Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Proposed Rules 4839 

loss, deduction, or credit in its taxable year 

ending December 31, 2015. 

(iv) The distribution of Land C to X is an 

event described in § 1.704–1(b)(2)(iv)(f)(5) 

and, thus, under paragraph (a)(3) of this 

section, X’s liquidation value percentage 

must be redetermined under paragraph (a)(3) 

of this section as of September 1, 2015, 

irrespective of whether the capital accounts 

of the partners of XY are adjusted under 

§ 1.704–1(b)(2)(iv)(f). X’s liquidation value 

percentage is 25% ((X’s liquidation value 

immediately after the distribution of $200) 

divided by (XY’s aggregate liquidation value 

immediately after the distribution of $800)). 

Accordingly, X’s share of the $40 liability is 

reduced from $20 to $10 on September 1, 

2015, while Y’s share of the liability is 

increased from $20 to $30. Thus, X is treated 

as receiving a distribution of $10 from XY 

under section 752(b), and Y is treated as 

contributing $10 to XY under section 752(a). 

Because the distribution of $10 to X does not 

exceed X’s $320 adjusted basis in its interest 

in XY, X recognizes no gain. Pursuant to 

section 732(a)(2), X’s basis in Land C is $310. 

* * * * * 

(d) Effective/applicability dates. The 

third, fourth, fifth, and sixth sentences 

of paragraph (a)(3) of this section and 

paragraph (c) Example 2 of this section 

apply to liabilities that are incurred or 

assumed by a partnership on or after 

[effective date of final rule], other than 

liabilities incurred or assumed by a 

partnership pursuant to a written 

binding contract in effect prior to that 

date. 

■ Par. 11. Section 1.752–5 is amended 

by revising the second and third 

sentences of paragraph (a) to read as 

follows: 

§ 1.752–5 Effective dates and transitional 

rules. 

(a) * * * However, § 1.752–3(a)(3) 

seventh, eighth, and ninth sentences, 

(b), and (c) Example 3, do not apply to 

any liability incurred or assumed by a 

partnership prior to October 31, 2000. 

Nevertheless, § 1.752–3(a)(3) seventh, 

eighth, and ninth sentences, (b), and (c) 

Example 3, may be relied upon for any 

liability incurred or assumed by a 

partnership prior to October 31, 2000 for 

federal taxable years ending on or after 

October 31, 2000. * * * 

John Dalrymple, 

Deputy Commissioner for Services and 

Enforcement. 

[FR Doc. 2014–01637 Filed 1–29–14; 8:45 am] 

BILLING CODE 4830–01–P 

DEPARTMENT OF JUSTICE 

28 CFR Parts 35 and 36 

[CRT Docket No. 124; AG Order No. 3410– 

2014] 

RIN 1190–AA59 

Office of the Attorney General; 

Amendment of Americans with 

Disabilities Act Title II and Title III 

Regulations to Implement ADA 

Amendments Act of 2008 

AGENCY: Department of Justice, Civil 

Rights Division. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Department of Justice 

(Department) is issuing this Notice of 

Proposed Rulemaking (NPRM) to amend 

its Americans with Disabilities Act 

(ADA) regulations in order to 

incorporate the statutory changes to the 

ADA set forth in the ADA Amendments 

Act of 2008 (ADA Amendments Act or 

the Act), which took effect on January 

1, 2009. Congress enacted the ADA 

Amendments Act in order to revise the 

ADA definition of ‘‘disability’’ and to 

ensure that the definition is broadly 

construed and applied without 

extensive analysis. In this NPRM, the 

Department is proposing to add new 

sections to its title II and title III ADA 

regulations at 28 CFR parts 35 and 36, 

respectively, to provide detailed 

definitions of ‘‘disability’’ and to make 

consistent changes in other sections of 

the regulations. The ADA Amendments 

Act authorizes the Attorney General to 

issue regulations consistent with the Act 

that implement the definitions of 

‘‘disability’’ in sections 3 and 4 of the 

Act, including the rules of construction 

set forth in section 3. The Department 

invites written comments from members 

of the public on this proposed rule. 

DATES: All comments must be submitted 

on or before March 31, 2014. 

ADDRESSES: You may submit comments, 

identified by RIN 1190–AA59 (or Docket 

ID No. 124), by any one of the following 

methods: 

• Federal eRulemaking portal: 

www.regulations.gov. Follow the Web 

site’s instructions for submitting 

comments. 

• Regular U.S. mail: Disability Rights 

Section, Civil Rights Division, U.S. 

Department of Justice, P.O. Box 2885, 

Fairfax, VA 22031–0885. 

• Overnight, courier, or hand 

delivery: Disability Rights Section, Civil 

Rights Division, U.S. Department of 

Justice, 1425 New York Avenue, NW., 

Suite 4039, Washington, DC 20005. 

FOR FURTHER INFORMATION CONTACT: Zita 

Johnson-Betts, Deputy Chief, Disability 

Rights Section, Civil Rights Division, 

U.S. Department of Justice, at (202) 307– 

0663 (voice or TTY); this is not a tollfree 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). 

You may obtain copies of this NPRM 

in an alternative format by calling the 

ADA Information Line at (800) 514– 

0301 (voice) and (800) 514–0383 (TTY). 

This NPRM is also available on the ADA 

Home Page at www.ada.gov. 

SUPPLEMENTARY INFORMATION: The 

regulatory definitions of ‘‘disability’’ in 

the title II and title III regulations are 

identical, and the preamble will discuss 

the revisions to both regulations 

concurrently. Because the ADA 

Amendments Act’s revisions to the ADA 

have been codified into the U.S. Code, 

the NPRM will reference the revised 

U.S. Code provisions except in those 

cases where citation to a specific ADA 

Amendments Act provision is necessary 

in order to avoid confusion on the part 

of the reader. 

This NPRM was submitted to the 

Office of Management and Budget’s 

(OMB) Office of Information and 

Regulatory Affairs for review prior to 

publication in the Federal Register. 

Electronic Submission of Comments 

and Posting of Public Comments 

You may submit electronic comments 

to www.regulations.gov. When 

submitting comments electronically, 

you must include ‘‘DOJ–CRT 2010– 

0112’’ in the subject field and you must 

include your full name and address. 

Electronic files should avoid the use of 

special characters or any form of 

encryption and should be free of any 

defects or viruses. 

Please note that all comments 

received are considered part of the 

public record and made available for 

public inspection online at 

www.regulations.gov. Submission 

postings will include any personal 

identifying information (such as your 

name, address, etc.) included in the text 

of your comment. If you include 

personal identifying information (such 

as your name, address, etc.) in the text 

of your comment but do not want it to 

be posted online, you must include the 

phrase ‘‘PERSONAL IDENTIFYING 

INFORMATION’’ in the first paragraph 

of your comment. You must also 

include all the personal identifying 

information you want redacted along 

with this phrase. Similarly, if you 

submit confidential business 

information as part of your comment but 

do not want it to be posted online, you 

must include the phrase 

‘‘CONFIDENTIAL BUSINESS 

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4840 Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Proposed Rules 

INFORMATION’’ in the first paragraph 

of your comment. You must also 

prominently identify confidential 

business information to be redacted 

within the comment. If a comment has 

so much confidential business 

information that it cannot be effectively 

redacted, all or part of that comment 

may not be posted on 

www.regulations.gov. 

I. Executive Summary 

Purpose 

This rule is necessary in order to 

incorporate the ADA Amendments Act’s 

changes to titles II (nondiscrimination 

in state and local government services) 

and III (nondiscrimination by public 

accommodations in commercial 

facilities) of the ADA into the 

Department’s ADA regulations and to 

provide additional guidance on how to 

apply those changes. 

Legal Authority 

The ADA Amendments Act was 

signed into law by President George W. 

Bush on September 25, 2008, with a 

statutory effective date of January 1, 

2009. Public Law 110–325, sec. 8, 122 

Stat. 3553, 2559 (2008). The Act 

authorizes the Attorney General to issue 

regulations implementing the 

definitions of disability in sections 3 

and 4 of the Act, including the rules of 

construction set forth in section 3, 

consistent with the Act as applied to 

title II and title III of the ADA. 42 U.S.C. 

12205a. 

Summary of Key Provisions of the Act 

and Rule 

The ADA Amendments Act made 

important changes to the ADA’s 

definition of the term ‘‘disability,’’ 

making it easier for an individual 

seeking protection under the ADA to 

establish that he or she has a disability 

within the meaning of the statute. See 

42 U.S.C. 12102(1)(A)–(C). The 

Department proposes several major 

revisions to the definition of 

‘‘disability’’ contained in the title II and 

title III ADA regulations. All of these 

revisions are based on specific 

provisions in the ADA Amendments Act 

or on specific language in the legislative 

history. These proposed revisions state 

that the definition of ‘‘disability shall be 

interpreted broadly. The proposed 

revisions also make it clear that the 

primary object of attention in cases 

brought under the ADA should be 

whether entities covered under the ADA 

have complied with their statutory 

obligations and that the question of 

whether an individual’s impairment is a 

disability under the ADA should not 

demand extensive analysis. In addition, 

the proposed revisions expand the 

definition of ‘‘major life activities’’ by 

providing a non-exhaustive list of major 

life activities and specifically including 

the operation of major bodily functions. 

The revisions also add rules of 

construction that should be applied 

when determining whether an 

impairment substantially limits a major 

life activity. The rules of construction 

state the following: 

Æ That the term ‘‘substantially 

limits’’ shall be construed broadly in 

favor of expansive coverage, to the 

maximum extent permitted by the terms 

of the ADA; 

Æ That an impairment is a disability 

if it substantially limits the ability of an 

individual to perform a major life 

activity as compared to most people in 

the general population; 

Æ That the primary issue in a case 

brought under the ADA should be 

whether the covered entity has 

complied with its obligations and 

whether discrimination has occurred, 

not the extent to which the individual’s 

impairment substantially limits a major 

life activity; 

Æ That in making the individualized 

assessment required by the ADA, the 

term ‘‘substantially limits’’ shall be 

interpreted and applied to require a 

degree of functional limitation that is 

lower than the standard for 

‘‘substantially limits’’ applied prior to 

the ADA Amendments Act; 

Æ That the comparison of an 

individual’s performance of a major life 

activity to the performance of the same 

major life activity by most people in the 

general population usually will not 

require scientific, medical, or statistical 

evidence; 

Æ That mitigating measures other 

than ‘‘ordinary eyeglasses or contact 

lenses’’ shall not be considered in 

assessing whether an individual has a 

‘‘disability’’; 

Æ That an impairment that is episodic 

or in remission is a disability if it would 

substantially limit a major life activity 

when active; and 

Æ That an impairment that 

substantially limits one major life 

activity need not substantially limit 

other major life activities in order to be 

considered a substantially limiting 

impairment. 

The NPRM also proposes language 

that states that the definition of 

‘‘regarded as’’ does not require the 

individual to demonstrate that he or she 

has, or is perceived to have, an 

impairment that substantially limits a 

major life activity and provides that 

individuals covered only under the 

‘‘regarded as’’ prong are not entitled to 

reasonable modifications. 

The ADA Amendments Act’s 

revisions to the ADA apply to title I 

(employment), title II (State and local 

governments), and title III (public 

accommodations) of the ADA. 

Accordingly, consistent with Executive 

Order 13563’s instruction to agencies to 

coordinate rules across agencies and 

harmonize regulatory requirements 

where appropriate, the Department is 

proposing, wherever possible, to adopt 

regulatory language that is identical to 

the revisions to the Equal Employment 

Opportunity Commission’s (EEOC) title 

I regulations implementing the ADA 

Amendments Act. See 76 FR 16978 

(Mar. 25, 2011). This will promote 

consistency in the application of the 

ADA and prevent confusion among 

entities subject to both titles I and II, as 

well as those subject to both titles I and 

III. 

Summary of Benefits and Costs 

This proposed rule would incorporate 

into the Department’s regulations the 

changes made by the ADA Amendments 

Act to titles II and III of the ADA. In 

accordance with OMB Circular A–4, the 

Department estimates the benefits and 

costs of this proposed rule using a preADA Amendments Act baseline. Thus, 

the effects that are estimated in this 

analysis are due to statutory mandates 

that are not under the Department’s 

discretion. 

Congress enacted the ADA 

Amendments Act to ensure that persons 

with disabilities who were refused 

access to programs and services would 

again be able to rely on the protections 

of the ADA. As a result, the Department 

believes that the enactment of the law 

has nonquantifiable but nonetheless 

important benefits for many Americans. 

The Department determined, however, 

that there was a specific group of 

individuals with disabilities who would 

be able to receive quantifiable benefits. 

With the enactment of the ADA 

Amendments Act, additional postsecondary students and national 

examination test takers (e.g., CPA, 

LSAT, and other professional 

examinations) with attention deficit 

disorder (ADD) or learning disabilities 

are now able to receive additional time 

to complete tests. Before the enactment 

of the ADA Amendments Act, some of 

these students may have had their 

requests for additional time denied by 

testing entities because such entities 

believed the disability in question did 

not meet the ADA’s definition of 

‘‘disability.’’ 

In the first year after this rule goes 

into effect, our analysis estimates that 

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1The number of individual students who would 

be impacted is a high-level estimate based on the 

assumption that students would average 4 years of 

post-secondary study; therefore 4 full-time 

equivalent enrollees per year is approximately one 

student, and then rounded to the nearest hundred 

thousand. 

approximately 142,000 students will 

take advantage of additional testing 

accommodations that otherwise would 

not have been available but for the ADA 

Amendments Act. Over eleven years, 

approximately 1.6 million full-time 

equivalent students would benefit, or, 

assuming an average 4-year course of 

study, more than 400,000 individual 

students.1 An additional 800,000 

national examination test takers would 

benefit over that same eleven years 

(assuming that each test taker only takes 

an exam once). Providing these 

individuals additional time is consistent 

with our national values of fairness, 

equity, and human dignity—values that 

Executive Order 13563 permits agencies 

to consider, where appropriate, when 

analyzing the proposed rule’s costs and 

benefits. See E.O. 13563, 76 FR 3821 

(Jan. 18, 2011). 

With respect to the costs of the 

changes under titles II and III made by 

the ADA Amendments Act, in the first 

year (the year with the highest costs), 

we estimate that the total undiscounted 

costs will range between $36.2 and 

$61.8 million. The changes made by the 

ADA Amendments Act are expected to 

cost $382 million in present value terms 

over 11 years and discounted at 7 

percent. Our cost estimates include the 

value of time, represented by wages, for 

proctors to provide additional time to 

post-secondary students with ADD or 

learning disabilities to complete tests, 

and for proctors to provide additional 

time to individuals with ADD or 

learning disabilities to complete 

national examinations. 

SUMMARY OF DISCOUNTED COSTS AND BENEFITS, 11 YEAR TOTAL AND ANNUALIZED

Estimates Units 

Total discounted value Annualized estimate Year dollar Discount rate Period covered 

Benefits ......... Multiple un-quantified benefits for some unknown portion of those persons with learning disabilities and society as a whole, including: 

—Some persons with learning disabilities will earn a degree faster than they otherwise would have, and some students might 

even earn a degree or certification who otherwise would not been able to do so; 

—Some persons with learning disabilities will earn a degree or certification for a higher paying field/job; 

—Some persons with learning disabilities will experience a positive impact on overall independence and lifetime income; 

—Some persons with learning disabilities will experience increased sense of personal dignity and self-worth; 

—Some persons with learning disabilities will experience greater personal satisfaction from ability to pursue a favored career 

path or educational pursuit; 

—Some communities may see a decreased direct financial support for persons with disabilities or other programs or services; 

and 

—Greater equity in access to education. 

Costs ............. $381.7 $50.9 2013 7% 2013–2023 

$451.2 $48.8 2013 3% 2013–2023 

II. Background 

The ADA Amendments Act was 

signed into law by President George W. 

Bush on September 25, 2008, with a 

statutory effective date of January 1, 

2009. Public Law 110–325, sec. 8. The 

ADA Amendments Act made important 

changes to the ADA’s definition of the 

term ‘‘disability,’’ making it easier for an 

individual seeking protection under the 

ADA to establish that he or she has a 

disability within the meaning of the 

statute. The ADA Amendments Act did 

this by explicitly rejecting the holdings 

in several Supreme Court decisions that 

had significantly limited the definition 

of ‘‘disability.’’ As amended by the ADA 

Amendments Act, the definition of 

‘‘disability’’ under the ADA, 42 U.S.C. 

12101, et seq., is to be construed 

broadly, to the maximum extent 

permitted by the terms of the ADA, and 

the determination of whether an 

individual has a disability should not 

demand extensive analysis. Public Law 

110–325, sec. 2(b)(5); see also 154 Cong. 

Rec. S8840–44 (daily ed. Sept. 16, 2008) 

(Statement of the Managers); H.R. Rep. 

No. 110–730, pt. 1, at 6 (2008); H.R. Rep. 

No. 110–730, pt. 2, at 5 (2008). 

The ADA Amendments Act retains 

the ADA’s basic definition of 

‘‘disability’’ as: (1) A physical or mental 

impairment that substantially limits one 

or more major life activities; (2) a record 

of such an impairment; or (3) being 

regarded as having such an impairment. 

42 U.S.C. 12102(1)(A)–(C). However, it 

provides rules of construction necessary 

to ensure that the definition is 

construed broadly and without 

extensive analysis. Id. at 12102(4). The 

Department, therefore, drafted this rule 

to more fully align the Department’s 

title II and title III regulations with the 

Act. 

Congress enacted the ADA 

Amendments Act in response to a series 

of Supreme Court decisions in which 

the Court interpreted the definition of 

‘‘disability’’ narrowly, thus eliminating 

protection for many individuals that 

Congress intended to protect when it 

first enacted the ADA. Public Law 110– 

325, sec. 2. For example, in Sutton v. 

United Air Lines, Inc., 527 U.S. 471 

(1999), the Court ruled that whether an 

impairment substantially limits a major 

life activity is to be determined with 

reference to the ameliorative effects of 

mitigating measures. Id. at 482. In 

Sutton, the Court also adopted a 

restrictive reading of the meaning of 

being ‘‘regarded as’’ disabled under the 

ADA’s definition of disability, holding 

that the plaintiff could not prevail under 

this prong of the definition of disability 

without first demonstrating that the 

employer believed the plaintiff’s 

impairment to be substantially limiting. 

Id. at 490. Subsequently, in Toyota 

Motor Manufacturing, Kentucky, Inc., v. 

Williams, 534 U.S. 184 (2002), the Court 

held that the terms ‘‘substantially’’ and 

‘‘major’’ in the definition of disability 

‘‘need to be interpreted strictly to create 

a demanding standard for qualifying as 

disabled’’ under the ADA, and that to be 

substantially limited in performing a 

major life activity under the ADA, ‘‘an 

individual must have an impairment 

that prevents or severely restricts the 

individual from doing activities that are 

of central importance to most people’s 

daily lives.’’ Id. at 197–98. 

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As a result of these Supreme Court 

decisions, lower courts ruled in 

numerous cases that individuals with a 

range of substantially limiting 

impairments were not individuals with 

disabilities and thus not protected by 

the ADA. See 154 Cong. Rec. S8841 

(daily ed. Sept. 16, 2008) (Statement of 

the Managers) (‘‘After the Court’s 

decisions in Sutton that impairments 

must be considered in their mitigated 

state and in Toyota that there must be 

a demanding standard for qualifying as 

disabled, lower courts more often found 

that an individual’s impairment did not 

constitute a disability. As a result, in too 

many cases, courts would never reach 

the question whether discrimination 

had occurred.’’). 

