[Federal Register Volume 75, Number 178 (Wednesday, September 15, 2010)]
[Rules and Regulations]
[Pages 56236-56358]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-21824]


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DEPARTMENT OF JUSTICE

28 CFR Part 36

[CRT Docket No. 106; AG Order No. 3181-2010]
RIN 1190-AA44


Nondiscrimination on the Basis of Disability by Public 
Accommodations and in Commercial Facilities

AGENCY: Department of Justice, Civil Rights Division.

ACTION: Final rule.

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SUMMARY: This final rule revises the Department of Justice (Department) 
regulation that implements title III of the Americans with Disabilities 
Act

[[Page 56237]]

(ADA), relating to nondiscrimination on the basis of disability by 
public accommodations and in commercial facilities. The Department is 
issuing this final rule in order to adopt enforceable accessibility 
standards under the Americans with Disabilities Act of 1990 (ADA) that 
are consistent with the minimum guidelines and requirements issued by 
the Architectural and Transportation Barriers Compliance Board, and to 
update or amend certain provisions of the title III regulation so that 
they comport with the Department's legal and practical experiences in 
enforcing the ADA since 1991. Concurrently with the publication of the 
final rule for title III, the Department is publishing a final rule 
amending its ADA title II regulation, which covers nondiscrimination on 
the basis of disability in State and local government services.

DATES: Effective Date: March 15, 2011.

FOR FURTHER INFORMATION CONTACT: Janet L. Blizard, Deputy Chief, or 
Christina Galindo-Walsh, Attorney Advisor, Disability Rights Section, 
Civil Rights Division, U.S. Department of Justice, at (202) 307-0663 
(voice or TTY). This is not a toll-free number. Information may also be 
obtained from the Department's toll-free ADA Information Line at (800) 
514-0301 (voice) or (800) 514-0383 (TTY).
    This rule is also available in an accessible format on the ADA Home 
Page at http://www.ada.gov. You may obtain copies of this rule in large 
print or on computer disk by calling the ADA Information Line listed 
above.

SUPPLEMENTARY INFORMATION:

The Roles of the Access Board and the Department of Justice

    The Access Board was established by section 502 of the 
Rehabilitation Act of 1973. 29 U.S.C. 792. The Board consists of 13 
public members appointed by the President, the majority of whom must be 
individuals with disabilities, and the heads of 12 Federal departments 
and agencies specified by statute, including the heads of the 
Department of Justice and the Department of Transportation (DOT). 
Originally, the Access Board was established to develop and maintain 
accessibility guidelines for facilities designed, constructed, altered, 
or leased with Federal dollars under the Architectural Barriers Act of 
1968 (ABA). 42 U.S.C. 4151 et seq. The passage of the ADA expanded the 
Access Board's responsibilities.
    The ADA requires the Access Board to ``issue minimum guidelines 
that shall supplement the existing Minimum Guidelines and Requirements 
for Accessible Design for purposes of subchapters II and III of this 
chapter * * * to ensure that buildings, facilities, rail passenger 
cars, and vehicles are accessible, in terms of architecture and design, 
transportation, and communication, to individuals with disabilities.'' 
42 U.S.C. 12204. The ADA requires the Department to issue regulations 
that include enforceable accessibility standards applicable to 
facilities subject to title II or title III that are consistent with 
the ``minimum guidelines'' issued by the Access Board, 42 U.S.C. 
12134(c), 12186(c), but vests in the Attorney General sole 
responsibility for the promulgation of those standards that fall within 
the Department's jurisdiction and enforcement of the regulations.
    The ADA also requires the Department to develop regulations with 
respect to existing facilities subject to title II (Subtitle A) and 
title III. How and to what extent the Access Board's guidelines are 
used with respect to the barrier removal requirement applicable to 
existing facilities under title III of the ADA and to the provision of 
program accessibility under title II of the ADA are solely within the 
discretion of the Department.

Enactment of the ADA and Issuance of the 1991 Regulations

    On July 26, 1990, President George H.W. Bush signed into law the 
ADA, a comprehensive civil rights law prohibiting discrimination on the 
basis of disability.\1\ The ADA broadly protects the rights of 
individuals with disabilities in employment, access to State and local 
government services, places of public accommodation, transportation, 
and other important areas of American life. The ADA also requires newly 
designed and constructed or altered State and local government 
facilities, public accommodations, and commercial facilities to be 
readily accessible to and usable by individuals with disabilities. 42 
U.S.C. 12101 et seq. Section 306(a) of the ADA directs the Secretary of 
Transportation to issue regulations for demand responsive or fixed 
route systems operated by private entities not primarily engaged in the 
business of transporting people (sections 302(b)(2)(B) and (C)) and for 
private entities that are primarily engaged in the business of 
transporting people (section 304). See 42 U.S.C. 12182(b), 12184, 
12186(a). Section 306(b) directs the Attorney General to promulgate 
regulations to carry out the provisions of the rest of title III. 42 
U.S.C. 12186(b).
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    \1\ On September 25, 2008, President George W. Bush signed into 
law the Americans with Disabilities Amendments Act of 2008 (ADA 
Amendments Act), Public Law 110-325. The ADA Amendments Act amended 
the ADA definition of disability to clarify its coverage of persons 
with disabilities and to provide guidance on the application of the 
definition. This final rule does not contain regulatory language 
implementing the ADA Amendments Act. The Department intends to 
publish a supplemental rule to amend the regulatory definition of 
``disability'' to implement the changes mandated by that law.
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    Title II applies to State and local government entities, and, in 
Subtitle A, protects qualified individuals with disabilities from 
discrimination on the basis of disability in services, programs, and 
activities provided by State and local government entities. Title II 
extends the prohibition on discrimination established by section 504 of 
the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794 (section 
504), to all activities of State and local governments regardless of 
whether these entities receive Federal financial assistance. 42 U.S.C. 
12131-65.
    Title III, which this rule addresses, prohibits discrimination on 
the basis of disability in the activities of places of public 
accommodation (businesses that are generally open to the public and 
that fall into one of 12 categories listed in the ADA, such as 
restaurants, movie theaters, schools, day care facilities, recreation 
facilities, and doctors' offices) and requires newly constructed or 
altered places of public accommodation--as well as commercial 
facilities (privately owned, nonresidential facilities such as 
factories, warehouses, or office buildings)--to comply with the ADA 
Standards. 42 U.S.C. 12181-89.
    On July 26, 1991, the Department issued rules implementing title II 
and title III, which are codified at 28 CFR part 35 (title II) and part 
36 (title III). Appendix A of the 1991 title III regulation, which is 
republished as Appendix D to 28 CFR part 36, contains the ADA Standards 
for Accessible Design (1991 Standards), which were based upon the 
version of the Americans with Disabilities Act Accessibility Guidelines 
(1991 ADAAG) published by the Access Board on the same date. Under the 
Department's 1991 title III regulation, places of public accommodation 
and commercial facilities currently are required to comply with the 
1991 Standards with respect to newly constructed or altered facilities.
    The Access Board's publication of the 2004 ADA/ABA Guidelines was 
the culmination of a long-term effort to facilitate ADA compliance by 
eliminating, to the extent possible, inconsistencies among Federal 
accessibility requirements and between

[[Page 56238]]

Federal accessibility requirements and State and local building codes. 
In support of this effort, the Department is amending its regulation 
implementing title III and adopting standards consistent with ADA 
Chapter 1, ADA Chapter 2, and Chapters 3 through 10 of the 2004 ADA/ABA 
Guidelines. The Department is also amending its title II regulation, 
which prohibits discrimination on the basis of disability in State and 
local government services, concurrently with the publication of this 
rule in this issue of the Federal Register.

Development of the 2004 ADA/ABA Guidelines

    In 1994, the Access Board began the process of updating the 1991 
ADAAG by establishing an advisory committee composed of members of the 
design and construction industry, the building code community, and 
State and local government entities, as well as individuals with 
disabilities. In 1998, the Access Board added specific guidelines on 
State and local government facilities, 63 FR 2000 (Jan. 13, 1998), and 
building elements designed for use by children, 63 FR 2060 (Jan. 13, 
1998). In 1999, based largely on the report and recommendations of the 
advisory committee, the Access Board issued a notice of proposed 
rulemaking (NPRM) to update and revise its ADA and ABA Accessibility 
Guidelines. See 64 FR 62248 (Nov. 16, 1999). In 2000, the Access Board 
added specific guidelines on play areas. See 65 FR 62498 (Oct. 18, 
2000). The Access Board released an interim draft of its guidelines to 
the public on April 2, 2002, 67 FR 15509, in order to provide an 
opportunity for entities with model codes to consider amendments that 
would promote further harmonization. In September of 2002, the Access 
Board set forth specific guidelines on recreation facilities. 67 FR 
56352 (Sept. 3, 2002).
    By the date of its final publication on July 23, 2004, the 2004 
ADA/ABA Guidelines had been the subject of extraordinary review and 
public participation. The Access Board received more than 2,500 
comments from individuals with disabilities, affected industries, State 
and local governments, and others. The Access Board provided further 
opportunity for participation by holding public hearings.
    The Department was involved extensively in the development of the 
2004 ADA/ABA Guidelines. As a Federal member of the Access Board, the 
Attorney General's representative voted to approve the revised 
guidelines. ADA Chapter 1 and ADA Chapter 2 of the 2004 ADA/ABA 
Guidelines provide scoping requirements for facilities subject to the 
ADA; ``scoping'' is a term used in the 2004 ADA/ABA Guidelines to 
describe requirements that prescribe which elements and spaces--and, in 
some cases, how many--must comply with the technical specifications. 
ABA Chapter 1 and ABA Chapter 2 provide scoping requirements for 
facilities subject to the ABA (i.e., facilities designed, built, 
altered, or leased with Federal funds). Chapters 3 through 10 of the 
2004 ADA/ABA Guidelines provide uniform technical specifications for 
facilities subject to either the ADA or the ABA. This revised format is 
designed to eliminate unintended conflicts between the two sets of 
Federal accessibility standards and to minimize conflicts between the 
Federal regulations and the model codes that form the basis of many 
State and local building codes. For the purposes of this final rule, 
the Department will refer to ADA Chapter 1, ADA Chapter 2, and Chapters 
3 through 10 of the 2004 ADA/ABA Guidelines as the 2004 ADAAG.
    These amendments to the 1991 ADAAG have not been adopted previously 
by the Department as ADA Standards. Through this rule, the Department 
is adopting revised ADA Standards consistent with the 2004 ADAAG, 
including all of the amendments to the 1991 ADAAG since 1998. For the 
purposes of this part, the Department's revised standards are entitled 
``The 2010 Standards for Accessible Design'' and consist of the 2004 
ADAAG and the requirements contained in subpart D of 28 CFR part 36. 
Because the Department has adopted the 2004 ADAAG as part of its title 
II and title III regulations, once the Department's final rules become 
effective, the 2004 ADAAG will have legal effect with respect to the 
Department's title II and title III regulations and will cease to be 
mere guidance for those areas regulated by the Department. In 2006, DOT 
adopted the 2004 ADAAG. With respect to those areas regulated by DOT, 
these guidelines, as adopted by DOT, have had legal effect since 2006.
    Under this regulation, the Department of Justice covers passenger 
vessels operated by private entities not primarily engaged in the 
business of transporting people with respect to the provision of goods 
and services of a public accommodation on the vessel. For example, a 
vessel operator whose vessel departs from Point A, takes passengers on 
a recreational trip, and returns passengers to Point A without ever 
providing for disembarkation at a Point B (e.g., a dinner or harbor 
cruise, a fishing charter) is a public accommodation operated by a 
private entity not primarily engaged in the business of transporting 
people. This regulation covers those aspects of the vessel's operation 
relating to the use and enjoyment of the public accommodation, 
including, for example, the boarding process, safety policies, 
accessible routes on the vessel, and the provision of effective 
communication. Persons with complaints or concerns about discrimination 
on the basis of disability by vessel operators who are private entities 
not primarily engaged in the business of transporting people, or 
questions about how this regulation applies to such operators and 
vessels, should contact the Department of Justice.
    Vessels operated by private entities primarily engaged in the 
business of transporting people and that provide the goods and services 
of a public accommodation are covered by this regulation and the 
Department of Transportation's passenger vessel rule, 49 CFR part 39. A 
vessel operator whose vessel takes passengers from Point A to Point B 
(e.g., a cruise ship that sails from Miami to one or more Caribbean 
islands, a private ferry boat between two points on either side of a 
river or bay, a water taxi between two points in an urban area) is most 
likely a private entity primarily engaged in the business of 
transporting people. Persons with questions about how this regulation 
applies to such operators and vessels may contact the Department of 
Justice or the Department of Transportation for guidance or further 
information. However, the Department of Justice has enforcement 
authority for all private entities under title III of the ADA, so 
individuals with complaints about noncompliance with part 39 should 
provide those complaints to the Department of Justice.
    The provisions of this rule and 49 CFR part 39 are intended to be 
substantively consistent with one another. Consequently, in 
interpreting the application of this rule to vessel operators who are 
private entities not primarily engaged in the business of transporting 
people, the Department of Justice views the obligations of those vessel 
operators as being similar to those of private entities primarily 
engaged in the business of transporting people under the provisions of 
49 CFR part 39.

The Department's Rulemaking History

    The Department published an advance notice of proposed rulemaking 
(ANPRM) on September 30, 2004, 69 FR

[[Page 56239]]

58768, for two reasons: (1) To begin the process of adopting the 2004 
ADAAG by soliciting public input on issues relating to the potential 
application of the Access Board's revisions once the Department adopts 
them as revised standards; and (2) to request background information 
that would assist the Department in preparing a regulatory analysis 
under the guidance provided in Office of Management and Budget (OMB) 
Circular A-4 sections D (Analytical Approaches) and E (Identifying and 
Measuring Benefits and Costs) (Sept. 17, 2003), available at http://www.whitehouse.gov/OMB/circulars/a004/a-4.pdf (last visited June 24, 
2010). While underscoring that the Department, as a member of the 
Access Board, already had reviewed comments provided to the Access 
Board during its development of the 2004 ADAAG, the Department 
specifically requested public comment on the potential application of 
the 2004 ADAAG to existing facilities. The extent to which the 2004 
ADAAG is used with respect to the barrier removal requirement 
applicable to existing facilities under title III (as well as with 
respect to the program access requirement in title II) is within the 
sole discretion of the Department. The ANPRM dealt with the 
Department's responsibilities under both title II and title III.
    The public response to the ANPRM was substantial. The Department 
extended the comment deadline by four months at the public's request. 
70 FR 2992 (Jan. 19, 2005). By the end of the extended comment period, 
the Department had received more than 900 comments covering a broad 
range of issues. Many of the commenters responded to questions posed 
specifically by the Department, including questions regarding the 
Department's application of the 2004 ADAAG once adopted by the 
Department and the Department's regulatory assessment of the costs and 
benefits of particular elements. Many other commenters addressed areas 
of desired regulation or of particular concern.
    To enhance accessibility strides made since the enactment of the 
ADA, commenters asked the Department to focus on previously unregulated 
areas, such as ticketing in assembly areas; reservations for hotel 
rooms, rental cars, and boat slips; and captioning. They also asked for 
clarification on some issues in the 1991 regulations, such as the 
requirements regarding service animals. Other commenters dealt with 
specific requirements in the 2004 ADAAG or responded to questions 
regarding elements scoped for the first time in the 2004 ADAAG, 
including recreation facilities and play areas. Commenters also 
provided some information on how to assess the cost of elements in 
small facilities, office buildings, hotels and motels, assembly areas, 
hospitals and long-term care facilities, residential units, recreation 
facilities, and play areas. Still other commenters addressed the 
effective date of the proposed standards, the triggering event by which 
the effective date is calculated for new construction, and variations 
on a safe harbor that would excuse elements built in compliance with 
the 1991 Standards from compliance with the proposed standards.
    After careful consideration of the public comments in response to 
the ANPRM, on June 17, 2008, the Department published an NPRM covering 
title III. 73 FR 34508. The Department also published an NPRM on that 
day covering title II. 73 FR 34466. The NPRMs addressed the issues 
raised in the public's comments to the ANPRM and sought additional 
comment, generally and in specific areas, such as the Department's 
adoption of the 2004 ADAAG, the Department's regulatory assessment of 
the costs and benefits of the rule, its updates and amendments of 
certain provisions of the existing title II and III regulations, and 
areas that were in need of additional clarification or specificity.
    A public hearing was held on July 15, 2008, in Washington, DC. 
Forty-five individuals testified in person or by phone. The hearing was 
streamed live over the Internet. By the end of the 60-day comment 
period, the Department had received 4,435 comments addressing a broad 
range of issues, many of which were common to the title II and title 
III NPRMs, from representatives of businesses and industries, State and 
local government agencies, disability advocacy organizations, and 
private individuals.
    The Department notes that this rulemaking was unusual in that much 
of the proposed regulatory text and many of the questions asked across 
titles II and III were the same. Consequently, many of the commenters 
did not provide separate sets of documents for the proposed title II 
and title III rules, and in many instances, the commenters did not 
specify which title was being commented upon. As a result, where 
comments could be read to apply to both titles II and III, the 
Department included them in the comments and responses for each final 
rule.
    Most of the commenters responded to questions posed specifically by 
the Department, including what were the most appropriate definitions 
for terms such as ``wheelchair,'' ``mobility device,'' and ``service 
animal''; how to quantify various benefits that are difficult to 
monetize; what requirements to adopt for ticketing and assembly areas; 
whether to adopt safe harbors for small businesses; and how best to 
regulate captioning. Some comments addressed specific requirements in 
the 2004 ADAAG or responded to questions regarding elements scoped for 
the first time in the 2004 ADAAG, including recreation facilities and 
play areas. Other comments responded to questions posed by the 
Department concerning certain specific requirements in the 2004 ADAAG.

Relationship to Other Laws

    The Department of Justice regulation implementing title III, 28 CFR 
36.103, provides the following:
    (a) Rule of interpretation. Except as otherwise provided in this 
part, this part shall not be construed to apply a lesser standard than 
the standards applied under title V of the Rehabilitation Act of 1973 
(29 U.S.C. 791) or the regulations issued by Federal agencies pursuant 
to that title.
    (b) Section 504. This part does not affect the obligations of a 
recipient of Federal financial assistance to comply with the 
requirements of section 504 of the Rehabilitation Act of 1973 (29 
U.S.C. 794) and regulations issued by Federal agencies implementing 
section 504.
    (c) Other laws. This part does not invalidate or limit the 
remedies, rights, and procedures of any other Federal, State, or local 
laws (including State common law) that provide greater or equal 
protection for the rights of individuals with disabilities or 
individuals associated with them.
    These provisions remain unchanged by the final rule. The Department 
recognizes that public accommodations subject to title III of the ADA 
may also be subject to title I of the ADA, which prohibits 
discrimination on the basis of disability in employment; section 504 of 
the Rehabilitation Act of 1973 and other Federal statutes that prohibit 
discrimination on the basis of disability in the programs and 
activities of recipients of Federal financial assistance; and other 
Federal statutes such as the Air Carrier Access Act (ACAA), 49 U.S.C. 
41705 et seq., and the Fair Housing Act (FHAct), 42 U.S.C. 3601 et seq. 
Compliance with the Department's title II and title III regulations 
does not ensure compliance with other Federal statutes.
    Public accommodations that are subject to the ADA as well as other 
Federal disability discrimination laws

[[Page 56240]]

must be aware of the requirements of all applicable laws and must 
comply with these laws and their implementing regulations. Although in 
many cases similar provisions of different statutes are interpreted to 
impose similar requirements, there are circumstances in which similar 
provisions are applied differently because of the nature of the covered 
entity or activity, or because of distinctions between the statutes. 
For example, emotional support animals that do not qualify as service 
animals under the Department's title III regulations may nevertheless 
qualify as permitted reasonable accommodations for persons with 
disabilities under the FHAct and the ACAA. See, e.g., Overlook Mutual 
Homes, Inc. v. Spencer, 666 F. Supp. 2d 850 (S.D. Ohio 2009). Public 
accommodations that operate housing facilities must ensure that they 
apply the reasonable accommodation requirements of the FHAct in 
determining whether to allow a particular animal needed by a person 
with a disability into housing and may not use the ADA definition as a 
justification for reducing their FHAct obligations. In addition, 
nothing in the ADA prevents a public accommodation subject to one 
statute from modifying its policies and providing greater access in 
order to assist individuals with disabilities in achieving access to 
entities subject to other Federal statutes. For example, a quick 
service restaurant at an airport is, as a public accommodation, subject 
to the title III requirements, not to the ACAA requirements. 
Conversely, an air carrier that flies in and out of the same airport is 
required to comply with the ACAA, but is not covered by title III of 
the ADA. If a particular animal is a service animal for purposes of the 
ACAA and is thus allowed on an airplane, but is not a service animal 
for purposes of the ADA, nothing in the ADA prohibits an airport 
restaurant from allowing a ticketed passenger with a disability who is 
traveling with a service animal that meets the ACAA's definition of a 
service animal to bring that animal into the facility even though under 
the ADA's definition of service animal the animal lawfully could be 
excluded.

Organization of This Rule

    Throughout this rule, the original ADA Standards, which are 
republished as Appendix D to 28 CFR part 36, will be referred to as the 
``1991 Standards.'' The original title III regulation, codified at 28 
CFR part 36 (2009), will be referred to as the ``1991 regulation'' or 
the ``1991 title III regulation.'' ADA Chapter 1, ADA Chapter 2, and 
Chapters 3 through 10 of the 2004 ADA/ABA Guidelines, 36 CFR part 1191, 
app. B and D (2009), will be referred to as the ``2004 ADAAG.'' The 
Department's Notice of Proposed Rulemaking, 73 FR 34508 (June 17, 
2008), will be referred to as the ``NPRM.'' As noted above, the 2004 
ADAAG, taken together with the requirements contained in subpart D of 
28 CFR part 36 (New Construction and Alterations) of the final rule, 
will be referred to as the ``2010 Standards.'' The amendments made to 
the 1991 title III regulation and the adoption of the 2004 ADAAG, taken 
together, will be referred to as the ``final rule.''
    In performing the required periodic review of its existing 
regulation, the Department has reviewed the title III regulation 
section by section, and, as a result, has made several clarifications 
and amendments in this rule. Appendix A of the final rule, ``Guidance 
on Revisions to ADA Regulation on Nondiscrimination on the Basis of 
Disability by Public Accommodations and Commercial Facilities,'' 
codified as Appendix A to 28 CFR part 36, provides the Department's 
response to comments and its explanations of the changes to the 
regulation. The section entitled ``Section-by-Section Analysis and 
Response to Comments'' in Appendix A provides a detailed discussion of 
the changes to the title III regulation. The Section-by-Section 
Analysis follows the order of the 1991 title III regulation, except 
that regulatory sections that remain unchanged are not referenced. The 
discussion within each section explains the changes and the reasoning 
behind them, as well as the Department's response to related public 
comments. Subject areas that deal with more than one section of the 
regulation include references to the related sections, where 
appropriate. The Section-by-Section Analysis also discusses many of the 
questions asked by the Department for specific public response. The 
section of Appendix A entitled ``Other Issues'' discusses public 
comment on several issues of concern to the Department that were the 
subject of questions that are not specifically addressed in the 
Section-by-Section Analysis.
    The Department's description of the 2010 Standards, as well as a 
discussion of the public comments on specific sections of the 2004 
ADAAG, is found in Appendix B of this final rule, ``Analysis and 
Commentary on the 2010 ADA Standards for Accessible Design,'' codified 
as Appendix B to 28 CFR part 36.
    The provisions of this rule generally take effect six months from 
its publication in the Federal Register. The Department has determined, 
however, that compliance with the requirements related to new 
construction and alterations and reservations at a place of lodging 
shall not be required until 18 months from the publication date of this 
rule. These exceptions are set forth in Sec. Sec.  36.406(a) and 
36.302(e)(3), respectively, and are discussed in greater detail in 
Appendix A. See discussions in Appendix A entitled ``Section 36.406 
Standards for New Construction and Alterations'' and ``Section 
36.302(e) Hotel Reservations.''
    This final rule only addresses issues that were identified in the 
NPRM as subjects the Department intended to regulate through this 
rulemaking proceeding. Because the Department indicated in the NPRM 
that it did not intend to regulate certain areas, including equipment 
and furniture, accessible golf cars, and movie captioning and video 
description, as part of this rulemaking proceeding, the Department 
believes it would be appropriate to solicit more public comment about 
these areas prior to making them the subject of a rulemaking. The 
Department intends to engage in additional rulemaking in the near 
future addressing accessibility in these areas and others, including 
next generation 9-1-1 and accessibility of Web sites operated by 
covered public entities and public accommodations.

ADDITIONAL INFORMATION:

Regulatory Process Matters (SBREFA, Regulatory Flexibility Act, and 
Executive Orders)

    The Department must provide two types of assessments as part of its 
final rule: An analysis of the costs and benefits of adopting the 
changes contained in this rule, and a periodic review of its existing 
regulations to consider their impact on small entities, including small 
businesses, small nonprofit organizations, and small governmental 
jurisdictions. See E.O. 12866, 58 FR 51735, 3 CFR, 1994 Comp., p. 638, 
as amended; Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601 et 
seq., as amended by the Small Business Regulatory Enforcement Fairness 
Act of 1996 (SBREFA), 5 U.S.C. 610(a); OMB Circular A-4, available at 
http://www.whitehouse.gov/OMB/circulars/a004/a-4.pdf (last visited June 
24, 2010); E.O. 13272, 67 FR 53461, 3 CFR, 2003 Comp., p. 247.
    In the NPRM, the Department kept open the possibility that, if 
warranted by public comments received on an issue raised by the 2004 
ADAAG or by the results of the Department's Initial Regulatory Impact 
Analysis (Initial RIA), available at http://www.ada.gov/NPRM2008/ria.htm, showing that the

[[Page 56241]]

likely costs of making a particular feature or facility accessible were 
disproportionate to the benefits (including both monetized and non-
monetized benefits) to persons with disabilities, the Attorney General, 
as a member of the Access Board, could return the issue to the Access 
Board for further consideration. After careful consideration, the 
Department has determined that it is unnecessary to return any issues 
to the Access Board for additional consideration.

