY 

to be provided at each location where at least 

four or more public pay telephones are 

provided at a bank of pay telephones and 

where at least one public pay telephone is 

provided on a floor or in a public building, 

where at least one public pay telephone 

serves a particular entrance to a bus or rail 

facility at least one public TTY must serve 

that entrance. In airports, in addition to the 

requirements for the provision of a public 

TTY at phone banks, on floors, and in public 

buildings with pay phones, where four or 

more public pay phones are located in a 

terminal outside the security areas, in a 

concourse within the security areas, or a 

baggage claim area in a terminal at least one 

public TTY must be provided. Section 

217.4.8 of the 2010 Standards also requires 

that a TTY be provided in at least one 

secured area where at least one pay 

telephone is provided in a secured area used 

only by detainees or inmates and security 

personnel in detention and correctional 

facilities. 

Wheelchair Accessible Telephones 

Section 217.2 of the 2010 Standards 

requires that where public telephones are 

provided wheelchair accessible telephones 

complying with section 704.2 must be 

provided in accordance with Table 217.2. 

A commenter stated that requiring 

installation of telephones within the 

proposed reach range requirements would 

adversely impact public and telephone 

owners and operators. According to the 

commenter, individuals without disabilities 

will not use telephones that are installed 

within the reach range requirements because 

they may be inconvenienced by having to 

stoop to operate these telephones, and, 

therefore, owners and operators will lose 

revenue due to less use of public telephones. 

This comment misunderstands the scoping 

requirements for wheelchair accessible 

telephones. Section 217.2 of the 2010 

Standards provides that where one or more 

single units are provided, only one unit per 

floor, level, or exterior site is required to be 

wheelchair accessible. However, where banks 

of telephones are provided, only one 

telephone in each bank is required to be 

wheelchair accessible. The Department 

believes these scoping requirements for 

wheelchair accessible telephones are 

reasonable and will not result in burdensome 

obligations or lost revenue for owners and 

operators. 

218 and 810 Transportation Facilities 

Detectable Warnings. Detectable warnings 

provide a distinctively textured surface of 

truncated domes. The 1991 Standards at 

sections 4.1.3(15), 4.7.7, 4.29.2, 4.29.5, 

4.29.6, and 10.3.1(8) require detectable 

warnings at curb ramps, hazardous vehicular 

areas, reflecting pools, and transit platform 

edges. The 2010 Standards at sections 218, 

810.5, 705.1, and 705.2 only require 

detectable warnings at transit platform edges. 

The technical specifications for the diameter 

and spacing of the truncated domes have also 

been changed. The 2010 Standards also 

delete the requirement for the material used 

to contrast in resiliency or sound-on-cane 

contact from adjoining walking surfaces at 

interior locations. 

The 2010 Standards apply to detectable 

warnings on developed sites. They do not 

apply to the public right-of-way. Scoping for 

detectable warnings at all locations other 

than transit platform edges has been 

eliminated from the 2010 Standards. 

However, because detectable warnings have 

been shown to significantly benefit 

individuals with disabilities at transit 

platform edges, the 2010 Standards provide 

scoping and technical requirements for 

detectable warnings at transit platform edges. 

219 and 706 Assistive Listening Systems 

Signs. Section 216.10 of the 2010 

Standards requires each covered assembly 

area to provide signs at each auditorium to 

inform patrons that assistive listening 

systems are available. However, an exception 

to this requirement permits assembly areas 

that have ticket offices or ticket windows to 

display the required signs at the ticket 

window. 

A commenter recommended eliminating 

the exception at 216.10 because, for example, 

people who buy tickets through the mail, by 

subscription, or on-line may not need to stop 

at a ticket office or window upon arrival at 

the assembly area. The Department believes 

that an individual’s decision to purchase 

tickets before arriving at a performance does 

not limit the discretion of the assembly 

operator to use the ticket window to provide 

other services to its patrons. The Department 

retained the exception at 216.10 to permit the 

venue operator some flexibility in 

determining how to meet the needs of its 

patrons. 

Audible Communication. The 1991 

Standards, at section 4.1.3(19)(b), require 

assembly areas, where audible 

communication is integral to the use of the 

space, to provide an assistive listening 

system if they have an audio amplification 

system or an occupant load of 50 or more 

people and have fixed seating. The 2010 

Standards at section 219 require assistive 

listening systems in spaces where 

communication is integral to the space and 

audio amplification is provided and in 

courtrooms. 

The 1991 Standards require receivers to be 

provided for at least four percent (4%) of the 

total number of fixed seats. The 2010 

Standards, at section 219.3, revise the 

percentage of receivers required according to 

a table that correlates the required number of 

receivers to the seating capacity of the 

facility. Small facilities will continue to 

provide receivers for four percent (4%) of the 

seats. The required percentage declines as the 

size of the facility increases. The changes 

also require at least twenty-five percent 

(25%), but no fewer than two, of the receivers 

to be hearing-aid compatible. Assembly areas 

served by an induction loop assistive 

listening system will not have to provide 

hearing-aid compatible receivers. 

Commenters were divided in their opinion 

of this change. The Department believes that 

the reduction in the required number of 

assistive listening systems for larger assembly 

areas will meet the needs of individuals with 

disabilities. The new requirement to provide 

hearing-aid compatible receivers should 

make assistive listening systems more usable 

for people who have been underserved until 

now. 

Concerns were raised that the requirement 

to provide assistive listening systems may 

have an adverse impact on restaurants. This 

comment misunderstands the scope of 

coverage. The 2010 Standards define the term 

‘‘assembly area’’ to include facilities used for 

entertainment, educational, or civic 

gatherings. A restaurant would fall within 

this category only if it is presenting programs 

to educate or entertain diners, and it provides 

an audio amplification system. 

Same Management or Building. The 2010 

Standards add a new exception that allows 

multiple assembly areas that are in the same 

building and under the same management, 

such as theaters in a multiplex cinema and 

lecture halls in a college building, to 

calculate the number of receivers required 

based on the total number of seats in all the 

assembly areas, instead of each assembly area 

separately, where the receivers are 

compatible with the assistive listening 

systems used in each of the assembly areas. 

Mono Jacks, Sound Pressure, Etc. Section 

4.33.7 of the 1991 Standards does not contain 

specific technical requirements for assistive 

listening systems. The 2010 Standards at 

section 706 require assistive listening 

systems to have standard mono jacks and 

will require hearing-aid compatible receivers 

to have neck loops to interface with telecoils 

in hearing aids. The 2010 Standards also 

specify sound pressure level, signal-to-noise 

ratio, and peak clipping level. Currently 

available assistive listening systems typically 

meet these technical requirements. 

220 and 707 Automatic Teller Machines 

and Fare Machines 

Section 707 of the 2010 Standards adds 

specific technical requirements for speech 

output, privacy, tactilely-discernible input 

controls, display screens, and Braille 

instructions to the general accessibility 

requirements set out in the 1991 Standards. 

Machines shall be speech enabled and 

exceptions are provided that cover when 

audible tones are permitted, when 

advertisements or similar information are 

provided, and where speech synthesis cannot 

be supported. The 1991 Standards require 

these machines to be accessible to and 

independently usable by persons with visual 

impairments, but do not contain any 

technical specifications. 

221 Assembly Areas 

Wheelchair Spaces/Companion Seats. 

Owners of large assembly areas have 

historically complained to the Department 

that the requirement for one percent (1%) of 

seating to be wheelchair seating is excessive 

and that wheelchair seats are not being sold. 

At the same time, advocates have 

traditionally argued that persons who use 

wheelchairs will increasingly participate in 

activities at assembly areas once they become 

accessible and that at least one percent (1%) 

of seats should be accessible. 

The 1991 Standards, at sections 4.1.3(19)(a) 

and 4.33.3, require assembly areas to provide 

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wheelchair and companion seats. In 

assembly areas with a capacity of more than 

five hundred seats, accessible seating at a 

ratio of one percent (1%) (plus one seat) of 

the number of traditional fixed seats must be 

provided. The 2010 Standards, at section 

221.2, require assembly areas with 501 to 

5000 seats to provide at least six wheelchair 

spaces and companion seats plus one 

additional wheelchair space for each 

additional 150 seats (or fraction thereof) 

between 501 through 5000. In assembly areas 

with more than 5000 seats at least 36 

wheelchair spaces and companion seats plus 

one additional wheelchair space for each 200 

seats (or fraction thereof) more than 5000 are 

required. See sections 221.1 and 221.2 of the 

2010 Standards. 

Commenters questioned why scoping 

requirements for large assembly areas are 

being reduced. During the development of 

the 2004 ADAAG, industry providers, 

particularly those representing larger 

stadium-style assembly areas, supplied data 

to the Access Board demonstrating the 

current scoping requirements for large 

assembly areas often exceed the demand. 

Based on the data provided to the Access 

Board, the Department believes the reduced 

scoping requirements will adequately meet 

the needs of individuals with disabilities, 

while balancing concerns of the industry. 

Commenters representing assembly areas 

supported the reduced scoping. One 

commenter asked that scoping requirements 

for larger assembly areas be reduced even 

further. Although the commenter referenced 

data demonstrating that wheelchair spaces in 

larger facilities with seating capacities of 

70,000 or more may not be used by 

individuals with disabilities, the data was 

not based on actual results, but was 

calculated at least in part based on 

probability assumptions. The Department is 

not convinced that further reductions should 

be made based upon those projections and 

that further reductions would not 

substantially limit accessibility at assembly 

areas for persons who use wheelchairs. 

Section 221.2.1.3 of the 2010 Standards 

clarifies that the scoping requirements for 

wheelchair spaces and companion seats are 

to be applied separately to general seating 

areas and to each luxury box, club box, and 

suite in arenas, stadiums, and grandstands. In 

assembly areas other than arenas, stadiums, 

and grandstands, the scoping requirements 

will not be applied separately. Thus, in 

performing arts facilities with tiered boxes 

designed for spatial and acoustical purposes, 

the scoping requirement is to be applied to 

the seats in the tiered boxes. The requisite 

number of wheelchair spaces and companion 

seats required in the tiered boxes are to be 

dispersed among at least twenty percent 

(20%) of the tiered boxes. For example, if a 

performing arts facility has 20 tiered boxes 

with 10 fixed seats in each box, for a total 

of 200 seats, at least five wheelchair spaces 

and companion seats must be provided in the 

boxes, and they must be dispersed among at 

least four of the 20 boxes. 

Commenters raised concerns that the 2010 

Standards should clarify requirements for 

scoping of seating areas and that requiring 

accessible seating in each luxury box, club 

box, and suite in arenas, stadiums and 

grandstands could result in no wheelchair 

and companion spaces available for 

individuals with disabilities in the general 

seating area(s). These comments appear to 

misunderstand the requirements. The 2010 

Standards require each luxury box, club box, 

and suite in an arena, stadium or grandstand 

to be accessible and to contain wheelchair 

spaces and companion seats as required by 

sections 221.2.1.1, 221.2.1.2 and 221.3. In 

addition, the remaining seating areas not 

located in boxes must also contain the 

number of wheelchair and companion 

seating locations specified in the 2010 

Standards based on the total number of seats 

in the entire facility excluding luxury boxes, 

club boxes and suites. 

Wheelchair Space Overlap in Assembly 

Areas. Section 4.33.3 of the 1991 Standards 

and the 2010 Standards, at sections 402, 

403.5.1, 802.1.4, and 802.1.5, require 

walkways that are part of an accessible route 

to have a 36-inch minimum clear width. 

Section 802.1.5 of the 2010 Standards 

specifically prohibits accessible routes from 

overlapping wheelchair spaces. This change 

is consistent with the technical requirements 

for accessible routes, since the clear width of 

accessible routes cannot be obstructed by any 

object. The 2010 Standards also specifically 

prohibit wheelchair spaces from overlapping 

circulation paths. An advisory note clarifies 

that this prohibition applies only to the 

circulation path width required by applicable 

building codes and fire and life safety codes 

since the codes prohibit obstructions in the 

required width of assembly aisles. 

Section 802.1.5 of the 2010 Standards 

provides that where a main circulation path 

is located in front of a row of seats that 

contains a wheelchair space and the 

circulation path is wider than required by 

applicable building codes and fire and life 

safety codes, the wheelchair space may 

overlap the ‘‘extra’’ circulation path width. 

Where a main circulation path is located 

behind a row of seats that contains a 

wheelchair space and the wheelchair space is 

entered from the rear, the aisle in front of the 

row may need to be wider in order not to 

block the required circulation path to the 

other seats in the row, or a mid-row opening 

may need to be provided to access the 

required circulation path to the other seats. 

Line of Sight and Dispersion of Wheelchair 

Spaces in Assembly Areas. Section 4.33.3 of 

the 1991 Standards requires wheelchair 

spaces and companion seats to be an integral 

part of any fixed seating plan in assembly 

areas and to provide individuals with 

disabilities a choice of admission prices and 

lines of sight comparable to those available 

to other spectators. Section 4.33.3 also 

requires wheelchair spaces and companion 

seats to be dispersed in assembly areas with 

more than 300 seats. Under the 1991 

Standards, sports facilities typically located 

some wheelchair spaces and companion seats 

on each accessible level of the facility. In 

1994, the Department issued official 

guidance interpreting the requirement for 

comparable lines of sight in the 1991 

Standards to mean wheelchair spaces and 

companion seats in sports stadia and arenas 

must provide patrons with disabilities and 

their companions with lines of sight over 

standing spectators to the playing field or 

performance area, where spectators were 

expected to stand during events. See 

‘‘Accessible Stadiums,’’ www.ada.gov/ 

stadium.pdf. The Department also 

interpreted the section 4.33.3 comparable 

lines of sight requirement to mean that 

wheelchair spaces and companion seats in 

stadium-style movie theaters must provide 

patrons with disabilities and their 

companions with viewing angles comparable 

to those provided to other spectators. 