While the vast majority of these court 

decisions arose in the area of 

employment, the narrowing of the 

definition of disability had an adverse 

impact on individuals seeking the 

protection of the ADA in circumstances 

involving entities covered by titles II 

and III, particularly individuals seeking 

reasonable modifications for learning 

disabilities in education programs at 

colleges and universities and in 

licensing and testing situations. See, 

e.g., Gonzales v. National Board of 

Medical Examiners, 60 F. Supp. 2d 703 

(E.D. Mich. 1999); and Wong v. Regents 

of University of California, 410 F.3d 

1052 (9th Cir. 2005). 

Congress concluded that Sutton, 

Toyota, and their progeny interpreted 

the definition of disability more 

narrowly than what Congress had 

originally intended. Congress 

determined that these decisions, 

coupled with the EEOC’s 1991 ADA 

regulation, which had defined the term 

‘‘substantially limits’’ as meaning 

‘‘significantly restricted,’’ unduly 

precluded many individuals from being 

covered under the ADA. See Public Law 

110–325, sec. 2; see also 154 Cong. Rec. 

S8840–41 (daily ed. Sept. 16, 2008) 

(Statement of the Managers) (‘‘Thus, 

some 18 years later we are faced with 

a situation in which physical or mental 

impairments that would previously 

have been found to constitute 

disabilities are not considered 

disabilities under the Supreme Court’s 

narrower standard’’ and ‘‘[t]he resulting 

court decisions contribute to a legal 

environment in which individuals must 

demonstrate an inappropriately high 

degree of functional limitation in order 

to be protected from discrimination 

under the ADA.’’). For that reason, 

Congress passed the ADA Amendments 

Act of 2008. 

III. Summary of the ADA Amendments 

Act of 2008 

The ADA Amendments Act of 2008 

restores the broad application of the 

ADA by revising the ADA’s ‘‘Findings 

and Purposes’’ section, expanding the 

statutory language defining disability, 

providing specific rules of construction 

for that definition, and expressly 

rejecting the holdings of the Supreme 

Court in Sutton, Toyota and their 

progeny. 

First, the ADA Amendments Act 

deletes two findings that were in the 

ADA: (1) That ‘‘some 43,000,000 

Americans have one or more physical or 

mental disabilities,’’ and (2) that 

‘‘individuals with disabilities are a 

discrete and insular minority.’’ 154 

Cong. Rec. S8840 (daily ed. Sept. 16, 

2008) (Statement of the Managers); see 

also Public Law 110–325, sec. 3. The 

2008 Senate Statement of the Managers 

stated, ‘‘[t]he [Supreme] Court treated 

these findings as limitations on how it 

construed other provisions of the ADA. 

This conclusion had the effect of 

interfering with previous judicial 

precedents holding that, like other civil 

rights statutes, the ADA must be 

construed broadly to effectuate its 

remedial purpose. Deleting these 

findings removes this barrier to 

construing and applying the definition 

of disability more generously.’’ 154 

Cong. Rec. S8840 (daily ed. Sept. 16, 

2008) (Statement of the Managers). 

Second, the ADA Amendments Act 

clarifies Congress’s intent that the 

definition of ‘‘disability’’ ‘‘shall be 

construed in favor of broad coverage of 

individuals under this Act, to the 

maximum extent permitted by the terms 

of this Act.’’ 42 U.S.C. 12102(4)(A). 

Although the ADA Amendments Act 

retains the term ‘‘substantially limits’’ 

from the original ADA definition, the 

language of the rules of construction 

and the statement of ‘‘Findings and 

Purposes’’ contained in the ADA 

Amendments Act make it clear that this 

language is required to be interpreted far 

more broadly than it had been 

interpreted in Toyota. Congress was 

specifically concerned that the lower 

courts had applied Toyota in a way that 

‘‘created an inappropriately high level 

of limitation necessary to obtain 

coverage under the ADA.’’ Public Law 

110–325, sec. 2(b)(5). Congress sought to 

convey that ‘‘the primary object of 

attention in cases brought under the 

ADA should be whether entities covered 

under the ADA have complied with 

their obligations and to convey that the 

question of whether an individual’s 

impairment is a disability under the 

ADA should not demand extensive 

analysis.’’ Id. 

Third, the ADA Amendments Act 

prohibits consideration of mitigating 

measures such as medication, assistive 

technology, and reasonable 

accommodations or modifications when 

determining whether an impairment 

constitutes a disability. 42 U.S.C. 

12102(4)(E)(i). Congress added this 

provision and the applicable purpose 

language in the ADA Amendments Act 

to ensure that the ADA was interpreted 

and applied without reliance on the 

Supreme Court’s holdings that 

mitigating measures must be considered 

in determining whether an impairment 

substantially limits a major life activity. 

Public Law 110–325, sec. 2(b). The 

statute also provides that impairments 

that are episodic or in remission are 

disabilities if they would substantially 

limit a major life activity when active. 

42 U.S.C. 12102(4)(D). 

Fourth, the ADA Amendments Act 

provides new instructions on what may 

constitute ‘‘major life activities’’ within 

the meaning of the ADA. 42 U.S.C. 

12102(2). It provides a non-exhaustive 

list of major life activities and 

specifically expands the category of 

major life activities to include the 

operation of major bodily functions. Id. 

Fifth, the ADA Amendments Act 

makes it clear that, contrary to court 

decisions interpreting the ADA, the 

‘‘regarded as’’ prong of the disability 

definition does not require the 

individual to demonstrate that he or she 

has, or is perceived to have, an 

impairment that substantially limits a 

major life activity. 42 U.S.C. 12102(3). 

With this clarifying language, an 

individual can once again establish 

coverage under the law by showing that 

he or she has been subjected to an 

action prohibited under the Act because 

of an actual or perceived physical or 

mental impairment. The ADA 

Amendments Act also provides that 

entities covered by the ADA will not be 

required to provide reasonable 

accommodations or modifications to 

policies, practices, and procedures for 

individuals who fall solely under this 

prong. 42 U.S.C. 12201(h). 

Finally, the ADA Amendments Act 

makes it clear that the Attorney General 

has explicit authority to issue 

regulations implementing the 

definitions of disability contained in 

sections 3 and 4 (including rules of 

construction) of the ADA. 42 U.S.C. 

12205a. 

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2On September 23, 2009, the EEOC published its 

NPRM in the Federal Register proposing revisions 

to the title I definition of disability. See 74 FR 

48431. The EEOC received and reviewed over 600 

public comments in response to its NRPM. In 

addition, the EEOC and the Department held four 

joint ‘‘Town Hall Listening Sessions’’ throughout 

the United States and heard testimony from more 

than 60 individuals and representatives of the 

business/employer industry and the disability 

advocacy community. 

IV. Relationship of this Regulation to 

Revisions to the Equal Employment 

Opportunity Commission’s ADA Title I 

Regulation Implementing the ADA 

Amendments Act of 2008 

The Equal Employment Opportunity 

Commission (EEOC) is responsible for 

regulations implementing title I of the 

ADA addressing employment 

discrimination based upon disability. 

On March 25, 2011, the EEOC published 

its final rule revising its title I regulation 

to implement the revisions to the ADA 

contained in the ADA Amendments Act. 

76 FR 16978.2

Because the ADA Amendments Act’s 

revised definition of ‘‘disability’’ applies 

to title I as well as titles II and III of the 

ADA, the Department has made every 

effort to ensure that its proposed 

revisions to its title II and III regulations 

are consistent with, if not always 

identical to, the provisions of the EEOC 

final rule. Consistency among the title I, 

title II, and title III rules will ensure 

consistent application of the 

requirements of the ADA Amendments 

Act, regardless of the Federal agency 

responsible for enforcement, or the ADA 

title that is enforced. This consistency is 

also important because most entities 

subject to either title II or title III are 

also subject to title I with respect to 

employment, and should already be 

familiar with the revisions to the 

definition of ‘‘disability’’ in the 2-yearold EEOC revised regulation. 

Differences in language between the title 

I rules and the Department’s proposed 

title II and title III rules are generally 

attributable either to the fact that certain 

sections of the EEOC rule deal with 

employment-specific issues or to 

structural differences between the title I 

rule and the title II and III rules. 

V. Section-by-Section Analysis 

Sections 35.101 and 36.101—Purpose 

and Broad Coverage 

These sections propose to revise 

§§ 35.101 and 36.101 to add references 

to the ADA Amendments Act to 

§§ 35.101(a) and 36.101(a) and to add 

new §§ 35.101(b) and 36.101(b), which 

explain that ‘‘[t]he primary purpose of 

the ADA Amendments Act is to make it 

easier for people with disabilities to 

obtain protection under the ADA.’’ 

These sections state that ‘‘[c]onsistent 

with the ADA Amendments Act’s 

purpose of reinstating a broad scope of 

protection under the ADA, the 

definition of ‘disability’ in this part 

shall be construed broadly in favor of 

expansive coverage to the maximum 

extent permitted by the terms of the 

ADA. The primary object of attention in 

cases brought under the ADA should be 

whether entities covered under the ADA 

have complied with their obligations. 

. . . The question of whether an 

individual meets the definition of 

disability under this part should not 

demand extensive analysis.’’ 

Sections 35.104 and 36.104—Definitions 

The current title II and title III 

regulations include the definition of 

‘‘disability’’ in regulatory sections that 

contain all enumerated definitions in 

alphabetical order. Given the expanded 

length of the definition of ‘‘disability’’ 

and the number of additional 

subsections required in order to give 

effect to the ADA Amendments Act 

revisions, the Department is proposing 

to move the definition of ‘‘disability’’ 

from the general definitional sections at 

§§ 35.104 and 36.104 to its own new 

section in each regulation, §§ 35.108 

and 36.105, respectively. 

Sections 35.108(a)(1) and 36.105(a)(1) 

Definition of Disability—General 

These sections of the regulations set 

forth the three-part basic definition of 

the term ‘‘disability’’ found in the prior 

version of the ADA that the ADA 

Amendments Act retained with minor 

revisions. The current ADA regulations 

state the following: 

Disability means, with respect to an 

individual, 

• A physical or mental impairment 

that substantially limits one or more of 

the major life activities of such 

individual; 

• A record of such an impairment; or 

• Being regarded as having such an 

impairment. 

The ADA, as amended by the ADA 

Amendments Act, limits the application 

of the ‘‘regarded as’’ prong to 

impairments that are not ‘‘transitory and 

minor’’ and defines a transitory 

impairment as ‘‘an impairment with an 

actual or expected duration of 6 months 

or less.’’ 42 U.S.C. 12102(3)(B). To 

reflect these amendments to the ADA, 

the Department proposes to modify the 

‘‘regarded as’’ prong in the current 

regulations by adding a sentence at 

proposed §§ 35.108(a)(1)(iii) and 

36.105(a)(1)(iii) that limits the 

application of the ‘‘regarded as’’ prong 

and references proposed §§ 35.108(f) 

and 36.105(f), which define the phrase 

‘‘regarded as having such an 

impairment.’’ Proposed §§ 35.108(f) and 

36.105(f) clarify that an individual is 

‘‘regarded as’’ having an impairment if 

he or she has been subject to an action 

prohibited by the ADA, as amended, 

because of an actual or perceived 

impairment that is not both ‘‘transitory 

and minor.’’ It may be a defense to a 

charge of discrimination by an 

individual claiming coverage under this 

prong if the covered entity demonstrates 

that the impairment is both ‘‘transitory 

and minor.’’ 

Sections 35.108(a)(2) and 36.105(a)(2)— 

Rules of Construction 

These sections set forth rules of 

construction that give guidance on how 

to understand and apply the definition 

of disability. Proposed §§ 35.108(a)(2)(i) 

and 36.105(a)(2)(i) provide that an 

individual may establish coverage under 

any one or more of the prongs in the 

definition of disability. See 

§§ 35.108(a)(1)(i)-(iii); 36.105(a)(1)(i)- 

(iii). To be covered under the ADA, 

however, an individual is only required 

to satisfy one prong. The term ‘‘actual 

disability’’ is used in these rules of 

construction as short-hand terminology 

to refer to an impairment that 

substantially limits a major life activity 

within the meaning of the first prong of 

the definition of disability. See 

§§ 35.108(a)(1)(i); 36.105(a)(1)(i). The 

terminology selected is for ease of 

reference. It is not intended to suggest 

that an individual with a disability who 

is covered under the first prong has any 

greater rights under the ADA than an 

individual who is covered under the 

‘‘record of’’ or ‘‘regarded as’’ prongs, 

with the exception that the ADA, as 

amended, expressly states that an 

individual who meets the definition of 

disability solely under the ‘‘regarded as’’ 

prong is not entitled to reasonable 

modifications of policies, practices, or 

procedures. See 42 U.S.C. 12201(h). 

Sections 35.108(a)(2)(ii) and 

36.105(a)(2)(ii) are intended to amend 

the definition of ‘‘disability’’ to 

incorporate Congress’s expectation that 

consideration of coverage under the first 

and second prongs of the definition of 

‘‘disability’’ will generally not be 

necessary except in cases involving 

requests for reasonable modifications. 

See 154 Cong. Rec. H6068 (daily ed. 

June 25, 2008) (joint statement of Reps. 

Steny Hoyer and Jim Sensenbrenner). 

Accordingly, § 35.108(a)(2)(ii) states that 

‘‘[w]here an individual is not 

challenging a public entity’s failure to 

provide reasonable modifications under 

§ 35.130(b)(7), it is generally 

unnecessary to proceed under the 

‘actual disability’ or ‘record of’ prongs, 

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which require a showing of an 

impairment that substantially limits a 

major life activity or a record of such an 

impairment. In these cases, the 

evaluation of coverage can be made 

solely under the ‘regarded as’ prong of 

the definition of disability, which does 

not require a showing of an impairment 

that substantially limits a major life 

activity or a record of such an 

impairment. An individual may choose, 

however, to proceed under the ‘actual 

disability’ or ‘record of’ prong regardless 

of whether the individual is challenging 

a public entity’s failure to provide 

reasonable modifications.’’ 

Similarly, § 36.105(a)(2)(ii) states 

‘‘[w]here an individual is not 

challenging a covered entity’s failure to 

provide reasonable modifications under 

§ 36.302, it is generally unnecessary to 

proceed under the ‘actual disability’ or 

‘record of’ prongs, which require a 

showing of an impairment that 

substantially limits a major life activity 

or a record of such an impairment. In 

these cases, the evaluation of coverage 

can be made solely under the ‘regarded 

as’ prong of the definition of disability, 

which does not require a showing of an 

impairment that substantially limits a 

major life activity or a record of such an 

impairment. An individual may choose, 

however, to proceed under the ‘actual 

disability’ or ‘record of’ prong regardless 

of whether the individual is challenging 

a covered entity’s failure to provide 

reasonable modifications.’’ 

Sections 35.108(b) and 36.105(b)— 

Physical or Mental Impairment 

The ADA Amendments Act does not 

change the meaning of the term 

‘‘physical or mental impairment.’’ Thus, 

the Department is retaining the general 

regulatory definitions for this term with 

only minor modifications. First, the 

Department is proposing to add 

examples of two new body systems—the 

immune system and the circulatory 

system—that may be affected by a 

physical impairment. See 

§§ 35.108(b)(1)(i); 36.105(b)(1)(i). In 

addition, the Department is adding a 

reference to ‘‘dyslexia’’ to 

§§ 35.108(b)(2) and 36.105(b)(2) as an 

example of a specific learning disability 

that falls within the meaning of the 

phrase ‘‘physical or mental 

impairment.’’ The Department is 

proposing to add the reference to 

‘‘dyslexia’’ (i.e., a specific diagnosable 

learning disability that causes 

difficulties in reading and speaking 

unrelated to intelligence and education) 

because the Department has become 

aware that some covered entities 

mistakenly believe that dyslexia is not 

a clinically diagnosable impairment. 

The Department is interested in public 

comment regarding its proposed 

inclusion of a reference to dyslexia. 

The definition of ‘‘disability’’ does not 

include characteristic predisposition to 

illness or disease. Other conditions, 

such as pregnancy, that are not the 

result of a physiological disorder are 

also not impairments. However, a 

pregnancy-related impairment that 

substantially limits a major life activity 

is a disability under the first prong of 

the definition. Alternatively, a 

pregnancy-related impairment may 

constitute a ‘‘record of’’ a substantially 

limiting impairment, or may be covered 

under the ‘‘regarded as’’ prong if it is the 

basis for a prohibited action and is not 

both ‘‘transitory and minor.’’ 

Sections 35.108(c) and 36.105(c)—Major 

Life Activities 

Prior to the ADA Amendments Act, 

the ADA did not define ‘‘major life 

activities,’’ leaving delineation of 

illustrative examples to agency 

regulations. Section 2 of the definition 

of ‘‘disability’’ in the Department’s 

current title II and title III regulations 

states that ‘‘[t]he phrase major life 

activities means functions such as 

caring for one’s self, performing manual 

tasks, walking, seeing, hearing, 

speaking, breathing, learning, and 

working.’’ See 28 CFR 35.104; id. at 

36.104 

The ADA, as amended, incorporates 

into the statutory language a nonexhaustive list of major life activities 

that includes, but is not limited to, 

‘‘caring for oneself, performing manual 

tasks, seeing, hearing, eating, sleeping, 

walking, standing, lifting, bending, 

speaking, breathing, learning, reading, 

concentrating, thinking, 

communicating, and working.’’ 42 

U.S.C. 12102(2)(A). This list reflects 

Congress’s concern that courts were 

interpreting the term ‘‘major life 

activities’’ more narrowly than Congress 

intended. See 42 U.S.C .12101(b)(4). In 

§§ 35.108(c) and 36.105(c), the 

Department proposes to revise its title II 

and title III regulatory definitions of 

disability to incorporate the statutory 

examples as well as to provide 

additional examples included in the 

EEOC title I final regulation—reaching, 

sitting, and interacting with others, see 

29 CFR 1630.2(i)(1)(i). 

In addition, the ADA, as amended, 

specifies that a person may meet the 

definition of ‘‘disability’’ if he or she has 

a physical or mental impairment that 

substantially limits the operation of a 

‘‘major bodily function,’’ which 

includes the ‘‘functions of the immune 

system, normal cell growth, digestive, 

bowel, bladder, neurological, brain, 

respiratory, circulatory, endocrine, and 

reproductive functions.’’ 42 U.S.C. 

12102(2)(B). The Department is 

proposing to revise its regulatory 

definitions of disability at 

§§ 35.108(c)(1)(ii) and 36.105(c)(1)(ii) to 

make it clear that the operations of 

major bodily functions are major life 

activities, and to include a nonexclusive list of examples of major 

bodily functions, consistent with the 

language of the statute. In addition to 

the examples included in the statute, 

the Department proposes to include the 

following additional examples: the 

functions of the special sense organs 

and skin, genitourinary, cardiovascular, 

hemic, lymphatic, and musculoskeletal 

systems. These six major bodily 

functions are also specified in the EEOC 

title I final regulation. 29 CFR 

1630.2(i)(1)(i). 

The Department cautions that both 

the lists of major life activities and 

major bodily functions are illustrative. 

The absence of a particular life activity 

or bodily function from the list should 

not create a negative implication as to 

whether such activity or function 

constitutes a major life activity under 

the statute or the implementing 

regulation. 

Consistent with the ADA, as 

amended, proposed §§ 35.108(c)(2) and 

36.105(c)(2) also state that, ‘‘[i]n 

determining other examples of major 

life activities, the term ‘major’ shall not 

be interpreted strictly to create a 

demanding standard for disability.’’ 

Moreover, the proposed regulations 

provide that ‘‘[w]hether an activity is a 

‘major life activity’ is not determined by 

reference to whether the activity is of 

‘central importance to daily life.’’’ See 

§§ 35.108(c)(2), 36.105(c)(2). 