Executive Order 12866

    This rule has been reviewed by the Office of Management and Budget 
(OMB) under Executive Order 12866. The Department has evaluated its 
existing regulations for title II and title III section by section, and 
many of the provisions in the final rule for both titles reflect its 
efforts to mitigate any negative effects on small entities. A Final 
Regulatory Impact Analysis (Final RIA or RIA) was prepared by the 
Department's contractor, HDR[bond]HLB Decision Economics, Inc. (HDR). 
In accordance with Executive Order 12866, as amended, and OMB Circular 
A-4, the Department has reviewed and considered the Final RIA and has 
accepted the results of this analysis as its assessment of the benefits 
and costs of the final rules.
    Executive Order 12866 refers explicitly not only to monetizable 
costs and benefits but also to ``distributive impacts'' and ``equity,'' 
see E.O. 12866, section 1(a), and it is important to recognize that the 
ADA is intended to provide important benefits that are distributional 
and equitable in character. The ADA states, ``[i]t is the purpose of 
this [Act] (1) to provide a clear and comprehensive national mandate 
for the elimination of discrimination against individuals with 
disabilities; [and] (2) to provide clear, strong, consistent, 
enforceable standards addressing discrimination against individuals 
with disabilities[.]'' 42 U.S.C. 12101(b). Many of the benefits of this 
rule stem from the provision of such standards, which will promote 
inclusion, reduce stigma and potential embarrassment, and combat 
isolation, segregation, and second-class citizenship of individuals 
with disabilities. Some of these benefits are, in the words of 
Executive Order 12866, ``difficult to quantify, but nevertheless 
essential to consider.'' E.O. 12866, section 1(a). The Department has 
considered such benefits here.

Final Regulatory Impact Analysis

    The Final RIA embodies a comprehensive benefit-cost analysis of the 
final rules for both title II and title III and assesses the 
incremental benefits and costs of the 2010 Standards relative to a 
primary baseline scenario (1991 Standards). In addition, the Department 
conducted additional research and analyses for requirements having the 
highest negative net present values under the primary baseline 
scenario. This approach was taken because, while the 1991 Standards are 
the only uniform set of accessibility standards that apply to public 
accommodations, commercial facilities, and State and local government 
facilities nationwide, it is also understood that many State and local 
jurisdictions have already adopted IBC/ANSI model code provisions that 
mirror those in the 2004 ADAAG. The assessments based on this approach 
assume that covered entities currently implementing codes that mirror 
the 2004 ADAAG will not need to modify their code requirements once the 
rules are finalized. They also assume that, even without the final 
rules, the current level of compliance would be unchanged. The Final 
RIA contains specific information, including data in chart form, 
detailing which States have already adopted the accessibility standards 
for this subset of six requirements. The Department believes that the 
estimates resulting from this approach represent a reasonable upper and 
lower measure of the likely effects these requirements will have that 
the Department was able to quantify and monetize.
    The Final RIA estimates the benefits and costs for all new 
(referred to as ``supplemental'') requirements and revised requirements 
across all types of newly constructed and existing facilities. The 
Final RIA also incorporates a sophisticated risk analysis process that 
quantifies the inherent uncertainties in estimating costs and benefits 
and then assesses (through computer simulations) the relative impact of 
these factors when varied simultaneously. A copy of the Final RIA will 
be made available online for public review on the Department's ADA Home 
Page (http://www.ada.gov).
    From an economic perspective (as specified in OMB Circular A-B4), 
the results of the Final RIA demonstrate that the Department's final 
rules increase social resources and thus represent a public good 
because monetized benefits exceed monetized costs--that is, the 
regulations have a positive net present value (NPV). Indeed, under 
every scenario assessed in the Final RIA, the final rules have a 
positive NPV. The Final RIA's first scenario examines the incremental 
impact of the final rules using the ``main'' set of assumptions (i.e., 
assuming a primary baseline (1991 Standards), that the safe harbor 
applies, and that for title III entities barrier removal is readily 
achievable for 50 percent of elements subject to supplemental 
requirements).

                     Expected Impact of the Rules 2
                              [In billions]
------------------------------------------------------------------------
                                                   Total        Total
          Discount rate              Expected   expected PV  expected PV
                                       NPV       (benefits)    (costs)
------------------------------------------------------------------------
3%...............................        $40.4        $66.2        $25.8
7................................          9.3         22.0         12.8
------------------------------------------------------------------------

     
---------------------------------------------------------------------------

    \2\ The analysis assumes these regulations will be in force for 
15 years. Incremental costs and benefits are calculated for all 
construction, alterations, and barrier removal that is expected to 
occur during these 15 years. The analysis also assumes that any new 
or revised ADA rules enacted 15 years from now will include a safe 
harbor provision. Thus, any facilities constructed in year 14 of the 
final rules are assumed to continue to generate benefits to users, 
and to incur any operating or replacement costs for the life of 
these buildings, which is assumed to be 40 years.
---------------------------------------------------------------------------

    Under this set of assumptions, the final rules have an expected NPV 
of $9.3 billion (7 percent discount rate) and $40.4 billion (3 percent 
discount rate). See Final RIA, table ES-1 & figure ES-2.

Water Closet Clearances

    The Department gave careful consideration to the costs and benefits 
of its adoption of the standards relating to water closet clearances in 
single-user toilet rooms. The primary effect of the Department's 
proposed final rules governing water closet clearances in single-user 
toilet rooms with in-swinging and out-swinging doors is to allow 
sufficient room for ``side'' or ``parallel'' methods of transferring 
from a wheelchair to a toilet. Under the current 1991 Standards, the 
requisite clearance space in single-user toilet rooms between and 
around the toilet and the lavatory does not permit these methods of 
transfer. Side or parallel transfers are used by large numbers of 
persons who use wheelchairs and are regularly taught in rehabilitation 
and occupational therapy. Currently, persons who use side or parallel 
transfer methods from their wheelchairs are faced with a stark choice 
at establishments with single-user toilet rooms--i.e., patronize the 
establishment but run the risk of needing assistance when using the 
restroom, travel with someone who would be able to provide assistance 
in toileting, or forgo the visit entirely. The revised water closet 
clearance regulations would make single-user toilet rooms accessible to 
all persons

[[Page 56242]]

who use wheelchairs, not just those with the physical strength, 
balance, and dexterity and the training to use a front-transfer method. 
Single-user toilet rooms are located in a wide variety of public and 
private facilities, including restaurants, fast-food establishments, 
schools, retail stores, parks, sports stadiums, and hospitals. Final 
promulgation of these requirements might thus, for example, enable a 
person who uses a side or parallel transfer method to use the restroom 
(or use the restroom independently) at his or her local coffee shop for 
the first time.
    Because of the complex nature of its cost-benefit analysis, the 
Department is providing ``plain language'' descriptions of the benefits 
calculations for the two revised requirements with the highest 
estimated total costs: Water closet clearance in single-user toilet 
rooms with out-swinging doors (RIA Req. <greek-i>28) (section 604.3 of 
the 2010 Standards) and water closet clearance in single-user toilet 
rooms with in-swinging doors (RIA Req. <greek-i>32) (sections 604.3 and 
603.2.3 Exception 2 of the 2010 Standards). Since many of the concepts 
and calculations in the Final RIA are highly technical, it is hoped 
that, by providing ``lay'' descriptions of how benefits are monetized 
for an illustrative set of requirements, the Final RIA will be more 
transparent and afford readers a more complete understanding of the 
benefits model generally. Because of the widespread adoption of the 
water closet clearance standards in existing State and local building 
codes, the following calculations use the IBC/ANSI baseline.
    General description of monetized benefits for water closet 
clearance in single-user toilet rooms--out-swinging doors (Req. #28). 
In order to assess monetized benefits for the requirement covering 
water closet clearances in single-user toilet rooms with out-swinging 
doors, a determination needed to be made concerning the population of 
users with disabilities who would likely benefit from this revised 
standard. Based on input received from a panel of experts jointly 
convened by HDR and the Department to discuss benefits-related 
estimates and assumptions used in the RIA model, it was assumed that 
accessibility changes brought about by this requirement would benefit 
persons with any type of ambulatory (i.e., mobility-related) 
disability, such as persons who use wheelchairs, walkers, or braces. 
Recent census figures estimate that about 11.9 percent of Americans 
ages 15 and older have an ambulatory disability, or about 35 million 
people. This expert panel also estimated that single-user toilet rooms 
with out-swinging doors would be used slightly less than once every 
other visit to a facility with such toilet rooms covered by the final 
rules (or, viewed another way, about once every two hours spent at a 
covered facility assumed to have one or more single-user toilet rooms 
with out-swinging doors) by an individual with an ambulatory 
disability. The expert panel further estimated that, for such 
individuals, the revised requirement would result in an average time 
savings of about five and a half minutes when using the restroom. This 
time savings is due to the revised water closet clearance standard, 
which permits, among other things, greater flexibility in terms of 
access to the toilet by parallel or side transfer, thereby perhaps 
reducing the wait for another person to assist with toileting and the 
need to twist or struggle to access the toilet independently. Based on 
average hourly wage rates compiled by the U.S. Department of Labor, the 
time savings for Req. <greek-i>28 is valued at just under $10 per hour.
    For public and private facilities covered by the final rules, it is 
estimated that there are currently about 11 million single-user toilet 
rooms with out-swinging doors. The majority of these types of single-
user toilet rooms, nearly 7 million, are assumed to be located at 
``Indoor Service Establishments,'' a broad facility group that 
encompasses various types of indoor retail stores such as bakeries, 
grocery stores, clothing stores, and hardware stores. Based on 
construction industry data, it was estimated that approximately 3 
percent of existing single-user toilet rooms with out-swinging doors 
would be altered each year, and that the number of newly constructed 
facilities with these types of toilet rooms would increase at the rate 
of about 1 percent each year. However, due to the widespread adoption 
at the State and local level of model code provisions that mirror Req. 
<greek-i>28, it is further understood that about half of all existing 
facilities assumed to have single-user toilet rooms with out-swinging 
doors already are covered by State or local building codes that require 
equivalent water closet clearances. Due to the general element-by-
element safe harbor provision in the final rules, no unaltered single-
user toilet rooms that comply with the current 1991 Standards will be 
required to retrofit to meet the revised clearance requirements in the 
final rules.
    With respect to new construction, it is assumed that each single-
user toilet room with an out-swinging door will last the life of the 
building, about 40 years. For alterations, the amount of time such a 
toilet room will be used depends upon the remaining life of the 
building (i.e., a period of time between 1 and 39 years).
    Summing up monetized benefits to users with disabilities across all 
types of public and private facilities covered by the final rules, and 
assuming 46 percent of covered facilities nationwide are located in 
jurisdictions that have adopted the relevant equivalent IBC/ANSI model 
code provisions, it is expected that the revised requirement for water 
closet clearance in single-user toilet rooms with out-swinging doors 
will result in net benefits of approximately $900 million over the life 
of these regulations.
    General description of monetized benefits for water closet 
clearance in single-user toilet rooms--in-swinging doors (Req. # 32). 
For the water closet clearance in single-user toilet rooms with the in-
swinging door requirement (Req. <greek-i>32), the expert panel 
determined that the primary beneficiaries would be persons who use 
wheelchairs. As compared to single-user toilet rooms with out-swinging 
doors, those with in-swinging doors tend to be larger (in terms of 
square footage) in order to accommodate clearance for the in-swinging 
door and, thus, are already likely to have adequate clear floor space 
for persons with disabilities who use other types of mobility aids such 
as walkers and crutches.
    The expert benefits panel estimated that single-user toilet rooms 
with in-swinging doors are used less frequently on average--about once 
every 20 visits to a facility with such a toilet room by a person who 
uses a wheelchair--than their counterpart toilet rooms with out-
swinging doors. This panel also determined that, on average, each user 
would realize a time savings of about 9 minutes as a result of the 
enhanced clearances required by this revised standard.
    The RIA estimates that there are about 4 million single-user toilet 
rooms with in-swinging doors in existing facilities. About half of the 
single-user toilet rooms with in-swinging doors are assumed to be 
located in single-level stores, and about a quarter of them are assumed 
to be located in restaurants. Based on construction industry data, it 
was estimated that approximately 3 percent of existing single-user 
toilet rooms with in-swinging doors would be altered each year, and 
that the number of newly constructed facilities with these types of 
toilet rooms would increase at the rate of about 1 percent each year. 
However, due to the widespread adoption at the State and local level of 
model code provisions that mirror Req. <greek-i>32, it is further 
understood that slightly more than 70 percent of all

[[Page 56243]]

existing facilities assumed to have single-user toilet rooms with in-
swinging doors already are covered by State or local building codes 
that require equivalent water closet clearances. Due to the general 
element-by-element safe harbor provision in the final rules, no 
unaltered single-user toilet rooms that comply with the current 1991 
Standards will be required to retrofit to meet the revised clearance 
requirements in the final rules.
    Similar to the assumptions for Req. <greek-i>28, it is assumed that 
newly constructed single-user toilet rooms with in-swinging doors will 
last the life of the building, about 40 years. For alterations, the 
amount of time such a toilet room will be used depends upon the 
remaining life of the building (i.e., a period of time between 1 and 39 
years). Over this time period, the total estimated value of benefits to 
users of water closets with in-swinging doors from the time they will 
save and decreased discomfort they will experience is nearly $12 
million.
    Additional benefits of water closet clearance standards. The 
standards requiring sufficient space in single-user toilet rooms for a 
wheelchair user to effect a side or parallel transfer are among the 
most costly (in monetary terms) of the new provisions in the Access 
Board's guidelines that the Department adopts in this rule--but also, 
the Department believes, one of the most beneficial in non-monetary 
terms. Although the monetized costs of these requirements substantially 
exceed the monetized benefits, the additional benefits that persons 
with disabilities will derive from greater safety, enhanced 
independence, and the avoidance of stigma and humiliation--benefits 
that the Department's economic model could not put in monetary terms--
are, in the Department's experience and considered judgment, likely to 
be quite high. Wheelchair users, including veterans returning from our 
Nation's wars with disabilities, are taught to transfer onto toilets 
from the side. Side transfers are the safest, most efficient, and most 
independence-promoting way for wheelchair users to get onto the toilet. 
The opportunity to effect a side transfer will often obviate the need 
for a wheelchair user or individual with another type of mobility 
impairment to obtain the assistance of another person to engage in what 
is, for most people, among the most private of activities. Executive 
Order 12866 refers explicitly not only to monetizable costs and 
benefits but also to ``distributive impacts'' and ``equity,'' see E.O. 
12866, section 1(a), and it is important to recognize that the ADA is 
intended to provide important benefits that are distributional and 
equitable in character. These water closet clearance provisions will 
have non-monetized benefits that promote equal access and equal 
opportunity for individuals with disabilities, and will further the 
ADA's purpose of providing ``a clear and comprehensive national mandate 
for the elimination of discrimination against individuals with 
disabilities.'' 42 U.S.C. 12101(b)(1).
    The Department's calculations indicated that, in fact, people with 
the relevant disabilities would have to place only a very small 
monetary value on these quite substantial benefits for the costs and 
benefits of these water closet clearance standards to break even. To 
make these calculations, the Department separated out toilet rooms with 
out-swinging doors from those with in-swinging doors, because the costs 
and benefits of the respective water closet clearance requirements are 
significantly different. The Department estimates that, assuming 46 
percent of covered facilities nationwide are located in jurisdictions 
that have adopted the relevant equivalent IBC/ANSI model code 
provisions, the costs of the requirement as applied to toilet rooms 
with out-swinging doors will exceed the monetized benefits by $454 
million, an annualized net cost of approximately $32.6 million. But a 
large number of people with disabilities will realize benefits of 
independence, safety, and avoided stigma and humiliation as a result of 
the requirement's application in this context. Based on the estimates 
of its expert panel and its own experience, the Department believes 
that both wheelchair users and people with a variety of other mobility 
disabilities will benefit. The Department estimates that people with 
the relevant disabilities will use a newly accessible single-user 
toilet room with an out-swinging door approximately 677 million times 
per year. Dividing the $32.6 million annual cost by the 677 million 
annual uses, the Department concludes that for the costs and benefits 
to break even in this context, people with the relevant disabilities 
will have to value safety, independence, and the avoidance of stigma 
and humiliation at just under 5 cents per visit. The Department 
believes, based on its experience and informed judgment, that 5 cents 
substantially understates the value people with the relevant 
disabilities would place on these benefits in this context.
    There are substantially fewer single-user toilet rooms with in-
swinging doors, and substantially fewer people with disabilities will 
benefit from making those rooms accessible. While both wheelchair users 
and individuals with other ambulatory disabilities will benefit from 
the additional space in a room with an out-swinging door, the 
Department believes, based on the estimates of its expert panel and its 
own experience, that wheelchair users likely will be the primary 
beneficiaries of the in-swinging door requirement. The Department 
estimates that people with the relevant disabilities will use a newly 
accessible single-user toilet room with an in-swinging door 
approximately 8.7 million times per year. Moreover, the alteration 
costs to make a single-user toilet room with an in-swinging door 
accessible are substantially higher (because of the space taken up by 
the door) than the equivalent costs of making a room with an out-
swinging door accessible. Thus, the Department calculates that, 
assuming 72 percent of covered facilities nationwide are located in 
jurisdictions that have adopted the relevant equivalent IBC/ANSI model 
code provisions, the costs of applying the toilet room accessibility 
standard to rooms with in-swinging doors will exceed the monetized 
benefits of doing so by $266.3 million over the life of the 
regulations, or approximately $19.14 million per year. Dividing the 
$19.14 million annual cost by the 8.7 million annual uses, the 
Department concludes that for the costs and benefits to break even in 
this context, people with the relevant disabilities will have to value 
safety, independence, and the avoidance of stigma and humiliation at 
approximately $2.20 per visit. The Department believes, based on its 
experience and informed judgment, that this figure approximates, and 
probably understates, the value wheelchair users place on safety, 
independence, and the avoidance of stigma and humiliation in this 
context.

Alternate Scenarios

    Another scenario in the Final RIA explores the incremental impact 
of varying the assumptions concerning the percentage of existing 
elements subject to supplemental requirements for which barrier removal 
would be readily achievable. Readily achievable barrier removal rates 
are modeled at 0 percent, 50 percent, and 100 percent levels. The 
results of this scenario show that the expected NPV is positive for 
each readily achievable barrier removal rate and that varying this 
assumed rate has little impact on expected NPV. See Final RIA, figure 
ES-3.
    A third set of analyses in the Final RIA demonstrates the impact of 
using alternate baselines based on model codes instead of the primary 
baseline.

[[Page 56244]]

The IBC model codes, which have been widely adopted by State and local 
jurisdictions around the country, are significant because many of the 
requirements in the final rules mirror accessibility provisions in the 
IBC model codes (or standards incorporated therein by reference, such 
as ANSI A117.1). The actual economic impact of the Department's final 
rules is, therefore, tempered by the fact that many jurisdictions 
nationwide have already adopted and are enforcing portions of the final 
rules--indeed, this was one of the goals underlying the Access Board's 
efforts to harmonize the 2004 ADAAG Standards with the model codes. 
However, capturing the economic impact of this reality poses a 
difficult modeling challenge due to the variety of methods by which 
States and localities have adopted the IBC/ANSI model codes (e.g., in 
whole, in part, and with or without amendments), as well as the lack of 
a national ``facility census'' establishing the location, type, and age 
of existing ADA-covered facilities.
    As a result, in the first set of alternate IBC baseline analyses, 
the Final RIA assumes that all of the three IBC model codes--IBC 2000, 
IBC 2003, and IBC 2006--have been fully adopted by all jurisdictions 
and apply to all facilities nationwide. As with the primary baseline 
scenarios examined in the Final RIA, use of these three alternate IBC 
baselines results in positive expected NPVs in all cases. See Final 
RIA, figure ES-4. These results also indicate that IBC 2000 and IBC 
2006 respectively have the highest and lowest expected NPVs. These 
results are due to changes in the make-up of the set of requirements 
that is included in each alternative baseline.
    Additionally, a second, more limited alternate baseline analysis in 
the Final RIA uses a State-specific and requirement-specific alternate 
IBC/ANSI baseline in order to demonstrate the likely actual incremental 
impact of an illustrative subset of 20 requirements under current 
conditions nationwide. For this analysis, research was conducted on a 
subset of 20 requirements in the final rules that have negative net 
present values under the primary baseline and readily identifiable IBC/
ANSI counterparts to determine the extent to which they each 
respectively have been adopted at the State or local level. With 
respect to facilities, the population of adopting jurisdictions was 
used as a proxy for facility location. In other words, it was assumed 
that the number of ADA-covered facilities respectively compliant with 
these 20 requirements was equal to the percentage of the United States 
population (based on statistics from the Census Bureau) currently 
residing in those States or local jurisdictions that have adopted the 
IBC/ANSI counterparts to these requirements. The results of this more 
limited analysis, using State-specific and requirement-specific 
alternate IBC/ANSI baselines for these 20 requirements, demonstrate 
that the widespread adoption of IBC model codes by States and 
localities significantly lessens the financial impact of these specific 
requirements. Indeed, the Final RIA estimates that, if the NPVs for 
these 20 requirements resulting from the requirement-specific alternate 
IBC/ANSI baseline are substituted for their respective results under 
the primary baseline, the overall NPV for the final rules increases 
from $9.2 billion to $12.0 billion. See Final RIA, section 6.2.2 & 
table 10.

Benefits Not Monetized in the Formal Analysis

    Finally, the RIA recognizes that additional benefits are likely to 
result from the new standards. Many of these benefits are more 
difficult to quantify. Among the potential benefits that have been 
discussed by researchers and advocates are reduced administrative costs 
due to harmonized guidelines, increased business opportunities, 
increased social development, and improved health benefits. For 
example, the final rules will substantially increase accessibility at 
newly scoped facilities such as recreation facilities and judicial 
facilities, which previously have been very difficult for persons with 
disabilities to access. Areas where the Department believes entities 
may incur benefits that are not monetized in the formal analysis 
include, but may not be limited to, the following:
    Use benefits accruing to persons with disabilities. The final rules 
should improve the overall sense of well-being of persons with 
disabilities, who will know that public entities and places of public 
accommodation are generally accessible, and who will have improved 
individual experiences. Some of the most frequently cited qualitative 
benefits of increased access are the increase in one's personal sense 
of dignity that arises from increased access and the decrease in 
possibly humiliating incidents due to accessibility barriers. 
Struggling to join classmates on a stage, to use a bathroom with too 
little clearance, or to enter a swimming pool all negatively affect a 
person's sense of independence and can lead to humiliating accidents, 
derisive comments, or embarrassment. These humiliations, together with 
feelings of being stigmatized as different or inferior from being 
relegated to use other, less comfortable or pleasant elements of a 
facility (such as a bathroom instead of a kitchen sink for rinsing a 
coffee mug at work), all have a negative effect on persons with 
disabilities.
    Use benefits accruing to persons without disabilities. Improved 
accessibility can affect more than just the rule's target population; 
persons without disabilities may also benefit from many of the 
requirements. Even though the requirements were not designed to benefit 
persons without disabilities, any time savings or easier access to a 
facility experienced by persons without disabilities are also benefits 
that should properly be attributed to that change in accessibility. 
Curb cuts in sidewalks make life easier for those using wheeled 
suitcases or pushing a baby stroller. For people with a lot of luggage 
or a need to change clothes, the larger bathroom stalls can be highly 
valued. A ramp into a pool can allow a child (or adult) with a fear of 
water to ease into that pool. All are examples of ``unintended'' 
benefits of the rule. And ideally, all should be part of the calculus 
of the benefits to society of the rule.
    Social benefits. Evidence supports the notion that children with 
and without disabilities benefit in their social development from 
interaction with one another. Therefore, there will likely be social 
development benefits generated by an increase in accessible play areas. 
However, these benefits are nearly impossible to quantify for several 
reasons. First, there is no guarantee that accessibility will generate 
play opportunities between children with and without disabilities. 
Second, there may be substantial overlap between interactions at 
accessible play areas and interactions at other facilities, such as 
schools and religious facilities. Third, it is not certain what the 
unit of measurement for social development should be.
    Non-use benefits. There are additional, indirect benefits to 
society that arise from improved accessibility. For instance, resource 
savings may arise from reduced social service agency outlays when 
people are able to access centralized points of service delivery rather 
than receiving home-based care. Home-based and other social services 
may include home health care visits and welfare benefits. Third-party 
employment effects can arise when enhanced accessibility results in 
increasing rates of consumption by disabled and non-disabled 
populations, which in turn results in reduced unemployment.

[[Page 56245]]

    Two additional forms of benefits are discussed less often, let 
alone quantified: Option value and existence value. Option value is the 
value that people with and without disabilities derive from the option 
of using accessible facilities at some point in the future. As with 
insurance, people derive benefit from the knowledge that the option to 
use the accessible facility exists, even if it ultimately goes unused. 
Simply because an individual is a non-user of accessible elements today 
does not mean that he or she will remain so tomorrow. In any given 
year, there is some probability that an individual will develop a 
disability (either temporary or permanent) that will necessitate use of 
these features. For example, the 2000 Census found that 41.9 percent of 
adults 65 years and older identified themselves as having a disability. 
Census Bureau figures, moreover, project that the number of people 65 
years and older will more than double between 2000 and 2030--from 35 
million to 71.5 million. Therefore, even individuals who have no direct 
use for accessibility features today get a direct benefit from the 
knowledge of their existence should such individuals need them in the 
future.
    Existence value is the benefit that individuals get from the plain 
existence of a good, service or resource--in this case, accessibility. 
It can also be described as the value that people both with and without 
disabilities derive from the guarantees of equal treatment and non-
discrimination that are accorded through the provision of accessible 
facilities. In other words, people value living in a country that 
affords protections to individuals with disabilities, whether or not 
they themselves are directly or indirectly affected. Unlike use 
benefits and option value, existence value does not require an 
individual ever to use the resource or plan on using the resource in 
the future. There are numerous reasons why individuals might value 
accessibility even if they do not require it now and do not anticipate 
needing it in the future.