Sections 221.2.3 and 802.2 of the 2010 

Standards add specific technical 

requirements for providing lines of sight over 

seated and standing spectators and also 

require wheelchair spaces and companion 

seats (per section 221.3) to provide 

individuals with disabilities choices of 

seating locations and viewing angles that are 

substantially equivalent to, or better than, the 

choices of seating locations and viewing 

angles available to other spectators. This 

applies to all types of assembly areas, 

including stadium-style movie theaters, 

sports arenas, and concert halls. These rules 

are expected to have minimal impact since 

they are consistent with the Department’s 

longstanding interpretation of the 1991 

Standards and technical assistance. 

Commenters stated that the qualitative 

viewing angle language contained in section 

221.2.3 is not appropriate for an enforceable 

regulatory standard unless the terms of such 

language are defined. Other commenters 

requested definitions for viewing angles, an 

explanation for precisely how viewing angles 

are measured, and an explanation for 

precisely how to evaluate whether one 

viewing angle is better than another viewing 

angle. The Department is convinced that the 

regulatory language in the 2010 Standards is 

sufficient to provide a performance-based 

standard for designers, architects, and other 

professionals to design facilities that provide 

comparable lines of sight for wheelchair 

seating in assembly areas, including viewing 

angles. The Department believes that as a 

general rule, the vast variety of sizes and 

configurations in assembly areas requires it 

to establish a performance standard for 

designers to adapt to the specific 

circumstances of the venue that is being 

designed. The Department has implemented 

more explicit requirements for stadium-style 

movie theaters in 28 CFR 36.406(f) and 

35.151(g) of the final regulations based on 

experience and expertise gained after several 

major enforcement actions. 

Another commenter inquired as to what 

determines whether a choice of seating 

locations or viewing angles is better than that 

available to all other spectators. The answer 

to this question varies according to each 

assembly area that is being designed, but 

designers and venue operators understand 

which seats are better and that understanding 

routinely drives design choices made to 

maximize profit and successful operation of 

the facility, among other things. For example, 

an ‘‘equivalent or better’’ line of sight in a 

major league football stadium would be 

different than for a 350-seat lecture hall. This 

performance standard is based upon the 

underlying principle of equal opportunity for 

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a good viewing experience for everyone, 

including persons with disabilities. The 

Department believes that for each specific 

facility that is designed, the owner, operator, 

and design professionals will be able to 

distinguish easily between seating locations 

and the quality of the associated lines of sight 

from those seating locations in order to 

decide which ones are better than others. The 

wheelchair locations do not have to be 

exclusively among the seats with the very 

best lines of sight nor may they be 

exclusively among the seats with the worst 

lines of sight. Rather, wheelchair seating 

locations should offer a choice of viewing 

experiences and be located among the seats 

where most of the audience chooses to sit. 

Section 4.33.3 of the 1991 Standards 

requires wheelchair spaces and companion 

seating to be offered at a choice of admission 

prices, but section 221.2.3.2 of the 2010 

Standards no longer requires wheelchair 

spaces and companion seats to be dispersed 

based on admission prices. Venue owners 

and operators commented during the 2004 

ADAAG rulemaking process that pricing is 

not always established at the design phase 

and may vary from event to event within the 

same facility, making it difficult to determine 

where to place wheelchair seats during the 

design and construction phase. Their concern 

was that a failure by the venue owner or 

operator to provide a choice of ticket prices 

for wheelchair seating as required by the 

1991 Standards governing new construction 

could somehow unfairly subject parties 

involved in the design and construction to 

liability unknowingly. 

Sections 221.2.3.2 and 221.3 of the 2010 

Standards require wheelchair spaces and 

companion seats to be vertically dispersed at 

varying distances from the screen, 

performance area, or playing field. The 2010 

Standards, at section 221.2.3.2, also require 

wheelchair spaces and companion seats to be 

located in each balcony or mezzanine served 

by an accessible route. The final regulations 

at 28 CFR 35.151(g)(1) and 36.406(f)(1) also 

require assembly areas to locate wheelchair 

spaces and companion seats at all levels of 

the facility that include seating and that are 

served by an accessible route. The 

Department interprets that requirement to 

mean that wheelchair and companion seating 

must be provided in a particular area even if 

the accessible route may not be the same 

route that other individuals use to reach their 

seats. For example, if other patrons reach 

their seats on the field by an inaccessible 

route (e.g., by stairs), but there is an 

accessible route that complies with section 

206.3 that could be connected to seats on the 

field, accessible seats must be placed on the 

field even if that route is not generally 

available to the public. The 2010 Standards, 

at section 221.2.3.2, provide an exception for 

vertical dispersion in assembly areas with 

300 or fewer seats if the wheelchair spaces 

and companion seats provide viewing angles 

that are equivalent to, or better than, the 

average viewing angle provided in the 

facility. 

Section 221.3 of the 2010 Standards 

requires wheelchair spaces and companion 

seats to be dispersed horizontally. In 

addition, 28 CFR 35.151(g)(2) and 

36.406(f)(2) require assembly areas that have 

seating around the field of play or 

performance area to place wheelchair spaces 

and companion seating all around that field 

of play or performance area. 

Stadium-Style Movie Theaters 

Pursuant to 28 CFR 35.151(g) and 36.406(f), 

in addition to other obligations, stadiumstyle movie theaters must meet horizontal 

and vertical dispersion requirements set forth 

in sections 221.2.3.1 and 221.2.3.2 of the 

2010 Standards; placement of wheelchair and 

companion seating must be on a riser or 

cross-aisle in the stadium section of the 

theater; and placement of such seating must 

satisfy at least one of the following criteria: 

(i) It is located within the rear sixty percent 

(60%) of the seats provided in the 

auditorium; or (ii) it is located within the 

area of the auditorium where the vertical 

viewing angles are between the 40th and 

100th percentile of vertical viewing angles 

for all seats in that theater as ranked from the 

first row (1st percentile) to the back row 

(100th percentile). The line-of-sight 

requirements recognize the importance to the 

movie-going experience of viewing angles, 

and the final regulations ensure that movie 

patrons with disabilities are provided views 

of the movie screen comparable to other 

theater patrons. Some commenters supported 

regulatory language that would require 

stadium-style theaters to meet standards of 

accessibility equal to those of non-stadiumstyle theaters, with larger theaters being 

required to provide accessible seating 

locations and viewing angles equal to those 

offered to individuals without disabilities. 

One commenter noted that stadium-style 

movie theaters, sports arenas, music venues, 

theaters, and concert halls each pose unique 

conditions that require separate and specific 

standards to accommodate patrons with 

disabilities, and recommended that the 

Department provide more specific 

requirements for sports arenas, music venues, 

theaters, and concert halls. The Department 

has concluded that the 2010 Standards will 

provide sufficient flexibility to adapt to the 

wide variety of assembly venues covered. 

Companion Seats. Section 4.33.3 of the 

1991 Standards required at least one fixed 

companion seat to be provided next to each 

wheelchair space. The 2010 Standards at 

sections 221.3 and 802.3 permit companion 

seats to be movable. Several commenters 

urged the Department to ensure that 

companion seats are positioned in a manner 

that places the user at the same shoulder 

height as their companions using mobility 

devices. The Department recognizes that 

some facilities have created problems by 

locating the wheelchair space and 

companion seat on different floor elevations 

(often a difference of one riser height). 

Section 802.3.1 of the 2010 Standards 

addresses this problem by requiring the 

wheelchair space and the companion seat to 

be on the same floor elevation. This solution 

should prevent any vertical discrepancies 

that are not the direct result of differences in 

the sizes and configurations of wheelchairs. 

Designated Aisle Seats. Section 4.1.3(19)(a) 

of the 1991 Standards requires one percent 

(1%) of fixed seats in assembly areas to be 

designated aisle seats with either no armrests 

or folding or retractable armrests on the aisle 

side of the seat. The 2010 Standards, at 

sections 221.4 and 802.4, base the number of 

required designated aisle seats on the total 

number of aisle seats, instead of on all of the 

seats in an assembly area as the 1991 

Standards require. At least five percent (5%) 

of the aisle seats are required to be 

designated aisle seats and to be located 

closest to accessible routes. This option will 

almost always result in fewer aisle seats 

being designated aisle seats compared to the 

1991 Standards. The Department is aware 

that sports facilities typically locate 

designated aisle seats on, or as near to, 

accessible routes as permitted by the 

configuration of the facility. 

One commenter recommended that section 

221.4, Designated Aisle Seats, be changed to 

require that aisle seats be on an accessible 

route, and be integrated and dispersed 

throughout an assembly area. Aisle seats, by 

their nature, typically are located within the 

general seating area, and integration occurs 

almost automatically. The issue of dispersing 

aisle seats or locating them on accessible 

routes is much more challenging. During the 

separate rulemaking on the 2004 ADAAG the 

Access Board specifically requested public 

comment on the question of whether aisle 

seats should be required to be located on 

accessible routes. After reviewing the 

comments submitted during the 2004 Access 

Board rulemaking, the Access Board 

concluded that this could not be done 

without making significant and costly 

changes in the design of most assembly areas. 

However, section 221.4 of the 2004 ADAAG 

required that designated aisle seats be the 

aisle seats closest to accessible routes. The 

Department proposed the same provision and 

concurs in the Access Board’s conclusion 

and declines to implement further changes. 

Team or Player Seating Areas. Section 

221.2.1.4 of the 2010 Standards requires that 

at least one wheelchair space compliant with 

section 802.1 be provided in each team or 

player seating area serving areas of sport 

activity. For bowling lanes, the requirement 

for a wheelchair space in player seating areas 

is limited to lanes required to be accessible. 

Lawn Seating. The 1991 Standards, at 

section 4.1.1(1), require all areas of newly 

constructed facilities to be accessible, but do 

not contain a specific scoping requirement 

for lawn seating in assembly areas. The 2010 

Standards, at section 221.5, specifically 

require lawn seating areas and exterior 

overflow seating areas without fixed seats to 

connect to an accessible route. 

Aisle Stairs and Ramps in Assembly Areas. 

Sections 4.1.3 and 4.1.3(4) of the 1991 

Standards require that interior and exterior 

stairs connecting levels that are not 

connected by an elevator, ramp, or other 

accessible means of vertical access must 

comply with the technical requirements for 

stairs set out in section 4.9 of the 1991 

Standards. Section 210.1 of the 2010 

Standards requires that stairs that are part of 

a means of egress shall comply with section 

504’s technical requirements for stairs. The 

1991 Standards do not contain any 

exceptions for aisle stairs in assembly areas. 

Section 210.1, Exception 3 of the 2010 

Standards adds a new exception that exempts 

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aisle stairs in assembly areas from section 

504’s technical requirements for stairs, 

including section 505’s technical 

requirements for handrails. 

Section 4.8.5 of the 1991 Standards 

exempts aisle ramps that are part of an 

accessible route from providing handrails on 

the side adjacent to seating. The 2010 

Standards, at section 405.1, exempt aisle 

ramps adjacent to seating in assembly areas 

and not serving elements required to be on 

an accessible route, from complying with all 

of section 405’s technical requirements for 

ramps. Where aisle ramps in assembly areas 

serve elements required to be on an 

accessible route, the 2010 Standards require 

that the aisle ramps comply with section 

405’s technical requirements for ramps. 

Sections 505.2 and 505.3 of the 2010 

Standards provide exceptions for aisle ramp 

handrails. Section 505.2 states that in 

assembly areas, a handrail may be provided 

at either side or within the aisle width when 

handrails are not provided on both sides of 

aisle ramps. Section 505.3 states that, in 

assembly areas, handrails need not be 

continuous in aisles serving seating. 

222 and 803 Dressing, Fitting, and Locker 

Rooms 

Dressing rooms, fitting rooms, and locker 

rooms are required to comply with the 

accessibility requirements of sections 222 

and 803 of the 2010 Standards. Where these 

types of rooms are provided in clusters, five 

percent (5%) but at least one room in each 

cluster must comply. Some commenters 

stated that clothing and retail stores would 

have to expand and reconfigure accessible 

dressing, fitting and locker rooms to meet the 

changed provision for clear floor space 

alongside the end of the bench. Commenters 

explained that meeting the new requirement 

would result in a loss of sales and inventory 

space. Other commenters also expressed 

opposition to the changed requirement in 

locker rooms for similar reasons. 

The Department reminds the commenters 

that the requirements in the 2010 Standards 

for the clear floor space to be beside the short 

axis of the bench in an accessible dressing, 

fitting, or locker room apply only to new 

construction and alterations. The 

requirements for alterations in the 2010 

Standards at section 202.3 do not include the 

requirement from the 1991 Standards at 

section 4.1.6(1)(c) that if alterations to single 

elements, when considered together, amount 

to an alteration of a room or space in a 

building or facility, the entire space shall be 

made accessible. Therefore, under the 2010 

Standards, the alteration requirements only 

apply to specific elements or spaces that are 

being altered. So providing the clear floor 

space at the end of the bench as required by 

the 2010 Standards instead of in front of the 

bench as is allowed by the 1991 Standards 

would only be required when the bench in 

the accessible dressing room is altered or 

when the entire dressing room area is altered. 

224 and 806 Transient Lodging Guest 

Rooms 

Scoping. The minimum number of guest 

rooms required to be accessible in transient 

lodging facilities is covered by section 224 of 

the 2010 Standards. Scoping requirements for 

guest rooms with mobility features and guest 

rooms with communication features are 

addressed at section 224.2 and section 224.4, 

respectively. Under the 1991 Standards all 

newly constructed guest rooms with mobility 

features must provide communication 

features. Under the 2010 Standards, in 

section 224.5, at least one guest room with 

mobility features must also provide 

communication features. Additionally, not 

more than ten percent (10%) of the guest 

rooms required to provide mobility features 

and also equipped with communication 

features can be used to satisfy the minimum 

number of guest rooms required to provide 

communication features. 

Some commenters opposed requirements 

for guest rooms accessible to individuals 

with mobility disabilities stating that 

statistics provided by the industry 

demonstrate that all types of accessible guest 

rooms are unused. They further claimed that 

the requirements of the 2010 Standards are 

too burdensome to meet in new construction, 

and that the requirements will result in a loss 

of living space in places of transient lodging. 