Sections 35.108(d) and 36.105(d)— 

Substantially Limits 

Overview. The ADA, as amended, 

states that the term ‘‘substantially 

limits’’ is intended to be ‘‘interpreted 

consistently with the findings and 

purposes of the ADA Amendments 

Act.’’ 42 U.S.C. 12102(4)(B). One stated 

purpose of the Act is to expressly ‘‘reject 

the standards enunciated by the 

Supreme Court in Toyota Motor 

Manufacturing, Kentucky, Inc. v. 

Williams . . . that the terms 

‘substantially’ and ‘major’ in the 

definition of disability under the ADA 

‘need to be interpreted strictly to create 

a demanding standard for qualifying as 

disabled,’ and that to be substantially 

limited in performing a major life 

activity under the ADA ‘an individual 

must have an impairment that prevents 

or severely restricts the individual from 

doing activities that are of central 

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importance to most people’s daily 

lives.’ ’’ Public Law 110–325, sec. 

2(b)(4). The Department proposes to add 

nine rules of construction at 

§§ 35.108(d) and 36.105(d) clarifying the 

meaning of ‘‘substantially limits’’ when 

determining whether an impairment 

substantially limits an individual in a 

major life activity consistent with the 

mandates of the ADA Amendments Act. 

These rules of construction are based on 

the requirements of the statute and the 

clear mandates of the legislative history 

and are as follows: 

Broad construction—not a demanding 

standard. Proposed §§ 35.108(d)(1)(i) 

and 36.105(d)(1)(i) state that ‘‘[t]he term 

‘substantially limits’ shall be construed 

broadly in favor of expansive coverage, 

to the maximum extent permitted by the 

terms of the ADA. ‘Substantially limits’ 

is not meant to be a demanding 

standard.’’ See 42 U.S.C. 12102(4)(A). 

Comparison to most people in the 

population. Proposed §§ 35.108(d)(1)(ii) 

and 36.105(d)(1)(ii) state that ‘‘[a]n 

impairment is a disability within the 

meaning of this part if it substantially 

limits the ability of an individual to 

perform a major life activity as 

compared to most people in the general 

population.’’ The Department cautions 

that this rule of construction addresses 

how to determine whether the 

individual’s impairment substantially 

limits a major life activity and not how 

the impairment is diagnosed. For 

example, when a person is diagnosed 

with the impairment of a learning 

disability, one accepted method of 

arriving at that diagnosis is the 

administration of specific tests to 

determine whether there is a significant 

discrepancy between the individual’s 

intelligence or aptitude and the 

individual’s academic achievement. 

Having established the existence of the 

impairment (here, a learning disability), 

the individual must still demonstrate 

that his or her impairment substantially 

limits a major life activity as compared 

to most people in the general 

population. 

Significant or severe restriction not 

required. Proposed §§ 35.108(d)(1)(ii) 

and 36.105(d)(1)(ii) also state ‘‘[a]n 

impairment need not prevent, or 

significantly or severely restrict, the 

individual from performing a major life 

activity in order to be considered 

substantially limiting.’’ See 154 Cong. 

Rec. S8840–42 (daily ed. Sept. 16, 2008) 

(Statement of the Managers); H.R. Rep. 

No. 110–730, pt. 1, at 9–10 (2008). 

(‘‘While the limitation imposed by an 

impairment must be important, it need 

not rise to the level of severely 

restricting or significantly restricting the 

ability to perform a major life activity in 

order to qualify as a disability.’’) In the 

findings and purposes of the ADA 

Amendments Act, Congress expressed 

concern that courts had required 

persons with disabilities seeking the 

protections of the ADA to demonstrate 

a greater degree of limitation than had 

been intended by Congress. Public Law 

110–325, sec. 2(a)(7). In addition, 

Congress specifically found that the 

EEOC’s ADA title I regulation had 

expressed too high a standard for 

proving disability by defining the term 

‘‘substantially limits’’ as ‘‘significantly 

restricted.’’ See Public Law 110–325, 

sec. 2(a)(7), (8). 

Primary focus of ADA cases. Proposed 

§§ 35.108(d)(1)(iii) and 36.105(d)(1)(iii) 

state that ‘‘[t]he primary object of 

attention in cases brought under the 

[ADA] should be whether [public 

entities/covered entities] have complied 

with their obligations and whether 

discrimination has occurred, not the 

extent to which an individual’s 

impairment substantially limits a major 

life activity. Accordingly, the threshold 

issue of whether an impairment 

substantially limits a major life activity 

should not demand extensive analysis.’’ 

Congress recognized that ‘‘clearing the 

initial [disability] threshold is critical, 

as individuals who are excluded from 

the definition ‘never have the 

opportunity to have their condition 

evaluated in light of medical evidence 

and a determination made as to whether 

they [are] ‘otherwise qualified.’ ’’ H.R. 

Rep. No. 110–730 pt. 2, at 7 (2008) 

(internal quotation marks and citation 

omitted). This rule of construction 

addresses that concern. 

‘‘Substantially limits’’ shall be 

interpreted to require a lesser degree of 

functional limitation than that provided 

prior to the ADA Amendments Act. 

Proposed §§ 35.108(d)(1)(iv) and 

36.105(d)(1)(iv) state that ‘‘[t]he 

determination of whether an 

impairment substantially limits a major 

life activity requires an individualized 

assessment. However, in making this 

assessment, the term ‘substantially 

limits’ shall be interpreted and applied 

to require a degree of functional 

limitation that is lower than the 

standard for substantially limits applied 

prior to the ADA Amendments Act.’’ 

This rule of construction reflects 

Congress’s concern that prior to the 

adoption of the ADA Amendments Act, 

courts were using too high a standard to 

determine whether an impairment 

substantially limited a major life 

activity. See Public Law 110–325, sec. 

2(b)(4), (5). 

Scientific, medical, or statistical 

evidence. Proposed §§ 35.108(d)(1)(v) 

and 36.105(d)(1)(v) state that ‘‘[t]he 

comparison of an individual’s 

performance of a major life activity to 

the performance of the same major life 

activity by most people in the general 

population usually will not require 

scientific, medical, or statistical 

evidence. Nothing in this paragraph is 

intended, however, to prohibit or limit 

the use of scientific, medical, or 

statistical evidence in making such a 

comparison where appropriate.’’ 

Determination made without regard to 

mitigating measures. The ADA, as 

amended, expressly prohibits any 

consideration of the ameliorative effects 

of mitigating measures when 

determining whether an individual’s 

impairment substantially limits a major 

life activity, save for the ameliorative 

effects of ordinary eyeglasses or contact 

lenses. 42 U.S.C. 12102(4)(E). Section 

12102(4)(E)(i) provides an illustrative, 

but non-exhaustive, list of different 

types of mitigating measures that must 

be considered in determining whether 

an individual has a covered disability. 

Id. 

Proposed §§ 35.108(d)(1)(vi) and 

36.105(d)(1)(vi) track the revised 

statutory language prohibiting 

consideration of mitigating measures 

(with one identified exception). 

Proposed §§ 35.108(d)(4) and 

36.105(d)(4), discussed below, set forth 

examples of mitigating measures. 

Impairments that are episodic or in 

remission. Proposed §§ 35.108(d)(1)(vii) 

and 36.105(d)(1)(vii) state that ‘‘[a]n 

impairment that is episodic or in 

remission is a disability if it would 

substantially limit a major life activity 

when active.’’ See 42 U.S.C. 

12102(4)(D). For example, a person with 

multiple sclerosis (MS) who is 

substantially limited in a major life 

activity when her MS is active, would 

be considered a person with a disability 

even when her condition is in 

remission. Similarly, a person who has 

a seizure disorder that manifests with 

episodic seizures that substantially limit 

a major life activity would be a person 

with a disability even though he is not 

substantially limited in a major life 

activity when his seizure disorder is not 

active. 

Impairment need not substantially 

limit more than one major life activity. 

Proposed §§ 35.108(d)(1)(viii) and 

36.105(d)(1)(viii) state that ‘‘[a]n 

impairment that substantially limits one 

major life activity need not substantially 

limit other major life activities in order 

to be considered a substantially limiting 

impairment.’’ See 42 U.S.C. 12102(4)(C). 

This language reflects the statutory 

intent to reject court decisions that had 

required individuals to show that an 

impairment substantially limits more 

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4846 Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Proposed Rules 

3This term is intended to replace the term 

‘‘mental retardation,’’ which is a term that is no 

longer used. 

than one major life activity. See 154 

Cong. Rec. S8842 (daily ed. Sept. 16, 

2008) (Statement of the Managers). It is 

also intended to clarify that the ability 

to perform one or more particular tasks 

within a broad category of activities 

does not preclude coverage under the 

ADA. For example, even if a person 

could engage in the manual activity of 

brushing his teeth or washing his face, 

he could still be a person with a 

disability if he were limited in the 

ability to perform other manual tasks. 

Transitory and minor exception. The 

ADA, as amended, provides that the 

‘‘regarded as’’ prong of the definition of 

‘‘disability’’ does ‘‘not apply to 

impairments that are [both] transitory 

and minor.’’ 42 U.S.C. 12102(3)(B). 

‘‘[T]ransitory impairment’’ is defined as 

‘‘an impairment with an actual or 

expected duration of six months or 

less.’’ See id. As discussed below, 

§§ 35.108(f) and 36.105(f) incorporate 

this exception into the determination of 

disability under the ‘‘regarded as’’ 

prong. Whether an impairment is both 

transitory and minor is a question of fact 

that is dependent upon individual 

circumstances; however, it is likely that 

an uncomplicated sprained ankle with 

an expected recovery time of three 

months, for example, would be an 

impairment that is both transitory and 

minor. 

The proposed rules of construction at 

§§ 35.108(d)(1)(ix) and 36.105(d)(1)(ix) 

further clarify that an impairment that 

lasts or is expected to last less than six 

months and that substantially limits a 

major life activity can be a disability 

under the first two prongs of the 

definition of ‘‘disability.’’ See 154 Cong. 

Rec. H6067 (daily ed. June 25, 2008) 

(joint statement of Reps. Steny Hoyer 

and Jim Sensenbrenner) (‘‘[T]here is no 

need for the transitory and minor 

exception under the first two prongs 

because it is clear from the statute and 

the legislative history that a person can 

only bring a claim if the impairment 

substantially limits one or more major 

life activities or the individual has a 

record of an impairment that 

substantially limits one or more major 

life activities.’’) 

Sections 35.108(d)(2) and 36.105(d)(2)— 

Predictable Assessments 

Although there are no ‘‘per se’’ 

disabilities, the Department believes 

that the inherent nature of certain 

impairments will in virtually all cases 

give rise to a substantial limitation of a 

major life activity. Proposed 

§§ 35.108(d)(2) and 36.105(d)(2) provide 

examples of impairments that should 

easily be found to substantially limit a 

major life activity. Cf. Heiko v. Columbo 

Savings Bank, F.S.B., 434 F.3d 249, 256 

(4th Cir. 2006) (stating, even pre-ADA 

Amendments Act, that ‘‘certain 

impairments are by their very nature 

substantially limiting: the major life 

activity of seeing, for example, is always 

substantially limited by blindness’’). 

The analysis of whether the types of 

impairments referenced in these 

sections substantially limit a major life 

activity does not depart from the 

hallmark individualized assessment 

required by the ADA. These sections 

recognize that applying the various 

principles and rules of construction 

concerning the definition of 

‘‘disability,’’ the individualized 

assessment of some types of 

impairments will, in virtually all cases, 

result in the conclusion that the 

impairment substantially limits a major 

life activity, and thus the necessary 

individualized assessment of these 

types of impairments should be 

particularly simple and straightforward. 

For example, and as provided in 

proposed §§ 35.108(d)(2) and 

36.105(d)(2), applying the rules of 

construction set forth in §§ 35.108(d)(1) 

and 36.105(d)(1), it should easily be 

concluded that the following nonexhaustive examples of types of 

impairments will, at a minimum, 

substantially limit the major life 

activities indicated: deafness 

substantially limits hearing and 

auditory function; blindness 

substantially limits visual function; an 

intellectual disability 3 substantially 

limits reading, learning, and problem 

solving; partially or completely missing 

limbs or mobility impairments requiring 

the use of a wheelchair substantially 

limit musculoskeletal function; autism 

substantially limits learning, social 

interaction, and communication; cancer 

substantially limits normal cell growth; 

cerebral palsy substantially limits brain 

function; diabetes substantially limits 

endocrine function; epilepsy, muscular 

dystrophy, and multiple sclerosis 

substantially limit neurological 

function; Human Immunodeficiency 

Virus (HIV) infection substantially 

limits immune function; and major 

depressive disorder, bipolar disorder, 

post-traumatic stress disorder, traumatic 

brain injury, obsessive compulsive 

disorder, and schizophrenia 

substantially limit brain function. 

Of course, the impairments listed in 

§§ 35.108(d)(2) and 36.105(d)(2) may 

substantially limit a variety of other 

major life activities in addition to those 

listed in the regulation. For example, 

diabetes may substantially limit major 

life activities such as eating, sleeping, 

and thinking. Major depressive disorder 

may substantially limit major life 

activities such as thinking, 

concentrating, sleeping, and interacting 

with others. Multiple sclerosis may 

substantially limit major life activities 

such as walking, bending, and lifting. 

Autism may substantially impair the 

major life activity of caring for oneself. 

Sections 35.108(d)(3) and 36.105(d)(3)— 

Condition, Manner, and Duration 

The preambles to the Department’s 

original title II and title III regulations 

noted that a person is considered an 

individual with a disability for purposes 

of the first prong of the definition when 

one or more of the individual’s 

important life activities are restricted as 

to the conditions, manner, or duration 

under which they can be performed in 

comparison to most people. 56 FR 

35694, 35699 (July 26, 1991). In the 

2008 Senate Statement of the Managers, 

Congress reiterated what it had said at 

the time of the original ADA: ‘‘A person 

is considered an individual with a 

disability for purposes of the first prong 

of the definition when [one or more of] 

the individual’s important life activities 

are restricted as to the conditions, 

manner, or duration under which they 

can be performed in comparison to most 

people.’’ 154 Cong. Rec. S8842 (daily 

ed. Sept. 16, 2008)) (citing S. Rep. No. 

101–116, at 23 (1989)). Congress also 

stated the following: 

We particularly believe that this test, 

which articulated an analysis that considered 

whether a person’s activities are limited in 

condition, duration and manner, is a useful 

one. We reiterate that using the correct 

standard—one that is lower than the strict or 

demanding standard created by the Supreme 

Court in Toyota—will make the disability 

determination an appropriate threshold issue 

but not an onerous burden for those seeking 

accommodations. . . . At the same time, 

plaintiffs should not be constrained from 

offering evidence needed to establish that 

their impairment is substantially limiting. 

Id. 

The Department has included this 

standard in proposed §§ 35.108(d)(3) 

and 36.105(d)(3), which provide that, 

taking into account the rules of 

construction in §§ 35.108(d)(1) and 

36.105(d)(1), ‘‘in determining whether 

an individual is substantially limited in 

a major life activity, it may be useful in 

appropriate cases to consider, as 

compared to most people in the general 

population, the conditions under which 

the individual performs the major life 

activity; the manner in which the 

individual performs the major life 

activity; or the duration of time it takes 

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the individual to perform the major life 

activity, or for which the individual can 

perform the major life activity.’’ 

An impairment may substantially 

limit the ‘‘condition’’ or ‘‘manner’’ 

under which a major life activity can be 

performed in a number of different 

ways. For example, the condition or 

manner under which a major life 

activity can be performed may refer to 

how an individual performs a major life 

activity; e.g., the condition or manner 

under which a person with an 

amputated hand performs manual tasks 

will likely be more cumbersome than 

the way that someone with two hands 

would perform the same tasks. 

Condition or manner may also 

describe how performance of a major 

life activity affects the individual with 

an impairment. For example, an 

individual whose impairment causes 

pain or fatigue that most people would 

not experience when performing that 

major life activity may be substantially 

limited. Thus, the condition or manner 

under which someone with coronary 

artery disease performs the major life 

activity of walking would be 

substantially limited if the individual 

experiences shortness of breath and 

fatigue when walking distances that 

most people could walk without 

experiencing such effects. Similarly, 

condition or manner may refer to the 

extent to which a major life activity, 

including a major bodily function, can 

be performed. In some cases, the 

condition or manner under which a 

major bodily function can be performed 

may be substantially limited when the 

impairment ‘‘causes the operation [of 

the bodily function] to over-produce or 

under-produce in some harmful 

fashion.’’ See H.R. Rep. No. 110–730, pt. 

2, at 17 (2008). For example, the 

endocrine system of a person with type 

I diabetes does not produce sufficient 

insulin. 

‘‘Duration’’ refers to the length of time 

an individual can perform a major life 

activity or the length of time it takes an 

individual to perform a major life 

activity, as compared to most people in 

the general population. For example, a 

person whose back or leg impairment 

precludes him or her from standing for 

more than two hours without significant 

pain would be substantially limited in 

standing, because most people can stand 

for more than two hours without 

significant pain. However, ‘‘[a] person 

who can walk for 10 miles continuously 

is not substantially limited in walking 

merely because on the eleventh mile, he 

or she begins to experience pain because 

most people would not be able to walk 

eleven miles without experiencing some 

discomfort.’’ See 154 Cong. Rec. S8842 

(daily ed. Sept. 16, 2008) (Statement of 

the Managers) (citing S. Rep. No. 101– 

116, at 23 (1989). 

Condition, manner, or duration may 

also suggest the amount of time or effort 

an individual has to expend when 

performing a major life activity because 

of the effects of an impairment, even if 

the individual is able to achieve the 

same or similar result as someone 

without the impairment. For this reason, 

§§ 35.108(d)(3)(iii) and 36.105(d)(3)(iii) 

include language that says that the 

outcome an individual with a disability 

is able to achieve is not determinative 

of whether he or she is substantially 

limited in a major life activity. 

For example, someone with a learning 

disability may achieve a high level of 

academic success, but may, 

nevertheless, be substantially limited in 

one or more of the major life activities 

of reading, writing, speaking, or learning 

because of the additional time or effort 

he or she must spend to read, speak, 

write, or learn compared to most people 

in the general population. As Congress 

emphasized in passing the ADA 

Amendments Act, ‘‘[w]hen considering 

the condition, manner, or duration in 

which an individual with a specific 

learning disability performs a major life 

activity, it is critical to reject the 

assumption that an individual who has 

performed well academically cannot be 

substantially limited in activities such 

as learning, reading, writing, thinking, 

or speaking.’’ 154 Cong. Rec. S8842 

(daily ed. Sept. 16, 2008) (Statement of 

the Managers). The House Education 

and Labor Committee Report noted that: 

In particular, some courts have found that 

students who have reached a high level of 

academic achievement are not to be 

considered individuals with disabilities 

under the ADA, as such individuals may 

have difficulty demonstrating substantial 

limitation in the major life activities of 

learning or reading relative to ‘‘most people.’’ 

When considering the condition, manner or 

duration in which an individual with a 

specific learning disability performs a major 

life activity, it is critical to reject the 

assumption that an individual who performs 

well academically or otherwise cannot be 

substantially limited in activities such as 

learning, reading, writing, thinking, or 

speaking. As such, the Committee rejects the 

findings in Price v. National Board of 

Medical Examiners, Gonzales v. National 

Board of Medical Examiners, and Wong v. 

Regents of University of California. 

The Committee believes that the 

comparison of individuals with specific 

learning disabilities to ‘‘most people’’ is not 

problematic unto itself, but requires a careful 

analysis of the method and manner in which 

an individual’s impairment limits a major life 

activity. For the majority of the population, 

the basic mechanics of reading and writing 

do not pose extraordinary lifelong challenges; 

rather, recognizing and forming letters and 

words are effortless, unconscious, automatic 

processes. Because specific learning 

disabilities are neurologically-based 

impairments, the process of reading for an 

individual with a reading disability (e.g. 

dyslexia) is word-by-word, and otherwise 

cumbersome, painful, deliberate and slow— 

throughout life. The Committee expects that 

individuals with specific learning disabilities 

that substantially limit a major life activity 

will be better protected under the amended 

Act. 