Costs Not Monetized in the Formal Analysis

    The Department also recognizes that in addition to benefits that 
cannot reasonably be quantified or monetized, there may be negative 
consequences and costs that fall into this category as well. The 
absence of a quantitative assessment of such costs in the formal 
regulatory analysis is not meant to minimize their importance to 
affected entities; rather, it reflects the inherent difficulty in 
estimating those costs. Areas where the Department believes entities 
may incur costs that are not monetized in the formal analysis include, 
but may not be limited to, the following:
    Costs from deferring or forgoing alterations. Entities covered by 
the final rules may choose to delay otherwise desired alterations to 
their facilities due to the increased incremental costs imposed by 
compliance with the new requirements. This may lead to facility 
deterioration and decrease in the value of such facilities. In extreme 
cases, the costs of complying with the new requirements may lead some 
entities to opt to not build certain facilities at all. For example, 
the Department estimates that the incremental costs of building a new 
wading pool associated with the final rules will increase by about 
$142,500 on average. Some facilities may opt to not build such pools to 
avoid incurring this increased cost.
    Loss of productive space while modifying an existing facility. 
During complex alterations, such as where moving walls or plumbing 
systems will be necessary to comply with the final rules, productive 
space may be unavailable until the alterations are complete. For 
example, a hotel altering its bathrooms to comply with the final rules 
will be unable to allow guests to occupy these rooms while construction 
activities are underway, and thus the hotel may forgo revenue from 
these rooms during this time. While the amount of time necessary to 
perform alterations varies significantly, the costs associated with 
unproductive space could be high in certain cases, especially if space 
is already limited or if an entity or facility is located in an area 
where real estate values are particularly high (e.g., New York or San 
Francisco).
    Expert fees. Another type of cost to entities that is not monetized 
in the formal analysis is legal fees to determine what, if anything, a 
facility needs to do in order to comply with the new rules or to 
respond to lawsuits. Several commenters indicated that entities will 
incur increased legal costs because the requirements are changing for 
the first time since 1991. Since litigation risk could increase, 
entities could spend more on legal fees than in the past. Likewise, 
covered entities may face incremental costs when undertaking 
alterations because their engineers, architects, or other consultants 
may also need to consider what modifications are necessary to comply 
with the new requirements. The Department has not quantified the 
incremental costs of the services of these kinds of experts.
    Reduction in facility value and losses to individuals without 
disabilities due to the new accessibility requirements. It is possible 
that some changes made by entities to their facilities in order to 
comply with the new requirements may result in fewer individuals 
without disabilities using such facilities (because of decreased 
enjoyment) and may create a disadvantage for individuals without 
disabilities, even though the change might increase accessibility for 
individuals with disabilities. For example, the new requirements for 
wading pools might decrease the value of the pool to the entity that 
owns it due to fewer individuals using it (because the new requirements 
for a sloped entry might make the pool too shallow). Similarly, several 
commenters from the miniature golf industry expressed concern that it 
would be difficult to comply with the regulations for accessible holes 
without significantly degrading the experience for other users. 
Finally, with respect to costs to individuals who do not have 
disabilities, a very tall person, for example, may be inconvenienced by 
having to reach further for a lowered light switch.

Section 610 Review

    The Department also is required to conduct a periodic regulatory 
review pursuant to section 610 of the RFA, as amended by the SBREFA.
    The review requires agencies to consider five factors: (1) The 
continued need for the rule; (2) the nature of complaints or comments 
received concerning the rule from the public; (3) the complexity of the 
rule; (4) the extent to which the rule overlaps, duplicates, or 
conflicts with other Federal rules, and, to the extent feasible, with 
State and local governmental rules; and (5) the length of time since 
the rule has been evaluated or the degree to which technology, economic 
conditions, or other factors have changed in the area affected by the 
rule. 5 U.S.C. 610(b). Based on these factors, the agency is required 
to determine whether to continue the rule without change or to amend or 
rescind the rule, to minimize any significant economic impact of the 
rule on a substantial number of small entities. See id. 610(a).
    In developing the 2010 Standards, the Department reviewed the 1991 
Standards section by section, and, as a result, has made several 
clarifications and amendments in both the title II and title III 
implementing regulations. The changes reflect the Department's analysis 
and review of complaints or comments from the public, as well as 
changes in technology. Many of the

[[Page 56246]]

amendments aim to clarify and simplify the obligations of covered 
entities. As discussed in greater detail above, one significant goal of 
the development of the 2004 ADAAG was to eliminate duplication or 
overlap in Federal accessibility guidelines, as well as to harmonize 
the Federal guidelines with model codes. The Department also has worked 
to create harmony where appropriate between the requirements of titles 
II and III. Finally, while the regulation is required by statute and 
there is a continued need for it as a whole, the Department proposes 
several modifications that are intended to reduce its effects on small 
entities.
    The Department has consulted with the Small Business 
Administration's Office of Advocacy about this process. The Office of 
Advocacy has advised that although the process followed by the 
Department was ancillary to the proposed adoption of revised ADA 
Standards, the steps taken to solicit public input and to respond to 
public concerns are functionally equivalent to the process required to 
complete a section 610 review. Therefore, this rulemaking fulfills the 
Department's obligations under the RFA.

Final Regulatory Flexibility Analysis

    This final rule also has been reviewed by the Small Business 
Administration's Office of Advocacy (Advocacy) in accordance with 
Executive Order 13272, 67 FR 53461, 3 CFR, 2003 Comp., p. 247. Chapter 
Seven of the Final RIA demonstrates that the final rule will not have a 
significant economic impact on a substantial number of small entities. 
The Department has also conducted a final regulatory flexibility 
analysis (FRFA) as a component of this rulemaking. Collectively, the 
ANPRM, NPRM, Initial RIA, Final RIA, and 2010 Standards include all of 
the elements of a FRFA required by the RFA. See 5 U.S.C. 604(a)(1)-(5).
    Section 604(a) lists the specific requirements for a FRFA. The 
Department has addressed these RFA requirements throughout the ANPRM, 
NPRM, the 2010 Standards, and the RIA. In summary, the Department has 
satisfied its FRFA obligations under section 604(a) by providing the 
following:
    1. Succinct summaries of the need for, and objectives of, the final 
rule. The Department is issuing this final rule in order to comply with 
its obligations under both the ADA and the SBREFA. The Department is 
also updating or amending certain provisions of the existing title III 
regulation so that they are consistent with the title II regulations 
and comport with the Department's legal and practical experiences in 
enforcing the ADA.
    The ADA requires the Department to adopt enforceable accessibility 
standards under the ADA that are consistent with the Access Board's 
minimum accessibility guidelines and requirements. Accordingly, this 
rule adopts ADA Chapter 1, ADA Chapter 2, and Chapters 3 through 10 of 
the 2004 ADA/ABA Guidelines as part of the 2010 Standards, which will 
give the guidelines legal effect with respect to the Department's title 
II and title III regulations.
    Under the SBREFA, the Department is required to perform a periodic 
review of its 1991 rule because the rule may have a significant 
economic impact on a substantial number of small entities. The SBREFA 
also requires the Department to make a regulatory assessment of the 
costs and benefits of any significant regulatory action. See preamble 
sections of the final rules for titles II and III entitled ``Summary''; 
Department of Justice Advanced Notice of Proposed Rulemaking, 69 FR 
58768, 58768B70, (Sept. 30, 2004) (outlining the regulatory history, 
goals, and rationale underlying the Department's proposal to revise its 
regulations implementing titles II and III of the ADA); and Department 
of Justice Notice of Proposed Rulemaking, 73 FR 34508, 34508B14 (June 
17, 2008) (outlining the regulatory history and rationale underlying 
the Department's proposal to revise its regulations implementing titles 
II and III of the ADA).
    2. Summaries of significant issues raised by public comments in 
response to the Department's initial regulatory flexibility analysis 
(IRFA) and discussions of regulatory revisions made as a result of such 
comments. The majority of the comments received by the Department 
addressing its IRFA set forth in the title III NPRM were submitted by 
the Advocacy. Advocacy acknowledged that the Department took into 
account the comments and concerns of small businesses; however, 
Advocacy remained concerned about certain items in the Department's 
NPRM and requested clarification or additional guidance on certain 
items.
    General Safe Harbor. Advocacy expressed support for the 
Department's proposal to allow an element-by-element safe harbor for 
elements that now comply with the 1991 Standards and encouraged the 
Department to include specific technical assistance in the Small 
Business Compliance Guide that the Department is required to publish 
pursuant to section 212 of the SBREFA, 5 U.S.C. 610 et seq. Advocacy 
requested that technical assistance outlining which standards are 
subject to the safe harbor be included in the Department's guidance. 
The Department has provided a list of the new requirements in the 2010 
Standards that are not eligible for the safe harbor in Sec.  
36.304(d)(2)(iii)(A)-(L) of the final rule and plans to include 
additional information about the application of the safe harbor in the 
Department's Small Business Compliance Guide. Advocacy also requested 
that guidance regarding the two effective dates for regulations also be 
provided, and the Department plans to include such guidance in its 
Small Business Compliance Guide.
    Small Business Safe Harbor. Advocacy expressed disappointment that 
the Department did not include a small business safe harbor in the 
final rule. In the NPRM, the Department proposed to include a small 
business safe harbor. Advocacy conceptually supported this safe harbor 
but had concerns regarding its application. Commenters from both the 
disability community and the business community uniformly, and quite 
adamantly, opposed the Department's proposal. Some business commenters 
suggested alternative safe harbors, but there was no common thread 
among their suggestions that would enable the Department to craft a 
proposal that would draw support from the affected communities.
    Advocacy recommended that the Department continue to study how the 
proposed small business safe harbor might be made workable in future 
rulemakings, and recommended that the Department also seek other 
alternatives that minimize the economic impact of the ADA rulemakings 
in the future. The Department is mindful of its obligations under the 
SBREFA and will be sensitive to the need to mitigate costs for small 
businesses in any future rulemaking; however, based on the information 
currently available, the Department has declined to commit to a 
specific regulatory approach in the final rule.
    Indirect Costs. Advocacy and other commenters representing business 
interests expressed concern that businesses would incur substantial 
indirect costs under the final rule for accessibility consultants, 
legal counsel, training, and the development of new policies and 
procedures. The Department believes that such ``indirect costs,'' even 
assuming they would occur as described by these commenters, are not 
properly attributed to the Department's final rule implementing the 
ADA.
    The vast majority of the new requirements are incremental changes 
subject to a safe harbor. All businesses

[[Page 56247]]

currently in compliance with the 1991 Standards will neither need to 
undertake further retrofits nor require the services of a consultant to 
tell them so. If, on the other hand, elements at an existing facility 
are not currently in compliance with the 1991 Standards, then the cost 
of making such a determination and bringing these elements into 
compliance are not properly attributed to the final rule, but to lack 
of compliance with the 1991 Standards.
    For the limited number of requirements in the final rule that are 
supplemental, the Department believes that covered entities simply need 
to determine whether they have an element covered by a supplemental 
requirement (e.g., a swimming pool) and then conduct any necessary 
barrier removal work either in-house or by contacting a local 
contractor. Determining whether such an element exists is expected to 
take only a minimal amount of staff time. Nevertheless, Chapter 5 of 
the Final RIA has a high-end estimate of the additional management 
costs of such evaluation (from 1 to 8 hours of staff time).
    The Department also anticipates that businesses will incur minimal 
costs for accessibility consultants to ensure compliance with the new 
requirements for New Construction and Alterations in the final rule. 
Both the 2004 ADAAG and the proposed requirements have been made public 
for some time and are already being incorporated into design plans by 
architects and builders. Further, in adopting the final rule, the 
Department has sought to harmonize, to the greatest extent possible, 
the ADA Standards with model codes that have been adopted on a 
widespread basis by State and local jurisdictions across the country. 
Accordingly, many of the requirements in the final rule are already 
incorporated into building codes nationwide. Additionally, it is 
assumed to be part of the regular course of business--and thereby 
incorporated into standard professional services or construction 
contracts--for architects and contractors to keep abreast of changes in 
applicable Federal, State, and local laws and building codes. Given 
these considerations, the Department has determined that the additional 
costs, if any, for architectural or contractor services that arise out 
of the final rule should be minimal.
    Some commenters stated that the final rule would require them to 
develop new policies or manuals to retrain employees on the revised ADA 
standards. However, it is the Department's view that because the 
revised and supplemental requirements address architectural issues and 
features, the final rule would require minimal, if any, changes to the 
overall policies and procedures of covered entities.
    Finally, commenters representing business interests expressed the 
view that the final rule would cause businesses to incur significant 
legal costs in order to defend ADA lawsuits. However, regulatory impact 
analyses are not an appropriate forum for assessing the cost covered 
entities may bear, or the repercussions they may face, for failing to 
comply (or allegedly failing to comply) with current law. See Final 
RIA, Ch. 3, section 3.1.4, ``Other Management Transition Costs''; Ch. 
5, ``Updates to the Regulatory Impact Analysis''; and table 15, 
``Impact of NPV of Estimated Managerial Costs for Supplemental 
Requirements at All Facilities.''
    3. Estimates of the number and type of small entities to which the 
final rule will apply. The Department estimates that the final rule 
will apply to approximately three million small entities or facilities 
covered by title III. See Final RIA, Ch. 7, ``Small Business Impact 
Analysis,'' table 17, and app. 5, ``Small Business Data''; see also 73 
FR 36964, 36996-37009 (June 30, 2008) (estimating the number of small 
entities the Department believes may be impacted by the NPRM and 
calculating the likely incremental economic impact of the rule on small 
facilities/entities versus ``typical'' (i.e., average-sized) 
facilities/entities).
    4. A description of the projected reporting, record-keeping, and 
other compliance requirements of the final rule, including an estimate 
of the classes of small entities that will be subject to the 
requirement and the type of professional skills necessary for 
preparation of the report or record. The final rule imposes no new 
record-keeping or reporting requirements. See preamble section entitled 
``Paperwork Reduction Act.'' Small entities may incur costs as a result 
of complying with the final rules. These costs are detailed in the 
Final RIA, Chapter 7, ``Small Business Impact Analysis'' and 
accompanying Appendix 5, ``Small Business Data.''
    5. Descriptions of the steps taken by the Department to minimize 
any significant economic impact on small entities consistent with the 
stated objectives of the ADA, including the reasons for selecting the 
alternatives adopted in the final rule and for rejecting other 
significant alternatives. From the outset of this rulemaking, the 
Department has been mindful of small entities and has taken numerous 
steps to minimize the impact of the final rule on small businesses. 
Several of these steps are summarized below.
    As an initial matter, the Department--as a voting member of the 
Access Board--was extensively involved in the development of the 2004 
ADAAG. These guidelines, which are incorporated into the 2010 
Standards, reflect a conscious effort to mitigate any significant 
economic impact on small businesses in several respects. First, one of 
the express goals of the 2004 ADAAG is harmonization of Federal 
accessibility guidelines with industry standards and model codes that 
often form the basis of State and local building codes, thereby 
minimizing the impact of these guidelines on all covered entities, but 
especially small businesses. Second, the 2004 ADAAG is the product of a 
10-year rulemaking effort in which a host of private and public 
entities, including small business groups, worked cooperatively to 
develop accessibility guidelines that achieved an appropriate balance 
between accessibility and cost. For example, as originally recommended 
by the Access Board's Recreation Access Advisory Committee, all holes 
on a miniature golf course would be required to be accessible except 
for sloped surfaces where the ball could not come to rest. See, e.g., 
``ADA Accessibility Guidelines for Buildings and Facilities--Recreation 
Facilities and Outdoor Developed Areas,'' Access Board Advance Notice 
of Proposed Rulemaking, 59 FR 48542 (Sept. 21, 1994). Miniature golf 
trade groups and facility operators, who are nearly all small 
businesses, expressed significant concern that such requirements would 
be prohibitively expensive, would require additional space, and might 
fundamentally alter the nature of their courses. See, e.g., ``ADA 
Accessibility Guidelines for Buildings and Facilities--Recreation 
Facilities,'' Access Board Notice of Proposed Rulemaking, 64 FR 37326 
(July 9, 1999). In consideration of such concerns and after holding 
informational meetings with miniature golf representatives and persons 
with disabilities, the Access Board significantly revised the final 
miniature golf guidelines. The final guidelines not only reduced 
significantly the number of holes required to be accessible to 50 
percent of all holes (with one break in the sequence of consecutive 
holes permitted), but also added an exemption for carpets used on 
playing surfaces, modified ramp landing slope and size requirements, 
and reduced the space required for start of play areas. See, e.g., 
Americans with Disabilities Act (ADA) Accessibility Guidelines for 
Buildings

[[Page 56248]]

and Facilities--Recreation Facilities Final Rule, 36 CFR parts 1190 and 
1191.
    The Department also published an ANPRM to solicit public input on 
the adoption of the 2004 ADAAG as the revised Federal accessibility 
standards implementing titles II and III of the ADA. Among other 
things, the ANPRM specifically invited comment from small entities 
regarding the proposed rule's potential economic impact and suggested 
regulatory alternatives to ameliorate any such impact. See 
``Nondiscrimination on the Basis of Disability by Public Accommodations 
and in Commercial Facilities,'' Department of Justice Advance Notice of 
Proposed Rulemaking, 69 FR 58768, 58778-79 (Sept. 30, 2004). The 
Department received over 900 comments, and small business interests 
figured prominently. See ``Nondiscrimination on the Basis of Disability 
by Public Accommodations and in Commercial Facilities,'' Department of 
Justice Notice of Proposed Rulemaking, 73 FR 34508, 34511, 34550 (June 
17, 2008).
    Subsequently, when the Department published its NPRM in June 2008, 
several regulatory proposals were included to address concerns raised 
by the small business community in ANPRM comments. First, to mitigate 
costs to existing facilities, the Department proposed an element-by-
element safe harbor that would exempt elements in compliance with 
applicable technical and scoping requirements in the 1991 Standards 
from any retrofit obligations under the revised title III rule. Id. at 
34514-15, 34532-33. While this proposed safe harbor applied to title 
III covered entities irrespective of size, it was small businesses that 
especially stood to benefit since, according to comments from small 
business advocates, small businesses are more likely to operate in 
older buildings and facilities. The title III NPRM also offered for 
public comment a novel safe harbor provision specifically designed to 
address small business advocates' request for clearer guidance on the 
readily achievable barrier removal requirement. This proposal provided 
that qualified small businesses would be deemed to have satisfied their 
readily achievable barrier removal obligations for a given year if, 
during that tax year, they had spent at least 1 percent of their 
respective gross revenues undertaking measures in compliance with title 
III barrier removal requirements. Id. at 34538-39. Lastly, the NPRM 
sought public input on the inclusion of reduced scoping provisions for 
certain types of small existing recreation facilities (i.e., swimming 
pools, play areas, and saunas). Id. at 34515, 34534-37.
    During the NPRM comment period, the Department engaged in 
considerable public outreach to the small business community. A public 
hearing was held in Washington, D.C., during which nearly 50 persons, 
including several small business owners, testified in person or by 
phone. See Transcript of the Public Hearing on Notices of Proposed 
Rulemaking (July 15, 2008), available at www.ada.gov/NPRM2008/public_hearing_transcript.htm. This hearing was also streamed live over the 
Internet. By the end of the 60-day comment period, the Department had 
also received nearly 4,500 public comments on the title III NPRM, 
including a significant number of comments reflecting small businesses' 
perspectives on a wide range of regulatory issues.
    In addition to soliciting input from small entities through the 
formal process for public comment, the Department also targeted the 
small business community with less formal regulatory discussions, 
including a Small Business Roundtable convened by the Office of 
Advocacy and held at the offices of the Small Business Administration 
in Washington, D.C., and an informational question-and-answer session 
concerning the titles II and III NPRMs at the Department of Justice in 
which business representatives attended in-person and by telephone. 
These outreach efforts provided the small business community with 
information on the NPRM proposals being considered by the Department 
and gave small businesses the opportunity to ask questions of the 
Department and provide feedback.
    As a result of the feedback provided by representatives of small 
business interests on the title III NPRM, the Department was able to 
assess the impact of various alternatives on small businesses before 
adopting its final rule and took steps to minimize any significant 
impact on small entities. Most notably, the final rule retains the 
element-by-element safe harbor for which the small business community 
voiced strong support. See Appendix A discussion of removal of barriers 
(Sec.  36.304). The Department believes that this element-by-element 
safe harbor provision will go a long way toward mitigating the economic 
impact of the final rule on existing facilities owned or operated by 
small businesses. Indeed, as demonstrated in the Final RIA, the 
element-by-element safe harbor will provide substantial relief to small 
businesses that is estimated at $ 7.5 billion over the expected life of 
the final rule.
    Additional regulatory measures mitigating the economic impact of 
the final rule on title III-covered entities (including small 
businesses) include deletion of the proposed requirement for captioning 
of safety and emergency information on scoreboards at sporting venues, 
retention of the proposed path of travel safe harbor, extension of the 
compliance date of the 2010 Standards as applied to new construction 
and alterations from 6 months to 18 months after publication of the 
final rule, and, in response to public comments, modification of the 
triggering event for application of the 2010 Standards to new 
construction and alterations from a unitary approach (commencement of 
physical construction) to a two-pronged approach (date of last 
application for building permit or commencement of physical 
construction) depending on whether a building permit is or is not 
required for the type of construction at issue by State or local 
building authorities. See Appendix A discussions of captioning at 
sporting venues (Sec.  36.303), alterations and path of travel (Sec.  
36.403), and compliance dates and triggering events for new 
construction and alterations (Sec.  36.406).
    Two sets of proposed alternative measures that would have 
potentially provided some cost savings to small businesses--the safe 
harbor for qualified small businesses and reduced scoping for certain 
existing recreation facilities--were not adopted by the Department in 
the final rule. As discussed in more depth previously, the safe harbor 
for qualified small businesses was omitted from the final rule because 
the general safe harbor already provides significant relief for small 
businesses located in existing facilities, the proposed safe harbor 
provision lacked support from the small business community and no 
consensus emerged from business commenters concerning feasible bases 
for the final regulatory provision, and commenters noted practical 
considerations that would potentially make some small businesses incur 
greater expense or administrative burden. See Appendix A discussion of 
the safe harbor for qualified small businesses (Sec.  36.304).
    The Department also omitted the proposals to reduce scoping for 
certain existing recreation facilities in the final rule. While these 
proposals were not specific to small entities, they nonetheless might 
have mitigated the impact of the final rule for some small businesses 
that owned or operated existing facilities at which these recreational 
elements were located. See

[[Page 56249]]

Appendix A discussion of reduced scoping for play areas and other 
recreation facilities (Sec.  36.304). The Department gave careful 
consideration to how best to insulate small businesses from overly 
burdensome barrier removal costs under the 2010 Standards for existing 
small play areas, swimming pools, and saunas, while still providing 
accessible and integrated recreation facilities that are of great 
importance to persons with disabilities. The Department concluded that 
the existing readily achievable barrier removal standard, rather than 
specific exemptions for these types of existing facilities, is the most 
efficacious method by which to protect small businesses.
    Once the final rule is promulgated, small businesses will also have 
a wealth of documents to assist them in complying with the 2010 
Standards. For example, accompanying the final rule in the Federal 
Register is the Department's ``Analysis and Commentary on the 2010 ADA 
Standards for Accessible Design,'' which provides a plain language 
description of the revised scoping and technical requirements in these 
Standards and provides illustrative figures. The Department also 
expects to publish guidance specifically tailored to small businesses 
in the form of a small business compliance guide, as well as to publish 
technical assistance materials of general interest to all covered 
entities following promulgation of the final rule. Additionally, the 
Access Board has published a number of guides that discuss and 
illustrate application of the 2010 Standards to play areas and various 
types of recreation facilities.

Executive Order 13132: Federalism

    Executive Order 13132, 64 FR 43255, 3 CFR, 2000 Comp., p. 206, 
requires executive branch agencies to consider whether a rule will have 
federalism implications. That is, the rulemaking agency must determine 
whether the rule is likely to have substantial direct effects on State 
and local governments, a substantial direct effect on the relationship 
between the Federal government and the States and localities, or a 
substantial direct effect on the distribution of power and 
responsibilities among the different levels of government. If an agency 
believes that a rule is likely to have federalism implications, it must 
consult with State and local elected officials about how to minimize or 
eliminate the effects.
    Title III of the ADA covers public accommodations and commercial 
facilities. These facilities are generally subject to regulation by 
different levels of government, including Federal, State, and local 
governments. The ADA and the 2010 Standards set minimum civil rights 
protections for individuals with disabilities that in turn may affect 
the implementation of State and local laws, particularly building 
codes. The 2010 Standards address federalism concerns and mitigate 
federalism implications, particularly the provisions that streamline 
the administrative process for State and local governments seeking ADA 
code certification under title III.
    As a member of the Access Board, the Department was privy to 
substantial feedback from State and local governments throughout the 
development of the Board's 2004 guidelines. Before those guidelines 
were finalized as the 2004 ADA/ABA Guidelines, they addressed and 
minimized federalism concerns expressed by State and local governments 
during the development process. Because the Department adopted ADA 
Chapter 1, ADA Chapter 2, and Chapters 3 through 10 of the 2004 ADA/ABA 
Guidelines as part of the 2010 Standards, the steps taken in the 2004 
ADA/ABA Guidelines to address federalism concerns are reflected in the 
2010 Standards.
    The Department also solicited and received input from public 
entities in the September 2004 ANPRM and the June 2008 NPRM. Through 
the ANPRM and NPRM processes, the Department solicited comments from 
elected State and local officials and their representative national 
organizations about the potential federalism implications. The 
Department received comments addressing whether the ANPRM and NPRM 
directly affected State and local governments, the relationship between 
the Federal government and the States, and the distribution of power 
and responsibilities among the various levels of government. The rule 
preempts State laws affecting entities subject to the ADA only to the 
extent that those laws conflict with the requirements of the ADA, as 
set forth in the rule.

National Technology Transfer and Advancement Act of 1995

    The National Technology Transfer and Advancement Act of 1995 
(NTTAA) directs that, as a general matter, all Federal agencies and 
departments shall use technical standards that are developed or adopted 
by voluntary consensus standards bodies, which are private, generally 
non-profit organizations that develop technical standards or 
specifications using well-defined procedures that require openness, 
balanced participation among affected interests and groups, fairness 
and due process, and an opportunity for appeal, as a means to carry out 
policy objectives or activities. Public Law 104-113 section 12(d)(1) 
(15 U.S.C. 272 Note). In addition, the NTTAA directs agencies to 
consult with voluntary, private sector, consensus standards bodies and 
requires that agencies participate with such bodies in the development 
of technical standards when such participation is in the public 
interest and is compatible with agency and departmental missions, 
authorities, priorities, and budget resources. Id. section 12(d)(1). 
The Department, as a member of the Access Board, was an active 
participant in the lengthy process of developing the 2004 ADAAG, on 
which the 2010 Standards are based. As part of this update, the Board 
has made its guidelines more consistent with model building codes, such 
as the IBC, and industry standards. It coordinated extensively with 
model code groups and standard-setting bodies throughout the process so 
that differences could be reconciled. As a result, an historic level of 
harmonization has been achieved that has brought about improvements to 
the guidelines, as well as to counterpart provisions in the IBC and key 
industry standards, including those for accessible facilities issued 
through the American National Standards Institute.