Other commenters urged the Department to 

increase the number of guest rooms required 

to be accessible. The number of guest rooms 

accessible to individuals with mobility 

disabilities and the number accessible to 

persons who are deaf or who are hard of 

hearing in the 2010 Standards are consistent 

with the 1991 Standards and with the IBC. 

The Department continues to receive 

complaints about the lack of accessible guest 

rooms throughout the country. Accessible 

guest rooms are used not only by individuals 

using mobility devices such as wheelchairs 

and scooters, but also by individuals with 

other mobility disabilities including persons 

who use walkers, crutches, or canes. 

Data provided by the Disability Statistics 

Center at the University of California, San 

Francisco demonstrated that the number of 

adults who use wheelchairs has been 

increasing at the rate of six percent (6%) per 

year from 1969 to 1999; and by 2010, it was 

projected that two percent (2%) of the adult 

population would use wheelchairs. In 

addition to persons who use wheelchairs, 

three percent (3%) of adults used crutches, 

canes, walkers, and other mobility devices in 

1999; and the number was projected to 

increase to four percent (4%) by 2010. Thus, 

in 2010, up to six percent (6%) of the 

population may need accessible guest rooms. 

Dispersion. The 2010 Standards, in section 

224.5, set scoping requirements for 

dispersion in facilities covered by the 

transient lodging provisions. This section 

covers guest rooms with mobility features 

and guest rooms with communication 

features and applies in new construction and 

alterations. The primary requirement is to 

provide choices of types of guest rooms, 

number of beds, and other amenities 

comparable to the choices provided to other 

guests. An advisory in section 224.5 provides 

guidance that ‘‘factors to be considered in 

providing an equivalent range of options may 

include, but are not limited to, room size, bed 

size, cost, view, bathroom fixtures such as 

hot tubs and spas, smoking and nonsmoking, 

and the number of rooms provided.’’ 

Commenters asked the Department to 

clarify what is meant by various terms used 

in section 224.5 such as ‘‘classes,’’ ‘‘types,’’ 

‘‘options,’’ and ‘‘amenities.’’ Other 

commenters asked the Department to clarify 

and simplify the dispersion requirements set 

forth in section 224.5 of the 2010 Standards, 

in particular the scope of the term 

‘‘amenities.’’ One commenter expressed 

concern that views, if considered an amenity, 

would further complicate room categories 

and force owners and operators to make an 

educated guess. Other commenters stated 

that views should only be a dispersion 

criteria if view is a factor for pricing room 

rates. 

These terms are not to be considered terms 

of art, but should be used as in their normal 

course. For example, ‘‘class’’ is defined by 

Webster’s Dictionary as ‘‘a division by 

quality.’’ ‘‘Type’’ is defined as ‘‘a group of 

* * * things that share common traits or 

characteristics distinguishing them as an 

identifiable group or class.’’ Accordingly, 

these terms are not intended to convey 

different concepts, but are used as synonyms. 

In the 2010 Standards, section 224.5 and its 

advisory require dispersion in such a varied 

range of hotels and lodging facilities that the 

Department believes that the chosen terms 

are appropriate to convey what is intended. 

Dispersion required by this section is not 

‘‘one size fits all’’ and it is imperative that 

each covered entity consider its individual 

circumstance as it applies this requirement. 

For example, a facility would consider view 

as an amenity if some rooms faced 

mountains, a beach, a lake, or other scenery 

that was considered to be a premium. A 

facility where view was not marketed or 

requested by guests would not factor the 

view as an amenity for purposes of meeting 

the dispersion requirement. 

Section 224.5 of the 2010 Standards 

requires that guest rooms with mobility 

features and guest rooms with 

communication features ‘‘shall be dispersed 

among the various classes of guest rooms, 

and shall provide choices of types of guest 

rooms, number of beds, and other amenities 

comparable to the choices provided to other 

guests. When the minimum number of guest 

rooms required is not sufficient to allow for 

complete dispersion, guest rooms shall be 

dispersed in the following priority: guest 

room type, number of beds and amenities.’’ 

This general dispersion requirement is 

intended to effectuate Congress’ directive 

that a percentage of each class of hotel rooms 

is to be fully accessible to persons with 

disabilities. See H.R. Rep. No. 101–485 (II) at 

391. Accordingly, the promise of the ADA in 

this instance is that persons with disabilities 

will have an equal opportunity to benefit 

from the various options available to hotel 

guests without disabilities, from single 

occupancy guest rooms with limited features 

(and accompanying limited price tags) to 

luxury suites with lavish features and 

choices. The inclusion of section 224.5 of the 

2010 Standards is not new. Substantially 

similar language is contained in section 9.1.4 

of the 1991 Standards. 

Commenters raised concerns that the 

factors included in the advisory to section 

224.5 of the 2010 Standards have been 

expanded. The advisory provides: ‘‘[f]actors 

to be considered in providing an equivalent 

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range of options may include, but are not 

limited to, room size, bed size, cost, view, 

bathroom fixtures such as hot tubs and spas, 

smoking and nonsmoking, and the number of 

rooms provided.’’ 

As previously discussed, the advisory 

materials provided in the 2010 Standards are 

meant to be illustrative and do not set out 

specific requirements. In this particular 

instance, the advisory materials for section 

224.5 set out some of the common types of 

amenities found at transient lodging 

facilities, and include common sense 

concepts such as view, bathroom fixtures, 

and smoking status. The intention of these 

factors is to indicate to the hospitality 

industry the sorts of considerations that the 

Department, in its enforcement efforts since 

the enactment of the ADA, has considered as 

amenities that should be made available to 

persons with disabilities, just as they are 

made available to guests without disabilities. 

Commenters offered several suggestions for 

addressing dispersion. One option included 

the flexibility to use an equivalent facilitation 

option similar to that provided in section 

9.1.4(2) of the 1991 Standards. 

The 2010 Standards eliminated all specific 

references to equivalent facilitation. Since 

Congress made it clear that each class of 

hotel room is to be available to individuals 

with disabilities, the Department declines to 

adopt such a specific limitation in favor of 

the specific requirement for new construction 

and alterations found in section 224.5 of the 

2010 Standards. 

In considering the comments of the 

hospitality industry from the ANPRM and 

the Department’s enforcement efforts in this 

area, the Department sought comment in the 

NPRM on whether the dispersion 

requirements should be applied 

proportionally, or whether the requirements 

of section 224.5 of the 2010 Standards would 

be complied with if access to at least one 

guest room of each type were to be provided. 

One commenter expressed concern about 

requiring different guest room types to be 

proportionally represented in the accessible 

guest room pool as opposed to just having 

each type represented. Some commenters 

also expressed concern about accessible guest 

rooms created in pre-1993 facilities and they 

requested that such accessible guest rooms be 

safe harbored just as they are safe harbored 

under the 1991 Standards. In addition, one 

commenter requested that the proposed 

dispersion requirements in section 224.5 of 

the 2010 Standards not be applied to pre1993 facilities even when they are altered. 

Some commenters also offered a suggestion 

for limitations to the dispersion requirements 

as an alternative to safe harboring pre-1993 

facilities. The suggestion included: (1) Guest 

rooms’ interior or exterior footprints may 

remain unchanged in order to meet the 

dispersion requirements; (2) Dispersion 

should only be required among the types of 

rooms affected by an alteration; and (3) 

Subject to (1) and (2) above and technical 

feasibility, a facility would need to provide 

only one guest room in each guest room type 

such as single, double and suites. One 

commenter requested an exception to the 

dispersion criteria that applies to both 

existing and new multi-story timeshare 

facilities. This requested exception waives 

dispersion based on views to the extent that 

up to eight units may be vertically stacked in 

a single location. 

Section 224.1.1 of the 2010 Standards sets 

scoping requirements for alterations to 

transient lodging guest rooms. The advisory 

to section 224.1.1 further explains that 

compliance with 224.5 is more likely to be 

achieved if all of the accessible guest rooms 

are not provided in the same area of the 

facility, when accessible guest rooms are 

added as a result of subsequent alterations. 

Some commenters requested a specific 

exemption for small hotels of 300 or fewer 

guest rooms from dispersion regarding 

smoking rooms. The ADA requires that 

individuals with disabilities be provided 

with the same range of options as persons 

without disabilities, and, therefore, the 

Department declines to add such an 

exemption. It is noted, however, that the 

existence of this language in the advisory 

does not require a place of transient lodging 

that does not offer smoking guest rooms at its 

facility to do so only for individuals with 

disabilities. 

Guest Rooms with Mobility Features. 

Scoping provisions for guest rooms with 

mobility features are provided in section 

224.2 of the 2010 Standards. Scoping 

requirements for alterations are included in 

224.1.1. These scoping requirements in the 

2010 Standards are consistent with the 1991 

Standards. 

One commenter expressed opposition to 

the new scoping provisions for altered guest 

rooms, which, according to the commenter, 

require greater numbers of accessible guest 

rooms with mobility features. 

Section 224.1.1 of the 2010 Standards 

provides scoping requirements for alterations 

to guest rooms in existing facilities. Section 

224.1.1 modifies the scoping requirements 

for new construction in section 224 by 

limiting the application of section 224 

requirements only to those guest rooms being 

altered or added until the number of such 

accessible guest rooms complies with the 

minimum number required for new 

construction in section 224.2 of the 2010 

Standards. The minimum required number of 

accessible guest rooms is based on the total 

number of guest rooms altered or added 

instead of the total number of guest rooms 

provided. These requirements are consistent 

with the requirements in the 1991 Standards. 

Language in the 2010 Standards clarifies the 

provision of section 104.2 of the 2010 

Standards which requires rounding up values 

to the next whole number for calculations of 

percentages in scoping. 

Guest Rooms with Communication 

Features. The revisions at section 224.4 of 

the 2010 Standards effect no substantive 

change from the 1991 Standards with respect 

to the number of guest rooms required to 

provide communication features. The 

scoping requirement is consolidated into a 

single table, instead of appearing in three 

sections as in the 1991 Standards. The 

revised provisions also limit the overlap 

between guest rooms required to provide 

mobility features and guest rooms required to 

provide communication features. Section 

224.5 of the 2010 Standards requires that at 

least one guest room providing mobility 

features must also provide communications 

features. At least one, but not more than ten 

percent (10%), of the guest rooms required to 

provide mobility features can also satisfy the 

minimum number of guest rooms required to 

provide communication features. 

Commenters suggested that the 

requirements for scoping and dispersion of 

guest rooms for persons with mobility 

impairments and guest rooms with 

communication features are too complex for 

the industry to effectively implement. 

The Department believes the requirements 

for guest rooms with communications 

features in the 2010 Standards clarify the 

requirements necessary to provide equal 

opportunity for travelers with disabilities. 

Additional technical assistance will be made 

available to address questions before the rule 

goes into effect. 

Visible Alarms in Guest Rooms with 

Communication Features. The 1991 

Standards at sections 9.3.1 and 4.28.4 require 

transient lodging guest rooms with 

communication features to provide either 

permanently installed visible alarms that are 

connected to the building fire alarm system 

or portable visible alarms that are connected 

to a standard 110-volt electrical outlet and 

are both activated by the building fire alarm 

system and provide a visible alarm when the 

single station smoke detector is activated. 

Section 215.4 of the 2010 Standards no 

longer includes the portable visible alarm 

option and instead requires that transient 

lodging guest rooms with communication 

features be equipped with a fire alarm system 

which includes permanently installed 

audible and visible alarms in accordance 

with NFPA 72 National Fire Alarm Code 

(1999 or 2002 edition). Such guest rooms 

with communication features are also 

required by section 806.3.2 of the 2010 

Standards to be equipped with visible 

notification devices that alert room 

occupants of incoming telephone calls and a 

door knock or bell. 

The 2010 Standards add a new exception 

for alterations to existing facilities that 

exempts existing fire alarm systems from 

providing visible alarms, unless the fire 

alarm system itself is upgraded or replaced, 

or a new fire alarm system is installed. 

Transient lodging facilities that alter guest 

rooms are not required to provide 

permanently installed visible alarms 

complying with the NFPA 72 if the existing 

fire alarm system has not been upgraded or 

replaced, or a new fire alarm system has not 

been installed. 

Commenters representing small providers 

of transient lodging raised concerns about the 

proposed changes to prohibit the use of 

portable visible alarms used in transient 

lodging guest rooms. These commenters 

recommended retaining requirements that 

allow the use of portable visible alarms. 

Persons who are deaf or hard of hearing 

have reported that portable visible alarms 

used in transient lodging guest rooms are 

deficient because the alarms are not activated 

by the building fire alarm system, and the 

alarms do not work when the building power 

source goes out in emergencies. The 2010 

Standards are consistent with the model 

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building, fire, and life safety codes as applied 

to newly constructed transient lodging 

facilities. One commenter sought 

confirmation of its understanding of visible 

alarm requirements from the Department. 

This commenter interpreted the exception to 

section 215.1 of the 2010 Standards and the 

Department’s commentary to the NPRM to 

mean that if a transient lodging facility does 

not have permanently installed visible alarms 

in its communication accessible guest rooms, 

it will not be required to provide such alarms 

until such time that its fire alarm system is 

upgraded or replaced, or a new fire alarm 

system is installed. In addition, this 

commenter also understood that, if a hotel 

already has permanently installed visible 

alarms in all of its mobility accessible guest 

rooms, it would not have to relocate such 

visible alarms and other communication 

features in those rooms to other guest rooms 

to comply with the ten percent (10%) overlap 

requirement until the alarm system is 

upgraded or replaced. 