H.R. Rep. No. 110–730 pt. 1, at 10–11 

(2008). 

The proposed regulations provide that 

the non-ameliorative effects of 

mitigating measures may be considered 

in assessing substantial limitation and 

considering facts such as condition, 

manner, or duration. See 

§§ 35.108(d)(3)(ii) and 36.105(d)(3)(ii). 

Such ‘‘non-ameliorative effects’’ could 

include negative side effects of 

medicine, burdens associated with 

following a particular treatment 

regimen, and complications that arise 

from surgery, among others. Of course, 

in many instances, it will not be 

necessary to assess the negative side 

effects of a mitigating measure in 

determining that a particular 

impairment substantially limits a major 

life activity. For example, someone with 

end-stage renal disease is substantially 

limited in kidney function, and thus, it 

is not necessary to consider the burdens 

that dialysis treatment imposes. 

Finally, condition, manner, or 

duration is not intended to be used as 

a rigid three-part standard that must be 

met to establish a substantial limitation. 

Rather, in referring to condition, 

manner, or duration, the proposed rules 

make clear that these are merely the 

types of factors that may be considered 

in appropriate cases. To the extent that 

such factors may be useful or relevant 

to show a substantial limitation in a 

particular fact pattern, some or all of 

them (and related facts) may be 

considered, but evidence relating to 

each of these facts may not be necessary 

to establish coverage. 

At the same time, individuals seeking 

coverage under the first or second prong 

of the definition of ‘‘disability’’ should 

not be constrained from offering 

evidence needed to establish that their 

impairment is substantially limiting. 

See 154 Cong. Rec. S8842 (daily ed. 

Sept. 16, 2008) (Statement of the 

Managers). Of course, covered entities 

may defeat a showing of substantial 

limitation by refuting whatever 

evidence the individual seeking 

coverage has offered, or by offering 

evidence that shows that an impairment 

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does not impose a substantial limitation 

on a major life activity. 

The Department also notes that 

although in general the comparison to 

‘‘most people’’ means a comparison to 

most people in the general population, 

there are a few circumstances where it 

is only appropriate to make this 

comparison in reference to a particular 

population. For example, it would be 

inappropriate to evaluate whether a 

young child with a learning disability 

that affected her or his ability to read 

was substantially limited in reading 

compared to most people in the general 

population, because clinical 

assessments of such an impairment (e.g., 

dyslexia), are always performed in the 

context of similarly-aged children or a 

given academic year (e.g., sixth grade), 

and not in comparison to the population 

at large. 

Sections 35.108(d)(4) and 36.105(d)(4)— 

Examples of Mitigating Measures 

Proposed §§ 35.108(d)(4) and 

36.105(d)(4) provide examples of 

mitigating measures that must not be 

considered in determining whether an 

individual has a disability that 

substantially limits a major life activity. 

Mitigating measures include but are not 

limited to medication, prosthetics, 

assistive technology, reasonable 

modifications and auxiliary aids or 

services, and learned behavioral or 

adaptive neurological modifications. 

Learned behavioral or adaptive 

neurological modifications include 

those strategies developed by an 

individual to lessen the impact of an 

impairment. Reasonable modifications 

include informal or undocumented 

accommodations and modifications as 

well as those provided through a formal 

process. 

Self-mitigating measures or 

undocumented modifications or 

accommodations for students with 

impairments that affect learning, 

reading, or concentrating, may include 

measures such as devoting a far larger 

portion of the day, weekends, and 

holidays to study than students without 

disabilities; teaching oneself strategies 

to facilitate reading connected text or 

mnemonics to remember facts; receiving 

extra time to complete tests; receiving 

modified homework assignments; or 

being permitted to take exams in a 

different format or in a less stressful or 

anxiety-provoking setting. Each of these 

mitigating measures, whether formal or 

informal, documented or 

undocumented, can lessen the impact 

of, and improve the academic function 

of a student having to deal with a 

substantial limitation in a major life 

activity such as concentrating, reading, 

speaking, learning, or writing. 

Nevertheless, these are only temporary 

supports; the individual still has a 

substantial limitation in a major life 

activity and would be a person with a 

disability under the ADA. See also 

discussion of §§ 35.108(d)(1) and 

36.105(d)(1), above. 

The ADA, as amended, specifies one 

exception to the rule on mitigating 

measures, stating that the ameliorative 

effects of ordinary eyeglasses and 

contact lenses shall be considered in 

determining whether a person has an 

impairment that substantially limits a 

major life activity and thereby is a 

person with a disability. 42 U.S.C. 

12102(4)(E)(ii). Proposed 

§§ 35.108(d)(4)(i) and 36.105(d)(4)(i) 

incorporate this exception by excluding 

ordinary eyeglasses and contact lenses 

from the definition of ‘‘low-vision 

devices,’’ which are mitigating measures 

that may not be considered in 

determining whether an impairment is a 

substantial limitation. 

Sections 35.108(e) and 36.105(e)—Has a 

Record of Such an Impairment 

Section (3) of the definition of 

‘‘disability’’ in the title II and title III 

regulations states the following: ‘‘The 

phrase has a record of such an 

impairment means has a history of, or 

has been misclassified as having, a 

mental or physical impairment that 

substantially limits one or more major 

life activities.’’ The NPRM proposes to 

keep the language of section (3) in both 

the title II and title III regulations (with 

minor editorial changes) but renumbers 

it as §§ 35.108(e)(1) and 36.105(e)(1). 

In addition, the NPRM proposes 

adding a new paragraph (2), which 

states that ‘‘[w]hether an individual has 

a record of an impairment that 

substantially limited a major life activity 

shall be construed broadly to the 

maximum extent permitted by the ADA 

and should not demand extensive 

analysis. An individual will be 

considered to fall within this prong of 

the definition of disability if the 

individual has a history of an 

impairment that substantially limited 

one or more major life activities or was 

misclassified as having had such an 

impairment.’’ 

The NPRM also proposes adding 

paragraph (3), which provides that ‘‘[a]n 

individual with a record of a 

substantially limiting impairment may 

be entitled to a reasonable modification 

if needed and related to the past 

disability.’’ For example, a high school 

student with an impairment that 

previously substantially limited, but no 

longer substantially limits, a major life 

activity may need permission to miss a 

class or have a schedule change to 

permit him or her to attend follow-up or 

monitoring appointments from a health 

care provider. 

Sections 35.108(f) and 36.105(f)—‘‘Is 

Regarded as Having Such an 

Impairment’’ 

The ‘‘regarded as having such an 

impairment’’ prong of the definition of 

‘‘disability’’ was included in the ADA 

specifically to protect individuals who 

might not meet the first two prongs of 

the definition, but who were subject to 

adverse decisions by covered entities 

based upon unfounded concerns, 

mistaken beliefs, fears, myths, or 

prejudices about persons with 

disabilities. See 154 Cong. Rec. S8842 

(daily ed. Sept. 16, 2008) (Statement of 

the Managers). The rationale for the 

‘‘regarded as’’ part of the definition of 

‘‘disability’’ was articulated by the 

Supreme Court in the context of Section 

504 of the Rehabilitation Act of 1973 in 

School Board of Nassau County v. 

Arline, 480 U.S. 273 (1987). In Arline, 

the Court noted that, although an 

individual may have an impairment that 

does not diminish his or her physical or 

mental capabilities, it could 

‘‘nevertheless substantially limit that 

person’s ability to work as a result of the 

negative reactions of others to the 

impairment.’’ Id. at 283. Thus, until the 

Sutton decision, individuals seeking the 

protection of the ADA under this prong 

only had to show that a covered entity 

took some action prohibited by the 

statute because of an actual or perceived 

impairment. There was no requirement 

that the individual demonstrate that he 

or she, in fact, had an impairment that 

substantially limited a major life 

activity. See 154 Cong. Rec. S8842 

(daily ed. Sept. 16, 2008) (Statement of 

the Managers). For example, if a day 

care center refused to admit a child with 

burn scars because of the presence of 

the scars, then the day care center 

regarded the child as an individual with 

a disability, regardless of whether the 

child’s scars substantially limited a 

major life activity. 

In the Sutton decision, the Supreme 

Court significantly narrowed the 

application of this prong, holding that 

individuals who asserted coverage 

under the ‘‘regarded as having such an 

impairment’’ prong had to establish 

either that the covered entity mistakenly 

believed that the individual had a 

physical or mental impairment that 

substantially limited a major life 

activity, or that the covered entity 

mistakenly believed that ‘‘an actual, 

nonlimiting impairment substantially 

limit[ed]’’ a major life activity, when in 

fact the impairment was not so limiting. 

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527 U.S. at 489. Congress expressly 

rejected this holding in the ADA 

Amendments Act by adding language 

clarifying that it is sufficient for an 

individual to establish that the covered 

entity regarded him or her as having an 

impairment, regardless of whether the 

individual actually has the impairment 

or whether the impairment constitutes a 

disability under the Act. 42 U.S.C. 

12102(3)(A). This provision restores 

Congress’s intent to allow individuals to 

establish coverage under the ‘‘regarded 

as’’ prong by showing that they were 

treated adversely because of an 

impairment without having to establish 

the covered entity’s beliefs concerning 

the severity of the impairment. See H.R. 

Rep. No. 110–730, pt. 2, at 18 (2008). 

Thus, under the ADA Amendments 

Act, it is not necessary, as it was prior 

to the Act and following the Supreme 

Court’s decision in Sutton, for an 

individual to demonstrate that a covered 

entity perceived him as substantially 

limited in the ability to perform a major 

life activity in order for the individual 

to establish that he or she is covered 

under the ‘‘regarded as’’ prong. Nor is it 

necessary to demonstrate that the 

impairment relied on by a covered 

entity is (in the case of an actual 

impairment) or would be (in the case of 

a perceived impairment) substantially 

limiting for an individual to be 

‘‘regarded as having such an 

impairment.’’ In short, to be covered 

under the ‘‘regarded as’’ prong, an 

individual is not subject to any 

functional test. See 154 Cong. Rec. 

S8843 (daily ed. Sept. 16, 2008) 

(Statement of the Managers) (‘‘The 

functional limitation imposed by an 

impairment is irrelevant to the third 

‘regarded as’ prong.’’); H.R. Rep. No. 

110–730, pt. 2, at 17 (2008) (‘‘[T]he 

individual is not required to show that 

the perceived impairment limits 

performance of a major life activity.’’). 

The concepts of ‘‘major life activities’’ 

and ‘‘substantial limitation’’ simply are 

not relevant in evaluating whether an 

individual is ‘‘regarded as having such 

an impairment.’’ 

Proposed §§ 35.108(f)(1) and 

36.105(f)(1) restore the meaning of the 

‘‘regarded as’’ prong of the definition of 

‘‘disability’’ by adding language that 

incorporates the statutory provision and 

states: ‘‘An individual is ‘regarded as 

having such an impairment’ if the 

individual is subjected to an action 

prohibited by the ADA because of an 

actual or perceived physical or mental 

impairment, whether or not the 

impairment substantially limits, or is 

perceived to substantially limit, a major 

life activity, except for an impairment 

that is both transitory and minor.’’ The 

sections also incorporate the statutory 

definition of transitory impairment, and 

state that a ‘‘transitory impairment is an 

impairment with an actual or expected 

duration of six months or less.’’ 

Proposed §§ 35.108(f)(2) and 

36.105(f)(2) provide that ‘‘[a]n 

individual is ‘regarded as having such 

an impairment’ any time a [public 

entity/covered entity] takes a prohibited 

action against the individual because of 

an actual or perceived impairment, even 

if the [entity] asserts, or may or does 

ultimately establish, a defense to such 

action.’’ 

Proposed §§ 35.108(f)(3) and 

36.105(f)(3) provide that establishing 

that an individual is ‘‘regarded as 

having such an impairment’’ does not, 

by itself, establish liability. Liability is 

established under either title II or III of 

the ADA only when an individual 

proves that a covered entity 

discriminated on the basis of disability 

within the meaning of the ADA. Thus, 

in order to establish liability, an 

individual must establish coverage as a 

person with a disability, as well as 

establish that he or she has been 

subjected to an action prohibited by the 

ADA. 

Sections 35.108(g) and 36.105(g)— 

Exclusions 

Sections 35.108(g) and 36.105(g) of 

the Department’s proposed definition of 

‘‘disability’’ renumber the exclusions 

contained in paragraph (5) of the 

definition of ‘‘disability’’ in the title II 

and title III regulations. 

Section 35.130(b)(7)(i)—Claims of No 

Disability and Section 36.302(g)— 

Modifications in Policies, Practices, or 

Procedures 

The ADA, as amended, states that a 

public entity under title II and any 

person who owns, leases (or leases to), 

or operates a place of public 

accommodation under title III, ‘‘need 

not provide a reasonable 

accommodation or a reasonable 

modification to policies, practices, or 

procedures to an individual who meets 

the definition of disability’’ solely on 

the basis of being regarded as having an 

impairment. 42 U.S.C. 12201(h). 

Proposed §§ 35.130(b)(7)(i) and 

36.302(g) reflect this concept and 

provide that a public entity/covered 

entity ‘‘is not required to provide a 

reasonable modification to an 

individual who meets the definition of 

disability solely under the ‘regarded as’ 

prong of the definition of disability,’’ 

found in § 35.108(a)(1)(iii) and 

§ 36.105(a)(1)(iii). Thus, proposed 

§§ 35.130(b)(7)(i) and 36.302(g) make it 

clear that the duty to provide reasonable 

modifications arises only when the 

individual establishes coverage under 

the first or second prong of the 

definition of ‘‘disability.’’ These 

sections are not intended to diminish 

the existing obligations to provide 

reasonable modifications under title II 

and title III of the ADA. 

The Department notes that the ADA 

Amendments Act revised the rules of 

construction in title V of the ADA by 

including a provision affirming that 

nothing in the Act changed the ADA 

requirement that covered entities 

provide reasonable modifications in 

policies, practices, or procedures, unless 

the entity can demonstrate that making 

such modifications in policies, 

practices, or procedures, including 

academic requirements in 

postsecondary education, would 

fundamentally alter the nature of goods, 

services, facilities, privileges, 

advantages, or accommodations 

involved. See 42 U.S.C. 12201(f). 

Congress noted that the reference to 

‘‘academic requirements in 

postsecondary education’’ was included 

‘‘solely to provide assurances that the 

bill does not alter current law with 

regard to the obligations of academic 

institutions under the ADA, which we 

believe is already demonstrated in case 

law on this topic. Specifically, the 

reference to academic standards in postsecondary education is unrelated to the 

purpose of this legislation and should 

be given no meaning in interpreting the 

definition of disability.’’ 154 Cong. Rec. 

S8843 (daily ed. Sept. 16, 2008) 

(Statement of the Managers). Given that 

Congress did not intend there to be any 

change to the law in this area, the 

Department has made no changes to its 

regulatory requirements in response to 

this provision of the ADA Amendments 

Act. 

Sections 35.130(i) and 36.201(c)— 

Claims of No Disability 

The NPRM proposes adding 

§§ 35.130(i) and 36.201(c) to the title II 

and title III regulations, respectively, to 

reflect the language of the ADA, as 

amended, which states that ‘‘[n]othing 

in this [Act] shall provide the basis for 

a claim by an individual without a 

disability that the individual was 

subject to discrimination because of the 

individual’s lack of disability.’’ 42 

U.S.C. 12201(g). This provision, and the 

proposed rules incorporating its 

language, clarify that persons without 

disabilities do not have an actionable 

claim under the ADA on the basis of not 

having a disability. 

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4The title II regulation also designates eight 

federal agencies to investigate complaints with 

respect to the programs, services, and activities for 

certain public entities. See 28 CFR Subparts F, G. 

Regulatory Process Matters 

A. Executive Order 13563 and 12866— 

Regulatory Planning and Review 

This NPRM has been drafted in 

accordance with Executive Order 13563, 

76 FR 3821 (Jan. 18, 2011), Improving 

Regulation and Regulatory Review, and 

Executive Order 12866, 58 FR 51735 

(Sept. 30, 1993), Regulatory Planning 

and Review. Executive Order 13563 

directs agencies, to the extent permitted 

by law, to propose or adopt a regulation 

only upon a reasoned determination 

that its benefits justify its costs; tailor 

the regulation to impose the least 

burden on society, consistent with 

obtaining the regulatory objectives; and, 

in choosing among alternative 

regulatory approaches, select those 

approaches that maximize net benefits. 

Executive Order 13563 recognizes that 

some benefits and costs are difficult to 

quantify and provides that, where 

appropriate and permitted by law, 

agencies may consider and discuss 

qualitatively values that are difficult or 

impossible to quantify, including 

equity, human dignity, fairness, and 

distributive impacts. 

The Department has determined that 

this proposed rule is a ‘‘significant 

regulatory action’’ as defined by 

Executive Order 12866, section 3(f). The 

Department has determined, however, 

that this proposed rule is not an 

economically significant regulatory 

action, as it will not have an annual 

effect on the economy of $100 million 

or more or adversely affect in a material 

way the economy, a sector of the 

economy, productivity, competition, 

jobs, the environment, public health or 

safety, or State, local, or tribal 

governments or communities. This 

NPRM has been reviewed by the Office 

of Management and Budget (OMB) 

pursuant to Executive Orders 12866 and 

13563. 

1. Necessity for This Rulemaking 

This rule is necessary to incorporate 

into the Department’s current 

regulations the ADA Amendments Act 

of 2008, which became effective on 

January 1, 2009. The proposed 

regulations are intended to promote 

consistency of judicial interpretations 

and predictability of executive 

enforcement of the ADA, as now 

amended by Congress. 

2. Relationship to EEOC’s ADA 

Regulation Under Title I 

The ADA Amendments Act’s changes 

to the ADA apply to title I of the ADA, 

which is enforced by the Equal 

Employment Opportunity Commission 

(EEOC), and titles II and III of the ADA, 

which are enforced by the Department.4

In keeping with the mandates of 

Executive Order 13563, and in order to 

promote consistency in the 

interpretation of the ADA Amendments 

Act, the Department and the EEOC held 

four joint public hearings prior to the 

publication of the EEOC’s final title I 

ADA Amendments Act rule. See 76 FR 

16978. In addition, the Department is 

proposing to revise its ADA title II and 

title III regulations in such a manner 

that, wherever possible, the regulatory 

language is the same as the language 

adopted by the EEOC in its final rule. 

This consistency will also ensure greater 

certainty for the public and businesses 

subject to the ADA. 

As discussed earlier, Congress 

enacted the ADA Amendments Act in 

response to a growing number of ADA 

title I employment discrimination cases 

in which, contrary to the intent of 

Congress, persons with disabilities were 

unable to establish that they had 

disabilities as defined under the ADA. 

The EEOC’s Regulatory Impact Analysis 

(RIA) published with its final title I rule 

discussed the effect of the ADA 

Amendments Act in terms of benefits to 

individuals with disabilities and costs 

to covered entities subject to title I. The 

EEOC RIA identifies a broad range of 

individuals with disabilities who, prior 

to the passage of the ADA Amendments 

Act, could not establish coverage under 

the ADA’s definition of ‘‘disability’’ 

and, thus, were not entitled to 

reasonable accommodations in the 

workplace. The EEOC RIA focuses on 

the cost of the additional 

accommodations that could be required 

because the ADA Amendments Act 

results in a larger group of individuals 

who have disabilities under the ADA. 