Plain Language Instructions

    The Department makes every effort to promote clarity and 
transparency in its rulemaking. In any regulation, there is a tension 
between drafting language that is simple and straightforward and 
drafting language that gives full effect to issues of legal 
interpretation. The Department operates a toll-free ADA Information 
Line (800) 514-0301 (voice); (800) 514-0383 (TTY) that the public is 
welcome to call at any time to obtain assistance in understanding 
anything in this rule. If any commenter has suggestions for how the 
regulation could be written more clearly, please contact Janet L. 
Blizard, Deputy Chief, Disability Rights Section, whose contact 
information is provided in the introductory section of this rule, 
entitled FOR FURTHER INFORMATION CONTACT.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1980 (PRA) requires agencies to 
clear forms and recordkeeping requirements with OMB before they can be 
introduced. 44 U.S.C. 3501 et seq. This rule does not contain any 
paperwork or recordkeeping requirements and does not require clearance 
under the PRA.

[[Page 56250]]

Unfunded Mandates Reform Act

    Section 4(2) of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 
1503(2), excludes from coverage under that Act any proposed or final 
Federal regulation that ``establishes or enforces any statutory rights 
that prohibit discrimination on the basis of race, color, religion, 
sex, national origin, age, handicap, or disability.'' Accordingly, this 
rulemaking is not subject to the provisions of the Unfunded Mandates 
Reform Act.

List of Subjects for 28 CFR Part 36

    Administrative practice and procedure, Buildings and facilities, 
Business and industry, Civil rights, Individuals with disabilities, 
Penalties, Reporting and recordkeeping requirements.

0
By the authority vested in me as Attorney General by law, including 28 
U.S.C. 509 and 510, 5 U.S.C. 301, and section 306 of the Americans with 
Disabilities Act of 1990, Public Law 101-336 (42 U.S.C. 12186), and for 
the reasons set forth in Appendix A to 28 CFR part 36, chapter I of 
title 28 of the Code of Federal Regulations is amended as follows:

PART 36--NONDISCRIMINATION ON THE BASIS OF DISABILITY BY PUBLIC 
ACCOMMODATIONS AND IN COMMERCIAL FACILITIES

Subpart A--General

0
1. The authority citation for 28 CFR part 36 is revised to read as 
follows:

    Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12186(b).

0
2. Amend Sec.  36.104 by adding the following definitions of 1991 
Standards, 2004 ADAAG, 2010 Standards, direct threat, existing 
facility, housing at a place of education, other power-driven mobility 
device, qualified reader, video remote interpreting (VRI) service, and 
wheelchair in alphabetical order and revising the definitions of place 
of public accommodation, qualified interpreter, and service animal to 
read as follows:


Sec.  36.104  Definitions.

    1991 Standards means requirements set forth in the ADA Standards 
for Accessible Design, originally published on July 26, 1991, and 
republished as Appendix D to this part.
    2004 ADAAG means the requirements set forth in appendices B and D 
to 36 CFR part 1191 (2009).
    2010 Standards means the 2010 ADA Standards for Accessible Design, 
which consist of the 2004 ADAAG and the requirements contained in 
subpart D of this part.
* * * * *
    Direct threat means a significant risk to the health or safety of 
others that cannot be eliminated by a modification of policies, 
practices, or procedures, or by the provision of auxiliary aids or 
services, as provided in Sec.  36.208.
* * * * *
    Existing facility means a facility in existence on any given date, 
without regard to whether the facility may also be considered newly 
constructed or altered under this part.
* * * * *
    Housing at a place of education means housing operated by or on 
behalf of an elementary, secondary, undergraduate, or postgraduate 
school, or other place of education, including dormitories, suites, 
apartments, or other places of residence.
* * * * *
    Other power-driven mobility device means any mobility device 
powered by batteries, fuel, or other engines--whether or not designed 
primarily for use by individuals with mobility disabilities--that is 
used by individuals with mobility disabilities for the purpose of 
locomotion, including golf cars, electronic personal assistance 
mobility devices (EPAMDs), such as the Segway[supreg] PT, or any 
mobility device designed to operate in areas without defined pedestrian 
routes, but that is not a wheelchair within the meaning of this 
section. This definition does not apply to Federal wilderness areas; 
wheelchairs in such areas are defined in section 508(c)(2) of the ADA, 
42 U.S.C. 12207(c)(2).
* * * * *
    Place of public accommodation means a facility operated by a 
private entity whose operations affect commerce and fall within at 
least one of the following categories--
    (1) Place of lodging, except for an establishment located within a 
facility that contains not more than five rooms for rent or hire and 
that actually is occupied by the proprietor of the establishment as the 
residence of the proprietor. For purposes of this part, a facility is a 
``place of lodging'' if it is--
    (i) An inn, hotel, or motel; or
    (ii) A facility that--
    (A) Provides guest rooms for sleeping for stays that primarily are 
short-term in nature (generally 30 days or less) where the occupant 
does not have the right to return to a specific room or unit after the 
conclusion of his or her stay; and
    (B) Provides guest rooms under conditions and with amenities 
similar to a hotel, motel, or inn, including the following--
    (1) On- or off-site management and reservations service;
    (2) Rooms available on a walk-up or call-in basis;
    (3) Availability of housekeeping or linen service; and
    (4) Acceptance of reservations for a guest room type without 
guaranteeing a particular unit or room until check-in, and without a 
prior lease or security deposit.
* * * * *
    Qualified interpreter means an interpreter who, via a video remote 
interpreting (VRI) service or an on-site appearance, is able to 
interpret effectively, accurately, and impartially, both receptively 
and expressively, using any necessary specialized vocabulary. Qualified 
interpreters include, for example, sign language interpreters, oral 
transliterators, and cued-language transliterators.
* * * * *
    Qualified reader means a person who is able to read effectively, 
accurately, and impartially using any necessary specialized vocabulary.
* * * * *
    Service animal means any dog that is individually trained to do 
work or perform tasks for the benefit of an individual with a 
disability, including a physical, sensory, psychiatric, intellectual, 
or other mental disability. Other species of animals, whether wild or 
domestic, trained or untrained, are not service animals for the 
purposes of this definition. The work or tasks performed by a service 
animal must be directly related to the handler's disability. Examples 
of work or tasks include, but are not limited to, assisting individuals 
who are blind or have low vision with navigation and other tasks, 
alerting individuals who are deaf or hard of hearing to the presence of 
people or sounds, providing non-violent protection or rescue work, 
pulling a wheelchair, assisting an individual during a seizure, 
alerting individuals to the presence of allergens, retrieving items 
such as medicine or the telephone, providing physical support and 
assistance with balance and stability to individuals with mobility 
disabilities, and helping persons with psychiatric and neurological 
disabilities by preventing or interrupting impulsive or destructive 
behaviors. The crime deterrent effects of an animal's presence and the 
provision of emotional support, well-being, comfort, or companionship 
do not constitute work or tasks for the purposes of this definition.
* * * * *

[[Page 56251]]

    Video remote interpreting (VRI) service means an interpreting 
service that uses video conference technology over dedicated lines or 
wireless technology offering high-speed, wide-bandwidth video 
connection that delivers high-quality video images as provided in Sec.  
36.303(f).
* * * * *
    Wheelchair means a manually-operated or power-driven device 
designed primarily for use by an individual with a mobility disability 
for the main purpose of indoor or of both indoor and outdoor 
locomotion. This definition does not apply to Federal wilderness areas; 
wheelchairs in such areas are defined in section 508(c)(2) of the ADA, 
42 U.S.C. 12207(c)(2).

Subpart B--General Requirements

0
3. Amend Sec.  36.208 by removing paragraph (b) and redesignating 
paragraph (c) as paragraph (b) and by revising redesignated paragraph 
(b) to read as follows:


Sec.  36.208  Direct threat.

* * * * *
    (b) In determining whether an individual poses a direct threat to 
the health or safety of others, a public accommodation must make an 
individualized assessment, based on reasonable judgment that relies on 
current medical knowledge or on the best available objective evidence, 
to ascertain: The nature, duration, and severity of the risk; the 
probability that the potential injury will actually occur; and whether 
reasonable modifications of policies, practices, or procedures or the 
provision of auxiliary aids or services will mitigate the risk.

0
4. Amend Sec.  36.211 by adding paragraph (c) to read as follows:


Sec.  36.211  Maintenance of accessible features.

* * * * *
    (c) If the 2010 Standards reduce the technical requirements or the 
number of required accessible elements below the number required by the 
1991 Standards, the technical requirements or the number of accessible 
elements in a facility subject to this part may be reduced in 
accordance with the requirements of the 2010 Standards.

Subpart C--Specific Requirements

0
5. Amend Sec.  36.302 as follows:
0
a. Revise paragraph (c)(2); and
0
b. Add paragraphs (c)(3) through (c)(9) and paragraphs (e) and (f) to 
read as follows:


Sec.  36.302  Modifications in policies, practices, or procedures.

    (c) * * *
    (2) Exceptions. A public accommodation may ask an individual with a 
disability to remove a service animal from the premises if:
    (i) The animal is out of control and the animal's handler does not 
take effective action to control it; or
    (ii) The animal is not housebroken.
    (3) If an animal is properly excluded. If a public accommodation 
properly excludes a service animal under Sec.  36.302(c)(2), it shall 
give the individual with a disability the opportunity to obtain goods, 
services, and accommodations without having the service animal on the 
premises.
    (4) Animal under handler's control. A service animal shall be under 
the control of its handler. A service animal shall have a harness, 
leash, or other tether, unless either the handler is unable because of 
a disability to use a harness, leash, or other tether, or the use of a 
harness, leash, or other tether would interfere with the service 
animal's safe, effective performance of work or tasks, in which case 
the service animal must be otherwise under the handler's control (e.g., 
voice control, signals, or other effective means).
    (5) Care or supervision. A public accommodation is not responsible 
for the care or supervision of a service animal.
    (6) Inquiries. A public accommodation shall not ask about the 
nature or extent of a person's disability, but may make two inquiries 
to determine whether an animal qualifies as a service animal. A public 
accommodation may ask if the animal is required because of a disability 
and what work or task the animal has been trained to perform. A public 
accommodation shall not require documentation, such as proof that the 
animal has been certified, trained, or licensed as a service animal. 
Generally, a public accommodation may not make these inquiries about a 
service animal when it is readily apparent that an animal is trained to 
do work or perform tasks for an individual with a disability (e.g., the 
dog is observed guiding an individual who is blind or has low vision, 
pulling a person's wheelchair, or providing assistance with stability 
or balance to an individual with an observable mobility disability).
    (7) Access to areas of a public accommodation. Individuals with 
disabilities shall be permitted to be accompanied by their service 
animals in all areas of a place of public accommodation where members 
of the public, program participants, clients, customers, patrons, or 
invitees, as relevant, are allowed to go.
    (8) Surcharges. A public accommodation shall not ask or require an 
individual with a disability to pay a surcharge, even if people 
accompanied by pets are required to pay fees, or to comply with other 
requirements generally not applicable to people without pets. If a 
public accommodation normally charges individuals for the damage they 
cause, an individual with a disability may be charged for damage caused 
by his or her service animal.
    (9) Miniature horses. (i) A public accommodation shall make 
reasonable modifications in policies, practices, or procedures to 
permit the use of a miniature horse by an individual with a disability 
if the miniature horse has been individually trained to do work or 
perform tasks for the benefit of the individual with a disability.
    (ii) Assessment factors. In determining whether reasonable 
modifications in policies, practices, or procedures can be made to 
allow a miniature horse into a specific facility, a public 
accommodation shall consider--
    (A) The type, size, and weight of the miniature horse and whether 
the facility can accommodate these features;
    (B) Whether the handler has sufficient control of the miniature 
horse;
    (C) Whether the miniature horse is housebroken; and
    (D) Whether the miniature horse's presence in a specific facility 
compromises legitimate safety requirements that are necessary for safe 
operation.
    (iii) Other requirements. Sections 36.302(c)(3) through (c)(8), 
which apply to service animals, shall also apply to miniature horses.
* * * * *
    (e)(1) Reservations made by places of lodging. A public 
accommodation that owns, leases (or leases to), or operates a place of 
lodging shall, with respect to reservations made by telephone, in-
person, or through a third party--
    (i) Modify its policies, practices, or procedures to ensure that 
individuals with disabilities can make reservations for accessible 
guest rooms during the same hours and in the same manner as individuals 
who do not need accessible rooms;
    (ii) Identify and describe accessible features in the hotels and 
guest rooms offered through its reservations service in enough detail 
to reasonably permit individuals with disabilities to assess 
independently whether a given hotel or guest room meets his or her 
accessibility needs;

[[Page 56252]]

    (iii) Ensure that accessible guest rooms are held for use by 
individuals with disabilities until all other guest rooms of that type 
have been rented and the accessible room requested is the only 
remaining room of that type;
    (iv) Reserve, upon request, accessible guest rooms or specific 
types of guest rooms and ensure that the guest rooms requested are 
blocked and removed from all reservations systems; and
    (v) Guarantee that the specific accessible guest room reserved 
through its reservations service is held for the reserving customer, 
regardless of whether a specific room is held in response to 
reservations made by others.
    (2) Exception. The requirements in paragraphs (iii), (iv), and (v) 
of this section do not apply to reservations for individual guest rooms 
or other units not owned or substantially controlled by the entity that 
owns, leases, or operates the overall facility.
    (3) Compliance date. The requirements in this section will apply to 
reservations made on or after March 15, 2012.
    (f) Ticketing. (1)(i) For the purposes of this section, 
``accessible seating'' is defined as wheelchair spaces and companion 
seats that comply with sections 221 and 802 of the 2010 Standards along 
with any other seats required to be offered for sale to the individual 
with a disability pursuant to paragraph (4) of this section.
    (ii) Ticket sales. A public accommodation that sells tickets for a 
single event or series of events shall modify its policies, practices, 
or procedures to ensure that individuals with disabilities have an 
equal opportunity to purchase tickets for accessible seating--
    (A) During the same hours;
    (B) During the same stages of ticket sales, including, but not 
limited to, pre-sales, promotions, lotteries, wait-lists, and general 
sales;
    (C) Through the same methods of distribution;
    (D) In the same types and numbers of ticketing sales outlets, 
including telephone service, in-person ticket sales at the facility, or 
third-party ticketing services, as other patrons; and
    (E) Under the same terms and conditions as other tickets sold for 
the same event or series of events.
    (2) Identification of available accessible seating. A public 
accommodation that sells or distributes tickets for a single event or 
series of events shall, upon inquiry--
    (i) Inform individuals with disabilities, their companions, and 
third parties purchasing tickets for accessible seating on behalf of 
individuals with disabilities of the locations of all unsold or 
otherwise available accessible seating for any ticketed event or events 
at the facility;
    (ii) Identify and describe the features of available accessible 
seating in enough detail to reasonably permit an individual with a 
disability to assess independently whether a given accessible seating 
location meets his or her accessibility needs; and
    (iii) Provide materials, such as seating maps, plans, brochures, 
pricing charts, or other information, that identify accessible seating 
and information relevant thereto with the same text or visual 
representations as other seats, if such materials are provided to the 
general public.
    (3) Ticket prices. The price of tickets for accessible seating for 
a single event or series of events shall not be set higher than the 
price for other tickets in the same seating section for the same event 
or series of events. Tickets for accessible seating must be made 
available at all price levels for every event or series of events. If 
tickets for accessible seating at a particular price level cannot be 
provided because barrier removal in an existing facility is not readily 
achievable, then the percentage of tickets for accessible seating that 
should have been available at that price level but for the barriers 
(determined by the ratio of the total number of tickets at that price 
level to the total number of tickets in the assembly area) shall be 
offered for purchase, at that price level, in a nearby or similar 
accessible location.
    (4) Purchasing multiple tickets. (i) General. For each ticket for a 
wheelchair space purchased by an individual with a disability or a 
third-party purchasing such a ticket at his or her request, a public 
accommodation shall make available for purchase three additional 
tickets for seats in the same row that are contiguous with the 
wheelchair space, provided that at the time of purchase there are three 
such seats available. A public accommodation is not required to provide 
more than three contiguous seats for each wheelchair space. Such seats 
may include wheelchair spaces.
    (ii) Insufficient additional contiguous seats available. If patrons 
are allowed to purchase at least four tickets, and there are fewer than 
three such additional contiguous seat tickets available for purchase, a 
public accommodation shall offer the next highest number of such seat 
tickets available for purchase and shall make up the difference by 
offering tickets for sale for seats that are as close as possible to 
the accessible seats.
    (iii) Sales limited to fewer than four tickets. If a public 
accommodation limits sales of tickets to fewer than four seats per 
patron, then the public accommodation is only obligated to offer as 
many seats to patrons with disabilities, including the ticket for the 
wheelchair space, as it would offer to patrons without disabilities.
    (iv) Maximum number of tickets patrons may purchase exceeds four. 
If patrons are allowed to purchase more than four tickets, a public 
accommodation shall allow patrons with disabilities to purchase up to 
the same number of tickets, including the ticket for the wheelchair 
space.
    (v) Group sales. If a group includes one or more individuals who 
need to use accessible seating because of a mobility disability or 
because their disability requires the use of the accessible features 
that are provided in accessible seating, the group shall be placed in a 
seating area with accessible seating so that, if possible, the group 
can sit together. If it is necessary to divide the group, it should be 
divided so that the individuals in the group who use wheelchairs are 
not isolated from their group.
    (5) Hold and release of tickets for accessible seating. (i) Tickets 
for accessible seating may be released for sale in certain limited 
circumstances. A public accommodation may release unsold tickets for 
accessible seating for sale to individuals without disabilities for 
their own use for a single event or series of events only under the 
following circumstances--
    (A) When all non-accessible tickets (excluding luxury boxes, club 
boxes, or suites) have been sold;
    (B) When all non-accessible tickets in a designated seating area 
have been sold and the tickets for accessible seating are being 
released in the same designated area; or
    (C) When all non-accessible tickets in a designated price category 
have been sold and the tickets for accessible seating are being 
released within the same designated price category.
    (ii) No requirement to release accessible tickets. Nothing in this 
paragraph requires a facility to release tickets for accessible seating 
to individuals without disabilities for their own use.
    (iii) Release of series-of-events tickets on a series-of-events 
basis. (A) Series-of-events tickets sell-out when no ownership rights 
are attached. When series-of-events tickets are sold out and a public 
accommodation releases and sells accessible seating to individuals 
without disabilities for a series of events, the public accommodation 
shall establish a process that prevents the automatic reassignment of 
the accessible

[[Page 56253]]

seating to such ticket holders for future seasons, future years, or 
future series, so that individuals with disabilities who require the 
features of accessible seating and who become newly eligible to 
purchase tickets when these series-of-events tickets are available for 
purchase have an opportunity to do so.
    (B) Series-of-events tickets when ownership rights are attached. 
When series-of-events tickets with an ownership right in accessible 
seating areas are forfeited or otherwise returned to a public 
accommodation, the public accommodation shall make reasonable 
modifications in its policies, practices, or procedures to afford 
individuals with mobility disabilities or individuals with disabilities 
that require the features of accessible seating an opportunity to 
purchase such tickets in accessible seating areas.
    (6) Ticket transfer. Individuals with disabilities who hold tickets 
for accessible seating shall be permitted to transfer tickets to third 
parties under the same terms and conditions and to the same extent as 
other spectators holding the same type of tickets, whether they are for 
a single event or series of events.
    (7) Secondary ticket market. (i) A public accommodation shall 
modify its policies, practices, or procedures to ensure that an 
individual with a disability may use a ticket acquired in the secondary 
ticket market under the same terms and conditions as other individuals 
who hold a ticket acquired in the secondary ticket market for the same 
event or series of events.
    (ii) If an individual with a disability acquires a ticket or series 
of tickets to an inaccessible seat through the secondary market, a 
public accommodation shall make reasonable modifications to its 
policies, practices, or procedures to allow the individual to exchange 
his ticket for one to an accessible seat in a comparable location if 
accessible seating is vacant at the time the individual presents the 
ticket to the public accommodation.
    (8) Prevention of fraud in purchase of tickets for accessible 
seating. A public accommodation may not require proof of disability, 
including, for example, a doctor's note, before selling tickets for 
accessible seating.
    (i) Single-event tickets. For the sale of single-event tickets, it 
is permissible to inquire whether the individual purchasing the tickets 
for accessible seating has a mobility disability or a disability that 
requires the use of the accessible features that are provided in 
accessible seating, or is purchasing the tickets for an individual who 
has a mobility disability or a disability that requires the use of the 
accessible features that are provided in the accessible seating.
    (ii) Series-of-events tickets. For series-of-events tickets, it is 
permissible to ask the individual purchasing the tickets for accessible 
seating to attest in writing that the accessible seating is for a 
person who has a mobility disability or a disability that requires the 
use of the accessible features that are provided in the accessible 
seating.
    (iii) Investigation of fraud. A public accommodation may 
investigate the potential misuse of accessible seating where there is 
good cause to believe that such seating has been purchased 
fraudulently.

0
6. Amend Sec.  36.303 as follows:
0
a. Revise paragraphs (b)(1), (b)(2), (c), and (d);
0
b. Redesignate paragraph (f) as paragraph (g); and
0
c. Add paragraph (f) to read as follows:


Sec.  36.303  Auxiliary aids and services.

* * * * *
    (b) * * *
    (1) Qualified interpreters on-site or through video remote 
interpreting (VRI) services; notetakers; real-time computer-aided 
transcription services; written materials; exchange of written notes; 
telephone handset amplifiers; assistive listening devices; assistive 
listening systems; telephones compatible with hearing aids; closed 
caption decoders; open and closed captioning, including real-time 
captioning; voice, text, and video-based telecommunications products 
and systems, including text telephones (TTYs), videophones, and 
captioned telephones, or equally effective telecommunications devices; 
videotext displays; accessible electronic and information technology; 
or other effective methods of making aurally delivered information 
available to individuals who are deaf or hard of hearing;
    (2) Qualified readers; taped texts; audio recordings; Brailled 
materials and displays; screen reader software; magnification software; 
optical readers; secondary auditory programs (SAP); large print 
materials; accessible electronic and information technology; or other 
effective methods of making visually delivered materials available to 
individuals who are blind or have low vision;
* * * * *
    (c) Effective communication.
    (1) A public accommodation shall furnish appropriate auxiliary aids 
and services where necessary to ensure effective communication with 
individuals with disabilities. This includes an obligation to provide 
effective communication to companions who are individuals with 
disabilities.
    (i) For purposes of this section, ``companion'' means a family 
member, friend, or associate of an individual seeking access to, or 
participating in, the goods, services, facilities, privileges, 
advantages, or accommodations of a public accommodation, who, along 
with such individual, is an appropriate person with whom the public 
accommodation should communicate.
    (ii) The type of auxiliary aid or service necessary to ensure 
effective communication will vary in accordance with the method of 
communication used by the individual; the nature, length, and 
complexity of the communication involved; and the context in which the 
communication is taking place. A public accommodation should consult 
with individuals with disabilities whenever possible to determine what 
type of auxiliary aid is needed to ensure effective communication, but 
the ultimate decision as to what measures to take rests with the public 
accommodation, provided that the method chosen results in effective 
communication. In order to be effective, auxiliary aids and services 
must be provided in accessible formats, in a timely manner, and in such 
a way as to protect the privacy and independence of the individual with 
a disability.
    (2) A public accommodation shall not require an individual with a 
disability to bring another individual to interpret for him or her.
    (3) A public accommodation shall not rely on an adult accompanying 
an individual with a disability to interpret or facilitate 
communication, except--
    (i) In an emergency involving an imminent threat to the safety or 
welfare of an individual or the public where there is no interpreter 
available; or
    (ii) Where the individual with a disability specifically requests 
that the accompanying adult interpret or facilitate communication, the 
accompanying adult agrees to provide such assistance, and reliance on 
that adult for such assistance is appropriate under the circumstances.
    (4) A public accommodation shall not rely on a minor child to 
interpret or facilitate communication, except in an emergency involving 
an imminent threat to the safety or welfare of an individual or the 
public where there is no interpreter available.
    (d) Telecommunications. (1) When a public accommodation uses an 
automated-attendant system, including, but not limited to, voicemail 
and messaging, or an interactive voice

[[Page 56254]]

response system, for receiving and directing incoming telephone calls, 
that system must provide effective real-time communication with 
individuals using auxiliary aids and services, including text 
telephones (TTYs) and all forms of FCC-approved telecommunications 
relay systems, including Internet-based relay systems.
    (2) A public accommodation that offers a customer, client, patient, 
or participant the opportunity to make outgoing telephone calls using 
the public accommodation's equipment on more than an incidental 
convenience basis shall make available accessible public telephones, 
TTYs, or other telecommunications products and systems for use by an 
individual who is deaf or hard of hearing, or has a speech impairment.
    (3) A public accommodation may use relay services in place of 
direct telephone communication for receiving or making telephone calls 
incident to its operations.
    (4) A public accommodation shall respond to telephone calls from a 
telecommunications relay service established under title IV of the ADA 
in the same manner that it responds to other telephone calls.
    (5) This part does not require a public accommodation to use a TTY 
for receiving or making telephone calls incident to its operations.
* * * * *
    (f) Video remote interpreting (VRI) services. A public 
accommodation that chooses to provide qualified interpreters via VRI 
service shall ensure that it provides--
    (1) Real-time, full-motion video and audio over a dedicated high-
speed, wide-bandwidth video connection or wireless connection that 
delivers high-quality video images that do not produce lags, choppy, 
blurry, or grainy images, or irregular pauses in communication;
    (2) A sharply delineated image that is large enough to display the 
interpreter's face, arms, hands, and fingers, and the participating 
individual's face, arms, hands, and fingers, regardless of his or her 
body position;
    (3) A clear, audible transmission of voices; and
    (4) Adequate training to users of the technology and other involved 
individuals so that they may quickly and efficiently set up and operate 
the VRI.
* * * * *

0
7. Amend Sec.  36.304 as follows:
0
a. Revise paragraph (d)(1);
0
b. Redesignate paragraph (d)(2) as (d)(3);
0
c. Amend newly redesignated paragraph (d)(3) by removing the reference 
to ``(d)(1)'' and adding ``(d)(1) and (d)(2)'' in its place;
0
d. Add paragraphs (d)(2) and (g)(4); and
0
e. Add an Appendix to paragraph (d) to read as follows:


Sec.  36.304  Removal of barriers.