This commenter’s interpretation and 

understanding are consistent with the 

Department’s position in this matter. Section 

215.4 of the 2010 Standards requires that 

guest rooms required to have communication 

features be equipped with a fire alarm system 

complying with section 702. Communication 

accessible guest rooms are required to have 

all of the communication features described 

in section 806.3 of the 2010 Standards 

including a fire alarm system which provides 

both audible and visible alarms. The 

exception to section 215.1 of the 2010 

Standards, which applies only to fire alarm 

requirements for guest rooms with 

communication features in existing facilities, 

exempts the visible alarm requirement until 

such time as the existing fire alarm system 

is upgraded or replaced, or a new fire alarm 

system is installed. If guest rooms in existing 

facilities are altered and they are required by 

section 224 of the 2010 Standards to have 

communication features, such guest rooms 

are required by section 806.3 to have all other 

communication features including 

notification devices. 

Vanity Counter Space. Section 806.2.4.1 of 

the 2010 Standards requires that if vanity 

countertop space is provided in inaccessible 

transient lodging guest bathrooms, 

comparable vanity space must be provided in 

accessible transient lodging guest bathrooms. 

A commenter questioned whether in 

existing facilities vanity countertop space 

may be provided through the addition of a 

shelf. Another commenter found the term 

‘‘comparable’’ vague and expressed concern 

about confusion the new requirement would 

cause. This commenter suggested that the 

phrase ‘‘equal area in square inches’’ be used 

instead of comparable vanity space. 

In some circumstances, the addition of a 

shelf in an existing facility may be a 

reasonable way to provide a space for 

travelers with disabilities to use their 

toiletries and other personal items. However, 

this is a determination that must be made on 

a case-by-case basis. Comparable vanity 

countertop space need not be one continuous 

surface and need not be exactly the same size 

as the countertops in comparable guest 

bathrooms. For example, accessible shelving 

within reach of the lavatory could be stacked 

to provide usable surfaces for toiletries and 

other personal items. 

Shower and Sauna Doors in Transient 

Lodging Facilities. Section 9.4 of the 1991 

Standards and section 206.5.3 of the 2010 

Standards both require passage doors in 

transient lodging guest rooms that do not 

provide mobility features to provide at least 

32 inches of clear width. Congress directed 

this requirement to be included so that 

individuals with disabilities could visit 

guests in other rooms. See H. Rept. 101–485, 

pt. 2, at 118 (1990); S. Rept. 101–116, at 70 

(1989). Section 224.1.2 of the 2010 Standards 

adds a new exception to clarify that shower 

and sauna doors in such inaccessible guest 

rooms are exempt from the requirement for 

passage doors to provide at least 32 inches 

of clear width. Two commenters requested 

that saunas and steam rooms in existing 

facilities be exempt from the section 224.1.2 

requirement and that the requirement be 

made applicable to new construction only. 

The exemption to the section 224.1.2 

requirement for a 32-inch wide clearance at 

doors to shower and saunas applies only to 

those showers and saunas in guest rooms 

which are not required to have mobility 

features. Showers and saunas in other 

locations, including those in common use 

areas and guest rooms with mobility features, 

are required to comply with the 32-inch clear 

width standard as well as other applicable 

accessibility standards. Saunas come in a 

variety of types: portable, pre-built, pre-cut, 

and custom-made. All saunas except for 

custom-made saunas are made to 

manufacturers’ standard dimensions. The 

Department is aware that creating the 

required 32-inch clearance at existing 

narrower doorways may not always be 

technically feasible. However, the 

Department believes that owners and 

operators will have an opportunity to provide 

the required doorway clearance, unless doing 

so is technically infeasible, when an 

alteration to an existing sauna is undertaken. 

Therefore, the Department has retained these 

requirements. 

Platform Lifts in Transient Lodging Guest 

Rooms and Dwelling Units. The 1991 

Standards, at section 4.1.3(5), exception 4, 

and the 2010 Standards, at sections 206.7 and 

206.7.6, both limit the locations where 

platform lifts are permitted to be used as part 

of an accessible route. The 2010 Standards 

add a new scoping requirement that permits 

platform lifts to be used to connect levels 

within transient lodging guest rooms and 

dwelling units with mobility features. 

806 Transient Lodging Guest Rooms 

In the NPRM, the Department included 

floor plans showing examples of accessible 

guest rooms and bathrooms designs with 

mobility features to illustrate how 

compliance with the 2010 Standards could 

be accomplished with little or no additional 

space compared to designs that comply with 

the 1991 Standards. 

Commenters noted that the Department’s 

plans showing accessible transient lodging 

guest rooms compliant with the 2010 

Standards were not common in the transient 

lodging industry and also noted that the 

plans omitted doors at sleeping room closets. 

The Department agrees that the 

configuration of the accessible bathrooms is 

somewhat different from past designs used 

by the industry, but this was done to meet 

the requirements of the 2010 Standards. The 

plans were provided to show that, with some 

redesign, the 2010 Standards do not normally 

increase the square footage of an accessible 

sleeping room or bathroom with mobility 

features in new construction. The 

Department has also modified several 

accessible guest room plans to show that 

doors can be installed on closets and comply 

with the 2010 Standards. 

A commenter stated that the Department’s 

drawings suggest that the fan coil units for 

heat and air conditioning are overhead, while 

the typical sleeping room usually has a 

vertical unit, or a packaged terminal air 

conditioning unit within the room. The 

Department’s drawings are sample plans, 

showing the layout of the space, relationship 

of elements to each other, and required clear 

floor and turning spaces. It was not the intent 

of the Department to provide precise 

locations for all elements, including heating 

and air conditioning units. 

Commenters noted that in guest rooms 

with two beds, each bed was positioned close 

to a wall, reducing access on one side. 

Another commenter stated that additional 

housekeeping time is needed to clean the 

room when beds are placed closer to walls. 

The 2010 Standards require that, when two 

beds are provided, there must be at least 36 

inches of clear space between the beds. The 

plans provided in the NPRM showed two bed 

arrangements with adequate clear width 

complying with the 1991 Standards and the 

2010 Standards. Additional space can be 

provided on the other side of the beds to 

facilitate housekeeping as long as the clear 

floor space between beds is at least 36 inches 

wide. 

Commenters stated that chases in sleeping 

room bathrooms that route plumbing and 

other utilities can present challenges when 

modifying existing facilities. In multi-story 

facilities, relocating or re-routing these 

elements may not be possible, limiting 

options for providing access. The Department 

recognizes that relocating mechanical chases 

in multi-story facilities may be difficult or 

impossible to accomplish. While these issues 

do not exist in new facilities, altered existing 

facilities must comply with the 2010 

Standards to the extent that it is technically 

feasible to do so. When an alteration cannot 

fully comply because it is technically 

infeasible to do so, the alteration must still 

be designed to comply to the greatest extent 

feasible. 

Commenters noted that on some of the 

Department’s plans where a vanity is located 

adjacent to a bathtub, the vanity may require 

more maintenance due to exposure to water. 

The Department agrees that it would be 

advisable that items placed next to a bathtub 

or shower be made of materials that are not 

susceptible to water damage. 

Transient Lodging Guest Room Floor Plans 

and Related Text. The Department has 

included the following floor plans showing 

application of the requirements of the 2010 

Standards without significant loss of guest 

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room living space in transient lodging 

compared to the 1991 Standards. 

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BILLING CODE 4410–13–C 

225 and 811 Storage 

Section 225 of the 2010 Standards provides 

that where storage is provided in accessible 

spaces, at least one of each type shall comply 

with the 2010 Standards. Self-service 

shelving is required to be on an accessible 

route, but is not required to comply with the 

reach range requirements. These 

requirements are consistent with the 1991 

Standards. 

Section 225.3 adds a new scoping 

requirement for self-storage facilities. 

Facilities with 200 or fewer storage spaces 

will be required to make at least five percent 

(5%) of the storage spaces accessible. 

Facilities with more than 200 storage spaces 

will be required to provide ten accessible 

storage spaces, plus two percent (2%) of the 

total storage spaces over 200. 

Sections 225.2.1 and 811 of the 2010 

Standards require lockers to meet 

accessibility requirements. Where lockers are 

provided in clusters, five percent (5%) but at 

least one locker in each cluster will have to 

comply. Under the 1991 Standards, only one 

locker of each type provided must be 

accessible. 

Commenters recommended that the 

Department adopt language requiring public 

accommodations to provide access to all selfservice shelves and display areas available to 

customers. Other commenters opposed this 

requirement as too burdensome to retail and 

other entities and claimed that significant 

revenue would be lost if this requirement 

were to be implemented. 

Other commenters raised concerns that 

section 225.2.2 of the 2010 Standards scopes 

only self-service shelving whereas section 

4.1.3(12)(b) of the 1991 Standards applies to 

both ‘‘shelves or display units.’’ 

Although ‘‘display units’’ were not 

included in the 2010 Standards under the 

belief that displays are not to be touched and 


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therefore by definition cannot be ‘‘selfservice,’’ both the 2010 Standards and the 

1991 Standards should be read broadly to 

apply to all types of shelves, racks, hooks, 

and similar self-service merchandising 

fittings, including self-service display units. 

Such fixtures are permitted to be installed 

above or below the reach ranges possible for 

many persons with disabilities so that space 

available for merchandising is used as 

efficiently as possible. 

226 and 902 Dining Surfaces and Work 

Surfaces 

Section 226.1 of the 2010 Standards 

require that where dining surfaces are 

provided for the consumption of food or 

drink, at least five percent (5%) of the seating 

spaces and standing spaces at the dining 

surfaces comply with section 902. Section 

902.2 requires the provision of accessible 

knee and toe clearance. 

Commenters stated that basing accessible 

seating on seating spaces and standing spaces 

potentially represents a significant increase 

in scoping, particularly given the ambiguity 

in what represents a ‘‘standing space’’ and 

urged a return to the 1991 Standard of 

requiring accessible seating based on fixed 

dining tables. The scoping change merely 

takes into account that tables may vary in 

size so that basing the calculation on the 

number of tables rather than on the number 

of individuals that may be accommodated by 

the tables could unnecessarily restrict 

opportunities for persons with disabilities. 

The revised scoping permits greater 

flexibility by allowing designers to disperse 

accessible seating and standing spaces 

throughout the dining area. Human factors 

data, which is readily available to designers, 

provides information about the amount of 

space required for both eating and drinking 

while seated or standing. 

227 and 904 Sales and Service 

Check-Out Aisles and Sales and Service 

Counters. The 1991 Standards, at section 7.2, 

and the 2010 Standards, at section 904.4, 

contain technical requirements for sales and 

service counters. The 1991 Standards 

generally require sales and service counters 

to provide an accessible portion at least 36 

inches long and no higher than 36 inches 

above the finish floor. The nondiscrimination 

requirements of the ADA regulations require 

the level of service provided at the accessible 

portion of any sales and service counter to be 

the same as the level of service provided at 

the inaccessible portions of the counter. 

The 2010 Standards specify different 

lengths for the accessible portion of sales and 

service counters based on the type of 

approach provided. Where a forward 

approach is provided, the accessible portion 

of the counter must be at least 30 inches long 

and no higher than 36 inches, and knee and 

toe space must be provided under the 

counter. The requirement that knee and toe 

space be provided where only clear floor 

space for a forward approach to a sales and 

service counter is provided is not a new 

requirement. It is a clarification of the 

ongoing requirement that part of the sales 

and service counter be accessible. This 

requirement applies to the entire accessible 

part of sales and service counters and 

requires that the accessible clear floor or 

ground space adjacent to those counters be 

kept clear of merchandise, equipment, and 

other items so that the accessible part of the 

counter is readily accessible to and usable by 

individuals with disabilities. The accessible 

part of the counter must also be staffed and 

provide an equivalent level of service as that 

provided to all customers. 

Where clear floor space for a parallel 

approach is provided, the accessible portion 

of the counter must be at least 36 inches long 

and no higher than 36 inches above the finish 

floor. A clear floor or ground space that is at 

least 48 inches long x 30 inches wide must 

be provided positioned for a parallel 

approach adjacent to the 36-inch minimum 

length of counter. 

Section 904.4 of the 2010 Standards 

includes an exception for alterations to sales 

and service counters in existing facilities. It 

permits the accessible portion of the counter 

to be at least 24 inches long, where providing 

a longer accessible counter will result in a 

reduction in the number of existing counters 

at work stations or existing mailboxes, 

provided that the required clear floor or 

ground space is centered on the accessible 

length of the counter. 

Section 904.4 of the 2010 Standards also 

clarifies that the accessible portion of the 

counter must extend the same depth as the 

sales or service counter top. Where the 

counter is a single-height counter, this 

requirement applies across the entire depth 

of the counter top. Where the counter is a 

split-height counter, this requirement applies 

only to the customer side of the counter top. 

The employee-side of the counter top may be 

higher or lower than the customer-side of the 

counter top. 

Commenters recommended that the 

Department consider a regulatory alternative 

exempting small retailers from the new knee 

and toe clearance requirement and retaining 

existing wheelchair accessibility standards 

for sales and service counters. These 

commenters believed that the knee and toe 

clearance requirements will cause a 

reduction in the sales and inventory space at 

check-out aisles and other sales and service 

counters. 

Both the 1991 and the 2010 Standards 

permit covered entities to determine whether 

they will provide a forward or a parallel 

approach to sales and service counters. So 

any facility that does not wish to provide the 

knee or toe clearance required for a front 

approach to such a counter may avoid that 

option. However, the Department believes 

that permitting a forward approach without 

requiring knee and toe clearance is not 

adequate to provide accessibility because the 

person using a wheelchair will be prevented 

from coming close enough to the counter to 

see the merchandise or to transact business 

with a degree of convenience that is 

comparable to that provided to other 

customers. 

A parallel approach to sales and service 

counters also can provide the accessibility 

required by the 2010 Standards. Individuals 

using wheelchairs can approach sales and 

service counters from the side, and, assuming 

the necessary elements, features, or 

merchandise necessary to complete a 

business transaction are within the reach 

range requirements for a side approach, the 

needs of individuals with disabilities can be 

met effectively. 

Section 227 of the 2010 Standards clarifies 

the requirements for food service lines. 

Queues and waiting lines serving counters or 

check-out aisles, including those for food 

service, must be accessible to individuals 

with disabilities. 