The EEOC RIA concluded that, with 

respect to the revisions to the title I 

ADA regulation, the qualitative and 

quantitative benefits of the rule justified 

the estimated annual costs of $60 

million to $183 million. 76 FR 16978, 

16998 (March 25, 2011). 

In contrast to the effects of the ADA 

Amendments Act on entities subject to 

title I, the Department believes that the 

statutory changes that the proposed title 

II and title III regulations incorporate 

will impact individuals and covered 

entities differently and will result in 

significantly less cost than $100 million 

in any given year. The Department has 

concluded this for several reasons. First, 

although the ADA Amendments Act 

was expected to have an impact on a 

broad range of individuals with 

disabilities who were seeking 

reasonable accommodations in 

employment under title I, its impact on 

individuals challenging discrimination 

under titles II or III was expected to be 

substantially less. The legislative history 

only identifies individuals with learning 

disabilities who require testing 

accommodations from higher education 

institutions and testing entities as likely 

to be affected by the Act. See H.R. Rep. 

No. 110–730 pt. 1, at 10–11 (2008). 

Congress was concerned about the 

number of individuals with learning 

disabilities who were denied testing 

accommodations (usually extra time) 

because covered entities claimed that 

those individuals did not have 

disabilities covered by the ADA. Id. 

Second, the case law and the 

Department’s enforcement experience in 

the years since the Supreme Court’s 

decision in Sutton suggest that 

determining whether a plaintiff was an 

individual with a disability under the 

ADA’s definition of ‘‘disability’’ was 

rarely a central issue in title II and title 

III cases, except with respect to testing 

accommodations. In addition, the 

Department’s research has not identified 

any entities outside of higher education 

and testing entities that purport to be 

affected by the changes to titles II and 

III of the ADA made by the ADA 

Amendments Act. 

Third, although the ADA 

Amendments Act has been in effect for 

nearly four years, the Department’s 

research has not identified information 

or data in the literature or on trade 

association Web sites suggesting that 

higher education institutions and testing 

entities have in fact borne significant 

additional costs attributable to the 

implementation of the statutory 

requirements of the ADA Amendments 

Act. 

Fourth, the Department does not 

believe that there are significant 

additional costs for providing extended 

time for testing for students in 

kindergarten through grade 12 as the 

result of the ADA Amendments Act. 

The vast majority of these students are 

already receiving a range of classroom 

program modifications, including 

extended time for testing, pursuant to 

the Individuals with Disabilities 

Education Act (IDEA) 20 U.S.C. 1400, et 

seq. To the extent that there are nonIDEA students in kindergarten through 

grade 12 who will receive additional 

classroom modifications (e.g., extended 

time for testing) as a result of the 

Department’s implementing the ADA 

Amendments Act by amending its title 

II regulations, the Department believes 

that schools will not incur significant 

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5 ‘‘National examinations’’ refers to those 

examinations administered by a private entity 

related to applications, licensing, certification, or 

credentialing for secondary or post-secondary 

education, professional, or trade purposes. Cf. 28 

CFR 36.309(a). 

6Our data was derived from several sources. In 

addition to some basic internet resources, we relied 

on the following: (1) U.S. Gov’t Accountability 

Office, GAO 10–33, Higher Education and 

Disability—Education Needs a Coordinated 

Approach to Improve Assistance to Schools in 

Supporting Students (2009); (2) U.S. Gov’t 

Accountability Office, GAO 12–40, Higher 

Education and Disability—Improved Federal 

Enforcement Needed to Better Protect Students’ 

Rights to Testing Accommodations (2011); (3) data 

from the U.S. Department of Education, Institute of 

Education Sciences, College and Career Tables 

Library, Table 77, available at http://nces.ed.gov/

datalab/tableslibrary/viewtable.aspx?tableid=8530.; 

(4) Lindsey Jasinski and John Ranseen, Malingered 

ADHD Evaluations: A Further Complication for 

Accommodation Reviews, The Bar Examiner, 

December 2011; (5) U.S. Department of Education, 

The Condition of Education 160 (2003), available at 

http://nces.ed.gov/pubs2003/2003067.pdf; (6) 

Melana Zyla Vickers, Pope Center for Higher 

Education Policy, Accommodating College Students 

with Learning Disabilities: ADD, ADHD, and 

Dyslexia (March 2010), available at 

http:www.popecenter.org/acrobat/Vickersmar2010.pdf; (7) Bureau of Labor Statistics, U.S. 

Department of Labor, Occupational Outlook 

Handbook, 2012–13 Edition, Teacher Assistants, 

available at http://www.bls.gov/ooh/educationtraining-and-library/teacher-assistants.htm; (8) data 

from the U.S. Census Bureau, American FactFinder, 

Table ECO761A1, available at http:// 

factfinder2.census.gov/faces/tableservices/jsf/

pages/productview.xhtml?pid=ECN_2007_US_

61A1&prodType=;. 

7U.S. Department of Education, Institute of 

Education Sciences, College and Career Tables 

Library, Table 77, available at http://nces.ed.gov/

datalab/tableslibrary/viewtable.aspx?tableid=8530. 

8U.S. Department of Education, Institute of 

Education Sciences, College and Career Tables 

Library, Table 4, available at 

http://nces.ed.gov/datalab/tableslibrary/

viewtable.aspx?tableid=8155. 

additional costs because the extra time 

will be supervised by the student’s 

teachers or other existing school 

personnel. The Department is interested 

in any data that school districts can 

provide with respect to costs they will 

incur related to the ADA Amendments 

Act. 

Finally, the Department’s preliminary 

assessment of the costs associated with 

the anticipated increase in the number 

of testing accommodation requests that 

would be granted in testing and 

licensing situations as a result of the 

revised ADA definition of ‘‘disability’’ 

clearly supports the Department’s view 

that the proposed changes will cost 

significantly less than $100 million in 

any given year. 

3. Cost Assessment 

Robust data are not readily available 

on the actual numbers of persons who 

would be covered by the ADA due to 

the clarifications from the ADA 

Amendments Act, and the actual 

additional costs of accommodations. 

Nevertheless, some general cost 

estimates can be made using existing 

data and assumptions. The Department 

estimates that the total cost of the 

revisions required by the ADA 

Amendments Act and the proposed 

regulations will range between $36.2 

and $61.8 million in the first year (the 

year with the highest costs) for 

providing testing accommodations to 

students with learning disabilities and 

students with Attention Deficit Disorder 

or Attention Deficit Hyperactivity 

Disorder (collectively, ‘‘ADD’’), who 

would request and receive testing 

accommodations and would not have 

received accommodations but for 

implementation of the ADA 

Amendments Act and the proposed 

regulations. 

Research has found that, prior to the 

enactment of the ADA Amendments 

Act, a little more than half—51 

percent—of students with learning 

disabilities or ADD were receiving 

testing accommodations in postsecondary schools or on national 

examinations.5 To account for 

uncertainty regarding the remaining 

students who were not receiving 

accommodations but would be eligible 

to receive them now because of the ADA 

Amendments Act and the proposed 

regulations, we estimate the incremental 

effect of the revisions using a low (50 

percent), medium (70 percent), and high 

(90 percent) range. The Department’s 

research indicates that in the vast 

majority of cases, the accommodation 

requested by students with learning 

disabilities or ADD involves extra testtaking time. The estimate of costs of 

additional testing accommodations 

needed as a result of the ADA 

Amendments Act and the proposed 

regulations is developed from current 

data on the number of post-secondary 

students (undergraduate and graduate), 

the portion of students with learning 

disabilities, the portion of students with 

ADD, the number of students 

participating in online learning, the 

average hourly wage of teaching 

assistants and test proctors, and 

reasonable estimates of average test 

time, average course load, and average 

number of tests per course.6

SUMMARY OF TOTAL ESTIMATED COSTS IN FIRST YEAR

[$millions] 

Low Med High 

Testing in Classes/Courses of Study in Post-Secondary Institutions 

ANNUAL Total Cost for Coursework Tests and Examinations ................................................... $30.5 $42.7 $54.9 

ONE TIME Cost for Additional Training at Institutions ................................................................ 3.5 3.5 3.5 

National Examination Testing 

ANNUAL Total Cost for National Examinations .......................................................................... 1.5 2.1 2.7 

ONE TIME Cost for Additional Training at Institutions ................................................................ 0.7 0.7 0.7 

Total ...................................................................................................................................... 36.2 49.0 61.8 

a. Post-Secondary Institutions 

The National Center for Education 

Statistics (NCES) reports that, as of 

2010, there were an estimated 17.8 

million post-secondary students,7

including both undergraduate and 

graduate students. This figure represents 

full-time student equivalents. The NCES 

also reports that approximately 3.7 

percent of those 17.8 million students 

are enrolled in online learning and that 

approximately 20.4 percent of students 

were taking online learning course(s).8

The 3.7 percent is an estimate of the 

percent of all post-secondary students 

who are taking all their courses online. 

We removed these students from our 

cost estimate because if their entire 

program is online, the Department 

believes it is unlikely they will have 

timed tests at a physical location. We 

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9 GAO 10–33, Higher Education and Disability— 

Education Needs a Coordinated Approach to 

Improve Assistance to Schools in Supporting 

Students 37 (2009). 

10 Id. at 38. 

11Researchers have estimated that nearly 25%– 

50% of students self-identifying as ADD may not 

necessarily meet the clinical definition of the 

disorder and thus would still not qualify for an 

accommodation under the revised definition of 

disability. Jasinski and Ranseen, Malingered ADHD 

Evaluations: A Further Complication for 

Accommodation Reviews, The Bar Examiner, 

December 2011, at 10. 

12U.S. Department of Education, The Condition 

of Education 160 (2003), available at http://

nces.ed.gov/pubs2003/2003067.pdf; see also 

Vickers, Pope Center for Higher Education Policy, 

Accommodating College Students with Learning 

Disabilities: ADD, ADHD, and Dyslexia 6 (March 

2010), available at http:www.popecenter.org/

acrobat/Vickers-mar2010.pdf. 

13 GAO 12–40, Higher Education and Disability— 

Improved Federal Enforcement Needed to Better 

Protect Students’ Rights to Testing 

Accommodations 8 (2011) 

14 If 59% of takers requested 50% more time, and 

15% of test takers requested 100% more time 

(double the time of other test takers), the average 

amount of time requested, on a per test taker basis, 

would be 60% more time. Thus, we believe that an 

estimate of 75% more time, on average, more than 

covers the likely net additional time requested. 

did not remove from our cost estimate 

the students who are taking only some 

online courses. Instead, we treat these 

students the same for purposes of our 

analysis as we treat students taking all 

courses in physical classrooms, which 

likely overestimates the number of 

courses with timed tests at a physical 

location that we use in our estimate. 

The Department requests public 

comment on whether our assumption is 

correct that those in a post-secondary 

program where all classes are taken 

online do not take their tests in a 

physical location. We also request any 

information the public might have 

regarding whether online-only postsecondary programs will incur any costs 

that we have not accounted for as a 

result of incorporating the ADA 

Amendments Act’s revised definition of 

‘‘disability.’’ 

In 2008, approximately 10.8 percent 

of post-secondary students reported 

having a disability.9 Out of those 10.8 

percent of students with a disability, 8.9 

percent of those students reported 

having a ‘‘specific learning disability’’ 

and 19.1 percent reported having 

ADD.10 Thus, out of the 10.8 percent of 

students with a disability, 28 percent of 

those students have a specific learning 

disability or ADD. Some research 

suggests that this percentage may 

overestimate the proportion of students 

who self-identify as having ADD and 

actually require accommodations due to 

a disability.11 To account for the 

possible overestimate, the Department 

reduced its estimate of the percentage of 

students with ADD (as a primary 

disability) by 30 percent, from 19.1 to 

13.37 percent of students with a 

disability. Therefore, the Department 

estimates that out of the 10.8 percent of 

students with a disability, 22.3 percent 

of those students have a specific 

learning disability or ADD. 

Research suggests that prior to the 

enactment of the ADA Amendments 

Act, 51 percent of college students with 

a learning disability or ADD were 

already receiving accommodations.12 To 

calculate the incremental costs of this 

proposed rule, the percentage of 

remaining students with a learning 

disability or ADD (49 percent) who had 

not sought or received accommodations 

and who would now both seek and 

receive them was used as a baseline. 

Based on the 49 percent baseline, the 

Department used a range to estimate the 

incremental change in the percentage of 

students with learning disabilities and 

ADD who would now request and 

receive accommodations involving extra 

test-taking time after the enactment of 

the ADA Amendments Act and the 

proposed regulations. These 

calculations proceeded with a low, 

medium, and high possible value for 

this unknown portion of students: 50.0 

percent, 70.0 percent and 90.0 percent, 

respectively. The Department used a 

range because not all postsecondary 

students with learning disabilities or 

ADD who are eligible to receive testing 

accommodations actually request them. 

Some students may not want to identify 

themselves as having a disability or 

needing an accommodation. Other 

students may not have documentation 

of their disability at the time they 

request the accommodation, and they 

cannot afford to obtain the specific 

documentation requested by the testing 

entity. In addition, other students may 

have a disability, but not need that 

particular accommodation. Finally, 

despite the changes made by the ADA 

Amendments Act, not all students in the 

affected population are necessarily 

eligible to receive testing 

accommodations. The Department is 

interested in comment on whether the 

ranges it is using are appropriate or 

whether it has overestimated the 

number of additional students who will 

now request testing accommodations. 

We thus estimate that between 

101,227 and 182,209 more postsecondary students will request and 

receive testing accommodations as a 

result of the revisions to the definition 

of ‘‘disability.’’ That figure was 

calculated by multiplying 17.8 million 

post-secondary students by the 

percentage of students with disabilities 

(10.8 percent), multiplied by the 

percentage of students with disabilities 

who have a learning disability and 70 

percent of students with ADD (22.3 

percent), reduced by the 51 percent 

already receiving accommodations and 

the 3.7 percent of students taking 

courses fully online, and adjusting for 

the fact that either 50 percent, 70 

percent, or 90 percent of those impacted 

students would actually request testing 

accommodations. 

Our research indicated that 59 percent 

of testing accommodation requests were 

for 50 percent additional time and 

another 15 percent were for more than 

50 percent additional time.13 We thus 

conservatively assumed an average of 75 

percent more time would accurately 

estimate the additional testing 

accommodation time requested for 

examinations in post-secondary 

institutions.14 A brief review of the 

academic schedules for post-secondary 

schools found that most undergraduate 

courses meet twice a week for an hour 

and fifteen minutes or an hour and a 

half. Based on this information, we 

assumed that the average test time 

would be the length of the average class 

session—1.5 hours. Thus, we estimate 

1.13 additional hours per test for each 

accommodation request—1.5 hours 

(average test time) multiplied by 75 

percent (average additional testing time 

requested). 

Little to no data were found on the 

average number of exams/tests taken per 

post-secondary student. In this 

estimation, we assumed that the average 

full-time equivalent student takes a fulltime load of eight classes per year, with 

an average of 3 tests/quizzes per class 

(which includes some classes with no 

exams and some classes with several). 

Thus, we estimated that students will 

take approximately 24 exams/tests per 

year, on average, calculated as follows: 

8 classes per year multiplied by 3 tests 

per class. Multiplying 24 exams/tests 

per student per year by the average 

(estimated above) of 1.13 additional 

hours per testing accommodation 

request, yields an estimate of 27 

additional hours of test taking and 

proctor time needed per student per 

year, on average. The Department seeks 

public comment on the reasonableness 

of these assumptions. 

Multiplying the estimated number of 

students who as a result of the revisions 

to the definition of ‘‘disability’’ would 

now request and be granted testing 

accommodations (between 101,227 and 

182,209), by the average additional time 

for testing accommodations per student 

per year (27 hours), by the average 

hourly wage of teaching assistants 

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15The $11.16 per hour was estimated from the 

median annual wage for teaching assistants of 

$23,220. See Bureau of Labor Statistics, U.S. 

Department of Labor, Occupational Outlook 

Handbook, 2012–13 Edition, Teacher Assistants, 

available at http://www.bls.gov/ooh/educationtraining-and-library/teacher-assistants.htm. We 

distributed the annual wage over 52 weeks (40 

hours) to translate it into an hourly comparable. 

16U.S. Department of Education, Institute of 

Education Sciences, College and Career Tables 

Library, Table 2, available at http://nces.ed.gov/

datalab/tableslibrary/viewtable.aspx?tableid=8460. 

17The figure of 9.2 million test takers is a 

summation from the following sources: 2011 

Statistics, The Bar Examiner, March 2012, available 

at http://www.ncbex.org/assets/media_files/

Statistics/2011Statistics.pdf; National Council of 

Architectural Registration Boards, ARE Pass Rates 

by Division, available at http://www.ncarb.org/ARE/ 

ARE-Pass-Rates/DivisionPR.aspx; Teresa R. 

Metinko & Dahli Gray, Decrease in the Number of 

People Taking the CPA Exam Not Due to the 150- 

Hour Requirement, American Journal of Business 

Education, Nov. 2010, available at http://

journals.cluteonline.com/index.php/AJBE/article/

view/437; National Association of Boards of 

Pharmacy, NAPLEX Passing Rates for First-Time 

Candidates per Pharmacy School from 2007 to 

2011, available at http://www.nabp.net/programs/

assets/NAPLEX%20passing%20rates.pdf; National 

Society of Professional Engineers, The 80% Myth in 

the Engineering Profession (Sept. 13, 2010), 

available at http://community.nspe.org/blogs/

licensing/archive/2010/09/13/the-80-myth-in-theengineering-profession.aspx; American SpeechLanguage-Hearing Association, Surveys and 

Information Unit, National Summary Report: 

Descriptive Statistics of PRAXIS Examination 

Scores for the Speech-Language Pathology Specialty 

Test for Test Administration Years 2000–2001 

through 2010–2011, available at http://

www.asha.org/uploadedFiles/PraxisScoresSLP.pdf; 

National Council of State Boards of Nursing, 

Number of Candidates Taking NCLEX Examination 

and Percent Passing (2011), available at https://

www.ncsbn.org/Table_of_Pass_Rates_2011.pdf. 18 GAO 10–33, Higher Education and Disability— 

Education Needs a Coordinated Approach to 

Improve Assistance to Schools in Supporting 

Students 37 (2009). 

19Calculated from data in Table 7 of GAO 10–33, 

Higher Education and Disability—Education Needs 

a Coordinated Approach to Improve Assistance to 

Schools in Supporting Students 38 (2009). 

20 GAO 12–40, Higher Education and Disability— 

Improved Federal Enforcement Needed to Better 

Protect Students’ Rights to Testing 

Accommodations 8 (2011) 

21 If 59% of takers requested 50% more time, and 

15% of test takers requested 100% more time 

(double the time of other test takers), the average 

amount of time requested, on a per test taker basis, 

would be 60% more time. Thus, we believe that an 

estimate of 75% more time, on average, more than 

covers the likely net additional time requested. 

22Because test length was not found for all types 

of national tests, this estimate of length may overor under-estimate the actual time. 

23This dollar figure represents the average hourly 

wage for test proctors based on internet searches 

conducted in June 2013 from the following Web 

sites: Utah State University job Web sites; data from 

Jobs.gov; College of Southern Idaho; job Web sites 

from Miami Dade College; Weber University; 

Davenport University; California State University; 

Delaware County Community College. 

24We conducted sensitivity tests estimating what 

the incremental number of impacted test takers 

would be if the total number of persons sitting for 

all national examinations is actually 50% or 100% 

higher than the number we identified. The resulting 

ranges in annual costs increased to between $2.3 

and $4.1 million (50% higher number of persons 

sitting for national exams) and between $3.0 and 

$5.4 million (double the number of persons sitting 

for national exams). 