* * * * *
    (d) * * * (1) Except as provided in paragraph (d)(3) of this 
section, measures taken to comply with the barrier removal requirements 
of this section shall comply with the applicable requirements for 
alterations in Sec.  36.402 and Sec. Sec.  36.404 through 36.406 of 
this part for the element being altered. The path of travel 
requirements of Sec.  36.403 shall not apply to measures taken solely 
to comply with the barrier removal requirements of this section.
    (d)(2)(i) Safe harbor. Elements that have not been altered in 
existing facilities on or after March 15, 2012 and that comply with the 
corresponding technical and scoping specifications for those elements 
in the 1991 Standards are not required to be modified in order to 
comply with the requirements set forth in the 2010 Standards.
    (ii)(A) Before March 15, 2012, elements in existing facilities that 
do not comply with the corresponding technical and scoping 
specifications for those elements in the 1991 Standards must be 
modified to the extent readily achievable to comply with either the 
1991 Standards or the 2010 Standards. Noncomplying newly constructed 
and altered elements may also be subject to the requirements of Sec.  
36.406(a)(5).
    (B) On or after March 15, 2012, elements in existing facilities 
that do not comply with the corresponding technical and scoping 
specifications for those elements in the 1991 Standards must be 
modified to the extent readily achievable to comply with the 
requirements set forth in the 2010 Standards. Noncomplying newly 
constructed and altered elements may also be subject to the 
requirements of Sec.  36.406(a)(5).
    (iii) The safe harbor provided in Sec.  36.304(d)(2)(i) does not 
apply to those elements in existing facilities that are subject to 
supplemental requirements (i.e., elements for which there are neither 
technical nor scoping specifications in the 1991 Standards), and 
therefore those elements must be modified to the extent readily 
achievable to comply with the 2010 Standards. Noncomplying newly 
constructed and altered elements may also be subject to the 
requirements of Sec.  36.406(a)(5). Elements in the 2010 Standards not 
eligible for the element-by-element safe harbor are identified as 
follows--
    (A) Residential facilities and dwelling units, sections 233 and 
809.
    (B) Amusement rides, sections 234 and 1002; 206.2.9; 216.12.
    (C) Recreational boating facilities, sections 235 and 1003; 
206.2.10.
    (D) Exercise machines and equipment, sections 236 and 1004; 
206.2.13.
    (E) Fishing piers and platforms, sections 237 and 1005; 206.2.14.
    (F) Golf facilities, sections 238 and 1006; 206.2.15.
    (G) Miniature golf facilities, sections 239 and 1007; 206.2.16.
    (H) Play areas, sections 240 and 1008; 206.2.17.
    (I) Saunas and steam rooms, sections 241 and 612.
    (J) Swimming pools, wading pools, and spas, sections 242 and 1009.
    (K) Shooting facilities with firing positions, sections 243 and 
1010.
    (L) Miscellaneous.
    (1) Team or player seating, section 221.2.1.4.
    (2) Accessible route to bowling lanes, section 206.2.11.
    (3) Accessible route in court sports facilities, section 206.2.12.
* * * * *

Appendix to Sec.  36.304(d)

 Compliance Dates and Applicable Standards for Barrier Removal and Safe
                                 Harbor
------------------------------------------------------------------------
                                                           Applicable
             Date                     Requirement           standards
------------------------------------------------------------------------
Before March 15, 2012.........  Elements that do not    1991 Standards
                                 comply with the         or 2010
                                 requirements for        Standards.
                                 those elements in the
                                 1991 Standards must
                                 be modified to the
                                 extent readily
                                 achievable.

[[Page 56255]]

 
                                Note: Noncomplying
                                 newly constructed and
                                 altered elements may
                                 also be subject to
                                 the requirements of
                                 Sec.   36.406(a)(5).
On or after March 15, 2012....  Elements that do not    2010 Standards.
                                 comply with the
                                 requirements for
                                 those elements in the
                                 1991 Standards or
                                 that do not comply
                                 with the supplemental
                                 requirements (i.e.,
                                 elements for which
                                 there are neither
                                 technical nor scoping
                                 specifications in the
                                 1991 Standards) must
                                 be modified to the
                                 extent readily
                                 achievable.
                                Note: Noncomplying
                                 newly constructed and
                                 altered elements may
                                 also be subject to
                                 the requirements of
                                 Sec.   36.406(a)(5).
Elements not altered after      Elements that comply    Safe Harbor.
 March 15, 2012.                 with the requirements
                                 for those elements in
                                 the 1991 Standards do
                                 not need to be
                                 modified.
------------------------------------------------------------------------

* * * * *
    (g) * * *
    (4) This requirement does not apply to guest rooms in existing 
facilities that are places of lodging where the guest rooms are not 
owned by the entity that owns, leases, or operates the overall facility 
and the physical features of the guest room interiors are controlled by 
their individual owners.

0
8. Revise Sec.  36.308 to read as follows:


Sec.  36.308  Seating in assembly areas.

    A public accommodation shall ensure that wheelchair spaces and 
companion seats are provided in each specialty seating area that 
provides spectators with distinct services or amenities that generally 
are not available to other spectators. If it is not readily achievable 
for a public accommodation to place wheelchair spaces and companion 
seats in each such specialty seating area, it shall provide those 
services or amenities to individuals with disabilities and their 
companions at other designated accessible locations at no additional 
cost. The number of wheelchair spaces and companion seats provided in 
specialty seating areas shall be included in, rather than in addition 
to, wheelchair space requirements set forth in table 221.2.1.1 in the 
2010 Standards.

0
9. Amend Sec.  36.309 by adding paragraphs (b)(1)(iv) through (vi) to 
read as follows:


Sec.  36.309  Examinations and courses.

* * * * *
    (b)(1)* * *
    (iv) Any request for documentation, if such documentation is 
required, is reasonable and limited to the need for the modification, 
accommodation, or auxiliary aid or service requested.
    (v) When considering requests for modifications, accommodations, or 
auxiliary aids or services, the entity gives considerable weight to 
documentation of past modifications, accommodations, or auxiliary aids 
or services received in similar testing situations, as well as such 
modifications, accommodations, or related aids and services provided in 
response to an Individualized Education Program (IEP) provided under 
the Individuals with Disabilities Education Act or a plan describing 
services provided pursuant to section 504 of the Rehabilitation Act of 
1973, as amended (often referred to as a Section 504 Plan).
    (vi) The entity responds in a timely manner to requests for 
modifications, accommodations, or aids to ensure equal opportunity for 
individuals with disabilities.
* * * * *
    10. Add Sec.  36.311 to read as follows:


Sec.  36.311  Mobility devices.

    (a) Use of wheelchairs and manually-powered mobility aids. A public 
accommodation shall permit individuals with mobility disabilities to 
use wheelchairs and manually-powered mobility aids, such as walkers, 
crutches, canes, braces, or other similar devices designed for use by 
individuals with mobility disabilities in any areas open to pedestrian 
use.
    (b)(1) Use of other power-driven mobility devices. A public 
accommodation shall make reasonable modifications in its policies, 
practices, or procedures to permit the use of other power-driven 
mobility devices by individuals with mobility disabilities, unless the 
public accommodation can demonstrate that the class of other power-
driven mobility devices cannot be operated in accordance with 
legitimate safety requirements that the public accommodation has 
adopted pursuant to Sec.  36.301(b).
    (2) Assessment factors. In determining whether a particular other 
power-driven mobility device can be allowed in a specific facility as a 
reasonable modification under paragraph (b)(1) of this section, a 
public accommodation shall consider--
    (i) The type, size, weight, dimensions, and speed of the device;
    (ii) The facility's volume of pedestrian traffic (which may vary at 
different times of the day, week, month, or year);
    (iii) The facility's design and operational characteristics (e.g., 
whether its business is conducted indoors, its square footage, the 
density and placement of stationary devices, and the availability of 
storage for the device, if requested by the user);
    (iv) Whether legitimate safety requirements can be established to 
permit the safe operation of the other power-driven mobility device in 
the specific facility; and
    (v) Whether the use of the other power-driven mobility device 
creates a substantial risk of serious harm to the immediate environment 
or natural or cultural resources, or poses a conflict with Federal land 
management laws and regulations.
    (c)(1) Inquiry about disability. A public accommodation shall not 
ask an individual using a wheelchair or other power-driven mobility 
device questions about the nature and extent of the individual's 
disability.
    (2) Inquiry into use of other power-driven mobility device. A 
public accommodation may ask a person using an other power-driven 
mobility device to provide a credible assurance that the mobility 
device is required because of the person's disability. A public 
accommodation that permits the use of an other power-driven mobility 
device by an individual with a mobility disability shall accept the 
presentation

[[Page 56256]]

of a valid, State-issued disability parking placard or card, or State-
issued proof of disability, as a credible assurance that the use of the 
other power-driven mobility device is for the individual's mobility 
disability. In lieu of a valid, State-issued disability parking placard 
or card, or State-issued proof of disability, a public accommodation 
shall accept as a credible assurance a verbal representation, not 
contradicted by observable fact, that the other power-driven mobility 
device is being used for a mobility disability. A ``valid'' disability 
placard or card is one that is presented by the individual to whom it 
was issued and is otherwise in compliance with the State of issuance's 
requirements for disability placards or cards.

Subpart D--New Construction and Alterations

0
11. Amend Sec.  36.403 by retaining the heading of paragraph (a), 
designating the text of paragraph (a) as paragraph (a)(1), adding 
paragraph (a)(2), and revising paragraph (f)(2)(iii) to read as 
follows:


Sec.  36.403  Alterations: Path of travel.

    (a) General. (1) * * *
    (2) If a private entity has constructed or altered required 
elements of a path of travel at a place of public accommodation or 
commercial facility in accordance with the specifications in the 1991 
Standards, the private entity is not required to retrofit such elements 
to reflect the incremental changes in the 2010 Standards solely because 
of an alteration to a primary function area served by that path of 
travel.
* * * * *
    (f) * * *
    (2) * * *
    (iii) Costs associated with providing accessible telephones, such a 
relocating the telephone to an accessible height, installing 
amplification devices, or installing a text telephone (TTY);
* * * * *

0
12. Revise Sec.  36.405 to read as follows:


Sec.  36.405  Alterations: Historic preservation.

    (a) Alterations to buildings or facilities that are eligible for 
listing in the National Register of Historic Places under the National 
Historic Preservation Act, 16 U.S.C. 470 et seq., or are designated as 
historic under State or local law, shall comply to the maximum extent 
feasible with this part.
    (b) If it is determined that it is not feasible to provide physical 
access to an historic property that is a place of public accommodation 
in a manner that will not threaten or destroy the historic significance 
of the building or the facility, alternative methods of access shall be 
provided pursuant to the requirements of subpart C of this part.

0
13. Revise Sec.  36.406 to read as follows:


Sec.  36.406  Standards for new construction and alterations.

    (a) Accessibility standards and compliance date. (1) New 
construction and alterations subject to Sec. Sec.  36.401 or 36.402 
shall comply with the 1991 Standards if the date when the last 
application for a building permit or permit extension is certified to 
be complete by a State, county, or local government (or, in those 
jurisdictions where the government does not certify completion of 
applications, if the date when the last application for a building 
permit or permit extension is received by the State, county, or local 
government) is before September 15, 2010, or if no permit is required, 
if the start of physical construction or alterations occurs before 
September 15, 2010.
    (2) New construction and alterations subject to Sec. Sec.  36.401 
or 36.402 shall comply either with the 1991 Standards or with the 2010 
Standards if the date when the last application for a building permit 
or permit extension is certified to be complete by a State, county, or 
local government (or, in those jurisdictions where the government does 
not certify completion of applications, if the date when the last 
application for a building permit or permit extension is received by 
the State, county, or local government) is on or after September 15, 
2010 and before March 15, 2012, or if no permit is required, if the 
start of physical construction or alterations occurs on or after 
September 15, 2010 and before March 15, 2012.
    (3) New construction and alterations subject to Sec. Sec.  36.401 
or 36.402 shall comply with the 2010 Standards if the date when the 
last application for a building permit or permit extension is certified 
to be complete by a State, county, or local government (or, in those 
jurisdictions where the government does not certify completion of 
applications, if the date when the last application for a building 
permit or permit extension is received by the State, county, or local 
government) is on or after March 15, 2012, or if no permit is required, 
if the start of physical construction or alterations occurs on or after 
March 15, 2012.
    (4) For the purposes of this section, ``start of physical 
construction or alterations'' does not mean ceremonial groundbreaking 
or razing of structures prior to site preparation.
    (5) Noncomplying new construction and alterations. (i) Newly 
constructed or altered facilities or elements covered by Sec. Sec.  
36.401 or 36.402 that were constructed or altered before March 15, 2012 
and that do not comply with the 1991 Standards shall, before March 15, 
2012, be made accessible in accordance with either the 1991 Standards 
or the 2010 Standards.
    (ii) Newly constructed or altered facilities or elements covered by 
Sec. Sec.  36.401 or 36.402 that were constructed or altered before 
March 15, 2012 and that do not comply with the 1991 Standards shall, on 
or after March 15, 2012, be made accessible in accordance with the 2010 
Standards.

Appendix to Sec.  36.406(a)

------------------------------------------------------------------------
 Compliance dates for new construction
            and alterations                    Applicable standards
------------------------------------------------------------------------
On or after January 26, 1993 and before  1991 Standards.
 September 15, 2010.
On or after September 15, 2010 and       1991 Standards or 2010
 before March 15, 2012.                   Standards.
On or after March 15, 2012.............  2010 Standards.
------------------------------------------------------------------------

     (b) Scope of coverage. The 1991 Standards and the 2010 Standards 
apply to fixed or built-in elements of buildings, structures, site 
improvements, and pedestrian routes or vehicular ways located on a 
site. Unless specifically stated otherwise, the advisory notes, 
appendix notes, and figures contained in the 1991 Standards and 2010 
Standards explain or illustrate the requirements of the rule; they do 
not establish enforceable requirements.
    (c) Places of lodging. Places of lodging subject to this part shall 
comply with the provisions of the 2010 Standards applicable to 
transient lodging, including, but not limited to, the requirements for 
transient lodging guest rooms in sections 224 and 806 of the 2010 
Standards.
    (1) Guest rooms. Guest rooms with mobility features in places of 
lodging subject to the transient lodging

[[Page 56257]]

requirements of 2010 Standards shall be provided as follows--
    (i) Facilities that are subject to the same permit application on a 
common site that each have 50 or fewer guest rooms may be combined for 
the purposes of determining the required number of accessible rooms and 
type of accessible bathing facility in accordance with table 224.2 to 
section 224.2 of the 2010 Standards.
    (ii) Facilities with more than 50 guest rooms shall be treated 
separately for the purposes of determining the required number of 
accessible rooms and type of accessible bathing facility in accordance 
with table 224.2 to section 224.2 of the 2010 Standards.
    (2) Exception. Alterations to guest rooms in places of lodging 
where the guest rooms are not owned or substantially controlled by the 
entity that owns, leases, or operates the overall facility and the 
physical features of the guest room interiors are controlled by their 
individual owners are not required to comply with Sec.  36.402 or the 
alterations requirements in section 224.1.1 of the 2010 Standards.
    (3) Facilities with residential dwelling units and transient 
lodging units. Residential dwelling units that are designed and 
constructed for residential use exclusively are not subject to the 
transient lodging standards.
    (d) Social service center establishments. Group homes, halfway 
houses, shelters, or similar social service center establishments that 
provide either temporary sleeping accommodations or residential 
dwelling units that are subject to this part shall comply with the 
provisions of the 2010 Standards applicable to residential facilities, 
including, but not limited to, the provisions in sections 233 and 809.
    (1) In sleeping rooms with more than 25 beds covered by this part, 
a minimum of 5% of the beds shall have clear floor space complying with 
section 806.2.3 of the 2010 Standards.
    (2) Facilities with more than 50 beds covered by this part that 
provide common use bathing facilities shall provide at least one roll-
in shower with a seat that complies with the relevant provisions of 
section 608 of the 2010 Standards. Transfer-type showers are not 
permitted in lieu of a roll-in shower with a seat, and the exceptions 
in sections 608.3 and 608.4 for residential dwelling units are not 
permitted. When separate shower facilities are provided for men and for 
women, at least one roll-in shower shall be provided for each group.
    (e) Housing at a place of education. Housing at a place of 
education that is subject to this part shall comply with the provisions 
of the 2010 Standards applicable to transient lodging, including, but 
not limited to, the requirements for transient lodging guest rooms in 
sections 224 and 806, subject to the following exceptions. For the 
purposes of the application of this section, the term ``sleeping room'' 
is intended to be used interchangeably with the term ``guest room'' as 
it is used in the transient lodging standards.
    (1) Kitchens within housing units containing accessible sleeping 
rooms with mobility features (including suites and clustered sleeping 
rooms) or on floors containing accessible sleeping rooms with mobility 
features shall provide turning spaces that comply with section 809.2.2 
of the 2010 Standards and kitchen work surfaces that comply with 
section 804.3 of the 2010 Standards.
    (2) Multi-bedroom housing units containing accessible sleeping 
rooms with mobility features shall have an accessible route throughout 
the unit in accordance with section 809.2 of the 2010 Standards.
    (3) Apartments or townhouse facilities that are provided by or on 
behalf of a place of education, which are leased on a year-round basis 
exclusively to graduate students or faculty and do not contain any 
public use or common use areas available for educational programming, 
are not subject to the transient lodging standards and shall comply 
with the requirements for residential facilities in sections 233 and 
809 of the 2010 Standards.
    (f) Assembly areas. Assembly areas that are subject to this part 
shall comply with the provisions of the 2010 Standards applicable to 
assembly areas, including, but not limited to, sections 221 and 802. In 
addition, assembly areas shall ensure that--
    (1) In stadiums, arenas, and grandstands, wheelchair spaces and 
companion seats are dispersed to all levels that include seating served 
by an accessible route;
    (2) In assembly areas that are required to horizontally disperse 
wheelchair spaces and companion seats by section 221.2.3.1 of the 2010 
Standards and that have seating encircling, in whole or in part, a 
field of play or performance, wheelchair spaces and companion seats are 
dispersed around that field of play or performance area;
    (3) Wheelchair spaces and companion seats are not located on (or 
obstructed by) temporary platforms or other movable structures, except 
that when an entire seating section is placed on temporary platforms or 
other movable structures in an area where fixed seating is not 
provided, in order to increase seating for an event, wheelchair spaces 
and companion seats may be placed in that section. When wheelchair 
spaces and companion seats are not required to accommodate persons 
eligible for those spaces and seats, individual, removable seats may be 
placed in those spaces and seats;
    (4) In stadium-style movie theaters, wheelchair spaces and 
companion seats are located on a riser or cross-aisle in the stadium 
section that satisfies at least one of the following criteria--
    (i) It is located within the rear 60% of the seats provided in an 
auditorium; or
    (ii) It is located within the area of an auditorium in which the 
vertical viewing angles (as measured to the top of the screen) are from 
the 40th to the 100th percentile of vertical viewing angles for all 
seats as ranked from the seats in the first row (1st percentile) to 
seats in the back row (100th percentile).
    (g) Medical care facilities. Medical care facilities that are 
subject to this part shall comply with the provisions of the 2010 
Standards applicable to medical care facilities, including, but not 
limited to, sections 223 and 805. In addition, medical care facilities 
that do not specialize in the treatment of conditions that affect 
mobility shall disperse the accessible patient bedrooms required by 
section 223.2.1 of the 2010 Standards in a manner that is proportionate 
by type of medical specialty.


Sec.  36.407  [Removed and Reserved]

0
14. Remove and reserve Sec.  36.407.

Subpart F--Certification of State Laws or Local Building Codes


Sec.  36.603  [Removed]

0
15. Remove Sec.  36.603.

0
16. Redesignate Sec.  36.604 as Sec.  36.603 and revise it to read as 
follows:


Sec.  36.603  Preliminary determination.

    Upon receipt and review of all information relevant to a request 
filed by a submitting official for certification of a code, and after 
consultation with the Architectural and Transportation Barriers 
Compliance Board, the Assistant Attorney General shall make a 
preliminary determination of equivalency or a preliminary determination 
to deny certification.

0
17. Redesignate Sec.  36.605 as Sec.  36.604, revise the introductory 
text to paragraph (a), and revise paragraphs (a)(2) and (b) to read as 
follows:


Sec.  36.604  Procedure following preliminary determination of 
equivalency.

    (a) If the Assistant Attorney General makes a preliminary 
determination of equivalency under Sec.  36.603, he or she

[[Page 56258]]

shall inform the submitting official, in writing, of that preliminary 
determination. The Assistant Attorney General also shall--
* * * * *
    (2) After considering the information received in response to the 
notice described in paragraph (a) of this section, and after publishing 
a separate notice in the Federal Register, hold an informal hearing, in 
the State or local jurisdiction charged with administration and 
enforcement of the code, at which interested individuals, including 
individuals with disabilities, are provided an opportunity to express 
their views with respect to the preliminary determination of 
equivalency; and
    (b) The Assistant Attorney General, after consultation with the 
Architectural and Transportation Barriers Compliance Board and 
consideration of the materials and information submitted pursuant to 
this section, as well as information provided previously by the 
submitting official, shall issue either a certification of equivalency 
or a final determination to deny the request for certification. The 
Assistant Attorney General shall publish notice of the certification of 
equivalency or denial of certification in the Federal Register.

0
18. Redesignate Sec.  36.606 as Sec.  36.605 and revise the first 
sentence of paragraph (a) to read as follows:


Sec.  36.605  Procedure following preliminary denial of certification.

    (a) If the Assistant Attorney General makes a preliminary 
determination to deny certification of a code under Sec.  36.603, he or 
she shall notify the submitting official of the determination. * * *
* * * * *

0
19. Redesignate Sec.  36.607 as Sec.  36.606 and add paragraph (d) to 
read as follows:


Sec.  36.606  Effect of certification.

* * * * *
    (d) When the standards of the Act against which a code is deemed 
equivalent are revised or amended substantially, a certification of 
equivalency issued under the preexisting standards is no longer 
effective, as of the date the revised standards take effect. However, 
construction in compliance with a certified code during the period when 
a certification of equivalency was effective shall be considered 
rebuttable evidence of compliance with the Standards then in effect as 
to those elements of buildings and facilities that comply with the 
certified code. A submitting official may reapply for certification 
pursuant to the Act's revised standards, and, to the extent possible, 
priority will be afforded the request in the review process.


Sec.  36.608  [Redesignated as Sec.  36.607]

0
20. Redesignate Sec.  36.608 as Sec.  36.607.

0
21. Redesignate Appendix A to part 36 as Appendix D to part 36 and add 
Appendix A to part 36 to read as follows:

[[Page 56259]]

Appendix A to Part 36--Guidance on Revisions to ADA Regulation on 
Nondiscrimination on the Basis of Disability by Public Accommodations 
and Commercial Facilities

    Note:  This Appendix contains guidance providing a section-by-
section analysis of the revisions to 28 CFR part 36 published on 
September 15, 2010.

Section-By-Section Analysis and Response to Public Comments

    This section provides a detailed description of the Department's 
changes to the title III regulation, the reasoning behind those 
changes, and responses to public comments received on these topics. 
The Section-by-Section Analysis follows the order of the title III 
regulation itself, except that if the Department has not changed a 
regulatory section, the unchanged section has not been mentioned.

Subpart A--General

Section 36.104 Definitions

``1991 Standards'' and ``2004 ADAAG''
    The Department has included in the final rule new definitions of 
both the ``1991 Standards'' and the ``2004 ADAAG.'' The term ``1991 
Standards'' refers to the ADA Standards for Accessible Design, 
originally published on July 26, 1991, and republished as Appendix D 
to 28 CFR part 36. The term ``2004 ADAAG'' refers to ADA Chapter 1, 
ADA Chapter 2, and Chapters 3 through 10 of the Americans with 
Disabilities Act and the Architectural Barriers Act Accessibility 
Guidelines, which were issued by the Access Board on July 23, 2004, 
codified at 36 CFR 1191, app. B and D (2009), and which the 
Department has adopted in this final rule. These terms are included 
in the definitions section for ease of reference.

``2010 Standards''

    The Department has added to the final rule a definition of the 
term ``2010 Standards.'' The term ``2010 Standards'' refers to the 
2010 ADA Standards for Accessible Design, which consist of the 2004 
ADAAG and the requirements contained in subpart D of 28 CFR part 36.

``Direct Threat''

    The final rule moves the definition of direct threat from Sec.  
36.208(b) to the definitions section at Sec.  36.104. This is an 
editorial change. Consequently, Sec.  36.208(c) becomes Sec.  
36.208(b) in the final rule.