229 Windows 

A new requirement at section 229.1 of the 

2010 Standards provides that if operable 

windows are provided for building users, 

then at least one window in an accessible 

space must be equipped with controls that 

comply with section 309. 

Commenters generally supported this 

provision but some commenters asked 

whether the maximum five-pounds (5 lbs.) of 

force requirement of section 309 applies to 

the window latch itself or only to the force 

required to open the window. Section 309 

applies to all controls and operating 

mechanisms, so the latch must comply with 

the requirement to operate with no more than 

five pounds of force (5 lbf). 

230 and 708 Two-Way Communication 

Systems 

New provisions of the 2010 Standards at 

sections 230.1 and 708 require two-way 

communications systems to be equipped 

with visible as well as audible signals. 

231 and 808 Judicial Facilities and 

Courtrooms 

Section 231 of the 2010 Standards adds 

requirements for accessible courtrooms, 

holding cells, and visiting areas. 

Accessible Courtroom Stations. Sections 

231.2, 808, 304, 305, and 902 of the 2010 

Standards provide increased accessibility at 

courtroom stations. Clear floor space for a 

forward approach is required for all 

courtroom stations (judges’ benches, clerks’ 

stations, bailiffs’ stations, deputy clerks’ 

stations, court reporters’ stations, and 

litigants’ and counsel stations). Other 

applicable specifications include accessible 

work surface heights and toe and knee 

clearance. 

Accessible Jury Boxes, Attorney Areas, and 

Witness Stands. Section 206.2.4 of the 2010 

Standards requires, in new construction and 

alterations, at least one accessible route to 

connect accessible building or facility 

entrances with all accessible spaces and 

elements within the building or facility that 

are connected by a circulation path unless 

they are exempted by Exceptions 1–7 of 

section 206.2.3. Advisory 206.2.4 Spaces and 

Elements Exception 1 explains that the 

exception allowing raised courtroom stations 

to be used by court employees, such as 

judge’s benches, to be adaptable does not 

apply to areas of the courtroom likely to be 

used by members of the public such as jury 

areas, attorney areas, or witness stands. 

These areas must be on an accessible route 

at the time of initial construction or 

alteration. 

Raised Courtroom Stations Not for 

Members of the Public. Section 206.2.4, 

Exception 1 of the 2010 Standards provides 

that raised courtroom stations that are used 

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by judges, clerks, bailiffs, and court reporters 

will not have to provide full vertical access 

when first constructed or altered if they are 

constructed to be easily adaptable to provide 

vertical accessibility. 

One commenter suggested that a sufficient 

number of accessible benches for judges with 

disabilities, in addition to requiring 

accessible witness stands and attorney areas, 

be required. The Department believes that the 

requirements regarding raised benches for 

judges are easily adaptable to provide vertical 

access in the event a judge requires an 

accessible bench. Section 206.2.4 of the 2010 

Standards provides that raised courtroom 

stations used by judges and other judicial 

staff do not have to provide full vertical 

access when first constructed or altered as 

long as the required clear floor space, 

maneuvering space, and electrical service, 

where appropriate, is provided at the time of 

new construction or can be achieved without 

substantial reconstruction during alterations. 

A commenter asserted that there is nothing 

inherent in clerks’ stations, jury boxes, and 

witness stands that require them to be raised. 

While it would, of course, be easiest to 

provide access by eliminating height 

differences among courtroom elements, the 

Department recognizes that accessibility is 

only one factor that must be considered in 

the design process of a functioning 

courtroom. The need to ensure the ability of 

the judge to maintain order, the need to 

ensure sight lines among the judge, the 

witness, the jury, and other participants, and 

the need to maintain the security of the 

participants all affect the design of the space. 

The Department believes that the 2010 

Standards have been drafted in a way that 

will achieve accessibility without unduly 

constraining the ability of a designer to 

address the other considerations that are 

unique to courtrooms. 

Commenters argued that permitting 

courtroom stations to be adaptable rather 

than fully accessible at the time of new 

construction likely will lead to 

discrimination in hiring of clerks, court 

reporters, and other court staff. The 

Department believes that the provisions will 

facilitate, not hinder, the hiring of court 

personnel who have disabilities. All 

courtroom work stations will be on accessible 

routes and will be required to have all fixed 

elements designed in compliance with the 

2010 Standards. Elevated work stations for 

court employees may be designed to add 

vertical access as needed. Since the original 

design must provide the proper space and 

electrical wiring to install vertical access, the 

change should be easily accomplished. 

232 Detention Facilities and Correctional 

Facilities 

Section 232 of the 2010 Standards 

establishes requirements for the design and 

construction of cells, medical care facilities, 

and visiting areas in detention facilities and 

in correctional facilities. Section 35.151(k) of 

the Department’s title II rule provides 

scoping for newly constructed general 

holding cells and general housing cells 

requiring mobility features compliant with 

section 807.2 of the 2010 Standards in a 

minimum of three percent (3%) of cells, but 

no fewer than one cell. Section 232.2 of the 

2010 Standards provides scoping for newly 

constructed cells with communications 

features requiring a minimum of two percent 

(2%) of cells, but at least one cell, to have 

communication features. 

The Department’s title II rule at § 35.151(k) 

also specifies scoping for alterations to 

detention and correctional facilities. 

Generally a minimum of three percent (3%), 

but no fewer than one, of the total number 

of altered cells must comply with section 

807.2 of the 2010 Standards and be provided 

within each facility. Altered cells with 

mobility features must be provided in each 

classification level, including administrative 

and disciplinary segregation, each use and 

service area, and special program. The 

Department notes that the three percent (3%), 

but no fewer than one, requirement is a 

minimum. As corrections systems plan for 

new facilities or alterations, the Department 

urges planners to include in their population 

estimates a projection of the numbers of 

inmates with disabilities so as to have 

sufficient numbers of accessible cells to meet 

inmate needs. 

233 Residential Facilities 

Homeless Shelters, Group Homes, and 

Similar Social Service Establishments. 

Section 233 of the 2010 Standards includes 

specific scoping and technical provisions 

that apply to new construction and alteration 

of residential facilities. In the 1991 Standards 

scoping and technical requirements for 

homeless shelters, group homes, and similar 

social service establishments were included 

in section 9 Transient Lodging. These types 

of facilities will be covered by section 233 of 

the 2010 Standards and by 28 CFR 35.151(e) 

and 36.406(d) and will be subject to 

requirements for residential facilities rather 

than the requirements for transient lodging. 

This approach will harmonize federal 

accessibility obligations under both the ADA 

and section 504 of the Rehabilitation Act of 

1973, as amended. In sleeping rooms with 

more than 25 beds that are covered by 

§ 36.406(d) a minimum of five percent (5%) 

of the beds must have clear floor space 

compliant with section 806.2.3 of the 2010 

Standards. In large facilities with more than 

50 beds, at least one roll-in shower compliant 

with section 608.2.2 or section 608.2.3 of the 

2010 Standards must be provided. Where 

separate shower facilities are provided for 

men and for women, at least one roll-in 

shower must be provided for each gender. 

Housing Operated By or On Behalf of 

Places of Education. Housing at a place of 

education includes: Residence halls, 

dormitories, suites, apartments, or other 

places of residence operated by or on behalf 

of places of education. Residence halls or 

dormitories operated by or on behalf of 

places of education are covered by the 

provisions in sections 224 and 806 of the 

2010 Standards. The Department has 

included in the title III rule at § 36.406(e) 

requirements that apply to housing at places 

of education that clarify requirements for 

residence halls and dormitories and other 

types of student housing. Requirements for 

housing at a place of education covered by 

the title II rule are included at § 35.151(f). 

Kitchens and Kitchenettes. Section 4.34.2 

of the UFAS requires a clear turning space at 

least 60 inches in diameter or an equivalent 

T-shaped turning space in kitchens. Section 

4.34.6 requires a clearance between opposing 

base cabinets, counters, appliances, or walls 

of at least 40 inches except in a U-shaped 

kitchen where the minimum clearance is 60 

inches. 

Section 804 of the 2010 Standards provides 

technical requirements for kitchens and 

kitchenettes. Section 804.2.1 requires that 

pass through kitchens, which have two 

entries and counters, appliances, or cabinets 

on two opposite sides or opposite a parallel 

wall, provide at least 40 inches minimum 

clearance. Section 804.2.2 requires that Ushaped kitchens, which are enclosed on three 

continuous sides, provide at least 60 inches 

minimum clearance between all opposing 

base cabinets, countertops, appliances, or 

walls within kitchen work areas. Kitchens 

that do not have a cooktop or conventional 

range are exempt from the clearance 

requirements but still must provide an 

accessible route. 

If a kitchen does not have two entries, the 

2010 Standards require the kitchen to have 

60 inches minimum clearance between the 

opposing base cabinets, counters, appliances, 

or walls. 

One commenter supported the provisions 

of section 804 of the 2010 Standards but 

sought clarification whether this section 

applies to residential units only, or to lodging 

and office buildings as well. Section 212 

makes section 804 applicable to all kitchens 

and kitchenettes in covered buildings. 

Residential Facilities. Section 4.1.4(11) of 

the UFAS contains scoping requirements for 

the new construction of housing. Under the 

1991 title II regulation, state and local 

governments had the option of complying 

with the UFAS or the 1991 Standards. After 

the compliance date for the 2010 Standards, 

state and local governments will no longer 

have the option of complying with the UFAS, 

but will have to use the 2010 Standards for 

new construction and alterations. 

Sections 233.1, 233.2, 233.3, 233.3.1, and 

233.3.2 of the 2010 Standards differentiate 

between entities subject to the United States 

Department of Housing and Urban 

Development (HUD) regulations 

implementing section 504 of the 

Rehabilitation Act of 1973 and entities not 

subject to the HUD regulations. The HUD 

regulations apply to recipients of federal 

financial assistance through HUD, and 

require at least five percent (5%) of dwelling 

units in multi-family projects of five or more 

dwelling units to provide mobility features 

and at least two percent (2%) of the dwelling 

units to provide communication features. 

The HUD regulations define a project unique 

to its programs as ‘‘one or more residential 

structures which are covered by a single 

contract for federal financial assistance or 

application for assistance, or are treated as a 

whole for processing purposes, whether or 

not located on a common site.’’ To avoid any 

potential conflicts with the HUD regulations, 

the 2010 Standards require residential 

dwelling units subject to the HUD regulations 

to comply with the scoping requirements in 

the HUD regulations, instead of the scoping 

requirements in the 2010 Standards. 

For entities not subject to the HUD 

regulations, the 2010 Standards require at 

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least five percent (5%) of the dwelling units 

in residential facilities to provide mobility 

features, and at least two percent (2%) of the 

dwelling units to provide communication 

features. The 2010 Standards define facilities 

in terms of buildings located on a site. The 

2010 Standards permit facilities that contain 

15 or fewer dwelling units to apply the 

scoping requirements to all the dwelling 

units that are constructed under a single 

contract, or are developed as whole, whether 

or not located on a common site. 

Alterations to Residential Facilities. 

Section 4.1.6 of the UFAS requires federal, 

state, and local government housing to 

comply with the general requirements for 

alterations to facilities. Applying the general 

requirements for alterations to housing can 

result in partially accessible dwelling units 

where single elements or spaces in dwelling 

units are altered. 

The 2010 Standards, at sections 202.3 

Exception 3, 202.4, and 233.3, contain 

specific scoping requirements for alterations 

to dwelling units. Dwelling units that are not 

required to be accessible are exempt from the 

general requirements for alterations to 

elements and spaces and for alterations to 

primary function areas. 

The scoping requirements for alterations to 

dwelling units generally are based on the 

requirements in the UFAS: 

• Where a building is vacated for purposes 

of alterations and has more than 15 dwelling 

units, at least five percent (5%) of the altered 

dwelling units are required to provide 

mobility features and at least two percent 

(2%) of the dwelling units are required to 

provide communication features. 

• Where a bathroom or a kitchen is 

substantially altered in an individual 

dwelling unit and at least one other room is 

also altered, the dwelling unit is required to 

comply with the scoping requirements for 

new construction until the total number of 

dwelling units in the facility required to 

provide mobility features and 

communication features is met. 

As with new construction, the 2010 

Standards permit facilities that contain 15 or 

fewer dwelling units to apply the scoping 

requirements to all the dwelling units that 

are altered under a single contract, or are 

developed as a whole, whether or not located 

on a common site. The 2010 Standards also 

permit a comparable dwelling unit to provide 

mobility features where it is not technically 

feasible for the altered dwelling unit to 

comply with the technical requirements. 

234 and 1002 Amusement Rides 

New and Altered Permanently Installed 

Amusement Rides. Section 234 of the 2010 

Standards sets out scoping requirements and 

section 1002 sets out the technical 

requirements for the accessibility of 

permanently installed amusement rides. 

These requirements apply to newly designed 

and constructed amusement rides and used 

rides when certain alterations are made. 

A commenter raised concerns that smaller 

amusement parks tend to purchase used rides 

more frequently than new rides, and that the 

conversion of a used ride to provide the 

required accessibility may be difficult to 

ensure because of the possible complications 

in modifying equipment to provide 

accessibility. 

The Department agrees with this 

commenter. The Department notes, however, 

that the 2010 Standards will require 

modifications to existing amusement rides 

when a ride’s structural and operational 

characteristics are altered to the extent that 

the ride’s performance differs from that 

specified by the manufacturer or the original 

design. Such an extensive alteration to an 

amusement ride may well require that new 

load and unload areas be designed and 

constructed. When load and unload areas 

serving existing amusement rides are newly 

designed and constructed they must be level, 

provide wheelchair turning space, and be on 

an accessible route compliant with Chapter 4 

of the 2010 Standards except as modified by 

section 1002.2 of the 2010 Standards. 

Mobile or Portable Amusement Rides. The 

exception in section 234.1 of the 2010 

Standards exempts mobile or portable 

amusement rides, such as those set up for 

short periods of time at carnivals, fairs or 

festivals, from having to comply with the 

2010 Standards. However, even though the 

mobile/portable ride itself is not subject to 

the Standards, these facilities are still subject 

to the ADA’s general requirement to ensure 

that individuals with disabilities have an 

equal opportunity to enjoy the services and 

amenities of these facilities. 