($11.16 15) yields an annual cost of 

testing accommodations in the postsecondary education setting ranging 

between a low of $30.5 million and a 

high of $54.9 million. 

Our methodology likely overestimates 

the actual costs for a variety of reasons. 

For example, because there will 

sometimes be more than one student 

needing additional testing time during 

the administration of a given test, only 

one proctor would likely be needed per 

class. Because of the inherent 

difficulties in accurately estimating 

when this will occur, we have 

calculated the costs to account for 

additional proctor time for each 

individual student, regardless of 

whether more than one student needing 

additional time would be taking the 

same test. 

The Department believes institutions 

will experience some one-time costs due 

to the institution’s disability services 

center (or its equivalent) needing to 

update its policies and procedures to 

bring them in line with the changes 

made by the ADA Amendments Act and 

explaining those changes to the 

employees responsible for evaluating 

testing accommodation requests. We 

estimate that one-time costs to adapt 

training and procedures will total $3.5 

million, which is the result of 

multiplying the number of institutions 

affected (7,021 16), by $500 (assumed not 

to be higher than the cost of 5 hours of 

management time, valued at $100 an 

hour). We were not able to find 

estimates for the incremental costs 

resulting from training employees 

within post-secondary institutions who 

are responsible for assessing 

accommodation requests. We therefore 

used an estimate of 5 hours at $100 per 

hour to calculate a very high-level 

estimate of this cost, and are seeking 

public comment on these assumptions. 

b. National Examinations 

Using the same data as noted above, 

the calculation of the estimate of 

additional requests for testing 

accommodations in national 

examinations was made as follows: 

9,287,619 total annual test takers of 

national exams,17 multiplied by the 

percentage of post-secondary students 

with disabilities (10.8 percent 18), 

multiplied by the percentage of students 

with disabilities who have learning 

disabilities and 70 percent of students 

with ADD (22.3 percent 19), reduced by 

the 51 percent likely already receiving 

accommodations yields approximately 

109,457 students previously not 

receiving testing accommodations who 

now could. As calculated above, a low, 

medium, and high range was used (50 

percent, 70 percent, 90 percent) to 

represent the likely percentage of these 

additional students who, as a result of 

the ADA Amendments Act and 

proposed regulations, would actually 

ask for and now receive a testing 

accommodation. This calculation leads 

to an estimate of between 54,729 to 

98,512 additional requests that would 

be granted for testing accommodations 

during national examinations as a result 

of the revisions to the definition of 

‘‘disability.’’ The Department has not 

found data detailing the distribution of 

persons with disabilities who take 

national exams, and therefore has used 

the data on post-secondary students 

with disabilities as a proxy for the 

assumption that the populations are 

similar (both are adults seeking 

additional education and degrees/

certification). The Department is 

interested in any comments on the 

appropriateness of using this data and 

any alternative sources of information 

that can be used. 

Our research noted that 59 percent of 

testing accommodation requests are for 

50 percent additional time and another 

15 percent are for more than 50 percent 

additional time.20 We thus assumed an 

average of 75 percent more time would 

accurately estimate the additional 

testing accommodation time requested 

for national examinations.21 Data from 

licensing administrators and the 

Department’s independent research 

suggest that these national examinations 

last anywhere from two to eight hours. 

Averaging these test lengths, weighted 

by the number of takers for each test, 

results in a weighted average test length 

of 3.54 hours.22 The estimate of 

additional testing accommodation 

requests was multiplied by the average 

test length of 3.54 hours, and multiplied 

by 75 percent (average additional testing 

time needed), and in turn multiplied by 

$10.38,23 resulting in a range of annual 

costs between a low of $1.5 million and 

a high of $2.7 million. 

Because our estimation of national 

exams and licensing tests is based on 

those which we could actively identify, 

it underestimates the likely number of 

actual test takers.24 We ask the public to 

provide any information that would 

help us refine our estimates on the 

number of national examination test 

takers. 

Although our analysis likely 

underestimates the number of test takers 

for national exams and licensing tests, 

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25Census Bureau data for educational test 

development and evaluation services was used as 

a proxy. See U.S. Census Bureau, American 

Factfinder, Table ECO761A1, available at http://

factfinder2.census.gov/faces/tableservices/jsf/

pages/productview.xhtml?pid=ECN_2007_US_

61A1&prodType=table. 26The Department believes that this one-time cost 

per testing entity reflects the costs for the testing 

entity to update its policies and procedures for 

evaluating testing accommodation requests to bring 

them in line with the changes made by the ADA 

Amendments Act and explaining those changes to 

the employees responsible for evaluating testing 

accommodation requests. 

27See Mark Schneider, How Much Is That 

Bachelor’s Degree Really Worth? The Million Dollar 

Misunderstanding, AEI Online, May 2009, available 

at http://www.aei.org/article/education/highereducation/how-much-is-that-bachelors-degreereally-worth/; U.S. Census Bureau, Work-Life 

Earnings by Field of Degree and Occupation for 

People with a Bachelor’s Degree: 2011, Oct. 2012, 

available at http://www.census.gov/prod/2012pubs/ 

acsbr11-04.pdf; Anthony P. Carnevale, et al., The 

College Payoff—Education, Occupations Lifetime 

Earnings, The Georgetown University Center on 

Education and the Workforce 2011, available at 

http://www2.ed.gov/policy/highered/reg/

hearulemaking/2011/collegepayoff.pdf. 

we likely overestimate the actual costs 

per test taker for the specific national 

examinations included in the analysis. 

As stated above, only one proctor would 

likely be needed at one location, even 

though in some instances more than one 

student may be receiving additional 

time. With respect to national 

examinations, we know many persons 

with learning disabilities or ADD were 

already requesting and receiving extra 

time as a testing accommodation. Thus, 

the companies that administer national 

examinations already employ and pay 

for additional testing proctors to proctor 

the examinations of those receiving 

additional time. The increase in the 

number of test-takers who would now 

request and be granted additional testtaking time will likely be placed in the 

same room or location where the 

proctors were already monitoring 

students receiving additional time prior 

to the ADA Amendments Act. Yet, we 

have calculated the costs to account for 

additional proctor time for each 

individual test taker, regardless of 

whether an additional proctor is needed 

because one is already provided to 

students previously requesting and 

receiving additional time. 

One-time costs to adapt training and 

procedures were estimated to total 

$698,500, which is the result of 

multiplying the number of testing 

entities affected (1,397 25), by $500 

(assumed not to be higher than the cost 

of 5 hours management time, valued at 

$100 an hour).26 Again, because the 

Department was unable to find any data 

on the costs associated with training, we 

invite public comment on the accuracy 

of our assumptions. 

4. Benefits 

Congress enacted the ADA 

Amendments Act to ensure that persons 

with disabilities who were refused 

access to programs and services would 

again be able to rely on the protections 

of the ADA. As a result, the Department 

believes that the enactment of the law 

benefits millions of Americans and the 

benefits to these individuals are 

nonquantifiable but nonetheless 

significant. The Department determined, 

however, that there was a specific group 

of individuals with disabilities who 

would be able to receive quantifiable 

benefits. With enactment of the ADA 

Amendments Act, certain postsecondary students and national 

examination test takers (e.g., Certified 

Public Accountant Examination, Law 

School Admission Test, and other 

professional examinations) with ADD or 

learning disabilities are now able to 

receive additional time to complete 

tests, whereas before the Act some of 

these students may have had their 

requests for additional time denied by 

testing entities because such entities 

believed the disability in question did 

not meet the ADA’s definition of 

‘‘disability.’’ 

In the first year, our analysis estimates 

that approximately 142,000 students 

will take advantage of additional testing 

accommodations that otherwise would 

not have occurred but for this rule. Over 

ten years, approximately 1.6 million 

full-time equivalent enrollees would 

benefit, or, assuming an average 4-year 

course of study, more than 400,000 

individual students. An additional 

800,000 national examination test takers 

would benefit over that same 10 years 

(assuming that people take an exam one 

time only). The Department is interested 

in comment on whether it is 

underestimating or overestimating the 

number of people who will benefit from 

this rule. 

A number of these individuals could 

be expected to earn a degree or license 

that they otherwise would not have 

earned. We were unable to find robust 

data to estimate the number of students 

with learning disabilities or ADD who 

would receive a post-secondary degree 

or professional license due to the ADA 

Amendments Act, but note that 

extensive research has shown notably 

higher earnings for those with college 

degrees over those who do not have one. 

Estimates of lifetime earnings 

differential vary, with some studies 

estimating an earning differential 

ranging from approximately $300,000 to 

$1 million.27 In addition, some number 

of students may be able to earn a degree 

in a higher paying field than otherwise 

and yet other students would still get 

the same degree, but be able to finish 

faster or more successfully (i.e., higher 

grades) than otherwise would be the 

case. All of these students would be 

expected to earn greater lifetime income 

and be more productive than they 

otherwise would if the ADA 

Amendments Act was not enacted into 

law. 

In addition to these benefits, the ADA 

Amendments Act has significant nonquantifiable benefits to individuals with 

disabilities who, prior to the passage of 

the ADA Amendments Act, were denied 

the opportunity for equal access to an 

education or to become licensed in their 

chosen profession because of their 

inability to receive needed testing 

accommodations. As with all other 

improvements in access for individuals 

with disabilities, the ADA Amendments 

Act is expected to generate 

psychological benefits for covered 

individuals, including an increased 

sense of personal dignity and self-worth, 

as more individuals with disabilities are 

able to successfully complete tests and 

exams and more accurately demonstrate 

their academic skills and abilities. Some 

individuals will now be more likely to 

pursue a favored career path or 

educational pursuit, which will in turn 

lead to greater personal satisfaction. 

There are additional benefits to 

society that arise from improved testing 

accessibility. For instance, if some 

persons with disabilities are able to 

increase their earnings, they may need 

less public support—either direct 

financial support or other programs or 

services. This, in turn, would lead to 

resource savings from reduced social 

service agency outlays. Others, such as 

family members, may also benefit from 

less financial and psychological 

pressure due to the greater 

independence and earnings of the 

family member whose disability is now 

covered by the ADA under the revised 

definition of ‘‘disability.’’ 

The Department believes (as did 

Congress when it enacted the ADA) that 

there is inherent value for all Americans 

which results from greater accessibility. 

Economists use the term ‘‘existence 

value’’ to refer to the benefit that 

individuals get from the plain existence 

of a good, service, or resource—in this 

case, the increased accessibility to postsecondary degrees and specialized 

licenses that would arise from greater 

access to testing accommodations or the 

increased accessibility to covered 

entities’ facilities, programs, services, or 

activities as a result of the ADA 

Amendments Act. This can also be 

described as the value that people both 

with and without disabilities derive 

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28U.S. Department of Education, Institute of 

Education Sciences, College and Career Tables 

Library, Table 2, available at http://nces.ed.gov/

datalab/tableslibrary/viewtable.aspx?tableid=8460. 

29NAICS refers to the North American Industry 

Classification System. 

30U.S. Small Business Administration, Firm Size 

Data, available at http://www.sba.gov/advocacy/

849/12162. 

from the guarantees of equal protection 

and non-discrimination. In other words, 

people value living in a country that 

affords protections to persons with 

disabilities, whether or not they 

themselves are directly or indirectly 

affected. There can be numerous reasons 

why individuals might value 

accessibility even if they do not require 

it now and do not ever anticipate 

needing it in the future. These include: 

bequest motives, benevolence toward 

relatives or friends who require 

accessibility features, and general 

feelings of empathy and responsibility 

toward individuals with disabilities. In 

other words, people in society value 

equity, fairness, and human dignity; 

even if they cannot put a dollar value 

on how important it is to them. These 

are the exact values agencies are 

directed to consider in E.O. 13563. 

c. Questions 

In addition to the discrete questions 

set out above, the Department invites 

the public to provide information to 

assist the Department in improving its 

estimates of the costs and benefits of 

implementing the ADA Amendments 

Act (other than with respect to 

employment). The Department is 

interested in information regarding the 

additional actual costs incurred in 

providing testing accommodations since 

the ADA Amendments Act took effect 

and the actual incremental increase in 

testing accommodations granted since 

the ADA Amendments Act took effect. 

Finally, the Department is interested in 

information to ensure that its estimates 

of benefits and costs are comprehensive. 

For example, are other covered entities, 

besides post-secondary institutions and 

national examination centers incurring 

any costs in order to implement the 

Act’s changes to titles II and III of the 

ADA? If so, who and how so? In 

addition to testing accommodations, are 

there any other specific benefits that 

people with disabilities have accrued 

(other than in employment) as a result 

of the ADA Amendments Act? 

B. Regulatory Flexibility Act 

The Attorney General, in accordance 

with the Regulatory Flexibility Act, 5 

U.S.C. 605(b), has reviewed this 

regulation, and by approving it certifies 

that it will not have a significant 

economic impact on a substantial 

number of small entities. First, the ADA 

Amendments Act took effect on January 

1, 2009, and all covered entities have 

been required to comply with the Act 

since that date and thus, should be 

familiar with the requirements of the 

law. Second, the rule does not include 

reporting requirements and imposes no 

new recordkeeping requirements. 

Third, as shown above, the only title 

II and title III entities that would be 

significantly affected by the proposed 

changes to the ADA regulations are 

testing entities and institutions of higher 

education. The type of accommodations 

that most likely will be requested and 

required by those whose coverage has 

been clarified under titles II and III of 

ADA Amendments Act will be 

additional time in testing situations. 

While many of these testing or higher 

education entities are small businesses 

or small governmental entities, the costs 

associated with additional testing time 

are minimal; therefore, the Department 

believes the economic impact of the 

proposed regulation will be neither 

significant for these small entities nor 

disproportionate relative to the costs for 

larger entities. 

The Department estimates that 

approximately 7,021 post-secondary 

institutions could be impacted based on 

data from the U.S. Department of 

Education, Institute of Education 

Sciences, and the National Center for 

Education Statistics.28 The Department 

used data from the U.S. Census Bureau 

(Statistics of U.S. Businesses) from 2007 

for Junior Colleges (NAICS 29 6112) and 

Colleges, Universities, and Professional 

Schools (NAICS 6113) that was 

analyzed by U.S. Small Business 

Administration, Office of Advocacy 30 to 

estimate the proportion of those entities 

that would meet the SBA’s criteria for 

small business or entity. As shown in 

Table 2, small post-secondary entities 

are estimated to account for 

approximately 42.1 percent of all postsecondary establishments. Therefore, 

the Department estimates that 2,954 

small post-secondary establishments 

would be impacted. 

The overall rule’s cost estimates for 

post-secondary institutions were 

calculated based on the number of 

entities and number of post-secondary 

students affected. Because larger entities 

have more students, on average, than 

smaller ones, the Department used the 

proportion of the industry sub-group’s 

receipts for small and large entities as a 

proxy for the number of students. This 

method assumes that per student costs 

are roughly the same for institutions of 

differing sizes; the Department does not 

have robust data for adjusting the 

estimation. Thus, using receipts for 

Junior Colleges (NAICS 6112) and 

Colleges, Universities, and Professional 

Schools (NAICS 6113) as a proxy for 

number of students, small postsecondary institutions are estimated to 

bear 4.8 percent of the costs for that 

industry sub-group, or approximately 

$2.2 million of the $46 million first year 

costs (see Table 2 in the Initial 

Regulatory Assessment for the NPRM) 

for post-secondary institutions, which 

would average to a little over $750 per 

small entity establishment in the first 

year, for the approximately 2,954 small 

entity post-secondary establishments. 

Approximately 4,067 post-secondary 

establishments (57.9 percent of the 

7,021) would be medium or large 

entities, and they would incur $43.9 

million in costs during the first year, 

which would average out to 

approximately $10,796 per medium/

large post-secondary establishment 

during the first year. This $10,796 per 

medium/large post-secondary 

establishment during the first year is 

approximately 14.3 times higher than 

the cost that would be incurred by small 

post-secondary establishments during 

that same time. 

TABLE 1—FIRM AND RECEIPTS DATA FOR POST-SECONDARY INSTITUTIONS IN 2007 

[Firm and Receipts Data for Post-Secondary Institutions, All Firms and Small Entities 2007] 

Junior colleges (NAICS 6112) Colleges, universities, and professional 

schools (NAICS 6113) 

Sum of junior colleges (6112) and colleges, 

universities, and professional schools (6113) 

Firms Establishments Est. receipts 

($000,000) Firms Establishments Est. receipts 

($000,000) Firms Establishments Est. receipts ($000,000) 

Total (all firms/

entities) .......... 468 862 6,982 2,456 4,022 165,761 2,924 4,884 172,743 

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4856 Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Proposed Rules 

31Using data reported by the Census Bureau for 

2007 for both industry groups. 

TABLE 1—FIRM AND RECEIPTS DATA FOR POST-SECONDARY INSTITUTIONS IN 2007—Continued 

[Firm and Receipts Data for Post-Secondary Institutions, All Firms and Small Entities 2007] 

Junior colleges (NAICS 6112) Colleges, universities, and professional 

schools (NAICS 6113) 

Sum of junior colleges (6112) and colleges, 

universities, and professional schools (6113) 

Firms Establishments Est. receipts 

($000,000) Firms Establishments Est. receipts 

($000,000) Firms Establishments Est. receipts ($000,000) 

SBA size standards for small 

entities ........... SBA small business standard is $19.0 million; 

small business totals here include those with 

receipts under $20 million.* 

SBA small business standard is $25.5 million; 

small business totals here include those with 

receipts under $25 million.* 

Total small entities ................. 372 432 1,711 1,566 1,623 6,653 1,938 2,055 8,364 

Percent small 

entities ........... 79.5% 50.1% 24.5% 63.8% 40.4% 4.0% 66.3% 42.1% 4.8% 

* Data reported in size categories which do not exactly match industry small business classifications: i.e. from $10 million to $14.99 million, and from $15 million to 

$19.99 million; and from $20 million to $24.99 million, and from $25 million to $29.99 million. 

Source: Calculated from data from U.S. Small Business Administration, Office of Advocacy, based on data provided by the U.S. Census Bureau, Statistics of U.S. 

Businesses. See U.S. Small Business Administration, Firm Size Data, available at http://www.sba.gov/advocacy/849/12162. 

TABLE 2—ESTIMATED SMALL ENTITY ESTABLISHMENTS FOR POST-SECONDARY INSTITUTIONS IN 2010–11 

[Estimated Small Entity Establishments for Post-Secondary Institutions in 2010–11] 

Total Post-Secondary Establishments (all firms/entities) Academic year 2010–2011 * ...................................................... 7,021 

Percent small entities (2007) ** ........................................................................................................................................... 42.1% 

Total impacted small entity establishments *** .................................................................................................................... 2,954 

* Source: U.S. Department of Education, Institute of Education Sciences, College and Career Tables Library, Table 2, available at http://

nces.ed.gov/datalab/tableslibrary/viewtable.aspx?tableid=8460. 

** Percent of small establishments calculated for the sum of Junior Colleges (NAICS 6112) and Colleges, Universities, and Professional 

Schools (NAICS 6113). Source calculated from data from U.S. Small Business Administration, Office of Advocacy, based on data provided by 

the U.S. Census Bureau, Statistics of U.S. Businesses. See U.S. Small Business Administration, Firm Size Data, available at http://www.sba.gov/

advocacy/849/12162. 

*** Estimated using percent of small establishments for sectors 6112 and 6113. 

In addition to post-secondary 

institutions, the Department estimates 

that some national testing entities 

would also be impacted. Data 

specifically on national testing 

organizations, including size break-out 

by receipts, was not found, so the 

Department applied ratios calculated for 

the larger industry group of Educational 

Support Services (NAICS 611710) data 

to estimate the number of Educational 

Test Development and Evaluation 

Services (NAICS 6117102).31

Approximately 1,397 national testing 

organizations would be impacted by this 

rule, irrespective of size. If the ratio of 

small to large Educational Test 

Development and Evaluation Services 

entities (NAICS 6117102) is the same as 

that for the larger industry group of 

Educational Support Services, 89.5 

percent in 2007, then approximately 

1,250 of 1,397 establishments would be 

small entity establishments. 