``Existing Facility''

    The 1991 title III regulation provided definitions for ``new 
construction'' at Sec.  36.401(a) and ``alterations'' at Sec.  
36.402(b). In contrast, the term ``existing facility'' was not 
explicitly defined, although it is used in the statute and 
regulations for titles II and III. See, e.g., 42 U.S.C. 
12182(b)(2)(A)(iv); 28 CFR 35.150. It has been the Department's view 
that newly constructed or altered facilities are also existing 
facilities subject to title III's continuing barrier removal 
obligation, and that view is made explicit in this rule.
    The classification of facilities under the ADA is neither static 
nor mutually exclusive. Newly constructed or altered facilities are 
also existing facilities. A newly constructed facility remains 
subject to the accessibility standards in effect at the time of 
design and construction, with respect to those elements for which, 
at that time, there were applicable ADA Standards. That same 
facility, however, after construction, is also an existing facility, 
and subject to the public accommodation's continuing obligation to 
remove barriers where it is readily achievable to do so. The fact 
that the facility is also an existing facility does not relieve the 
public accommodation of its obligations under the new construction 
requirements of this part. Rather, it means that in addition to the 
new construction requirements, the public accommodation has a 
continuing obligation to remove barriers that arise, or are deemed 
barriers, only after construction. Such barriers include but are not 
limited to the elements that are first covered in the 2010 
Standards, as that term is defined in Sec.  36.104.
    At some point, the same facility may undergo alterations, which 
are subject to the alterations requirements in effect at that time. 
This facility remains subject to its original new construction 
standards for elements and spaces not affected by the alterations; 
the facility is subject to the alterations requirements and 
standards in effect at the time of the alteration for the elements 
and spaces affected by the alteration; and, throughout, the facility 
remains subject to the continuing barrier removal obligation.
    The Department's enforcement of the ADA is premised on a broad 
understanding of ``existing facility.'' The ADA contemplates that as 
the Department's knowledge and understanding of accessibility 
advances and evolves, this knowledge will be incorporated into and 
result in increased accessibility in the built environment. Title 
III's barrier removal provisions strike the appropriate balance 
between ensuring that accessibility advances are reflected in the 
built environment and mitigating the costs of those advances to 
public accommodations. With adoption of the final rule, public 
accommodations engaged in barrier removal measures will now be 
guided by the 2010 Standards, defined in Sec.  36.104, and the safe 
harbor in Sec.  36.304(d)(2).
    The NPRM included the following proposed definition of 
``existing facility'': ``[A] facility that has been constructed and 
remains in existence on any given date.'' 73 FR 34508, 34552 (June 
17, 2008). While the Department intended the proposed definition to 
provide clarity with respect to public accommodations' continuing 
obligation to remove barriers where it is readily achievable to do 
so, some commenters pointed out arguable ambiguity in the language 
and the potential for misapplication of the rule in practice.
    The Department received a number of comments on this issue. The 
commenters urged the Department to clarify that all buildings remain 
subject to the standards in effect at the time of their 
construction, that is, that a facility designed and constructed for 
first occupancy between January 26, 1993, and the effective date of 
the final rule is still considered ``new construction'' and that 
alterations occurring between January 26, 1993, and the effective 
date of the final rule are still considered ``alterations.''
    The final rule includes clarifying language to ensure that the 
Department's interpretation is accurately reflected. As established 
by this rule, existing facility means a facility in existence on any 
given date, without regard to whether the facility may also be 
considered newly constructed or altered under this part. Thus, this 
definition reflects the Department's longstanding interpretation 
that public accommodations have obligations in existing facilities 
that are independent of but may coexist with requirements imposed by 
new construction or alteration requirements in those same 
facilities.

``Housing at a Place of Education''

    The Department has added a new definition to Sec.  36.104, 
``housing at a place of education,'' to clarify the types of 
educational housing programs that are covered by this title. This 
section defines ``housing at a place of education'' as ``housing 
operated by or on behalf of an elementary, secondary, undergraduate, 
or postgraduate school, or other place of education, including 
dormitories, suites, apartments, or other places of residence.'' 
This definition does not apply to social service programs that 
combine residential housing with social services, such as a 
residential job training program.

``Other Power-Driven Mobility Device'' and ``Wheelchair''

    Because relatively few individuals with disabilities were using 
nontraditional mobility devices in 1991, there was no pressing need 
for the 1991 title III regulation to define the terms ``wheelchair'' 
or ``other power-driven mobility device,'' to expound on what would 
constitute a reasonable modification in policies, practices, or 
procedures under Sec.  36.302, or to set forth within that section 
specific requirements for the accommodation of mobility devices. 
Since the issuance of the 1991 title III regulation, however, the 
choices of mobility devices available to individuals with 
disabilities have increased dramatically. The Department has 
received complaints about and has become aware of situations where 
individuals with mobility disabilities have utilized devices that 
are not designed primarily for use by an individual with a mobility 
disability, including the Segway[supreg] Personal Transporter 
(Segway[supreg] PT), golf cars, all-terrain vehicles (ATVs), and 
other locomotion devices.
    The Department also has received questions from public 
accommodations and individuals with mobility disabilities concerning 
which mobility devices must be accommodated and under what 
circumstances. Indeed, there has been litigation concerning the 
legal obligations of covered entities to accommodate individuals 
with mobility disabilities who wish to use an electronic personal 
assistance mobility device (EPAMD), such as the Segway[supreg] PT, 
as a mobility device. The Department has participated in such 
litigation as amicus curiae. See Ault v. Walt Disney World Co., No. 
6:07-cv-1785-Orl-31KRS, 2009 WL

[[Page 56260]]

3242028 (M.D. Fla. Oct. 6, 2009). Much of the litigation has 
involved shopping malls where businesses have refused to allow 
persons with disabilities to use EPAMDs. See, e.g., McElroy v. Simon 
Property Group, No. 08-404 RDR, 2008 WL 4277716 (D. Kan. Sept. 15, 
2008) (enjoining mall from prohibiting the use of a Segway[supreg] 
PT as a mobility device where an individual agrees to all of a 
mall's policies for use of the device, except indemnification); 
Shasta Clark, Local Man Fighting Mall Over Right to Use Segway, WATE 
6 News, July 26, 2005, available at http://www.wate.com/Global/story.asp?s=3643674 (last visited June 24, 2010).
    In response to questions and complaints from individuals with 
disabilities and covered entities concerning which mobility devices 
must be accommodated and under what circumstances, the Department 
began developing a framework to address the use of unique mobility 
devices, concerns about their safety, and the parameters for the 
circumstances under which these devices must be accommodated. As a 
result, the Department's NPRM proposed two new approaches to 
mobility devices. First, the Department proposed a two-tiered 
mobility device definition that defined the term ``wheelchair'' 
separately from ``other power-driven mobility device.'' Second, the 
Department proposed requirements to allow the use of devices in each 
definitional category. In Sec.  36.311(a), the NPRM proposed that 
wheelchairs and manually-powered mobility aids used by individuals 
with mobility disabilities shall be permitted in any areas open to 
pedestrian use. Section 36.311(b) of the NPRM proposed that a public 
accommodation ``shall make reasonable modifications in its policies, 
practices, and procedures to permit the use of other power-driven 
mobility devices by individuals with disabilities, unless the public 
accommodation can demonstrate that the use of the device is not 
reasonable or that its use will result in a fundamental alteration 
in the nature of the public accommodation's goods, services, 
facilities, privileges, advantages, or accommodations.'' 73 FR 
34508, 34556 (June 17, 2008).
    The Department sought public comment with regard to whether 
these steps would, in fact, achieve clarity on these issues. Toward 
this end, the Department's NPRM asked several questions relating to 
the definitions of ``wheelchair,'' ``other power-driven mobility 
device,'' and ``manually-powered mobility aids''; the best way to 
categorize different classes of mobility devices, the types of 
devices that should be included in each category; and the 
circumstances under which certain types of mobility devices must be 
accommodated or may be excluded pursuant to the policy adopted by 
the public accommodation.
    Because the questions in the NPRM that concerned mobility 
devices and their accommodation were interrelated, many of the 
commenters' responses did not identify the specific question to 
which they were responding. Instead, commenters grouped the 
questions together and provided comments accordingly. Most 
commenters spoke to the issues addressed in the Department's 
questions in broad terms and using general concepts. As a result, 
the responses to the questions posed are discussed below in broadly 
grouped issue categories rather than on a question-by-question 
basis.
    Two-tiered definitional approach. Commenters supported the 
Department's proposal to use a two-tiered definition of mobility 
device. Commenters nearly universally said that wheelchairs always 
should be accommodated and that they should never be subject to an 
assessment with regard to their admission to a particular public 
accommodation. In contrast, the vast majority of commenters 
indicated they were in favor of allowing public accommodations to 
conduct an assessment as to whether, and under which circumstances, 
other power-driven mobility devices will be allowed on-site.
    Many commenters also indicated their support for the two-tiered 
approach in responding to questions concerning the definition of 
``wheelchair'' and ``other power-driven mobility device.'' Nearly 
every disability advocacy group said that the Department's two-
tiered approach strikes the proper balance between ensuring access 
for individuals with disabilities and addressing fundamental 
alteration and safety concerns held by public accommodations; 
however, a minority of disability advocacy groups wanted other 
power-driven mobility devices to be included in the definition of 
``wheelchair.'' Most advocacy, nonprofit, and individual commenters 
supported the concept of a separate definition for ``other power-
driven mobility device'' because a separate definition would 
maintain existing legal protections for wheelchairs while 
recognizing that some devices that are not designed primarily for 
individuals with mobility disabilities have beneficial uses for 
individuals with mobility disabilities. They also favored this 
concept because it recognizes technological developments and that 
innovative uses of varying devices may provide increased access to 
individuals with mobility disabilities.
    While two business associations indicated that they opposed the 
concept of ``other power-driven mobility device'' in its entirety, 
other business commenters expressed general and industry-specific 
concerns about permitting their use. They indicated that such 
devices create a host of safety, cost, and fraud issues that do not 
exist with wheelchairs. On balance, however, business commenters 
indicated that they support the establishment of a two-tiered 
regulatory approach because defining ``other power-driven mobility 
device'' separately from ``wheelchair'' means that businesses will 
be able to maintain some measure of control over the admission of 
the former. Virtually all of these commenters indicated that their 
support for the dual approach and the concept of other power-driven 
mobility devices was, in large measure, due to the other power-
driven mobility device assessment factors in Sec.  36.311(c) of the 
NPRM.
    By maintaining the two-tiered approach to mobility devices and 
defining ``wheelchair'' separately from ``other power-driven 
mobility device,'' the Department is able to preserve the protection 
users of traditional wheelchairs and other manually-powered mobility 
aids have had since the ADA was enacted, while also recognizing that 
human ingenuity, personal choice, and new technologies have led to 
the use of devices that may be more beneficial for individuals with 
certain mobility disabilities.
    Moreover, the Department believes the two-tiered approach gives 
public accommodations guidance to follow in assessing whether 
reasonable modifications can be made to permit the use of other 
power-driven mobility devices on-site and to aid in the development 
of policies describing the circumstances under which persons with 
disabilities may use such devices. The two-tiered approach neither 
mandates that all other power-driven mobility devices be 
accommodated in every circumstance, nor excludes these devices from 
all protection. This approach, in conjunction with the factor 
assessment provisions in Sec.  36.311(b)(2), will serve as a 
mechanism by which public accommodations can evaluate their ability 
to accommodate other power-driven mobility devices. As will be 
discussed in more detail below, the assessment factors in Sec.  
36.311(b)(2) are specifically designed to provide guidance to public 
accommodations regarding whether it is permissible to bar the use of 
a specific other power-driven mobility device in a specific 
facility. In making such a determination, a public accommodation 
must consider the device's type, size, weight dimensions, and speed; 
the facility's volume of pedestrian traffic; the facility's design 
and operational characteristics; whether the device conflicts with 
legitimate safety requirements; and whether the device poses a 
substantial risk of serious harm to the immediate environment or 
natural or cultural resources, or conflicts with Federal land 
management laws or regulations. In addition, under Sec.  
36.311(b)(i) if the public accommodation claims that it cannot make 
reasonable modifications to its policies, practices, or procedures 
to permit the use of other power-driven mobility devices by 
individuals with disabilities, the burden of proof to demonstrate 
that such devices cannot be operated in accordance with legitimate 
safety requirements rests upon the public accommodation.
    Categorization of wheelchair versus other power-driven mobility 
devices. Implicit in the creation of the two-tiered mobility device 
concept is the question of how to categorize which devices are 
wheelchairs and which are other power-driven mobility devices. 
Finding weight and size to be too restrictive, the vast majority of 
advocacy, nonprofit, and individual commenters opposed using the 
Department of Transportation's definition of ``common wheelchair'' 
to designate the mobility device's appropriate category. Business 
commenters who generally supported using weight and size as the 
method of categorization did so because of their concerns about 
having to make physical changes to their facilities to accommodate 
oversized devices. The vast majority of business commenters also 
favored using the device's intended use to categorize which devices 
constitute wheelchairs and which are other power-driven mobility 
devices.

[[Page 56261]]

Furthermore, the intended-use determinant received a fair amount of 
support from advocacy, nonprofit, and individual commenters, either 
because they sought to preserve the broad accommodation of 
wheelchairs or because they sympathized with concerns about 
individuals without mobility disabilities fraudulently bringing 
other power-driven mobility devices into places of public 
accommodation.
    Commenters seeking to have the Segway[supreg] PT included in the 
definition of ``wheelchair'' objected to classifying mobility 
devices on the basis of their intended use because they felt that 
such a classification would be unfair and prejudicial to 
Segway[supreg] PT users and would stifle personal choice, 
creativity, and innovation. Other advocacy and nonprofit commenters 
objected to employing an intended-use approach because of concerns 
that the focus would shift to an assessment of the device, rather 
than the needs or benefits to the individual with the mobility 
disability. They were of the view that the mobility-device 
classification should be based on its function--whether it is used 
to address a mobility disability. A few commenters raised the 
concern that an intended-use approach might embolden public 
accommodations to assess whether an individual with a mobility 
disability really needs to use the other power-driven mobility 
device at issue or to question why a wheelchair would not provide 
sufficient mobility. Those citing objections to the intended-use 
determinant indicated it would be more appropriate to make the 
categorization determination based on whether the device is being 
used for a mobility disability in the context of the impact of its 
use in a specific environment. Some of these commenters preferred 
this approach because it would allow the Segway[supreg] PT to be 
included in the definition of ``wheelchair.''
    Some commenters were inclined to categorize mobility devices by 
the way in which they are powered, such as battery-powered engines 
versus fuel or combustion engines. One commenter suggested using 
exhaust level as the determinant. Although there were only a few 
commenters who would make the determination based on indoor or 
outdoor use, there was nearly universal support for banning from 
indoor use devices that are powered by fuel or combustion engines.
    A few commenters thought it would be appropriate to categorize 
the devices based on their maximum speed. Others objected to this 
approach, stating that circumstances should dictate the appropriate 
speed at which mobility devices should be operated--for example, a 
faster speed may be safer when crossing streets than it would be for 
sidewalk use--and merely because a device can go a certain speed 
does not mean it will be operated at that speed.
    The Department has decided to maintain the device's intended use 
as the appropriate determinant for which devices are categorized as 
``wheelchairs.'' However, because wheelchairs may be intended for 
use by individuals who have temporary conditions affecting mobility, 
the Department has decided that it is more appropriate to use the 
phrase ``primarily designed'' rather than ``solely designed'' in 
making such categorizations. The Department will not foreclose any 
future technological developments by identifying or banning specific 
devices or setting restrictions on size, weight, or dimensions. 
Moreover, devices designed primarily for use by individuals with 
mobility disabilities often are considered to be medical devices and 
are generally eligible for insurance reimbursement on this basis. 
Finally, devices designed primarily for use by individuals with 
mobility disabilities are less subject to fraud concerns because 
they were not designed to have a recreational component. 
Consequently, rarely, if ever, is any inquiry or assessment as to 
their appropriateness for use in a public accommodation necessary.
    Definition of ``wheelchair.'' In seeking public feedback on the 
NPRM's definition of ``wheelchair,'' the Department explained its 
concern that the definition of ``wheelchair'' in section 508(c)(2) 
of the ADA (formerly section 507(c)(2), July 26, 1990, 104 Stat. 
372, 42 U.S.C. 12207, renumbered section 508(c)(2), Public Law 110-
325 section 6(a)(2), Sept. 25, 2008, 122 Stat. 3558), which pertains 
to Federal wilderness areas, is not specific enough to provide clear 
guidance in the array of settings covered by title III and that the 
stringent size and weight requirements for the Department of 
Transportation's definition of ``common wheelchair'' are not a good 
fit in the context of most public accommodations. The Department 
noted in the NPRM that it sought a definition of ``wheelchair'' that 
would include manually-operated and power-driven wheelchairs and 
mobility scooters (i.e., those that typically are single-user, have 
three to four wheels, and are appropriate for both indoor and 
outdoor pedestrian areas), as well as a variety of types of 
wheelchairs and mobility scooters with individualized or unique 
features or models with different numbers of wheels. The NPRM 
defined a wheelchair as ``a device designed solely for use by an 
individual with a mobility impairment for the primary purpose of 
locomotion in typical indoor and outdoor pedestrian areas. A 
wheelchair may be manually-operated or power-driven.'' 73 FR 34508, 
34553 (June 17, 2008). Although the NPRM's definition of 
``wheelchair'' excluded mobility devices that are not designed 
solely for use by individuals with mobility disabilities, the 
Department, noting that the use of the Segway[supreg] PT by 
individuals with mobility disabilities is on the upswing, inquired 
as to whether this device should be included in the definition of 
``wheelchair.''
    Most business commenters wished the definition of ``wheelchair'' 
had included size, weight, and dimension maximums. Ultimately, 
however, they supported the definition because it excludes other 
power-driven mobility devices and enables them to engage in an 
assessment to determine whether a particular device can be allowed 
as a reasonable modification. These commenters felt this approach 
gave them some measure of control over whether, and under what 
circumstances, other power-driven mobility devices may be used in 
their facilities by individuals with mobility disabilities. Two 
commenters noted that because many mobility scooters are oversized, 
they are misplaced in the definition of ``wheelchair'' and belong 
with other power-driven mobility devices. Another commenter 
suggested using maximum size and weight requirements to allocate 
which mobility scooters should be categorized as wheelchairs, and 
which should be categorized as other power-driven mobility devices.
    Many advocacy, nonprofit, and individual commenters indicated 
that as long as the Department intends the scope of the term 
``mobility impairments'' to include other disabilities that cause 
mobility impairments (e.g., respiratory, circulatory, stamina, 
etc.), they were in support of the language. Several commenters 
indicated a preference for the definition of ``wheelchair'' in 
section 508(c)(2) of the ADA. One commenter indicated a preference 
for the term ``assistive device,'' as it is defined in the 
Rehabilitation Act of 1973, over the term ``wheelchair.'' A few 
commenters indicated that strollers should be added to the 
preamble's list of examples of wheelchairs because parents of 
children with disabilities frequently use strollers as mobility 
devices until their children get older.
    In the final rule, the Department has rearranged some wording 
and has made some changes in the terminology used in the definition 
of ``wheelchair,'' but essentially has retained the definition, and 
therefore the rationale, that was set forth in the NPRM. Again, the 
text of the ADA makes the definition of ``wheelchair'' contained in 
section 508(c)(2) applicable only to the specific context of uses in 
designated wilderness areas, and therefore does not compel the use 
of that definition for any other purpose. Moreover, the Department 
maintains that limiting the definition to devices suitable for use 
in an ``indoor pedestrian area'' as provided for in section 
508(c)(2) of the ADA would ignore the technological advances in 
wheelchair design that have occurred since the ADA went into effect 
and that the inclusion of the phrase ``indoor pedestrian area'' in 
the definition of ``wheelchair'' would set back progress made by 
individuals with mobility disabilities who, for many years now, have 
been using devices designed for locomotion in indoor and outdoor 
settings. The Department has concluded that same rationale applies 
to placing limits on the size, weight, and dimensions of 
wheelchairs.
    With regard to the term ``mobility impairments,'' the Department 
intended a broad reading so that a wide range of disabilities, 
including circulatory and respiratory disabilities, that make 
walking difficult or impossible, would be included. In response to 
comments on this issue, the Department has revisited the issue and 
has concluded that the most apt term to achieve this intent is 
``mobility disability.''
    In addition, the Department has decided that it is more 
appropriate to use the phrase, ``primarily'' designed for use by 
individuals with disabilities in the final rule, rather than, 
``solely'' designed for use by individuals with disabilities--the 
phrase, proposed in the NPRM. The Department believes that this

[[Page 56262]]

phrase more accurately covers the range of devices the Department 
intends to fall within the definition of ``wheelchair.''
    After receiving comments that the word ``typical'' is vague and 
the phrase ``pedestrian areas'' is confusing to apply, particularly 
in the context of similar, but not identical, terms used in the 
proposed Standards, the Department decided to delete the term 
``typical indoor and outdoor pedestrian areas'' from the final rule. 
Instead, the final rule references ``indoor or * * * both indoor and 
outdoor locomotion,'' to make clear that the devices that fall 
within the definition of ``wheelchair'' are those that are used for 
locomotion on indoor and outdoor pedestrian paths or routes and not 
those that are intended exclusively for traversing undefined, 
unprepared, or unimproved paths or routes. Thus, the final rule 
defines the term ``wheelchair'' to mean ``a manually-operated or 
power-driven device designed primarily for use by an individual with 
a mobility disability for the main purpose of indoor or of both 
indoor and outdoor locomotion.''
    Whether the definition of ``wheelchair'' includes the 
Segway[supreg] PT. As discussed above, because individuals with 
mobility disabilities are using the Segway[supreg] PT as a mobility 
device, the Department asked whether it should be included in the 
definition of ``wheelchair.'' The basic Segway[supreg] PT model is a 
two-wheeled, gyroscopically-stabilized, battery-powered personal 
transportation device. The user stands on a platform suspended three 
inches off the ground by wheels on each side, grasps a T-shaped 
handle, and steers the device similarly to a bicycle. Most 
Segway[supreg] PTs can travel up to 12\1/2\ miles per hour, compared 
to the average pedestrian walking speed of 3 to 4 miles per hour and 
the approximate maximum speed for power-operated wheelchairs of 6 
miles per hour. In a study of trail and other non-motorized 
transportation users including EPAMDs, the Federal Highway 
Administration (FHWA) found that the eye height of individuals using 
EPAMDs ranged from approximately 69 to 80 inches. See Federal 
Highway Administration, Characteristics of Emerging Road and Trail 
Users and Their Safety (Oct. 14, 2004), available at http://www.tfhrc.gov/safety/pubs/04103 (last visited June 24, 2010). Thus, 
the Segway[supreg] PT can operate at much greater speeds than 
wheelchairs, and the average user stands much taller than most 
wheelchair users.
    The Segway[supreg] PT has been the subject of debate among 
users, pedestrians, disability advocates, State and local 
governments, businesses, and bicyclists. The fact that the 
Segway[supreg] PT is not designed primarily for use by individuals 
with disabilities, nor used primarily by persons with disabilities, 
complicates the question of to what extent individuals with 
disabilities should be allowed to operate them in areas and 
facilities where other power-driven mobility devices are not 
allowed. Those who question the use of the Segway[supreg] PT in 
pedestrian areas argue that the speed, size, and operating features 
of the devices make them too dangerous to operate alongside 
pedestrians and wheelchair users.
    Comments regarding whether to include the Segway[supreg] PT in 
the definition of ``wheelchair'' were, by far, the most numerous 
received in the category of comments regarding wheelchairs and other 
power-driven mobility devices. Significant numbers of veterans with 
disabilities, individuals with multiple sclerosis, and those 
advocating on their behalf made concise statements of general 
support for the inclusion of the Segway[supreg] PT in the definition 
of ``wheelchair.'' Two veterans offered extensive comments on the 
topic, along with a few advocacy and nonprofit groups and 
individuals with disabilities for whom sitting is uncomfortable or 
impossible.
    While there may be legitimate safety issues for EPAMD users and 
bystanders in some circumstances, EPAMDs and other non-traditional 
mobility devices can deliver real benefits to individuals with 
disabilities. Among the reasons given by commenters to include the 
Segway[supreg] PT in the definition of ``wheelchair'' were that the 
Segway[supreg] PT is well-suited for individuals with particular 
conditions that affect mobility including multiple sclerosis, 
Parkinson's disease, chronic obstructive pulmonary disease, 
amputations, spinal cord injuries, and other neurological 
disabilities, as well as functional limitations, such as gait 
limitation, inability to sit or discomfort in sitting, and 
diminished stamina issues. Such individuals often find that EPAMDs 
are more comfortable and easier to use than more traditional 
mobility devices and assist with balance, circulation, and digestion 
in ways that wheelchairs do not. See Rachel Metz, Disabled Embrace 
Segway, New York Times, Oct. 14, 2004. Commenters specifically cited 
pressure relief, reduced spasticity, increased stamina, and improved 
respiratory, neurologic, and muscular health as secondary medical 
benefits from being able to stand.
    Other arguments for including the Segway[supreg] PT in the 
definition of ``wheelchair'' were based on commenters' views that 
the Segway[supreg] PT offers benefits not provided by wheelchairs 
and mobility scooters, including its intuitive response to body 
movement, ability to operate with less coordination and dexterity 
than is required for many wheelchairs and mobility scooters, and 
smaller footprint and turning radius as compared to most wheelchairs 
and mobility scooters. Several commenters mentioned improved 
visibility, either due to the Segway[supreg] PT's raised platform or 
simply by virtue of being in a standing position. And finally, some 
commenters advocated for the inclusion of the Segway[supreg] PT 
simply based on civil rights arguments and the empowerment and self-
esteem obtained from having the power to select the mobility device 
of choice.
    Many commenters, regardless of their position on whether to 
include the Segway[supreg] PT in the definition of ``wheelchair,'' 
noted that the Segway[supreg] PT's safety record is as good as, if 
not better, than the record for wheelchairs and mobility scooters.
    Most business commenters were opposed to the inclusion of the 
Segway[supreg] PT in the definition of ``wheelchair'' but were 
supportive of its inclusion as an ``other power-driven mobility 
device.'' They raised industry- or venue-specific concerns about 
including the Segway[supreg] PT in the definition of ``wheelchair.'' 
For example, civic centers, arenas, and theaters were concerned 
about the impact on sight-line requirements if Segway[supreg] PT 
users remain on their devices in a designated wheelchair seating 
area; amusement parks expressed concern that rides have been 
designed, purchased, and installed to enable wheelchair users to 
transfer easily or to accommodate wheelchairs on the ride itself; 
and retail stores mentioned size constraints in some stores. Nearly 
all business commenters expressed concern--and perceived liability 
issues--related to having to store or stow the Segway[supreg] PT, 
particularly if it could not be stored in an upright position. These 
commenters cited concerns about possible damage to the device, 
injury to customers who may trip over it, and theft of the device as 
a result of not being able to stow the Segway[supreg] PT securely.
    Virtually every business commenter mentioned concerns about 
rider safety, as well as concerns for pedestrians unexpectedly 
encountering these devices or being hit or run over by these devices 
in crowded venues where maneuvering space is limited. Their main 
safety objection to the inclusion of the Segway[supreg] PT in the 
definition of ``wheelchair'' was that the maximum speed at which the 
Segway[supreg] PT can operate is far faster than that of motorized 
wheelchairs. There was a universal unease among these commenters 
with regard to relying on the judgment of the Segway[supreg] PT user 
to exercise caution because its top speed is far in excess of a 
wheelchair's top speed. Many other safety concerns were industry-
specific. For example, amusement parks were concerned that the 
Segway[supreg] PT is much taller than children; that it is too quiet 
to warn pedestrians, particularly those with low vision or who are 
blind, of their presence; that it may keep moving after a rider has 
fallen off or power system fails; and that it has a full-power 
override which automatically engages when an obstacle is 
encountered. Hotels and retail stores mentioned that maneuvering the 
Segway[supreg] PT through their tight quarters would create safety 
hazards.
    Business commenters also expressed concern that if the 
Segway[supreg] PT were included in the definition of ``wheelchair'' 
they would have to make physical changes to their facilities to 
accommodate Segway[supreg] PT riders who stand much taller in these 
devices than do users of wheelchairs. They also were concerned that 
if the Segway[supreg]7 PT was included in the definition of 
``wheelchair,'' they would have no ability to assess whether it is 
appropriate to allow the entry of the Segway[supreg] PT into their 
facilities the way they would have if the device is categorized as 
an ``other power-driven mobility device.''
    Many disability advocacy and nonprofit commenters did not 
support the inclusion of the Segway[supreg] PT in the definition of 
``wheelchair.'' Paramount to these commenters was the maintenance of 
existing protections for wheelchair users. Because there was 
unanimous agreement that wheelchair use rarely, if ever, may be 
restricted, these commenters strongly favored