Subject to these general requirements, 

mobile or portable amusement rides should 

be located on an accessible route and the 

load and unload areas serving a ride should 

provide a level wheelchair turning space to 

provide equal opportunity for individuals 

with disabilities to be able to participate on 

the amusement ride to the extent feasible. 

One commenter noted that the exception in 

Section 234.1 of the 2010 Standards for 

mobile or portable amusement rides limits 

the opportunities of persons with disabilities 

to participate on amusement rides because 

traveling or temporary amusement rides by 

their nature come to their customers’ town or 

a nearby town rather than the customer 

having to go to them and so are less 

expensive than permanent amusement parks. 

While the Department understands the 

commenter’s concerns, the Department notes 

that most amusement rides are too complex 

to be reasonably modified or re-engineered to 

accommodate the majority of individuals 

with disabilities and that additional 

complexities and safety concerns are added 

when the rides are mobile or portable. 

A commenter asked that section 234 of the 

2010 Standards make clear that the 

requirements for accessible routes include 

the routes leading up to and including the 

loading and unloading areas of amusement 

rides. Sections 206.2.9 and 1002.2 of the 

2010 Standards clarify that the requirements 

for accessible routes include the routes 

leading up to and including the loading and 

unloading areas of amusement rides. 

A commenter requested that the final rule 

specifically allow for wheelchair access 

through the exit or other routes, or alternate 

means of wheelchair access routes to 

amusement rides. The commenter stated that 

the concept of wheelchair access through the 

exit or alternate routes was a base 

assumption for the 2010 Standards. The 

commenter noted that the concept is 

apparent in the signage and load/unload area 

provisions in Section 216.12 (‘‘ * * * where 

accessible unload areas also serve as 

accessible load areas, signs indicating the 

location of the accessible load and unload 

areas shall be provided at entries to queues 

and waiting lines’’). The Department agrees 

with the commenter that accessible load and 

unload areas may be the same where signs 

that comply with section 216.12 are 

provided. 

Wheelchair Space or Transfer Seat or 

Transfer Device. Sections 234.3 and 1002.4– 

1002.6 of the 2010 Standards provide that 

each new and altered amusement ride, except 

for mobile/portable rides and a few 

additional excepted rides, will be required to 

provide at least one type of access by means 

of one wheelchair space or one transfer seat 

or one transfer device (the design of the 

transfer device is not specified). 

Commenters urged the Department to 

revise the requirements for wheelchair spaces 

and transfer seats and devices because most 

amusement rides are too complex to be 

reasonably modified or re-engineered to 

accommodate the majority of individuals 

with disabilities. They argued that the 

experience of amusement rides will be 

significantly reduced if the proposed 

requirements are implemented. 

The 2004 ADAAG, which the Department 

adopted as part of the 2010 Standards, was 

developed with the assistance of an advisory 

committee that included representation from 

the design staffs of major amusement venues 

and from persons with disabilities. The 

Department believes that the resulting 2004 

ADAAG reflected sensitivity to the complex 

problems posed in adapting existing rides by 

focusing on new rides that can be designed 

from the outset to be accessible. 

To permit maximum design flexibility, the 

2010 Standards permit designers to 

determine whether it is more appropriate to 

permit individuals who use wheelchairs to 

remain in their chairs on the ride, or to 

provide for transfer access. 

Maneuvering Space in Load and Unload 

Areas. Sections 234.2 and 1002.3 of the 2010 

Standards require that a level wheelchair 

turning space be provided at the load and 

unload areas of each amusement ride. The 

turning space must comply with sections 

304.2 and 304.3. 

Signs Required at Waiting Lines to 

Amusement Rides. Section 216.12 of the 

2010 Standards requires signs at entries to 

queues and waiting lines identifying type 

and location of access for the amusement 

ride. 

235 and 1003 Recreational Boating 

Facilities 

These sections require that accessible boat 

slips and boarding piers be provided. Most 

commenters approved of the requirements for 

recreational boating facility accessibility and 

urged the Department to keep regulatory 

language consistent with those provisions. 

They commented that the requirements 

appropriately reflect industry conditions. 

Individual commenters and disability 

organizations agreed that the 2010 Standards 

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achieve acceptable goals for recreational 

boating facility access. 

Accessible Route. Sections 206.2.10 and 

1003.2 of the 2010 Standards require an 

accessible route to all accessible boating 

facilities, including boat slips and boarding 

piers at boat launch ramps. Section 1003.2.1 

provides a list of exceptions applicable to 

structures such as gangways, transition 

plates, floating piers, and structures 

containing combinations of these elements 

that are affected by water level changes. The 

list of exceptions specifies alternate design 

requirements applicable to these structures 

which, because of water level variables, 

cannot comply with the slope, cross slope, 

and handrail requirements for fixed ramps 

contained in sections 403.3, 405.2, 405.3, 

405.6, and 405.7 of the 2010 Standards. 

Exceptions 3 and 4 in Section 1003.2.1, 

which permit a slope greater than that 

specified in Section 405.2, are available for 

structures that meet specified length 

requirements. Section 206.7.10 permits the 

use of platform lifts as an alternative to 

gangways that are part of accessible routes. 

Commenters raised concerns that because 

of water level fluctuations it may be difficult 

to provide accessible routes to all accessible 

boating facilities, including boat slips and 

boarding piers at boat launch ramps. One of 

the specific concerns expressed by several 

commenters relates to the limits for running 

slope permitted on gangways that are part of 

an accessible route as gangways may 

periodically have a steeper slope than is 

permitted for a fixed ramp. The exceptions 

contained in section 1003.2 of the 2010 

Standards modify the requirements of 

Chapter 4. For example, where the total 

length of a gangway or series of gangways 

serving as an accessible route is 80 feet or 

more an exception permits the slope on 

gangways to exceed the maximum slope in 

section 405.2. 

Some commenters suggested that 

permissible slope variations could be 

reduced further by introducing a formula that 

ties required gangway length to anticipated 

water level fluctuations. Such a formula 

would incorporate predictions of tidal level 

changes such as those issued by the National 

Oceanographic and Atmospheric 

Administration (NOAA) and the United 

States Geologic Survey (USGS). This 

suggested approach would be an alternative 

to the gangway length exceptions and limits 

in section 1003.2.1 of the 2010 Standards. 

These commenters noted that contemporary 

building materials and techniques make 

gangways of longer length and alternative 

configurations achievable. These commenters 

provided at least one example of a regional 

regulatory authority using this type of 

formula. While this approach may be 

successfully implemented and consistent 

with the goals of the ADA, the example 

provided was applied in a highly developed 

area containing larger facilities. The 

Department has considered that many 

facilities do not have sufficient resources 

available to take advantage of the latest 

construction materials and design 

innovations. Other commenters supported 

compliance exceptions for facilities that are 

subject to extreme tidal conditions. One 

commenter noted that if a facility is located 

in an area with limited space and extreme 

tidal variations, a disproportionately long 

gangway might intrude into water travel 

routes. The Department has considered a 

wide range of boating facility characteristics 

including size, water surface areas, tidal 

fluctuations, water conditions, variable 

resources, whether the facility is in a highly 

developed or remote location, and other 

factors. The Department has determined that 

the 2010 Standards provide sufficient 

flexibility for such broad application. 

Additionally, the length requirement for 

accessible routes in section 1003.2.1 provides 

an easily determinable compliance standard. 

Accessible Boarding Piers. Where boarding 

piers are provided at boat launch ramps, 

sections 235.3 and 1003.3.2 of the 2010 

Standards require that at least five percent 

(5%) of boarding piers, but at least one, must 

be accessible. 

Accessible Boat Slips. Sections 235.2 and 

1003.3.1 of the 2010 Standards require that 

a specified number of boat slips in each 

recreational boating facility meet specified 

accessibility standards. The number of 

accessible boat slips required by the 2010 

Standards is set out in a chart in section 

235.2. One accessible boat slip is required for 

facilities containing 25 or fewer total slips. 

The number of required accessible boat slips 

increases with the total number of slips at the 

facility. Facilities containing more than one 

thousand (1000) boat slips are required to 

provide twelve (12) accessible boat slips plus 

one for each additional one hundred slips at 

the facility. 

One commenter asserted the need for 

specificity in the requirement for dispersion 

of accessible slips. Section 235.2.1 of the 

2010 Standards addresses dispersion and 

requires that boat slips ‘‘shall be dispersed 

throughout the various types of boat slips 

provided.’’ The commenter was concerned 

that if a marina could not put accessible slips 

all on one pier, it would have to reconstruct 

the entire facility to accommodate accessible 

piers, gangways, docks and walkways. The 

provision permits required accessible boat 

slips to be grouped together. The Department 

recognizes that economical and structural 

feasibility may produce this result. The 2010 

Standards do not require the dispersion of 

the physical location of accessible boat slips. 

Rather, the dispersion must be among the 

various types of boat slips offered by the 

facility. Section 235.2.1 of the 2010 

Standards specifies that if the required 

number has been met, no further dispersion 

is required. For example, if a facility offers 

five different ‘types’ of boat slips but is only 

required to provide three according to the 

table in Section 235.2, that facility is not 

required to provide more than three 

accessible boat slips, but the three must be 

varied among the five ‘types’ of boat slips 

available at the facility. 

236 and 1004 Exercise Machines and 

Equipment 

Accessible Route to Exercise Machines and 

Equipment. Section 206.2.13 of the 2010 

Standards requires an accessible route to 

serve accessible exercise machines and 

equipment. 

Commenters raised concerns that the 

requirement to provide accessible routes to 

serve accessible exercise machines and 

equipment will be difficult for some facilities 

to provide, especially some transient lodging 

facilities that typically locate exercise 

machines and equipment in a single room. 

The Department believes that this 

requirement is a reasonable one in new 

construction and alterations because 

accessible exercise machines and equipment 

can be located so that an accessible route can 

serve more than one piece of equipment. 

Exercise Machines and Equipment. Section 

236 of the 2010 Standards requires at least 

one of each type of exercise machine to meet 

clear floor space requirements of section 

1004.1. Types of machines are generally 

defined according to the muscular groups 

exercised or the kind of cardiovascular 

exercise provided. 

Several commenters were concerned that 

existing facilities would have to reduce the 

number of available exercise equipment and 

machines in order to comply with the 2010 

Standards. One commenter submitted 

prototype drawings showing equipment and 

machine layouts with and without the 

required clearance specified in the 2010 

Standards. The accessible alternatives all 

resulted in a loss of equipment and 

machines. However, because these prototype 

layouts included certain possibly erroneous 

assumptions about the 2010 Standards, the 

Department wishes to clarify the 

requirements. 

Section 1004.1 of the 2010 Standards 

requires a clear floor space ‘‘positioned for 

transfer or for use by an individual seated in 

a wheelchair’’ to serve at least one of each 

type of exercise machine and equipment. 

This requirement provides the designer 

greater flexibility regarding the location of 

the clear floor space than was employed by 

the commenter who submitted prototype 

layouts. The 2010 Standards do not require 

changes to exercise machines or equipment 

in order to make them more accessible to 

persons with disabilities. Even where 

machines or equipment do not have seats and 

typically are used by individuals in a 

standing position, at least one of each type 

of machine or equipment must have a clear 

floor space. Therefore, it is reasonable to 

assume that persons with disabilities wishing 

to use this type of machine or equipment can 

stand or walk, even if they use wheelchairs 

much of the time. As indicated in Advisory 

1004.1, ‘‘the position of the clear floor space 

may vary greatly depending on the use of the 

equipment or machine.’’ Where exercise 

equipment or machines require users to stand 

on them, the clear floor space need not be 

located parallel to the length of the machine 

or equipment in order to provide a lateral 

seat-to-platform transfer. It is permissible to 

locate the clear floor space for such machines 

or equipment in the aisle behind the device 

and to overlap the clear floor space and the 

accessible route. 

Commenters were divided in response to 

the requirement for accessible exercise 

machines and equipment. Some supported 

requirements for accessible machines and 

equipment; others urged the Department not 

to require accessible machines and 

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equipment because of the costs involved. The 

Department believes that the requirement 

strikes an appropriate balance in ensuring 

that persons with disabilities, particularly 

those who use wheelchairs, will have the 

opportunity to use the exercise equipment. 

Providing access to exercise machines and 

equipment recognizes the need and desires of 

individuals with disabilities to have the same 

opportunity as other patrons to enjoy the 

advantages of exercise and maintaining 

health. 

237 and 1005 Fishing Piers and Platforms 

Accessible Route. Sections 206.2.14 and 

1005.1 of the 2010 Standards require an 

accessible route to each accessible fishing 

pier and platform. The exceptions described 

under Recreational Boating above also apply 

to gangways and floating piers. All 

commenters supported the requirements for 

accessible routes to fishing piers and 

platforms. 

Accessible Fishing Piers and Platforms. 

Sections 237 and 1005 of the 2010 Standards 

require at least twenty-five percent (25%) of 

railings, guards, or handrails (if provided) to 

be at a 34-inch maximum height (so that a 

person seated in a wheelchair can cast a 

fishing line over the railing) and to be located 

in a variety of locations on the fishing pier 

or platform to give people a variety of 

locations to fish. An exception allows a guard 

required to comply with the IBC to have a 

height greater than 34 inches. If railings, 

guards, or handrails are provided, accessible 

edge protection and clear floor or ground 

space at accessible railings are required. 

Additionally, at least one turning space 

complying with section 304.3 of the 2010 

Standards is required to be provided on 

fishing piers and platforms. 

Commenters expressed concerns about the 

provision for fishing piers and platforms at 

the exception in section 1005.2.1 of the 2010 

Standards that allows a maximum height of 

42 inches for a guard when the pier or 

platform is covered by the IBC. Two 

commenters stated that allowing a 42-inch 

guard or railing height for facilities covered 

by another building code would be difficult 

to enforce. They also thought that this would 

hinder access for persons with disabilities 

because the railing height would be too high 

for a person seated in a wheelchair to reach 

over with their fishing pole in order to fish. 