TABLE 3—EDUCATION SUPPORT AND TEST DEVELOPMENT SERVICES ESTABLISHMENT AND RECEIPTS

Educational support 

services 

(NAICS 611710) 

Educational test development and evaluation services 

(NAICS 6117102) 

Establishments Est. receipts 

($000,000) 

Establishments Est. receipts 

($000,000) 

Total (all firms) ......................................................... 6,781 10,672 Census Bureau value 1,397 2,907 

SBA for small entities .............................................. SBA small business standard is $14.0 million for all Educational Support Services; small 

business totals here include those with receipts under $15 million* 

Total small entities ................................................... 6,067 4,062 estimated 1,250 1,106 

Percent small entities ............................................... 89.5% 38.1% Educational Support 

Services as proxy.

89.5% 38.1% 

* Data reported in size categories which do not exactly match industry small business classifications: i.e. from $10 million to $14.99 million, and 

from $15 million to $19.99 million. 

Source: Calculated from data from U.S. Small Business Administration, Office of Advocacy, based on data provided by the U.S. Census Bureau, see U.S. Small Business Administration, Firm Size Data, available at http://www.sba.gov/advocacy/849/12162 (last visited Nov. 1, 2013), 

and data from the U.S. Census Bureau, see U.S. Census Bureau, Industry Statistics Portal, available at http://www.census.gov/econ/isp/

index.php. 

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Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Proposed Rules 4857 

Small entity establishments in the 

Educational Support Services industry 

group account for 38.1 percent of that 

industry’s receipts. If receipts are used 

as a proxy for number of students in a 

manner similar to that described above 

for post-secondary entity 

establishments, then small national 

testing entities (NAICS 611710) can be 

expected to bear 38.1 percent of the 

costs estimated for the industry as a 

whole, or approximately $1.1 million of 

the $2.8 million first-year costs. Thus, 

costs from this rule are estimated to 

average to a little over $850 each, in the 

first year, for the approximately 1,250 

small national testing establishments. 

Approximately 147 national testing 

center establishments (10.5 percent of 

the 1,397) would be medium or large 

entities, and they would incur $1.74 

million in costs during the first year, 

which would average out to 

approximately $11,818 per medium/

large national testing center 

establishment during the first year. This 

$11,818 per medium/large national 

testing center establishment is 

approximately 13.8 times as high as the 

cost that would be incurred by small 

national testing center establishments 

during that same time. 

As explained above, the Department 

estimates that 2,954 small postsecondary establishments and 

approximately 1,250 small national 

testing establishments would be 

impacted by this rule, for a total of 

approximately 4,200 small business 

establishments. 

The estimates were based on average 

estimates for all entities, irrespective of 

size. The cost of the additional training 

these entities may need to undertake as 

a result of the ADA Amendments Act 

and this rule is expected to total no 

more than $500 per entity. The cost of 

additional proctors to these entities is 

unclear as we have not found robust 

information of the number of test-takers 

at these entities, on average. 

Based on the above analysis, the 

Department can certify that the rule will 

not have a significant economic impact 

on a substantial number of small 

entities. The Department seeks 

comments and additional data on the 

costs to small entities of this 

rulemaking. 

C. Executive Order 13132: Federalism 

Executive Order 13132 directs that, to 

the extent practicable and permitted by 

law, an agency shall not promulgate any 

regulation that has federalism 

implications, that imposes substantial 

direct compliance costs on State and 

local governments, that is not required 

by statute, or that preempts State law, 

unless the agency meets the 

consultation and funding requirements 

of section 6 of the Executive Order. 

Because this rule does not have 

federalism implications as defined in 

the Executive Order, does not impose 

direct compliance costs on State and 

local governments, is required by 

statute, and does not preempt State law 

within the meaning of the Executive 

Order, the Department has concluded 

that compliance with the requirements 

of section 6 is not necessary. 

D. 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 to obtain 

assistance in understanding anything in 

this proposed rule. If any commenter 

has suggestions for how the regulation 

could be written more clearly, please 

contact Zita Johnson-Betts, Deputy 

Chief, Disability Rights Section, whose 

contact information is provided in the 

introductory section of this proposed 

rule entitled, FOR FURTHER INFORMATION

CONTACT. 

E. Paperwork Reduction Act 

This proposed rule does not contain 

any new or revised ‘‘collection[s] of 

information’’ as defined by the 

Paperwork Reduction Act of 1995.44 

U.S.C. 3501 et seq. 

F. 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 Parts 35 

and 36 

Administrative practice and 

procedure, Buildings and facilities, Civil 

rights, Communications, Individuals 

with disabilities, Reporting and 

recordkeeping requirements, State and 

local governments, Business and 

industry. 

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 

sections 12134, 12186, and 12205a of 

the Americans With Disabilities Act of 

1990, as amended by the ADA 

Amendments Act of 2008, Public Law 

110–325, 122 Stat. 3553 (2008), Parts 35 

and 36 of title 28 of the Code of Federal 

Regulations are proposed to be amended 

as follows: 

PART 35—NONDISCRIMINATION ON 

THE BASIS OF DISABILITY IN STATE 

AND LOCAL GOVERNMENT SERVICES 

Subpart A—General 

■ 1. The authority citation for 28 CFR 

Part 35 is revised to read as follows: 

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

510; 42 U.S.C. 12134, 12131, and 12205a of 

the Americans with Disabilities Act, as 

amended. 

■ 2. Revise § 35.101 to read as follows: 

§ 35.101 Purpose and broad coverage. 

(a) Purpose. The purpose of this part 

is to implement subtitle A of title II of 

the Americans with Disabilities Act of 

1990 (42 U.S.C.12131–12134), as 

amended by the ADA Amendments Act 

of 2008 (ADA Amendments Act) (Pub. 

L. 110–325, 122 Stat. 3553 (2008)), 

which prohibits discrimination on the 

basis of disability by public entities. 

(b) Broad coverage. The primary 

purpose of the ADA Amendments Act is 

to make it easier for people with 

disabilities to obtain protection under 

the ADA. Consistent with the ADA 

Amendments Act’s purpose of 

reinstating a broad scope of protection 

under the ADA, the definition of 

‘‘disability’’ in this part shall be 

construed broadly in favor of expansive 

coverage to the maximum extent 

permitted by the terms of the ADA. The 

primary object of attention in cases 

brought under the ADA should be 

whether entities covered under the ADA 

have complied with their obligations 

and whether discrimination has 

occurred, not whether the individual 

meets the definition of disability. The 

question of whether an individual meets 

the definition of disability under this 

part should not demand extensive 

analysis. 

■ 3. Amend § 35.104 to revise the 

definition of ‘‘disability’’ to read as 

follows: 

§ 35.104 Definitions. 

* * * * * 

Disability. The definition of 

‘‘disability’’ can be found at § 35.108. 

* * * * * 

■ 4. Add § 35.108 to subpart A to read 

as follows: 

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4858 Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Proposed Rules 

§ 35.108 Definition of disability. 

(a) General. (1) Disability means, with 

respect to an individual, 

(i) A physical or mental impairment 

that substantially limits one or more of 

the major life activities of such 

individual; 

(ii) A record of such an impairment; 

or 

(iii) Being regarded as having such an 

impairment as described in § 35.108(f) 

of this part. This means that the 

individual has been subjected to an 

action prohibited by the ADA because of 

an actual or perceived impairment that 

is not both ‘‘transitory and minor.’’ 

(2) Rules of construction. (i) An 

individual may establish coverage under 

any one or more of the three prongs of 

the definition of disability in paragraph 

(a)(1) of this section, the ‘‘actual 

disability’’ prong in paragraph (a)(1)(i) 

of this section, the ‘‘record of’’ prong in 

paragraph (a)(1)(ii) of this section, or the 

‘‘regarded as’’ prong in paragraph 

(a)(1)(iii) of this section. 

(ii) Where an individual is not 

challenging a public entity’s failure to 

provide reasonable modifications under 

§ 35.130(b)(7), it is generally 

unnecessary to proceed under the 

‘‘actual disability’’ or ‘‘record of’’ 

prongs, which require a showing of an 

impairment that substantially limits a 

major life activity or a record of such an 

impairment. In these cases, the 

evaluation of coverage can be made 

solely under the ‘‘regarded as’’ prong of 

the definition of disability, which does 

not require a showing of an impairment 

that substantially limits a major life 

activity or a record of such an 

impairment. An individual may choose, 

however, to proceed under the ‘‘actual 

disability’’ or ‘‘record of’’ prong 

regardless of whether the individual is 

challenging a public entity’s failure to 

provide reasonable modifications. 

(b) Physical or mental impairment. (1) 

The phrase ‘‘physical or mental 

impairment’’ means: 

(i) Any physiological disorder or 

condition, cosmetic disfigurement, or 

anatomical loss affecting one or more of 

the following body systems: 

Neurological, musculoskeletal, special 

sense organs, respiratory (including 

speech organs), cardiovascular, 

reproductive, digestive, genitourinary, 

immune, circulatory, hemic and 

lymphatic, skin, and endocrine; or 

(ii) Any mental or psychological 

disorder such as an intellectual 

disability, organic brain syndrome, 

emotional or mental illness, and specific 

learning disabilities. 

(2) The phrase ‘‘physical or mental 

impairment’’ includes, but is not limited 

to, such contagious and noncontagious 

diseases and conditions as orthopedic, 

visual, speech and hearing impairments, 

cerebral palsy, epilepsy, muscular 

dystrophy, multiple sclerosis, cancer, 

heart disease, diabetes, intellectual 

disability, emotional illness, specific 

learning disabilities (including but not 

limited to dyslexia), HIV disease 

(whether symptomatic or 

asymptomatic), tuberculosis, drug 

addiction, and alcoholism. 

(3) The phrase ‘‘physical or mental 

impairment’’ does not include 

homosexuality or bisexuality. 

(c) Major life activities—(1) General. 

Major life activities include, but are not 

limited to: 

(i) Caring for oneself, performing 

manual tasks, seeing, hearing, eating, 

sleeping, walking, standing, sitting, 

reaching, lifting, bending, speaking, 

breathing, learning, reading, 

concentrating, thinking, 

communicating, interacting with others, 

and working. 

(ii) The operation of a major bodily 

function, including the functions of the 

immune system, special sense organs 

and skin, normal cell growth, and 

digestive, genitourinary, bowel, bladder, 

neurological, brain, respiratory, 

circulatory, cardiovascular, endocrine, 

hemic, lymphatic, musculoskeletal, and 

reproductive systems. The operation of 

a major bodily function includes the 

operation of an individual organ within 

a body system. 

(2) In determining other examples of 

major life activities, the term ‘‘major’’ 

shall not be interpreted strictly to create 

a demanding standard for disability. 

Whether an activity is a ‘‘major life 

activity’’ is not determined by reference 

to whether it is of ‘‘central importance 

to daily life.’’ 

(d) Substantially limits—(1) Rules of 

construction. The following rules of 

construction apply when determining 

whether an impairment substantially 

limits an individual in a major life 

activity. 

(i) The term ‘‘substantially limits’’ 

shall be construed broadly in favor of 

expansive coverage, to the maximum 

extent permitted by the terms of the 

ADA. ‘‘Substantially limits’’ is not 

meant to be a demanding standard. 

(ii) An impairment is a disability 

within the meaning of this part if it 

substantially limits the ability of an 

individual to perform a major life 

activity as compared to most people in 

the general population. An impairment 

need not prevent, or significantly or 

severely restrict, the individual from 

performing a major life activity in order 

to be considered substantially limiting. 

(iii) The primary object of attention in 

cases brought under title II of the ADA 

should be whether public entities have 

complied with their obligations and 

whether discrimination has occurred, 

not the extent to which an individual’s 

impairment substantially limits a major 

life activity. Accordingly, the threshold 

issue of whether an impairment 

substantially limits a major life activity 

should not demand extensive analysis. 

(iv) The determination of whether an 

impairment substantially limits a major 

life activity requires an individualized 

assessment. However, in making this 

assessment, the term ‘‘substantially 

limits’’ shall be interpreted and applied 

to require a degree of functional 

limitation that is lower than the 

standard for substantially limits applied 

prior to the ADA Amendments Act. 

(v) The comparison of an individual’s 

performance of a major life activity to 

the performance of the same major life 

activity by most people in the general 

population usually will not require 

scientific, medical, or statistical 

evidence. Nothing in this paragraph is 

intended, however, to prohibit or limit 

the use of scientific, medical, or 

statistical evidence in making such a 

comparison where appropriate. 

(vi) The determination of whether an 

impairment substantially limits a major 

life activity shall be made without 

regard to the ameliorative effects of 

mitigating measures. However, the 

ameliorative effects of ordinary 

eyeglasses or contact lenses shall be 

considered in determining whether an 

impairment substantially limits a major 

life activity. Ordinary eyeglasses or 

contact lenses are lenses that are 

intended to fully correct visual acuity or 

to eliminate refractive error. 

(vii) An impairment that is episodic 

or in remission is a disability if it would 

substantially limit a major life activity 

when active. 

(viii) An impairment that 

substantially limits one major life 

activity need not substantially limit 

other major life activities in order to be 

considered a substantially limiting 

impairment. 

(ix) The six-month ‘‘transitory’’ part of 

the ‘‘transitory and minor’’ exception in 

paragraph (f)(1) of this section does not 

apply to the ‘‘actual disability’’ or 

‘‘record of’’ prongs of the definition of 

disability. The effects of an impairment 

lasting or expected to last less than six 

months can be substantially limiting 

within the meaning of this section for 

establishing an actual disability or a 

record of a disability. 

(2) Predictable assessments. (i) The 

principles set forth in § 35.108(d)(1) are 

intended to provide for more generous 

coverage and application of the ADA’s 

prohibition on discrimination through a 

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Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Proposed Rules 4859 

framework that is predictable, 

consistent, and workable for all 

individuals and entities with rights and 

responsibilities under the ADA. 

(ii) Applying the principles set forth 

in § 35.108(d)(1), the individualized 

assessment of some types of 

impairments will, in virtually all cases, 

result in a determination of coverage 

under § 35.108(a)(1)(i) (the ‘‘actual 

disability’’ prong) or § 35.108(a)(1)(ii) 

(the ‘‘record of’’ prong). Given their 

inherent nature, these types of 

impairments will, as a factual matter, 

virtually always be found to impose a 

substantial limitation on a major life 

activity. Therefore, with respect to these 

types of impairments, the necessary 

individualized assessment should be 

particularly simple and straightforward. 

(iii) For example, applying the 

principles set forth in § 35.108(d)(1), it 

should easily be concluded that the 

following types of impairments, will, at 

a minimum, substantially limit the 

major life activities indicated: 

(A) Deafness substantially limits 

hearing and auditory function; 

(B) Blindness substantially limits 

visual function; 

(C) An intellectual disability 

substantially limits reading, learning, 

and problem solving; 

(D) Partially or completely missing 

limbs or mobility impairments requiring 

the use of a wheelchair substantially 

limit musculoskeletal function; 

(E) Autism substantially limits 

learning, social interaction, and 

communication; 

(F) Cancer substantially limits normal 

cell growth; 

(G) Cerebral palsy substantially limits 

brain function; 

(H) Diabetes substantially limits 

endocrine function; 

(I) Epilepsy, muscular dystrophy, and 

multiple sclerosis substantially limit 

neurological function; 

(J) Human Immunodeficiency Virus 

(HIV) infection substantially limits 

immune function; and 

(K) Major depressive disorder, bipolar 

disorder, post-traumatic stress disorder, 

traumatic brain injury, obsessive 

compulsive disorder, and schizophrenia 

substantially limit brain function. The 

types of impairments described in this 

paragraph may substantially limit 

additional major life activities not 

explicitly listed above. 

(3) Condition, manner and duration. 

(i) At all times taking into account the 

principles in § 35.108(d)(1), in 

determining whether an individual is 

substantially limited in a major life 

activity, it may be useful in appropriate 

cases to consider, as compared to most 

people in the general population, the 

conditions under which the individual 

performs the major life activity; the 

manner in which the individual 

performs the major life activity; or the 

duration of time it takes the individual 

to perform the major life activity, or for 

which the individual can perform the 

major life activity. 

(ii) Consideration of facts such as 

condition, manner or duration may 

include, among other things, 

consideration of the difficulty, effort or 

time required to perform a major life 

activity; pain experienced when 

performing a major life activity; the 

length of time a major life activity can 

be performed; or the way an impairment 

affects the operation of a major bodily 

function. In addition, the nonameliorative effects of mitigating 

measures, such as negative side effects 

of medication or burdens associated 

with following a particular treatment 

regimen, may be considered when 

determining whether an individual’s 

impairment substantially limits a major 

life activity. 

(iii) In determining whether an 

individual has a disability under the 

‘‘actual disability’’ or ‘‘record of’’ prongs 

of the definition of disability, the focus 

is on how a major life activity is 

substantially limited, and not on what 

outcomes an individual can achieve. For 

example, someone with a learning 

disability may achieve a high level of 

academic success, but may nevertheless 

be substantially limited in one or more 

major life activities, including, but not 

limited to, reading, writing, speaking, or 

learning because of the additional time 

or effort he or she must spend to read, 

write, speak, or learn compared to most 

people in the general population. 

(4) Mitigating measures include, but 

are not limited to: (i) Medication, 

medical supplies, equipment, 

appliances, low-vision devices (defined 

as devices that magnify, enhance, or 

otherwise augment a visual image, but 

not including ordinary eyeglasses or 

contact lenses), prosthetics including 

limbs and devices, hearing aid(s) and 

cochlear implant(s) or other implantable 

hearing devices, mobility devices, and 

oxygen therapy equipment and 

supplies; 

(ii) Use of assistive technology; 

(iii) Reasonable modifications or 

auxiliary aids or services as defined in 

this regulation; 

(iv) Learned behavioral or adaptive 

neurological modifications; or 

(v) Psychotherapy, behavioral 

therapy, or physical therapy. 

(e) Has a record of such an 

impairment—(1) General. An individual 

has a record of such an impairment if 

the individual has a history of, or has 

been misclassified as having, a mental 

or physical impairment that 

substantially limits one or more major 

life activities. 

(2) Broad construction. Whether an 

individual has a record of an 

impairment that substantially limited a 

major life activity shall be construed 

broadly to the maximum extent 

permitted by the ADA and should not 

demand extensive analysis. An 

individual will be considered to fall 

within this prong of the definition of 

disability if the individual has a history 

of an impairment that substantially 

limited one or more major life activities 

when compared to most people in the 

general population, or was misclassified 

as having had such an impairment. In 

determining whether an impairment 

substantially limited a major life 

activity, the principles articulated in 

§ 35.108(d)(1) apply. 

(3) Reasonable modification. An 

individual with a record of a 

substantially limiting impairment may 

be entitled to a reasonable modification 

if needed and related to the past 

disability. 

(f) Is regarded as having such an 

impairment. (1) An individual is 

‘‘regarded as having such an 

impairment’’ if the individual is 

subjected to an action prohibited by the 

ADA, because of an actual or perceived 

physical or mental impairment, whether 

or not that impairment substantially 

limits, or is perceived to substantially 

limit, a major life activity, except for an 

impairment that is both transitory and 

minor. A transitory impairment is an 

impairment with an actual or expected 

duration of six months or less. 

(2) An individual is ‘‘regarded as 

having such an impairment’’ any time a 

public entity takes a prohibited action 

against the individual because of an 

actual or perceived impairment, even if 

the entity asserts, or may or does 

ultimately establish, a defense to such 

action. 