[[Page 56263]]

categorizing wheelchairs separately from the Segway[supreg] PT and 
other power-driven mobility devices and applying the intended-use 
determinant to assign the devices to either category. They indicated 
that while they support the greatest degree of access in public 
accommodations for all persons with disabilities who require the use 
of mobility devices, they recognize that under certain circumstances 
allowing the use of other power-driven mobility devices would result 
in a fundamental alteration or run counter to legitimate safety 
requirements necessary for the safe operation of a public 
accommodation. While these groups supported categorizing the 
Segway[supreg] PT as an ``other power-driven mobility device,'' they 
universally noted that because the Segway[supreg] PT does not 
present environmental concerns and is as safe to use as, if not 
safer than, a wheelchair, it should be accommodated in most 
circumstances.
    The Department has considered all the comments and has concluded 
that it should not include the Segway[supreg] PT in the definition 
of ``wheelchair.'' The final rule provides that the test for 
categorizing a device as a wheelchair or an other power-driven 
mobility device is whether the device is designed primarily for use 
by individuals with mobility disabilities. Mobility scooters are 
included in the definition of ``wheelchair'' because they are 
designed primarily for users with mobility disabilities. However, 
because the current generation of EPAMDs, including the 
Segway[supreg] PT, was designed for recreational users and not 
primarily for use by individuals with mobility disabilities, the 
Department has decided to continue its approach of excluding EPAMDs 
from the definition of ``wheelchair'' and including them in the 
definition of ``other power-driven mobility device.'' Although 
EPAMDs, such as the Segway[supreg] PT, are not included in the 
definition of a ``wheelchair,'' public accommodations must assess 
whether they can make reasonable modifications to permit individuals 
with mobility disabilities to use such devices on their premises. 
The Department recognizes that the Segway[supreg] PT provides many 
benefits to those who use them as mobility devices, including a 
measure of privacy with regard to the nature of one's particular 
disability, and believes that in the vast majority of circumstances, 
the application of the factors described in Sec.  36.311 for 
providing access to other-powered mobility devices will result in 
the admission of the Segway[supreg] PT.
    Treatment of ``manually-powered mobility aids.'' The 
Department's NPRM did not define the term ``manually-powered 
mobility aids.'' Instead, the NPRM included a non-exhaustive list of 
examples in Sec.  36.311(a). The NPRM queried whether the Department 
should maintain this approach to manually-powered mobility aids or 
whether it should adopt a more formal definition.
    Only a few commenters addressed ``manually-powered mobility 
aids.'' Virtually all commenters were in favor of maintaining a non-
exhaustive list of examples of ``manually-powered mobility aids'' 
rather than adopting a definition of the term. Of those who 
commented, a couple sought clarification of the term ``manually-
powered.'' One commenter suggested that the term be changed to 
``human-powered.'' Other commenters requested that the Department 
include ordinary strollers in the non-exhaustive list of manually-
powered mobility aids. Since strollers are not devices designed 
primarily for individuals with mobility disabilities, the Department 
does not consider them to be manually-powered mobility aids; 
however, strollers used in the context of transporting individuals 
with disabilities are subject to the same assessment required by the 
ADA's reasonable modification standards at Sec.  36.302. The 
Department believes that because the existing approach is clear and 
understood easily by the public, no formal definition of the term 
``manually-powered mobility aids'' is required.
    Definition of ``other power-driven mobility device.'' The 
Department's NPRM defined the term ``other power-driven mobility 
device'' in Sec.  36.104 as ``any of a large range of devices 
powered by batteries, fuel, or other engines--whether or not 
designed solely for use by individuals with mobility impairments--
that are used by individuals with mobility impairments for the 
purpose of locomotion, including golf cars, bicycles, electronic 
personal assistance mobility devices (EPAMDs), or any mobility aid 
designed to operate in areas without defined pedestrian routes.'' 73 
FR 34508, 34552 (June 17, 2008).
    Business commenters mostly were supportive of the definition of 
``other power-driven mobility device'' because it gave them the 
ability to develop policies pertaining to the admission of these 
devices, but they expressed concern that individuals will feign 
mobility disabilities so that they can use devices that are 
otherwise banned in public accommodations. Advocacy, nonprofit, and 
several individual commenters supported the definition of ``other 
power-driven mobility device'' because it allows new technologies to 
be added in the future, maintains the existing legal protections for 
wheelchairs, and recognizes that some devices, particularly the 
Segway[supreg] PT, which are not designed primarily for individuals 
with mobility disabilities, have beneficial uses for individuals 
with mobility disabilities.
    Despite support for the definition of ``other power-driven 
mobility device,'' however, most advocacy and nonprofit commenters 
expressed at least some hesitation about the inclusion of fuel-
powered mobility devices in the definition. While virtually all of 
these commenters noted that a blanket exclusion of any device that 
falls under the definition of ``other power-driven mobility device'' 
would violate basic civil rights concepts, they also specifically 
stated that certain devices, particularly off-highway vehicles, 
cannot be permitted in certain circumstances. They also made a 
distinction between the Segway[supreg] PT and other power-driven 
mobility devices, noting that the Segway[supreg] PT should be 
accommodated in most circumstances because it satisfies the safety 
and environmental elements of the policy analysis. These commenters 
indicated that they agree that other power-driven mobility devices 
must be assessed, particularly as to their environmental impact, 
before they are accommodated.
    Business commenters were even less supportive of the inclusion 
of fuel-powered devices in the other power-driven mobility devices 
category. They sought a complete ban on fuel-powered devices because 
they believe they are inherently dangerous and pose environmental 
and safety concerns.
    Although many commenters had reservations about the inclusion of 
fuel-powered devices in the definition of other power-driven 
mobility devices, the Department does not want the definition to be 
so narrow that it would foreclose the inclusion of new technological 
developments, whether powered by fuel or by some other means. It is 
for this reason that the Department has maintained the phrase ``any 
mobility device designed to operate in areas without defined 
pedestrian routes'' in the final rule's definition of other power-
driven mobility devices. The Department believes that the 
limitations provided by ``fundamental alteration'' and the ability 
to impose legitimate safety requirements will likely prevent the use 
of fuel and combustion engine-driven devices indoors, as well as in 
outdoor areas with heavy pedestrian traffic. The Department notes, 
however, that in the future technological developments may result in 
the production of safe fuel-powered mobility devices that do not 
pose environmental and safety concerns. The final rule allows 
consideration to be given as to whether the use of a fuel-powered 
device would create a substantial risk of serious harm to the 
environment or natural or cultural resources, and to whether the use 
of such a device conflicts with Federal land management laws or 
regulations; this aspect of the final rule will further limit the 
inclusion of fuel-powered devices where they are not appropriate. 
Consequently, the Department has maintained fuel-powered devices in 
the definition of ``other power-driven mobility devices.'' The 
Department has also added language to the definition of ``other 
power-driven mobility device'' to reiterate that the definition does 
not apply to Federal wilderness areas, which are not covered by 
title II of the ADA; the use of wheelchairs in such areas is 
governed by section 508(c)(2) of the ADA, 42 U.S.C. 12207(c)(2).

``Place of Public Accommodation''

    Definition of ``place of lodging.'' The NPRM stated that a 
covered ``place of lodging'' is a facility that provides guest rooms 
for sleeping for stays that are primarily short-term in nature 
(generally two weeks or less), to which the occupant does not have 
the right or intent to return to a specific room or unit after the 
conclusion of his or her stay, and which operates under conditions 
and with amenities similar to a hotel, motel, or inn, particularly 
including factors such as: (1) An on-site proprietor and 
reservations desk; (2) rooms available on a walk-up basis; (3) linen 
service; and (4) a policy of accepting reservations for a room type 
without guaranteeing a particular unit or room until check-in, 
without a prior lease or security deposit. The NPRM stated that 
timeshares and condominiums or corporate hotels that did not meet 
this definition would not be covered by Sec.  36.406(c) of the 
proposed regulation, but may be covered by the

[[Page 56264]]

requirements of the Fair Housing Act (FHAct).
    In the NPRM, the Department sought comment on its definition of 
``place of lodging,'' specifically seeking public input on whether 
the most appropriate time period for identifying facilities used for 
stays that primarily are short-term in nature should be set at 2 
weeks or 30 days.
    The vast majority of the comments received by the Department 
supported the use of a 30-day limitation on places of lodging as 
more consistent with building codes, local laws, and common real 
estate practices that treat stays of 30 days or less as transient 
rather than residential use. One commenter recommended using the 
phrase ``fourteen days or less.'' Another commenter objected to any 
bright line standard, stating that the difference between two weeks 
and 30 days for purposes of title III is arbitrary, viewed in light 
of conflicting regulations by the States. This commenter argued the 
Department should continue its existing practice under title III of 
looking to State law as one factor in determining whether a facility 
is used for stays that primarily are short-term in nature.
    The Department is persuaded by the majority of commenters to 
adopt a 30-day guideline for the purposes of identifying facilities 
that primarily are short-term in nature and has modified the section 
accordingly. The 30-day guideline is intended only to determine when 
the final rule's transient lodging provisions apply to a facility. 
It does not alter an entity's obligations under any other applicable 
statute. For example, the Department recognizes that the FHAct does 
not employ a bright line standard for determining which facilities 
qualify as residential facilities under that Act and that there are 
circumstances where units in facilities that meet the definition of 
places of lodging will be covered under both the ADA and the FHAct 
and will have to comply with the requirements of both laws.
    The Department also received comments about the factors used in 
the NPRM's definition of ``place of lodging.'' One commenter 
proposed modifications to the definition as follows: changing the 
words ``guest rooms'' to ``accommodations for sleeping''; and adding 
a fifth factor that states that ``the in-room decor, furnishings and 
equipment being specified by the owner or operator of the lodging 
operation rather than generally being determined by the owner of the 
individual unit or room.'' The Department does not believe that 
``guest room'' should be changed to ``accommodations for sleeping.'' 
Such a change would create confusion because the transient lodging 
provisions in the 2004 ADAAG use the term ``guest rooms'' and not 
``accommodations for sleeping.'' In addition, the Department 
believes that it would be confusing to add a factor relating to who 
dictates the in-room decor and furnishings in a unit or room, 
because there may be circumstances where particular rental programs 
require individual owners to use certain decor and furnishings as a 
condition of participating in that program.
    One commenter stated that the factors the Department has 
included for determining whether a rental unit is a place of lodging 
for the purposes of title III, and therefore a ``place of public 
accommodation'' under the ADA, address only the way an establishment 
appears to the public. This commenter recommended that the 
Department also consider the economic relationships among the unit 
owners, rental managers, and homeowners' associations, noting that 
where revenues are not pooled (as they are in a hotel), the economic 
relationships do not make it possible to spread the cost of 
providing accessibility features over the entire business 
enterprise. Another commenter argued that private ownership of 
sleeping accommodations sets certain facilities apart from 
traditional hotels, motels, and inns, and that the Department should 
revise the definition of places of lodging to exempt existing places 
of lodging that have sleeping accommodations separately owned by 
individual owners (e.g., condominiums) from the accessible transient 
lodging guest room requirements in sections 224 and 806 of the 2004 
ADAAG, although the commenter agreed that newly constructed places 
of lodging should meet those standards.
    One commenter argued that the Department's proposed definition 
of place of lodging does not reflect fully the nature of a timeshare 
facility and one single definition does not fit timeshares, condo 
hotels, and other types of rental accommodations. This commenter 
proposed that the Department adopt a separate definition for 
timeshare resorts as a subcategory of place of lodging. The 
commenter proposed defining timeshare resorts as facilities that 
provide the recurring right to occupancy for overnight 
accommodations for the owners of the accommodations, and other 
occupancy rights for owners exchanging their interests or members of 
the public for stays that primarily are short-term in nature 
(generally 30 consecutive days or less), where neither the owner nor 
any other occupant has the right or intent to use the unit or room 
on other than a temporary basis for vacation or leisure purposes. 
This proposed definition also would describe factors for determining 
when a timeshare resort is operating in a manner similar to a hotel, 
motel, or inn, including some or all of the following: rooms being 
available on a walk-in or call-in basis; housekeeping or linen 
services being available; on-site management; and reservations being 
accepted for a room type without guaranteeing any guest or owner use 
of a particular unit or room until check-in, without a prior lease 
or security deposit. Timeshares that do not meet this definition 
would not be subject to the transient lodging standards.
    The Department has considered these comments and has revised the 
definition of ``place of accommodation'' in Sec.  36.104 to include 
a revised subcategory (B), which more clearly defines the factors 
that must be present for a facility that is not an inn, motel, or 
hotel to qualify as a place of lodging. These factors include 
conditions and amenities similar to an inn, motel, or hotel, 
including on- or off-site management and reservations service, rooms 
available on a walk-up or call-in basis, availability of 
housekeeping or linen service, and accepting reservations for a room 
type without guaranteeing a particular unit or room until check-in 
without a prior lease or security deposit.
    Although the Department understands some of the concerns about 
the application of the ADA requirements to places of lodging that 
have ownership structures that involve individually owned units, the 
Department does not believe that the definitional section of the 
regulation is the place to address these concerns and has addressed 
them in Sec.  36.406(c)(2) and the accompanying discussion in 
Appendix A.

``Qualified Interpreter''

    In the NPRM, the Department proposed adding language to the 
definition of ``qualified interpreter'' to clarify that the term 
includes, but is not limited to, sign language interpreters, oral 
interpreters, and cued-speech interpreters. As the Department 
explained, not all interpreters are qualified for all situations. 
For example, a qualified interpreter who uses American Sign Language 
(ASL) is not necessarily qualified to interpret orally. In addition, 
someone with only a rudimentary familiarity with sign language or 
finger spelling is not qualified, nor is someone who is fluent in 
sign language but unable to translate spoken communication into ASL 
or to translate signed communication into spoken words.
    As further explained, different situations will require 
different types of interpreters. For example, an oral interpreter 
who has special skill and training to mouth a speaker's words 
silently for individuals who are deaf or hard of hearing may be 
necessary for an individual who was raised orally and taught to read 
lips or was diagnosed with hearing loss later in life and does not 
know sign language. An individual who is deaf or hard of hearing may 
need an oral interpreter if the speaker's voice is unclear, if there 
is a quick-paced exchange of communication (e.g., in a meeting), or 
when the speaker does not directly face the individual who is deaf 
or hard of hearing. A cued-speech interpreter functions in the same 
manner as an oral interpreter except that he or she also uses a hand 
code or cue to represent each speech sound.
    The Department received many comments regarding the proposed 
modifications to the definition of ``qualified interpreter.'' Many 
commenters requested that the Department include within the 
definition a requirement that interpreters be certified, 
particularly if they reside in a State that licenses or certifies 
interpreters. Other commenters opposed a certification requirement 
as unduly limiting, noting that an interpreter may well be qualified 
even if that same interpreter is not certified. These commenters 
noted the absence of nationwide standards or universally accepted 
criteria for certification.
    On review of this issue, the Department has decided against 
imposing a certification requirement under the ADA. It is sufficient 
under the ADA that the interpreter be qualified. With respect to the 
proposed additions to the rule, most commenters supported the 
expansion of the list of qualified interpreters, and some advocated 
for the inclusion of other types of interpreters

[[Page 56265]]

on the list as well, such as deaf-blind interpreters, certified deaf 
interpreters, and speech-to-speech interpreters. As these commenters 
explained, deaf-blind interpreters are interpreters who have 
specialized skills and training to interpret for individuals who are 
deaf and blind. Certified deaf interpreters are deaf or hard of 
hearing interpreters who work with hearing sign language 
interpreters to meet the specific communication needs of deaf 
individuals. Speech-to-speech interpreters have special skill and 
training to interpret for individuals who have speech disabilities.
    The list of interpreters in the definition of ``qualified 
interpreter'' is illustrative, and the Department does not believe 
it is necessary or appropriate to attempt to provide an exhaustive 
list of qualified interpreters. Accordingly, the Department has 
decided not to expand the proposed list. However, if a deaf and 
blind individual needs interpreting services, an interpreter who is 
qualified to handle the interpreting needs of that individual may be 
required. The guiding criterion is that the public accommodation 
must provide appropriate auxiliary aids and services to ensure 
effective communication with the individual.
    Commenters also suggested various definitions for the term 
``cued-speech interpreters,'' and different descriptions of the 
tasks they performed. After reviewing the various comments, the 
Department has determined that it is more accurate and appropriate 
to refer to such individuals as ``cued-language transliterators.'' 
Likewise, the Department has changed the term ``oral interpreters'' 
to ``oral transliterators.'' These two changes have been made to 
distinguish between sign language interpreters, who translate one 
language into another language (e.g., ASL to English and English to 
ASL), from transliterators, who interpret within the same language 
between deaf and hearing individuals. A cued-language transliterator 
is an interpreter who has special skill and training in the use of 
the Cued Speech system of handshapes and placements, along with non-
manual information, such as facial expression and body language, to 
show auditory information visually, including speech and 
environmental sounds. An oral transliterator is an interpreter who 
has special skill and training to mouth a speaker's words silently 
for individuals who are deaf or hard of hearing. While the 
Department included definitions for ``cued-speech interpreter'' and 
``oral interpreter'' in the regulatory text proposed in the NPRM, 
the Department has decided that it is unnecessary to include such 
definitions in the text of the final rule.
    Many commenters questioned the proposed deletion of the 
requirement that a qualified interpreter be able to interpret both 
receptively and expressively, noting the importance of both these 
skills. Commenters noted that this phrase was carefully crafted in 
the original regulation to make certain that interpreters both (1) 
are capable of understanding what a person with a disability is 
saying and (2) have the skills needed to convey information back to 
that individual. These are two very different skill sets and both 
are equally important to achieve effective communication. For 
example, in a medical setting, a sign language interpreter must have 
the necessary skills to understand the grammar and syntax used by an 
ASL user (receptive skills) and the ability to interpret complicated 
medical information--presented by medical staff in English--back to 
that individual in ASL (expressive skills). The Department agrees 
and has put the phrase ``both receptively and expressively'' back in 
the definition.
    Several advocacy groups suggested that the Department make clear 
in the definition of qualified interpreter that the interpreter may 
appear either on-site or remotely using a video remote interpreting 
(VRI) service. Given that the Department has included in this rule 
both a definition of VRI services and standards that such services 
must satisfy, such an addition to the definition of qualified 
interpreter is appropriate.
    After consideration of all relevant information submitted during 
the public comment period, the Department has modified the 
definition from that initially proposed in the NPRM. The final 
definition now states that ``[q]ualified interpreter means an 
interpreter who, via a video remote interpreting (VRI) service or an 
on-site appearance, is able to interpret effectively, accurately, 
and impartially, both receptively and expressively, using any 
necessary specialized vocabulary. Qualified interpreters include, 
for example, sign language interpreters, oral transliterators, and 
cued-language transliterators.''

``Qualified Reader''

    The 1991 title III regulation identified a qualified reader as 
an auxiliary aid, but did not define the term. Based upon the 
Department's investigation of complaints alleging that some entities 
have provided ineffective readers, the Department proposed in the 
NPRM to define ``qualified reader'' similarly to ``qualified 
interpreter'' to ensure that public accommodations select qualified 
individuals to read an examination or other written information in 
an effective, accurate, and impartial manner. This proposal was 
suggested in order to make clear to public accommodations that a 
failure to provide a qualified reader to a person with a disability 
may constitute a violation of the requirement to provide appropriate 
auxiliary aids and services.
    The Department received comments supporting the inclusion in the 
regulation of a definition of a ``qualified reader.'' Some 
commenters suggested the Department add to the definition a 
requirement prohibiting the use of a reader whose accent, diction, 
or pronunciation makes full comprehension of material being read 
difficult. Another commenter requested that the Department include a 
requirement that the reader ``will follow the directions of the 
person for whom he or she is reading.'' Commenters also requested 
that the Department define ``accurately'' and ``effectively'' as 
used in this definition.
    While the Department believes that the regulatory definition 
proposed in the NPRM adequately addresses these concerns, the 
Department emphasizes that a reader, in order to be ``qualified,'' 
must be skilled in reading the language and subject matter and must 
be able to be easily understood by the individual with the 
disability. For example, if a reader is reading aloud the questions 
for a bar examination, that reader, in order to be qualified, must 
know the proper pronunciation of all legal terminology used and must 
be sufficiently articulate to be easily understood by the individual 
with a disability for whom he or she is reading. In addition, the 
terms ``effectively'' and ``accurately'' have been successfully used 
and understood in the Department's existing definition of 
``qualified interpreter'' since 1991 without specific regulatory 
definitions. Instead, the Department has relied upon the common use 
and understanding of those terms from standard English dictionaries. 
Thus, the definition of ``qualified reader'' has not been changed 
from that contained in the NPRM. The final rule defines a 
``qualified reader'' to mean ``a person who is able to read 
effectively, accurately, and impartially using any necessary 
specialized vocabulary.''