The Department understands these concerns 

but believes that the railing height exception 

is necessary in order to avoid confusion 

resulting from conflicting accessibility 

requirements, and therefore has retained this 

exception. 

238 and 1006 Golf Facilities 

Accessible Route. Sections 206.2.15, 

1006.2, and 1006.3 of the 2010 Standards 

require an accessible route to connect all 

accessible elements within the boundary of 

the golf course and, in addition, to connect 

golf car rental areas, bag drop areas, teeing 

grounds, putting greens, and weather 

shelters. An accessible route also is required 

to connect any practice putting greens, 

practice teeing grounds, and teeing stations at 

driving ranges that are required to be 

accessible. An exception permits the 

accessible route requirements to be met, 

within the boundaries of the golf course, by 

providing a ‘‘golf car passage’’ (the path 

typically used by golf cars) if specifications 

for width and curb cuts are met. 

Most commenters expressed the general 

viewpoint that nearly all golf courses provide 

golf cars and have either well-defined paths 

or permit the cars to drive on the course 

where paths are not present, and thus meet 

the accessible route requirement. 

The Department received many comments 

requesting clarification of the term ‘‘golf car 

passage.’’ Some commenters recommended 

additional regulatory language specifying 

that an exception from a pedestrian route 

requirement should be allowed only when a 

golf car passage provides unobstructed access 

onto the teeing ground, putting green, or 

other accessible element of the course so that 

an accessible golf car can have full access to 

those elements. These commenters cautioned 

that full and equal access would not be 

provided if a golfer were required to navigate 

a steep slope up or down a hill or a flight 

of stairs in order to get to the teeing ground, 

putting green, or other accessible element of 

the course. 

Conversely, another commenter requesting 

clarification of the term ‘‘golf car passage’’ 

argued that golf courses typically do not 

provide golf car paths or pedestrian paths up 

to actual tee grounds or greens, many of 

which are higher or lower than the car path. 

This commenter argued that if golf car 

passages were required to extend onto teeing 

grounds and greens in order to qualify for an 

exception, then some golf courses would 

have to substantially regrade teeing grounds 

and greens at a high cost. 

Some commenters argued that older golf 

courses, small nine-hole courses, and 

executive courses that do not have golf car 

paths would be unable to comply with the 

accessible route requirements because of the 

excessive cost involved. A commenter noted 

that, for those older courses that have not yet 

created an accessible pedestrian route or golf 

car passage, the costs and impacts to do so 

should be considered. 

A commenter argued that an accessible 

route should not be required where natural 

terrain makes it infeasible to create an 

accessible route. Some commenters 

cautioned that the 2010 Standards would 

jeopardize the integrity of golf course designs 

that utilize natural terrain elements and 

elevation changes to set up shots and create 

challenging golf holes. 

The Department has given careful 

consideration to the comments and has 

decided to adopt the 2010 Standards 

requiring that at least one accessible route 

connect accessible elements and spaces 

within the boundary of the golf course 

including teeing grounds, putting greens, and 

weather shelters, with an exception provided 

that golf car passages shall be permitted to be 

used for all or part of required accessible 

routes. In response to requests for 

clarification of the term ‘‘golf car passage,’’ 

the Department points out that golf car 

passage is merely a pathway on which a 

motorized golf car can operate and includes 

identified or paved paths, teeing grounds, 

fairways, putting greens, and other areas of 

the course. Golf cars cannot traverse steps 

and exceedingly steep slopes. A nine-hole 

golf course or an executive golf course that 

lacks an identified golf car path but provides 

golf car passage to teeing grounds, putting 

greens, and other elements throughout the 

course may utilize the exception for all or 

part of the accessible pedestrian route. The 

exception in section 206.2.15 of the 2010 

Standards does not exempt golf courses from 

their obligation to provide access to 

necessary elements of the golf course; rather, 

the exception allows a golf course to use a 

golf car passage for part or all of the 

accessible pedestrian route to ensure that 

persons with mobility disabilities can fully 

and equally participate in the recreational 

activity of playing golf. 

Accessible Teeing Grounds, Putting Greens, 

and Weather Shelters. Sections 238.2 and 

1006.4 of the 2010 Standards require that golf 

cars be able to enter and exit each putting 

green and weather shelter. Where two teeing 

grounds are provided, the forward teeing 

ground is required to be accessible (golf car 

can enter and exit). Where three or more 

teeing grounds are provided, at least two, 

including the forward teeing ground, must be 

accessible. 

A commenter supported requirements for 

teeing grounds, particularly requirements for 

accessible teeing grounds, noting that 

accessible teeing grounds are essential to the 

full and equal enjoyment of the golfing 

experience. 

A commenter recommended that existing 

golf courses be required to provide access to 

only one teeing ground per hole. The 

majority of commenters reported that most 

public and private golf courses already 

provide golf car passage to teeing grounds 

and greens. The Department has decided that 

it is reasonable to maintain the requirement. 

The 2010 Standards provide an exception for 

existing golf courses with three or more 

teeing grounds not to provide golf car passage 

to the forward teeing ground where terrain 

makes such passage infeasible. 

Section 1006.3.2 of the 2010 Standards 

requires that where curbs or other 

constructed barriers prevent golf cars from 

entering a fairway, openings 60 inches wide 

minimum shall be provided at intervals not 

to exceed 75 yards. 

A commenter disagreed with the 

requirement that openings 60 inches wide 

minimum be installed at least every 75 yards, 

arguing that a maximum spacing of 75 yards 

may not allow enough flexibility for terrain 

and hazard placements. To resolve this 

problem, the commenter recommended that 

the standards be modified to require that 

each golf car passage include one 60-inch 

wide opening for an accessible golf car to 

reach the tee, and that one opening be 

provided where necessary for an accessible 

golf car to reach a green. The requirement for 

openings where curbs or other constructed 

barriers may otherwise prevent golf cars from 

entering a fairway allows the distance 

between openings to be less than every 75 

yards. Therefore, the Department believes 

that the language in section 1006.3.2 of the 

2010 Standards allows appropriate 

flexibility. Where a paved path with curbs or 

other constructed barrier exists, the 

Department believes that it is essential that 

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openings be provided to enable golf car 

passages to access teeing grounds, fairways 

and putting greens, and other required 

elements. Golf car passage is not restricted to 

a paved path with curbs. Golf car passage 

also includes fairways, teeing grounds, 

putting greens, and other areas on which golf 

cars operate. 

Accessible Practice Putting Greens, 

Practice Teeing Grounds, and Teeing 

Stations at Driving Ranges. Section 238.3 of 

the 2010 Standards requires that five percent 

(5%) but at least one of each of practice 

putting greens, practice teeing grounds, and 

teeing stations at driving ranges must permit 

golf cars to enter and exit. 

239 and 1007 Miniature Golf Facilities 

Accessible Route to Miniature Golf Course 

Holes. Sections 206.2.16, 239.3, and 1007.2 

of the 2010 Standards require an accessible 

route to connect accessible miniature golf 

course holes and the last accessible hole on 

the course directly to the course entrance or 

exit. Accessible holes are required to be 

consecutive with an exception permitting 

one break in the sequence of consecutive 

holes provided that the last hole on the 

miniature golf course is the last hole in the 

sequence. 

Many commenters supported expanding 

the exception from one to multiple breaks in 

the sequence of accessible holes. One 

commenter noted that permitting accessible 

holes with breaks in sequence would enable 

customers with disabilities to enjoy the 

landscaping, water and theme elements of 

the miniature golf course. Another 

commenter wrote in favor of allowing 

multiple breaks in accessible holes with a 

connecting accessible route. 

Other commenters objected to allowing 

multiple breaks in the sequence of miniature 

golf holes. Commenters opposed to this 

change argued that allowing any breaks in 

the sequence of accessible holes at a 

miniature golf course would disrupt the flow 

of play for persons with disabilities and 

create a less socially integrated experience. A 

commenter noted that multiple breaks in 

sequence would not necessarily guarantee 

the provision of access to holes that are most 

representative of those with landscaping, 

water elements, or a fantasy-like experience. 

The Department has decided to retain the 

exception without change. Comments did not 

provide a sufficient basis on which to 

conclude that allowing multiple breaks in the 

sequence of accessible holes would 

necessarily increase integration of accessible 

holes with unique features of miniature golf 

courses. Some designs of accessible holes 

with multiple breaks in the sequence might 

provide equivalent facilitation where persons 

with disabilities gain access to landscaping, 

water or theme elements not otherwise 

represented in a consecutive configuration of 

accessible holes. A factor that might 

contribute to equivalent facilitation would be 

an accessible route designed to bring persons 

with disabilities to a unique feature, such as 

a waterfall, that would otherwise not be 

served by an accessible route connecting 

consecutive accessible holes. 

Specified exceptions are permitted for 

accessible route requirements when located 

on the playing surfaces near holes. 

Accessible Miniature Golf Course Holes. 

Sections 239.2 and 1007.3 of the 2010 

Standards require at least fifty percent (50%) 

of golf holes on miniature golf courses to be 

accessible, including providing a clear floor 

or ground space that is 48 inches minimum 

by 60 inches minimum with slopes not 

steeper than 1:48 at the start of play. 

240 and 1008 Play Areas 

Section 240 of the 2010 Standards provides 

scoping for play areas and section 1008 

provides technical requirements for play 

areas. Section 240.1 of the 2010 Standards 

sets requirements for play areas for children 

ages 2 and over and covers separate play 

areas within a site for specific age groups. 

Section 240.1 also provides four exceptions 

to the requirements that apply to family child 

care facilities, relocation of existing play 

components in existing play areas, 

amusement attractions, and alterations to 

play components where the ground surface is 

not altered. 

Ground Surfaces. Section 1008.2.6 of the 

2010 Standards provides technical 

requirements for accessible ground surfaces 

for play areas on accessible routes, clear floor 

or ground spaces, and turning spaces. These 

ground surfaces must follow special rules, 

incorporated by reference from nationally 

recognized standards for accessibility and 

safety in play areas, including those issued 

by the American Society for Testing and 

Materials (ASTM). 

A commenter recommended that the 

Department closely examine the 

requirements for ground surfaces at play 

areas. The Department is aware that there is 

an ongoing controversy about play area 

ground surfaces arising from a concern that 

some surfaces that meet the ASTM 

requirements at the time of installation will 

become inaccessible if they do not receive 

constant maintenance. The Access Board is 

also aware of this issue and is working to 

develop a portable field test that will provide 

more relevant information on installed play 

surfaces. The Department would caution 

covered entities selecting among the ground 

surfacing materials that comply with the 

ASTM requirements that they must 

anticipate the maintenance costs that will be 

associated with some of the products. 

Permitting a surface to deteriorate so that it 

does not meet the 2010 Standards would be 

an independent violation of the Department’s 

ADA regulations. 

Accessible Route to Play Components. 

Section 206.2.17 of the 2010 Standards 

provides scoping requirements for accessible 

routes to ground level and elevated play 

components and to soft contained play 

structures. Sections 240.2 and 1008 of the 

2010 Standards require that accessible routes 

be provided for play components. The 

accessible route must connect to at least one 

ground level play component of each 

different type provided (e.g., for different 

experiences such as rocking, swinging, 

climbing, spinning, and sliding). Table 

240.2.1.2 sets requirements for the number 

and types of ground level play components 

required to be on accessible routes. When 

elevated play components are provided, an 

accessible route must connect at least fifty 

percent (50%) of the elevated play 

components. Section 240.2.1.2, provides an 

exception to the requirements for ground 

level play components if at least fifty percent 

(50%) of the elevated play components are 

connected by a ramp and at least three of the 

elevated play components connected by the 

ramp are different types of play components. 

The technical requirements at section 1008 

include provisions where if three or fewer 

entry points are provided to a soft contained 

play structure, then at least one entry point 

must be on an accessible route. In addition, 

where four or more entry points are provided 

to a soft contained play structure, then at 

least two entry points must be served by an 

accessible route. 

If elevated play components are provided, 

fifty percent (50%) of the elevated 

components are required to be accessible. 

Where 20 or more elevated play components 

are provided, at least twenty five percent 

(25%) will have to be connected by a ramp. 

The remaining play components are 

permitted to be connected by a transfer 

system. Where less than 20 elevated play 

components are provided, a transfer system 

is permitted in lieu of a ramp. 

A commenter noted that the 2010 

Standards allow for the provision of transfer 

steps to elevated play structures based on the 

number of elevated play activities, but 

asserted that transfer steps have not been 

documented as an effective means of access. 

The 2010 Standards recognize that play 

structures are designed to provide unique 

experiences and opportunities for children. 

The 2010 Standards provide for play 

components that are accessible to children 

who cannot transfer from their wheelchair, 

but they also provide opportunities for 

children who are able to transfer. Children 

often interact with their environment in ways 

that would be considered inappropriate for 

adults. Crawling and climbing, for example, 

are integral parts of the play experience for 

young children. Permitting the use of transfer 

platforms in play structures provides some 

flexibility for creative playground design. 

Accessible Play Components. Accessible 

play components are required to be on 

accessible routes, including elevated play 

components that are required to be connected 

by ramps. These play components must also 

comply with other accessibility 

requirements, including specifications for 

clear floor space and seat heights (where 

provided). 

A commenter expressed concerns that the 

general requirements of section 240.2.1 of the 

2010 Standards and the advisory 

accompanying section 240.2.1 conflict. The 

comment asserts that section 240.2.1 of the 

2010 Standards provides that the only 

requirement for integration of equipment is 

where there are two or more required ground 

level play components, while the advisory 

appears to suggest that all accessible 

components must be integrated. 

The commenter misinterprets the 

requirement. The ADA mandates that 

persons with disabilities be able to 

participate in programs or activities in the 

most integrated setting appropriate to their 

needs. Therefore, all accessible play 

components must be integrated into the 

general playground setting. Section 240.2.1 of 

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the 2010 Standards specifies that where there 

is more than one accessible ground level play 

component, the components must be both 

dispersed and integrated. 