(3) Establishing that an individual is 

‘‘regarded as having such an 

impairment’’ does not, by itself, 

establish liability. Liability is 

established under title II of the ADA 

only when an individual proves that a 

public entity discriminated on the basis 

of disability within the meaning of title 

II of the ADA, 42 U.S.C. 12131–12134. 

(g) Exclusions. The term ‘‘disability’’ 

does not include: 

(1) Transvestism, transsexualism, 

pedophilia, exhibitionism, voyeurism, 

gender identity disorders not resulting 

from physical impairments, or other 

sexual behavior disorders; 

(2) Compulsive gambling, 

kleptomania, or pyromania; or 

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(3) Psychoactive substance use 

disorders resulting from current illegal 

use of drugs. 

Subpart B—General Requirements 

■ 5. In § 35.130, add paragraphs (b)(7)(i), 

(b)(7)(ii), and paragraph (i) to read as 

follows: 

§ 35.130 General prohibitions against 

discrimination. 

* * * * * 

(b) * * * 

(7) * * * 

(i) A public entity is not required to 

provide a reasonable modification to an 

individual who meets the definition of 

disability solely under the ‘‘regarded as’’ 

prong of the definition of disability at 

§ 35.108(a)(1)(iii). 

(ii) [Reserved] 

* * * * * 

(i) Claims of no disability. Nothing in 

this part shall provide the basis for a 

claim that an individual without a 

disability was subject to discrimination 

because of a lack of disability, including 

a claim that an individual with a 

disability was granted a reasonable 

modification that was denied to an 

individual without a disability. 

PART 36—NONDISCRIMINATION ON 

THE BASIS OF DISABILITY IN PUBLIC 

ACCOMMODATIONS AND 

COMMERCIAL FACILITIES 

Subpart A—General 

■ 6. 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. 12186b and 12205a of the 

Americans with Disabilities Act, as amended. 

■ 7. Revise § 36.101 to read as follows: 

§ 36.101 Purpose and broad coverage. 

(a) Purpose. The purpose of this part 

is to implement subtitle A of title III of 

the Americans with Disabilities Act of 

1990 (42 U.S.C. 12181–12189), as 

amended by the ADA Amendments Act 

of 2008 (ADA Amendments Act) (Pub. 

L. 110–325, 122 Stat. 3553 (2008)), 

which prohibits discrimination on the 

basis of disability by public 

accommodations and requires places of 

public accommodation and commercial 

facilities to be designed, constructed, 

and altered in compliance with the 

accessibility standards established by 

this part. 

(b) Broad coverage. The primary 

purpose of the ADA Amendments Act is 

to make it easier for people with 

disabilities to obtain protection under 

the ADA. Consistent with the ADA 

Amendments Act’s purpose of 

reinstating a broad scope of protection 

under the ADA, the definition of 

‘‘disability’’ in this part shall be 

construed broadly in favor of expansive 

coverage to the maximum extent 

permitted by the terms of the ADA. The 

primary object of attention in cases 

brought under the ADA should be 

whether entities covered under the ADA 

have complied with their obligations 

and whether discrimination has 

occurred, not whether the individual 

meets the definition of disability. The 

question of whether an individual meets 

the definition of disability under this 

part should not demand extensive 

analysis. 

■ 8. Amend § 36.104 to revise the 

definition of ‘‘disability’’ to read as 

follows: 

§ 36.104 Definitions. 

* * * * * 

Disability. The definition of 

‘‘disability’’ can be found at § 36.105. 

* * * * * 

■ 9. Add § 36.105 to subpart A to read 

as follows: 

§ 36.105 Definition of disability. 

(a) General. (1) Disability means, with 

respect to an individual, 

(i) A physical or mental impairment 

that substantially limits one or more of 

the major life activities of such 

individual; 

(ii) A record of such an impairment; 

or 

(iii) Being regarded as having such an 

impairment as described in § 36.105(f) 

of this part. This means that the 

individual has been subjected to an 

action prohibited by the ADA because of 

an actual or perceived impairment that 

is not both ‘‘transitory and minor.’’ 

(2) Rules of construction. (i) An 

individual may establish coverage under 

any one or more of the three prongs of 

the definition of disability in paragraph 

(a)(1) of this section, the ‘‘actual 

disability’’ prong in paragraph (a)(1)(i), 

the ‘‘record of’’ prong in paragraph 

(a)(1)(ii), or the ‘‘regarded as’’ prong in 

paragraph (a)(1)(iii). 

(ii) Where an individual is not 

challenging a covered entity’s failure to 

provide reasonable modifications under 

§ 36.302, it is generally unnecessary to 

proceed under the ‘‘actual disability’’ or 

‘‘record of’’ prongs, which require a 

showing of an impairment that 

substantially limits a major life activity 

or a record of such an impairment. In 

these cases, the evaluation of coverage 

can be made solely under the ‘‘regarded 

as’’ prong of the definition of disability, 

which does not require a showing of an 

impairment that substantially limits a 

major life activity or a record of such an 

impairment. An individual may choose, 

however, to proceed under the ‘‘actual 

disability’’ or ‘‘record of’’ prong 

regardless of whether the individual is 

challenging a covered entity’s failure to 

provide reasonable modifications. 

(b) Physical or mental impairment. (1) 

The phrase ‘‘physical or mental 

impairment’’ means: 

(i) Any physiological disorder or 

condition, cosmetic disfigurement, or 

anatomical loss affecting one or more of 

the following body systems: 

neurological, musculoskeletal, special 

sense organs, respiratory (including 

speech organs), cardiovascular, 

reproductive, digestive, genitourinary, 

immune, circulatory, hemic and 

lymphatic, skin, and endocrine; or 

(ii) Any mental or psychological 

disorder such as an intellectual 

disability, organic brain syndrome, post 

traumatic stress syndrome, emotional or 

mental illness, and specific learning 

disabilities. 

(2) The phrase ‘‘physical or mental 

impairment’’ includes, but is not limited 

to, such contagious and noncontagious 

diseases and conditions as orthopedic, 

visual, speech and hearing impairments, 

cerebral palsy, epilepsy, muscular 

dystrophy, multiple sclerosis, cancer, 

heart disease, diabetes, intellectual 

disability, emotional illness, specific 

learning disabilities (including but not 

limited to dyslexia), HIV disease 

(whether symptomatic or 

asymptomatic), tuberculosis, drug 

addiction, and alcoholism. 

(3) The phrase ‘‘physical or mental 

impairment’’ does not include 

homosexuality or bisexuality. 

(c) Major life activities—(1) General. 

Major life activities include, but are not 

limited to: 

(i) Caring for oneself, performing 

manual tasks, seeing, hearing, eating, 

sleeping, walking, standing, sitting, 

reaching, lifting, bending, speaking, 

breathing, learning, reading, 

concentrating, thinking, 

communicating, interacting with others, 

and working; and 

(ii) The operation of a major bodily 

function, including the functions of the 

immune system, special sense organs 

and skin, normal cell growth, and 

digestive, genitourinary, bowel, bladder, 

neurological, brain, respiratory, 

circulatory, cardiovascular, endocrine, 

hemic, lymphatic, musculoskeletal, and 

reproductive systems. The operation of 

a major bodily function includes the 

operation of an individual organ within 

a body system. 

(2) In determining other examples of 

major life activities, the term ‘‘major’’ 

shall not be interpreted strictly to create 

a demanding standard for disability. 

Whether an activity is a ‘‘major life 

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activity’’ is not determined by reference 

to whether it is of ‘‘central importance 

to daily life.’’ 

(d) Substantially limits—(1) Rules of 

construction. The following rules of 

construction apply when determining 

whether an impairment substantially 

limits an individual in a major life 

activity. 

(i) The term ‘‘substantially limits’’ 

shall be construed broadly in favor of 

expansive coverage, to the maximum 

extent permitted by the terms of the 

ADA. ‘‘Substantially limits’’ is not 

meant to be a demanding standard. 

(ii) An impairment is a disability 

within the meaning of this part if it 

substantially limits the ability of an 

individual to perform a major life 

activity as compared to most people in 

the general population. An impairment 

need not prevent, or significantly or 

severely restrict, the individual from 

performing a major life activity in order 

to be considered substantially limiting. 

(iii) The primary object of attention in 

cases brought under title III of the ADA 

should be whether covered entities have 

complied with their obligations and 

whether discrimination has occurred, 

not the extent to which an individual’s 

impairment substantially limits a major 

life activity. Accordingly, the threshold 

issue of whether an impairment 

substantially limits a major life activity 

should not demand extensive analysis. 

(iv) The determination of whether an 

impairment substantially limits a major 

life activity requires an individualized 

assessment. However, in making this 

assessment, the term ‘‘substantially 

limits’’ shall be interpreted and applied 

to require a degree of functional 

limitation that is lower than the 

standard for substantially limits applied 

prior to the ADA Amendments Act. 

(v) The comparison of an individual’s 

performance of a major life activity to 

the performance of the same major life 

activity by most people in the general 

population usually will not require 

scientific, medical, or statistical 

evidence. Nothing in this paragraph is 

intended, however, to prohibit or limit 

the use of scientific, medical, or 

statistical evidence in making such a 

comparison where appropriate. 

(vi) The determination of whether an 

impairment substantially limits a major 

life activity shall be made without 

regard to the ameliorative effects of 

mitigating measures. However, the 

ameliorative effects of ordinary 

eyeglasses or contact lenses shall be 

considered in determining whether an 

impairment substantially limits a major 

life activity. Ordinary eyeglasses or 

contact lenses are lenses that are 

intended to fully correct visual acuity or 

to eliminate refractive errors. 

(vii) An impairment that is episodic 

or in remission is a disability if it would 

substantially limit a major life activity 

when active. 

(viii) An impairment that 

substantially limits one major life 

activity need not substantially limit 

other major life activities in order to be 

considered a substantially limiting 

impairment. 

(ix) The six-month ‘‘transitory’’ part of 

the ‘‘transitory and minor’’ exception in 

paragraph (f)(1) of this section does not 

apply to the ‘‘actual disability’’ or 

‘‘record of’’ prongs of the definition of 

disability. The effects of an impairment 

lasting or expected to last fewer than six 

months can be substantially limiting 

within the meaning of this section for 

establishing an actual disability or a 

record of a disability. 

(2) Predictable assessments. (i) The 

principles set forth in § 36.105(d)(1) are 

intended to provide for more generous 

coverage and application of the ADA’s 

prohibition on discrimination through a 

framework that is predictable, 

consistent, and workable for all 

individuals and entities with rights and 

responsibilities under the ADA. 

(ii) Applying the principles set forth 

in § 36.105(d)(1), the individualized 

assessment of some types of 

impairments will, in virtually all cases, 

result in a determination of coverage 

under § 36.105(a)(1)(i) (the ‘‘actual 

disability’’ prong) or § 36.105(a)(1)(ii) 

(the ‘‘record of’’ prong). Given their 

inherent nature, these types of 

impairments will, as a factual matter, 

virtually always be found to impose a 

substantial limitation of a major life 

activity. Therefore, with respect to these 

types of impairments, the necessary 

individualized assessment should be 

particularly simple and straightforward. 

(iii) For example, applying the 

principles set forth in § 36.105(d)(1), it 

should easily be concluded that the 

following types of impairments will, at 

a minimum, substantially limit the 

major life activities indicated: 

(A) Deafness substantially limits 

hearing and auditory function; 

(B) Blindness substantially limits 

visual function; 

(C) An intellectual disability 

substantially limits reading, learning, 

and problem solving; 

(D) Partially or completely missing 

limbs or mobility impairments requiring 

the use of a wheelchair substantially 

limit musculoskeletal function; 

(E) Autism substantially limits 

learning, social interaction, and 

communication; 

(F) Cancer substantially limits normal 

cell growth; 

(G) Cerebral palsy substantially limits 

brain function; 

(H) Diabetes substantially limits 

endocrine function; 

(I) Epilepsy, muscular dystrophy, and 

multiple sclerosis substantially limit 

neurological function; 

(J) Human Immunodeficiency Virus 

(HIV) infection substantially limits 

immune function; and 

(K) Major depressive disorder, bipolar 

disorder, post-traumatic stress disorder, 

traumatic brain injury, obsessive 

compulsive disorder, and schizophrenia 

substantially limit brain function. The 

types of impairments described in this 

paragraph may substantially limit 

additional major life activities not 

explicitly listed above. 

(3) Condition, manner and duration. 

(i) At all times taking into account the 

principles in § 36.105(d)(1), in 

determining whether an individual is 

substantially limited in a major life 

activity, it may be useful in appropriate 

cases to consider, as compared to most 

people in the general population, the 

conditions under which the individual 

performs the major life activity; the 

manner in which the individual 

performs the major life activity; or the 

duration of time it takes the individual 

to perform the major life activity, or for 

which the individual can perform the 

major life activity. 

(ii) Consideration of facts such as 

condition, manner or duration may 

include, among other things, 

consideration of the difficulty, effort or 

time required to perform a major life 

activity; pain experienced when 

performing a major life activity; the 

length of time a major life activity can 

be performed; or the way an impairment 

affects the operation of a major bodily 

function. In addition, the nonameliorative effects of mitigating 

measures, such as negative side effects 

of medication or burdens associated 

with following a particular treatment 

regimen, may be considered when 

determining whether an individual’s 

impairment substantially impairs a 

major life activity. 

(iii) In determining whether an 

individual has a disability under the 

‘‘actual disability’’ or ‘‘record of’’ prongs 

of the definition of disability, the focus 

is on how a major life activity is 

substantially limited, and not on what 

outcomes an individual can achieve. For 

example, someone with a learning 

disability may achieve a high level of 

academic success, but may nevertheless 

be substantially limited in one or more 

major life activities, including, but not 

limited to, reading, writing, speaking, or 

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4862 Federal Register / Vol. 79, No. 20 / Thursday, January 30, 2014 / Proposed Rules 

learning because of the additional time 

or effort he or she must spend to read, 

write, speak, or learn compared to most 

people in the general population. 

(4) Mitigating measures include, but 

are not limited to: 

(i) Medication, medical supplies, 

equipment, appliances, low-vision 

devices (defined as devices that 

magnify, enhance, or otherwise augment 

a visual image, but not including 

ordinary eyeglasses or contact lenses), 

prosthetics including limbs and devices, 

hearing aid(s) and cochlear implant(s) or 

other implantable hearing devices, 

mobility devices, and oxygen therapy 

equipment and supplies. 

(ii) Use of assistive technology; 

(iii) Reasonable modifications or 

auxiliary aids or services as defined in 

this regulation; 

(iv) Learned behavioral or adaptive 

neurological modifications; or 

(v) Psychotherapy, behavioral 

therapy, or physical therapy. 

(e) Has a record of such an 

impairment—(1) General. An individual 

has a record of such an impairment if 

the individual has a history of, or has 

been misclassified as having, a mental 

or physical impairment that 

substantially limits one or more major 

life activities. 

(2) Broad construction. Whether an 

individual has a record of an 

impairment that substantially limited a 

major life activity shall be construed 

broadly to the maximum extent 

permitted by the ADA and should not 

demand extensive analysis. An 

individual will be considered to fall 

within this prong of the definition of 

disability if the individual has a history 

of an impairment that substantially 

limited one or more major life activities 

when compared to most people in the 

general population, or was misclassified 

as having had such an impairment. In 

determining whether an impairment 

substantially limited a major life 

activity, the principles articulated in 

§ 36.105(d)(1) apply. 

(3) Reasonable modification. An 

individual with a record of a 

substantially limiting impairment may 

be entitled to a reasonable modification 

if needed and related to the past 

disability. 

(f) Is regarded as having such an 

impairment. (1) An individual is 

‘‘regarded as having such an 

impairment’’ if the individual is 

subjected to an action prohibited by the 

ADA because of an actual or perceived 

physical or mental impairment, whether 

or not that impairment substantially 

limits, or is perceived to substantially 

limit, a major life activity, except for an 

impairment that is both transitory and 

minor. A transitory impairment is an 

impairment with an actual or expected 

duration of six months or less. 

(2) An individual is ‘‘regarded as 

having such an impairment’’ any time a 

covered entity takes a prohibited action 

against the individual because of an 

actual or perceived impairment, even if 

the entity asserts, or may or does 

ultimately establish, a defense to such 

action. 

(3) Establishing that an individual is 

‘‘regarded as having such an 

impairment’’ does not, by itself, 

establish liability. Liability is 

established under title III of the ADA 

only when an individual proves that a 

covered entity discriminated on the 

basis of disability within the meaning of 

title III of the ADA, 42 U.S.C. 12181– 

12189. 

(g) Exclusions. The term ‘‘disability’’ 

does not include: (1) Transvestism, 

transsexualism, pedophilia, 

exhibitionism, voyeurism, gender 

identity disorders not resulting from 

physical impairments, or other sexual 

behavior disorders; 

(2) Compulsive gambling, 

kleptomania, or pyromania; or 

(3) Psychoactive substance use 

disorders resulting from current illegal 

use of drugs. 

Subpart B—General Requirements 

■ 10. In § 36.201, add paragraph (c) to 

read as follows: 

§ 36.201 General. 

* * * * * 

(c) Claims of no disability. Nothing in 

this part shall provide the basis for a 

claim that an individual without a 

disability was subject to discrimination 

because of a lack of disability, including 

a claim that an individual with a 

disability was granted a reasonable 

modification that was denied to an 

individual without a disability. 

Subpart C—Specific Requirements 

■ 11. In § 36.302. add paragraph (g) to 

read as follows: 

§ 36.302 Modifications in policies, 

practices, or procedures. 

* * * * * 

(g) A covered entity is not required to 

provide a reasonable modification to an 

individual who meets the definition of 

disability solely under the ‘‘regarded as’’ 

prong of the definition of disability at 

§ 36.105(a)(1)(iii). 

Dated: January 22, 2014. 

Eric H. Holder, Jr., 

Attorney General. 

[FR Doc. 2014–01668 Filed 1–29–14; 8:45 am] 

BILLING CODE P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2013–0725; FRL–9904–01– 

Region 9] 

Revisions to the California State 

Implementation Plan, Santa Barbara 

County Air Pollution Control District 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve 

revisions to the Santa Barbara County 

Air Pollution Control District 

(SBCAPCD) portion of the California 

State Implementation Plan (SIP). These 

revisions concern volatile organic 

compound (VOC) emissions from 

solvent cleaning machines and 

operations, coating of metal parts and 

products and polyester resin operations. 

We are proposing to approve local rules 

to regulate these emission sources under 

the Clean Air Act as amended in 1990 

(CAA or the Act). 

DATES: Any comments on this proposal 

must arrive by March 3, 2014. 

ADDRESSES: Submit comments, 

identified by docket number EPA–R09– 

OAR–2013–0725, by one of the 

following methods: 

1. Federal eRulemaking Portal: 

www.regulations.gov. Follow the on-line 

instructions. 

2. Email: steckel.andrew@epa.gov. 

3. Mail or deliver: Andrew Steckel 

(Air–4), U.S. Environmental Protection 

Agency Region IX, 75 Hawthorne Street, 

San Francisco, CA 94105–3901. 

Instructions: All comments will be 

included in the public docket without 

change and may be made available 

online at www.regulations.gov, 

including any personal information 

provided, unless the comment includes 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Information that 

you consider CBI or otherwise protected 

should be clearly identified as such and 

should not be submitted through 

www.regulations.gov or email. 

www.regulations.gov is an ‘‘anonymous 

access’’ system, and EPA will not know 

your identity or contact information 

unless you provide it in the body of 

your comment. If you send email 

directly to EPA, your email address will 

be automatically captured and included 

as part of the public comment. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

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