241 and 612 Saunas and Steam Rooms 

Section 241 of the 2010 Standards sets 

scoping for saunas and steam rooms and 

section 612 sets technical requirements 

including providing accessible turning space 

and an accessible bench. Doors are not 

permitted to swing into the clear floor or 

ground space for the accessible bench. The 

exception in section 612.2 of the 2010 

Standards permits a readily removable bench 

to obstruct the required wheelchair turning 

space and the required clear floor or ground 

space. Where they are provided in clusters, 

five percent (5%) but at least one sauna or 

steam room in each cluster must be 

accessible. 

Commenters raised concerns that the safety 

of individuals with disabilities outweighs the 

usefulness in providing accessible saunas 

and steam rooms. The Department believes 

that there is an element of risk in many 

activities available to the general public. One 

of the major tenets of the ADA is that 

individuals with disabilities should have the 

same opportunities as other persons to 

decide what risks to take. It is not 

appropriate for covered entities to prejudge 

the abilities of persons with disabilities. 

242 and 1009 Swimming Pools, Wading 

Pools, and Spas 

Accessible Means of Entry to Pools. Section 

242 of the 2010 Standards requires at least 

two accessible means of entry for larger pools 

(300 or more linear feet) and at least one 

accessible entry for smaller pools. This 

section requires that at least one entry will 

have to be a sloped entry or a pool lift; the 

other could be a sloped entry, pool lift, a 

transfer wall, or a transfer system (technical 

specifications for each entry type are 

included at section 1009). 

Many commenters supported the scoping 

and technical requirements for swimming 

pools. Other commenters stated that the cost 

of requiring facilities to immediately 

purchase a pool lift for each indoor and 

outdoor swimming pool would be very 

significant especially considering the large 

number of swimming pools at lodging 

facilities. One commenter requested that the 

Department clarify what would be an 

‘‘alteration’’ to a swimming pool that would 

trigger the obligation to comply with the 

accessible means of entry in the 2010 

Standards. 

Alterations are covered by section 202.3 of 

the 2010 Standards and the definition of 

‘‘alteration’’ is provided at section 106.5. A 

physical change to a swimming pool which 

affects or could affect the usability of the 

pool is considered to be an alteration. 

Changes to the mechanical and electrical 

systems, such as filtration and chlorination 

systems, are not alterations. Exception 2 to 

section 202.3 permits an altered swimming 

pool to comply with applicable requirements 

to the maximum extent feasible if full 

compliance is technically infeasible. 

‘‘Technically infeasible’’ is also defined in 

section 106.5 of the 2010 Standards. 

The Department also received comments 

suggesting that it is not appropriate to require 

two accessible means of entry to wave pools, 

lazy rivers, sand bottom pools, and other 

water amusements where there is only one 

point of entry. Exception 2 of Section 242.2 

of the 2010 Standards exempts pools of this 

type from having to provide more than one 

accessible means of entry provided that the 

one accessible means of entry is a swimming 

pool lift compliant with section 1009.2, a 

sloped entry compliant with section 1009.3, 

or a transfer system compliant with section 

1009.5 of the 2010 Standards. 

Accessible Means of Entry to Wading 

Pools. Sections 242.3 and 1009.3 of the 2010 

Standards require that at least one sloped 

means of entry is required into the deepest 

part of each wading pool. 

Accessible Means of Entry to Spas. 

Sections 242.4 and 1009.2, 1009.4, and 

1009.5 of the 2010 Standards require spas to 

meet accessibility requirements, including an 

accessible means of entry. Where spas are 

provided in clusters, five percent (5%) but at 

least one spa in each cluster must be 

accessible. A pool lift, a transfer wall, or a 

transfer system will be permitted to provide 

the required accessible means of entry. 

243 Shooting Facilities with Firing 

Positions 

Sections 243 and 1010 of the 2010 

Standards require an accessible turning space 

for each different type of firing position at a 

shooting facility if designed and constructed 

on a site. Where firing positions are provided 

in clusters, five percent (5%), but at least one 

position of each type in each cluster must be 

accessible. 

Additional Technical Requirements 

302.1 Floor or Ground Surfaces 

Both section 4.5.1 of the 1991 Standards 

and section 302.2 of the 2010 Standards 

require that floor or ground surfaces along 

accessible routes and in accessible rooms and 

spaces be stable, firm, slip-resistant, and 

comply with either section 4.5 in the case of 

the 1991 Standards or section 302 in the case 

of the 2010 Standards. 

Commenters recommended that the 

Department apply an ASTM Standard (with 

modifications) to assess whether a floor 

surface is ‘‘slip resistant’’ as required by 

section 302.1 of the 2010 Standards. The 

Department declines to accept this 

recommendation since, currently, there is no 

generally accepted test method for the slipresistance of all walking surfaces under all 

conditions. 

304 Turning Space 

Section 4.2.3 of the 1991 Standards and 

Section 304.3 of the 2010 Standards allow 

turning space to be either a circular space or 

a T-shaped space. Section 304.3 permits 

turning space to include knee and toe 

clearance complying with section 306. 

Section 4.2.3 of the 1991 Standards did not 

specifically permit turning space to include 

knee and toe clearance. Commenters urged 

the Department to retain the turning space 

requirement, but exclude knee and toe 

clearance from being permitted as part of this 

space. They argued that wheelchairs and 

other mobility devices are becoming larger 

and that more individuals with disabilities 

are using electric three and four-wheeled 

scooters which cannot utilize knee clearance. 

The Department recognizes that the 

technical specifications for T-shaped and 

circular turning spaces in the 1991 and 2010 

Standards, which are based on manual 

wheelchair dimensions, may not adequately 

meet the needs of individuals using larger 

electric scooters. However, there is no 

consensus about the appropriate dimension 

on which to base revised requirements. The 

Access Board is conducting research to study 

this issue in order to determine if new 

requirements are warranted. For more 

information, see the Access Board’s Web site 

at http://www.access-board.gov/research/

current-projects.htm#suny. The Department 

plans to wait for the results of this study and 

action by the Access Board before 

considering any changes to the Department’s 

rules. Covered entities may wish to consider 

providing more than the minimum amount of 

turning space in confined spaces where a 

turn will be required. Appendix section 

A4.2.3 and Fig. A2 of the 1991 Standards 

provide guidance on additional space for 

making a smooth turn without bumping into 

surrounding objects. 

404 Doors, Doorways, and Gates 

Automatic Door Break Out Openings. The 

1991 Standards do not contain any technical 

requirement for automatic door break out 

openings. The 2010 Standards at sections 

404.1, 404.3, 404.3.1, and 404.3.6 require 

automatic doors that are part of a means of 

egress and that do not have standby power 

to have a 32-inch minimum clear break out 

opening when operated in emergency mode. 

The minimum clear opening width for 

automatic doors is measured with all leaves 

in the open position. Automatic bi-parting 

doors or pairs of swinging doors that provide 

a 32-inch minimum clear break out opening 

in emergency mode when both leaves are 

opened manually meet the technical 

requirement. Section 404.3.6 of the 2010 

Standards includes an exception that 

exempts automatic doors from the technical 

requirement for break out openings when 

accessible manual swinging doors serve the 

same means of egress. 

Maneuvering Clearance or Standby Power 

for Automatic Doors. Section 4.13.6 of the 

1991 Standards does not require 

maneuvering clearance at automatic doors. 

Section 404.3.2 of the 2010 Standards 

requires automatic doors that serve as an 

accessible means of egress to either provide 

maneuvering clearance or to have standby 

power to operate the door in emergencies. 

This provision has limited application and 

will affect, among others, in-swinging 

automatic doors that serve small spaces. 

Commenters urged the Department to 

reconsider provisions that would require 

maneuvering clearance or standby power for 

automatic doors. They assert that these 

requirements would impose unreasonable 

financial and administrative burdens on all 

covered entities, particularly smaller entities. 

The Department declines to change these 

provisions because they are fundamental lifesafety issues. The requirement applies only 

to doors that are part of a means of egress that 

must be accessible in an emergency. If an 

emergency-related power failure prevents the 

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operation of the automatic door, a person 

with a disability could be trapped unless 

there is either adequate maneuvering room to 

open the door manually or a back-up power 

source. 

Thresholds at Doorways. The 1991 

Standards, at section 4.13.8, require the 

height of thresholds at doorways not to 

exceed 1⁄2 inch and thresholds at exterior 

sliding doors not to exceed 3⁄4 inch. Sections 

404.1 and 404.2.5 of the 2010 Standards 

require the height of thresholds at all 

doorways that are part of an accessible route 

not to exceed 1⁄2 inch. The 1991 Standards 

and the 2010 Standards require raised 

thresholds that exceed 1⁄4 inch in height to 

be beveled on each side with a slope not 

steeper than 1:2. The 2010 Standards include 

an exception that exempts existing and 

altered thresholds that do not exceed 3⁄4 inch 

in height and are beveled on each side from 

the requirement. 

505 Handrails 

The 2010 Standards add a new technical 

requirement at section 406.3 for handrails 

along walking surfaces. 

The 1991 Standards, at sections 4.8.5, 

4.9.4, and 4.26, and the 2010 Standards, at 

section 505, contain technical requirements 

for handrails. The 2010 Standards provide 

more flexibility than the 1991 Standards as 

follows: 

• Section 4.26.4 of the 1991 Standards 

requires handrail gripping surfaces to have 

edges with a minimum radius of 1⁄8 inch. 

Section 505.8 of the 2010 Standards requires 

handrail gripping surfaces to have rounded 

edges. 

• Section 4.26.2 of the 1991 Standards 

requires handrail gripping surfaces to have a 

diameter of 11⁄4 inches to 11⁄2 inches, or to 

provide an equivalent gripping surface. 

Section 505.7 of the 2010 Standards requires 

handrail gripping surfaces with a circular 

cross section to have an outside diameter of 

11⁄4 inches to 2 inches. Handrail gripping 

surfaces with a non-circular cross section 

must have a perimeter dimension of 4 inches 

to 61⁄4 inches, and a cross section dimension 

of 21⁄4 inches maximum. 

• Sections 4.8.5 and 4.9.4 of the 1991 

Standards require handrail gripping surfaces 

to be continuous, and to be uninterrupted by 

newel posts, other construction elements, or 

obstructions. Section 505.3 of the 2010 

Standards sets technical requirements for 

continuity of gripping surfaces. Section 505.6 

requires handrail gripping surfaces to be 

continuous along their length and not to be 

obstructed along their tops or sides. The 

bottoms of handrail gripping surfaces must 

not be obstructed for more than twenty 

percent (20%) of their length. Where 

provided, horizontal projections must occur 

at least 11⁄2 inches below the bottom of the 

handrail gripping surface. An exception 

permits the distance between the horizontal 

projections and the bottom of the gripping 

surface to be reduced by 1⁄8 inch for each 1⁄2

inch of additional handrail perimeter 

dimension that exceeds 4 inches. 

• Section 4.9.4 of the 1991 Standards 

requires handrails at the bottom of stairs to 

continue to slope for a distance of the width 

of one tread beyond the bottom riser nosing 

and to further extend horizontally at least 12 

inches. Section 505.10 of the 2010 Standards 

requires handrails at the bottom of stairs to 

extend at the slope of the stair flight for a 

horizontal distance at least equal to one tread 

depth beyond the last riser nosing. Section 

4.1.6(3) of the 1991 Standards has a special 

technical provision for alterations to existing 

facilities that exempts handrails at the top 

and bottom of ramps and stairs from 

providing full extensions where it will be 

hazardous due to plan configuration. Section 

505.10 of the 2010 Standards has a similar 

exception that applies in alterations. 

A commenter noted that handrail 

extensions are currently required at the top 

and bottom of stairs, but the proposed 

regulations do not include this requirement, 

and urged the Department to retain the 

current requirement. Other commenters 

questioned the need for the extension at the 

bottom of stairs. 

Sections 505.10.2 and 505.10.3 of the 2010 

Standards require handrail extensions at both 

the top and bottom of a flight of stairs. The 

requirement in the 1991 Standards that 

handrails extend horizontally at least 12 

inches beyond the width of one tread at the 

bottom of a stair was changed in the 2004 

ADAAG by the Access Board in response to 

public comments. Existing horizontal 

handrail extensions that comply with 4.9.4(2) 

of the 1991 Standards should meet or exceed 

the requirements of the 2010 Standards. 

Commenters noted that the 2010 Standards 

will require handrail gripping surfaces with 

a circular cross section to have an outside 

diameter of 2 inches, and that this 

requirement would impose a physical barrier 

to individuals with disabilities who need the 

handrail for stability and support while 

accessing stairs. 

The requirement permits an outside 

diameter of 11⁄4 inches to 2 inches. This range 

allows flexibility in meeting the needs of 

individuals with disabilities and designers 

and architects. The Department is not aware 

of any data indicating that an outside 

diameter of 2 inches would pose any adverse 

impairment to use by individuals with 

disabilities. 

Handrails Along Walkways. The 1991 

Standards do not contain any technical 

requirement for handrails provided along 

walkways that are not ramps. Section 403.6 

of the 2010 Standards specifies that where 

handrails are provided along walkways that 

are not ramps, they shall comply with certain 

technical requirements. The change is 

expected to have minimal impact. 

■ 23. Revise the heading to Appendix C 

to read as follows: 

Appendix C to Part 36—Guidance on ADA 

Regulation on Nondiscrimination on the 

Basis of Disability by Public 

Accommodations and in Commercial 

Facilities originally published on July 26, 

1991. 

■ 24. Revise the heading to Appendix D 

to read as follows: 

Appendix D to Part 36—1991 Standards for 

Accessible Design as Originally Published on 

July 26, 1991. 

Dated: July 23, 2010. 

Eric H. Holder, Jr., 

Attorney General. 

[FR Doc. 2010–21824 Filed 9–14–10; 8:45 am] 

BILLING CODE 4410–13–P 

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