``Service Animal''

    Section 36.104 of the 1991 title III regulation defines a 
``service animal'' as ``any guide dog, signal dog, or other animal 
individually trained to do work or perform tasks for the benefit of 
an individual with a disability, including, but not limited to, 
guiding individuals with impaired vision, alerting individuals with 
impaired hearing to intruders or sounds, providing minimal 
protection or rescue work, pulling a wheelchair, or fetching dropped 
items.'' Section 36.302(c)(1) of the 1991 title III regulation 
requires that ``[g]enerally, a public accommodation shall modify 
policies, practices, or procedures to permit the use of a service 
animal by an individual with a disability.'' Section 36.302(c)(2) of 
the 1991 title III regulation states that ``a public accommodation 
[is not required] to supervise or care for a service animal.''
    The Department has issued guidance and provided technical 
assistance and publications concerning service animals since the 
1991 regulations became effective. In the NPRM, the Department 
proposed to modify the definition of service animal and asked for 
public input on several issues related to the service animal 
provisions of the 1991 title III regulation: whether the Department 
should clarify the phrase ``providing minimal protection'' in the 
definition or remove it; whether there are any circumstances where a 
service animal ``providing minimal protection'' would be appropriate 
or expected; whether certain species should be eliminated from the 
definition of ``service animal,'' and, if so, which types of animals 
should be excluded; whether ``common domestic animal'' should be 
part of the definition; and whether a size or weight limitation 
should be imposed for common domestic animals, even if the animal 
satisfies the ``common domestic animal'' part of the NPRM 
definition.
    The Department received extensive comments on these issues, as 
well as requests to clarify the obligations of public accommodations 
to accommodate individuals with disabilities who use service 
animals, and has modified the final rule in response. In the 
interests of avoiding unnecessary repetition, the Department has

[[Page 56266]]

elected to discuss the issues raised in the NPRM questions about 
service animals and the corresponding public comments in the 
following discussion of the definition of ``service animal.''
    The Department's final rule defines ``service animal'' as ``any 
dog that is individually trained to do work or perform tasks for the 
benefit of an individual with a disability, including a physical, 
sensory, psychiatric, intellectual, or other mental disability. 
Other species of animals, whether wild or domestic, trained or 
untrained, are not service animals for the purposes of this 
definition. The work or tasks performed by a service animal must be 
directly related to the handler's disability. Examples of work or 
tasks include, but are not limited to, assisting individuals who are 
blind or have low vision with navigation and other tasks, alerting 
individuals who are deaf or hard of hearing to the presence of 
people or sounds, providing non-violent protection or rescue work, 
pulling a wheelchair, assisting an individual during a seizure, 
alerting individuals to the presence of allergens, retrieving items 
such as medicine or the telephone, providing physical support and 
assistance with balance and stability to individuals with mobility 
disabilities, and helping persons with psychiatric and neurological 
disabilities by preventing or interrupting impulsive or destructive 
behaviors. The crime deterrent effects of an animal's presence and 
the provision of emotional support, well-being, comfort, or 
companionship do not constitute work or tasks for the purposes of 
this definition.''
    This definition has been designed to clarify a key provision of 
the ADA. Many covered entities indicated that they are confused 
regarding their obligations under the ADA with regard to individuals 
with disabilities who use service animals. Individuals with 
disabilities who use trained guide or service dogs are concerned 
that if untrained or unusual animals are termed ``service animals,'' 
their own right to use guide or service dogs may become 
unnecessarily restricted or questioned. Some individuals who are not 
individuals with disabilities have claimed, whether fraudulently or 
sincerely (albeit mistakenly), that their animals are service 
animals covered by the ADA, in order to gain access to hotels, 
restaurants, and other places of public accommodation. The 
increasing use of wild, exotic, or unusual species, many of which 
are untrained, as service animals has also added to the confusion.
    Finally, individuals with disabilities who have the legal right 
under the Fair Housing Act (FHAct) to use certain animals in their 
homes as a reasonable accommodation to their disabilities have 
assumed that their animals also qualify under the ADA. This is not 
necessarily the case, as discussed below.
    The Department recognizes the diverse needs and preferences of 
individuals with disabilities protected under the ADA, and does not 
wish to unnecessarily impede individual choice. Service animals play 
an integral role in the lives of many individuals with disabilities, 
and with the clarification provided by the final rule, individuals 
with disabilities will continue to be able to use their service 
animals as they go about their daily activities. The clarification 
will also help to ensure that the fraudulent or mistaken use of 
other animals not qualified as service animals under the ADA will be 
deterred. A more detailed analysis of the elements of the definition 
and the comments responsive to the service animal provisions of the 
NPRM follows.
    Providing minimal protection. The 1991 title III regulation 
included language stating that ``minimal protection'' was a task 
that could be performed by an individually trained service animal 
for the benefit of an individual with a disability. In the 
Department's ``ADA Business Brief on Service Animals'' (2002), the 
Department interpreted the ``minimal protection'' language within 
the context of a seizure (i.e., alerting and protecting a person who 
is having a seizure). The Department received many comments in 
response to the question of whether the ``minimal protection'' 
language should be clarified. Many commenters urged the removal of 
the ``minimal protection'' language from the service animal 
definition for two reasons: (1) The phrase can be interpreted to 
allow any dog that is trained to be aggressive to qualify as a 
service animal simply by pairing the animal with a person with a 
disability; and (2) The phrase can be interpreted to allow any 
untrained pet dog to qualify as a service animal, since many 
consider the mere presence of a dog to be a crime deterrent, and 
thus sufficient to meet the minimal protection standard. These 
commenters argued, and the Department agrees, that these 
interpretations were not contemplated under the original title III 
regulation.
    While many commenters stated that they believe that the 
``minimal protection'' language should be eliminated, other 
commenters recommended that the language be clarified, but retained. 
Commenters favoring clarification of the term suggested that the 
Department explicitly exclude the function of attack or exclude 
those animals that are trained solely to be aggressive or 
protective. Other commenters identified non-violent behavioral tasks 
that could be construed as minimally protective, such as 
interrupting self-mutilation, providing safety checks and room 
searches, reminding the handler to take medications, and protecting 
the handler from injury resulting from seizures or unconsciousness.
    Several commenters noted that the existing direct threat 
defense, which allows the exclusion of a service animal if the 
animal exhibits unwarranted or unprovoked violent behavior or poses 
a direct threat, prevents the use of ``attack dogs'' as service 
animals. One commenter noted that the use of a service animal 
trained to provide ``minimal protection'' may impede access to care 
in an emergency, for example, where the first responder is unable or 
reluctant to approach a person with a disability because the 
individual's service animal is in a protective posture suggestive of 
aggression.
    Many organizations and individuals stated that in the general 
dog training community, ``protection'' is code for attack or 
aggression training and should be removed from the definition. 
Commenters stated that there appears to be a broadly held 
misconception that aggression-trained animals are appropriate 
service animals for persons with post traumatic stress disorder 
(PTSD). While many individuals with PTSD may benefit by using a 
service animal, the work or tasks performed appropriately by such an 
animal would not involve unprovoked aggression but could include 
actively cuing the handler by nudging or pawing the handler to alert 
to the onset of an episode and removing the individual from the 
anxiety-provoking environment.
    The Department recognizes that despite its best efforts to 
provide clarification, the ``minimal protection'' language appears 
to have been misinterpreted. While the Department maintains that 
protection from danger is one of the key functions that service 
animals perform for the benefit of persons with disabilities, the 
Department recognizes that an animal individually trained to provide 
aggressive protection, such as an attack dog, is not appropriately 
considered a service animal. Therefore, the Department has decided 
to modify the ``minimal protection'' language to read ``non-violent 
protection,'' thereby excluding so-called ``attack dogs'' or dogs 
with traditional ``protection training'' as service animals. The 
Department believes that this modification to the service animal 
definition will eliminate confusion, without restricting 
unnecessarily the type of work or tasks that service animals may 
perform. The Department's modification also clarifies that the 
crime-deterrent effect of a dog's presence, by itself, does not 
qualify as work or tasks for purposes of the service animal 
definition.
    Alerting to intruders. The phrase ``alerting to intruders'' is 
related to the issues of minimal protection and the work or tasks an 
animal may perform to meet the definition of a service animal. In 
the original 1991 regulatory text, this phrase was intended to 
identify service animals that alert individuals who are deaf or hard 
of hearing to the presence of others. This language has been 
misinterpreted by some to apply to dogs that are trained 
specifically to provide aggressive protection, resulting in the 
assertion that such training qualifies a dog as a service animal 
under the ADA. The Department reiterates that public accommodations 
are not required to admit any animal whose use poses a direct 
threat. In addition, the Department has decided to remove the word 
``intruders'' from the service animal definition and replace it with 
the phrase ``the presence of people or sounds.'' The Department 
believes this clarifies that so-called ``attack training'' or other 
aggressive response types of training that cause a dog to provide an 
aggressive response do not qualify a dog as a service animal under 
the ADA.
    Conversely, if an individual uses a breed of dog that is 
perceived to be aggressive because of breed reputation, stereotype, 
or the history or experience the observer may have with other dogs, 
but the dog is under the control of the individual with a disability 
and does not exhibit aggressive behavior, the public accommodation 
cannot exclude the individual or the animal from the place of public 
accommodation. The animal can only be removed if it engages in the 
behaviors

[[Page 56267]]

mentioned in Sec.  36.302(c) (as revised in the final rule) or if 
the presence of the animal constitutes a fundamental alteration to 
the nature of the goods, services, facilities, and activities of the 
place of public accommodation.
    ``Doing work'' or ``performing tasks.'' The NPRM proposed that 
the Department maintain the requirement first articulated in the 
1991 title III regulation that in order to qualify as a service 
animal, the animal must ``perform tasks'' or ``do work'' for the 
individual with a disability. The phrases ``perform tasks'' and ``do 
work'' describe what an animal must do for the benefit of an 
individual with a disability in order to qualify as a service 
animal.
    The Department received a number of comments in response to the 
NPRM proposal urging the removal of the term ``do work'' from the 
definition of a service animal. These commenters argued that the 
Department should emphasize the performance of tasks instead. The 
Department disagrees. Although the common definition of work 
includes the performance of tasks, the definition of work is 
somewhat broader, encompassing activities that do not appear to 
involve physical action.
    One service dog user stated that, in some cases, ``critical 
forms of assistance can't be construed as physical tasks,'' noting 
that the manifestations of ``brain-based disabilities,'' such as 
psychiatric disorders and autism, are as varied as their physical 
counterparts. The Department agrees with this statement but cautions 
that unless the animal is individually trained to do something that 
qualifies as work or a task, the animal is a pet or support animal 
and does not qualify for coverage as a service animal. A pet or 
support animal may be able to discern that the handler is in 
distress, but it is what the animal is trained to do in response to 
this awareness that distinguishes a service animal from an observant 
pet or support animal.
    The NPRM contained an example of ``doing work'' that stated ``a 
psychiatric service dog can help some individuals with dissociative 
identity disorder to remain grounded in time or place.'' 73 FR 
34508, 34521 (June 17, 2008). Several commenters objected to the use 
of this example, arguing that grounding was not a ``task'' and 
therefore the example inherently contradicted the basic premise that 
a service animal must perform a task in order to mitigate a 
disability. Other commenters stated that ``grounding'' should not be 
included as an example of ``work'' because it could lead to some 
individuals claiming that they should be able to use emotional 
support animals in public because the dog makes them feel calm or 
safe. By contrast, one commenter with experience in training service 
animals explained that grounding is a trained task based upon very 
specific behavioral indicators that can be observed and measured. 
These tasks are based upon input from mental health practitioners, 
dog trainers, and individuals with a history of working with 
psychiatric service dogs.
    It is the Department's view that an animal that is trained to 
``ground'' a person with a psychiatric disorder does work or 
performs a task that would qualify it as a service animal as 
compared to an untrained emotional support animal whose presence 
affects a person's disability. It is the fact that the animal is 
trained to respond to the individual's needs that distinguishes an 
animal as a service animal. The process must have two steps: 
Recognition and response. For example, if a service animal senses 
that a person is about to have a psychiatric episode and it is 
trained to respond, for example, by nudging, barking, or removing 
the individual to a safe location until the episode subsides, then 
the animal has indeed performed a task or done work on behalf of the 
individual with the disability, as opposed to merely sensing an 
event.
    One commenter suggested defining the term ``task,'' presumably 
to improve the understanding of the types of services performed by 
an animal that would be sufficient to qualify the animal for 
coverage. The Department believes that the common definition of the 
word ``task'' is sufficiently clear and that it is not necessary to 
add to the definitions section. However, the Department has added 
examples of other kinds of work or tasks to help illustrate and 
provide clarity to the definition. After careful evaluation of this 
issue, the Department has concluded that the phrases ``do work'' and 
``perform tasks'' have been effective during the past two decades to 
illustrate the varied services provided by service animals for the 
benefit of individuals with all types of disabilities. Thus, the 
Department declines to depart from its longstanding approach at this 
time.
    Species limitations. When the Department originally issued its 
title III regulation in the early 1990s, the Department did not 
define the parameters of acceptable animal species. At that time, 
few anticipated the variety of animals that would be promoted as 
service animals in the years to come, which ranged from pigs and 
miniature horses to snakes, iguanas, and parrots. The Department has 
followed this particular issue closely, keeping current with the 
many unusual species of animals represented to be service animals. 
Thus, the Department has decided to refine further this aspect of 
the service animal definition in the final rule.
    The Department received many comments from individuals and 
organizations recommending species limitations. Several of these 
commenters asserted that limiting the number of allowable species 
would help stop erosion of the public's trust, which has resulted in 
reduced access for many individuals with disabilities who use 
trained service animals that adhere to high behavioral standards. 
Several commenters suggested that other species would be acceptable 
if those animals could meet nationally recognized behavioral 
standards for trained service dogs. Other commenters asserted that 
certain species of animals (e.g., reptiles) cannot be trained to do 
work or perform tasks, so these animals would not be covered.
    In the NPRM, the Department used the term ``common domestic 
animal'' in the service animal definition and excluded reptiles, 
rabbits, farm animals (including horses, miniature horses, ponies, 
pigs, and goats), ferrets, amphibians, and rodents from the service 
animal definition. 73 FR 34508, 34553 (June 17, 2008). However, the 
term ``common domestic animal'' is difficult to define with 
precision due to the increase in the number of domesticated species. 
Also, several State and local laws define a ``domestic'' animal as 
an animal that is not wild.
    The Department is compelled to take into account the practical 
considerations of certain animals and to contemplate their 
suitability in a variety of public contexts, such as restaurants, 
grocery stores, hospitals, and performing arts venues, as well as 
suitability for urban environments. The Department agrees with 
commenters' views that limiting the number and types of species 
recognized as service animals will provide greater predictability 
for public accommodations as well as added assurance of access for 
individuals with disabilities who use dogs as service animals. As a 
consequence, the Department has decided to limit this rule's 
coverage of service animals to dogs, which are the most common 
service animals used by individuals with disabilities.
    Wild animals, monkeys, and other nonhuman primates. Numerous 
business entities endorsed a narrow definition of acceptable service 
animal species, and asserted that there are certain animals (e.g., 
reptiles) that cannot be trained to do work or perform tasks. Other 
commenters suggested that the Department should identify excluded 
animals, such as birds and llamas, in the final rule. Although one 
commenter noted that wild animals bred in captivity should be 
permitted to be service animals, the Department has decided to make 
clear that all wild animals, whether born or bred in captivity or in 
the wild, are eliminated from coverage as service animals. The 
Department believes that this approach reduces risks to health or 
safety attendant with wild animals. Some animals, such as certain 
nonhuman primates, including certain monkeys, pose a direct threat; 
their behavior can be unpredictably aggressive and violent without 
notice or provocation. The American Veterinary Medical Association 
(AVMA) issued a position statement advising against the use of 
monkeys as service animals, stating that ``[t]he AVMA does not 
support the use of nonhuman primates as assistance animals because 
of animal welfare concerns, and the potential for serious injury and 
zoonotic [animal to human disease transmission] risks.'' AVMA 
Position Statement, Nonhuman Primates as Assistance Animals (2005), 
available at http://www.avma.org/issues/policy/nonhuman_primates.asp (last visited June 24, 2010).
    An organization that trains capuchin monkeys to provide in-home 
services to individuals with paraplegia and quadriplegia was in 
substantial agreement with the AVMA's views but requested a limited 
recognition in the service animal definition for the capuchin 
monkeys it trains to provide assistance for persons with 
disabilities. The organization commented that its trained capuchin 
monkeys undergo scrupulous veterinary examinations to ensure that 
the animals pose no health risks, and are used by individuals with 
disabilities exclusively in their homes. The organization 
acknowledged

[[Page 56268]]

that the capuchin monkeys it trains are not necessarily suitable for 
use in a place of public accommodation but noted that the monkeys 
may need to be used in circumstances that implicate title III 
coverage, e.g., in the event the handler had to leave home due to an 
emergency, to visit a veterinarian, or for the initial delivery of 
the monkey to the individual with a disability. The organization 
noted that several State and local government entities have local 
zoning, licensing, health, and safety laws that prohibit non-human 
primates, and that these prohibitions would prevent individuals with 
disabilities from using these animals even in their homes.
    The organization argued that including capuchin monkeys under 
the service animal umbrella would make it easier for individuals 
with disabilities to obtain reasonable modifications of State and 
local licensing, health, and safety laws that would permit the use 
of these monkeys. The organization argued that this limited 
modification to the service animal definition was warranted in view 
of the services these monkeys perform, which enable many individuals 
with paraplegia and quadriplegia to live and function with increased 
independence.
    The Department has carefully considered the potential risks 
associated with the use of nonhuman primates as service animals in 
places of public accommodation, as well as the information provided 
to the Department about the significant benefits that trained 
capuchin monkeys provide to certain individuals with disabilities in 
residential settings. The Department has determined, however, that 
nonhuman primates, including capuchin monkeys, will not be 
recognized as service animals for purposes of this rule because of 
their potential for disease transmission and unpredictable 
aggressive behavior. The Department believes that these 
characteristics make nonhuman primates unsuitable for use as service 
animals in the context of the wide variety of public settings 
subject to this rule. As the organization advocating the inclusion 
of capuchin monkeys acknowledges, capuchin monkeys are not suitable 
for use in public facilities.
    The Department emphasizes that it has decided only that capuchin 
monkeys will not be included in the definition of service animals 
for purposes of its regulation implementing the ADA. This decision 
does not have any effect on the extent to which public 
accommodations are required to allow the use of such monkeys under 
other Federal statutes, like the FHAct or the Air Carrier Access Act 
(ACAA). For example, a public accommodation that also is considered 
to be a ``dwelling'' may be covered under both the ADA and the 
FHAct. While the ADA does not require such a public accommodation to 
admit people with service monkeys, the FHAct may. Under the FHAct an 
individual with a disability may have the right to have an animal 
other than a dog in his or her home if the animal qualifies as a 
``reasonable accommodation'' that is necessary to afford the 
individual equal opportunity to use and enjoy a dwelling, assuming 
that the use of the animal does not pose a direct threat. In some 
cases, the right of an individual to have an animal under the FHAct 
may conflict with State or local laws that prohibit all individuals, 
with or without disabilities, from owning a particular species. 
However, in this circumstance, an individual who wishes to request a 
reasonable modification of the State or local law must do so under 
the FHAct, not the ADA.
    Having considered all of the comments about which species should 
qualify as service animals under the ADA, the Department has 
determined the most reasonable approach is to limit acceptable 
species to dogs.
    Size or weight limitations. The vast majority of commenters did 
not support a size or weight limitation. Commenters were typically 
opposed to a size or weight limit because many tasks performed by 
service animals require large, strong dogs. For instance, service 
animals may perform tasks such as providing balance and support or 
pulling a wheelchair. Small animals may not be suitable for large 
adults. The weight of the service animal user is often correlated 
with the size and weight of the service animal. Others were 
concerned that adding a size and weight limit would further 
complicate the difficult process of finding an appropriate service 
animal. One commenter noted that there is no need for a limit 
because ``if, as a practical matter, the size or weight of an 
individual's service animal creates a direct threat or fundamental 
alteration to a particular public entity or accommodation, there are 
provisions that allow for the animal's exclusion or removal.'' Some 
common concerns among commenters in support of a size and weight 
limit were that a larger animal may be less able to fit in various 
areas with its handler, such as toilet rooms and public seating 
areas, and that larger animals are more difficult to control.
    Balancing concerns expressed in favor of and against size and 
weight limitations, the Department has determined that such 
limitations would not be appropriate. Many individuals of larger 
stature require larger dogs. The Department believes it would be 
inappropriate to deprive these individuals of the option of using a 
service dog of the size required to provide the physical support and 
stability these individuals may need to function independently. 
Since large dogs have always served as service animals, continuing 
their use should not constitute fundamental alterations or impose 
undue burdens on public accommodations.
    Breed limitations. A few commenters suggested that certain 
breeds of dogs should not be allowed to be used as service animals. 
Some suggested that the Department should defer to local laws 
restricting the breeds of dogs that individuals who reside in a 
community may own. Other commenters opposed breed restrictions, 
stating that the breed of a dog does not determine its propensity 
for aggression and that aggressive and non-aggressive dogs exist in 
all breeds.
    The Department does not believe that it is either appropriate or 
consistent with the ADA to defer to local laws that prohibit certain 
breeds of dogs based on local concerns that these breeds may have a 
history of unprovoked aggression or attacks. Such deference would 
have the effect of limiting the rights of persons with disabilities 
under the ADA who use certain service animals based on where they 
live rather than on whether the use of a particular animal poses a 
direct threat to the health and safety of others. Breed restrictions 
differ significantly from jurisdiction to jurisdiction. Some 
jurisdictions have no breed restrictions. Others have restrictions 
that, while well-meaning, have the unintended effect of screening 
out the very breeds of dogs that have successfully served as service 
animals for decades without a history of the type of unprovoked 
aggression or attacks that would pose a direct threat, e.g., German 
Shepherds. Other jurisdictions prohibit animals over a certain 
weight, thereby restricting breeds without invoking an express breed 
ban. In addition, deference to breed restrictions contained in local 
laws would have the unacceptable consequence of restricting travel 
by an individual with a disability who uses a breed that is 
acceptable and poses no safety hazards in the individual's home 
jurisdiction but is nonetheless banned by other jurisdictions. 
Public accommodations have the ability to determine, on a case-by-
case basis, whether a particular service animal can be excluded 
based on that particular animal's actual behavior or history--not 
based on fears or generalizations about how an animal or breed might 
behave. This ability to exclude an animal whose behavior or history 
evidences a direct threat is sufficient to protect health and 
safety.
    Recognition of psychiatric service animals, but not ``emotional 
support animals.'' The definition of ``service animal'' in the NPRM 
stated the Department's longstanding position that emotional support 
animals are not included in the definition of ``service animal.'' 
The proposed text provided that ``[a]nimals whose sole function is 
to provide emotional support, comfort, therapy, companionship, 
therapeutic benefits, or to promote emotional well-being are not 
service animals.'' 73 FR 34508, 34553 (June 17, 2008).
    Many advocacy organizations expressed concern and disagreed with 
the exclusion of comfort and emotional support animals. Others have 
been more specific, stating that individuals with disabilities may 
need their emotional support animals in order to have equal access. 
Some commenters noted that individuals with disabilities use animals 
that have not been trained to perform tasks directly related to 
their disability. These animals do not qualify as service animals 
under the ADA. These are emotional support or comfort animals.
    Commenters asserted that excluding categories such as 
``comfort'' and ``emotional support'' animals recognized by laws 
such as the FHAct or the ACAA is confusing and burdensome. Other 
commenters noted that emotional support and comfort animals perform 
an important function, asserting that animal companionship helps 
individuals who experience depression resulting from multiple 
sclerosis.
    Some commenters explained the benefits emotional support animals 
provide, including emotional support, comfort, therapy, 
companionship, therapeutic benefits, and the promotion of emotional

[[Page 56269]]

well-being. They contended that without the presence of an emotional 
support animal in their lives they would be disadvantaged and unable 
to participate in society. These commenters were concerned that 
excluding this category of animals will lead to discrimination 
against and excessive questioning of individuals with non-visible or 
non-apparent disabilities. Other commenters expressing opposition to 
the exclusion of individually trained ``comfort'' or ``emotional 
support'' animals asserted that the ability to soothe or de-escalate 
and control emotion is ``work'' that benefits the individual with 
the disability.
    Many commenters requested that the Department carve out an 
exception that permits current or former members of the military to 
use emotional support animals. They asserted that a significant 
number of service members returning from active combat duty have 
adjustment difficulties due to combat, sexual assault, or other 
traumatic experiences while on active duty. Commenters noted that 
some current or former members of the military service have been 
prescribed animals for conditions such as PTSD. One commenter stated 
that service women who were sexually assaulted while in the military 
use emotional support animals to help them feel safe enough to step 
outside their homes. The Department recognizes that many current and 
former members of the military have disabilities as a result of 
service-related injuries that may require emotional support and that 
such individuals can benefit from the use of an emotional support 
animal and could use such animal in their home under the FHAct. 
However, having carefully weighed the issues, the Department 
believes that its final rule appropriately addresses the balance of 
issues and concerns of both the individual with a disability and the 
public accommodation. The Department also notes that nothing in this 
part prohibits a public entity from allowing current or former 
military members or anyone else with disabilities to utilize 
emotional support animals if it wants to do so.
    Commenters asserted the view that if an animal's ``mere 
presence'' legitimately provides such benefits to an individual with 
a disability and if those benefits are necessary to provide equal 
opportunity given the facts of the particular disability, then such 
an animal should qualify as a ``service animal.'' Commenters noted 
that the focus should be on the nature of a person's disability, the 
difficulties the disability may impose and whether the requested 
accommodation would legitimately address those difficulties, not on 
evaluating the animal involved. The Department understands this 
approach has benefitted many individuals under the FHAct and 
analogous State law provisions, where the presence of animals poses 
fewer health and safety issues and where emotional support animals 
provide assistance that is unique to residential settings. The 
Department believes, however, that the presence of such animals is 
not required in the context of public accommodations, such as 
restaurants, hospitals, hotels, retail establishments, and assembly 
areas.
    Under the Department's previous regulatory framework, some 
individuals and entities assumed that the requirement that service 
animals must be individually trained to do work or perform tasks 
excluded all individuals with mental disabilities from having 
service animals. Others assumed that any person with a psychiatric 
condition whose pet provided comfort to them was covered by the 1991 
title III regulation. The Department reiterates that psychiatric 
service animals that are trained to do work or perform a task for 
individuals whose disability is covered by the ADA are protected by 
the Department's present regulatory approach. Psychiatric service 
animals can be trained to perform a variety of tasks that assist 
individuals with disabilities to detect the onset of psychiatric 
episodes and ameliorate their effects. Tasks performed by 
psychiatric service animals may include reminding the handler to 
take medicine, providing safety checks or room searches for persons 
with PTSD, interrupting self-mutilation, and removing disoriented 
individuals from dangerous situations.
    The difference between an emotional support animal and a 
psychiatric service animal is the work or tasks that the animal 
performs. Traditionally, service dogs worked as guides for 
individuals who were blind or had low vision. Since the original 
regulation was promulgated, service animals have been trained to 
assist individuals with many different types of disabilities.
    In the final rule, the Department has retained its position on 
the exclusion of emotional support animals from the definition of 
``service animal.'' The definition states that ``[t]he provision of 
emotional support, well-being, comfort, or companionship * * * 
do[es] not constitute work or tasks for the purposes of this 
definition.'' The Department notes, however, that the exclusion of 
emotional support animals from coverage in the final rule does not 
mean that individuals with psychiatric or mental disabilities cannot 
use service animals that meet the regulatory definition. The final 
rule defines service animal as follows: ``Service animal means any 
dog that is individually trained to do work or perform tasks for the 
benefit of an individual with a disability, including a physical, 
sensory, psychiatric, intellectual, or other mental disability.'' 
This language simply clarifies the Department's longstanding 
position.
    The Department's position is based on the fact that the title II 
and title III regulations govern a wider range of public settings 
than the housing and transportation settings for which the 
Department of Housing and Urban Development (HUD) and the DOT 
regulations allow emotional support animals or comfort animals. The 
Department recognizes that there are situations not governed by the 
title II and title III regulations, particularly in the context of 
residential settings and transportation, where there may be a legal 
obligation to permit the use of animals that do not qualify as 
service animals under the ADA, but whose presence nonetheless 
provides necessary emotional support to persons with disabilities. 
Accordingly, other Federal agency regulations, case law, and 
possibly State or local laws governing those situations may provide 
appropriately for increased access for animals other than service 
animals as defined under the ADA. Public officials, housing 
providers, and others who make decisions relating to animals in 
residential and transportation settings should consult the Federal, 
State, and local laws that apply in those areas (e.g., the FHAct 
regulations of HUD and the ACAA) and not rely on the ADA as a basis 
for reducing those obligations.
    Retain term ``service animal.'' Some commenters asserted that 
the term ``assistance animal'' is a term of art and should replace 
the term ``service animal''; however, the majority of commenters 
preferred the term ``service animal'' because it is more specific. 
The Department has decided to retain the term ``service animal'' in 
the final rule. While some agencies, like HUD, use the terms 
``assistance animal,'' ``assistive animal,'' or ``support animal,'' 
these terms are used to denote a broader category of animals than is 
covered by the ADA. The Department has decided that changing the 
term used in the final rule would create confusion, particularly in 
view of the broader parameters for coverage under the FHAct, cf. 
Preamble to HUD's Final Rule for Pet Ownership for the Elderly and 
Persons with Disabilities, 73 FR 63834-38 (Oct. 27, 2008); HUD 
Handbook No. 4350.3 Rev-1, Chapter 2, Occupancy Requirements of 
Subsidized Multifamily Housing Programs (June 2007), available at 
http://www.hud.gov/offices/adm/hudclips/handbooks/hsgh/4350.3 (last 
visited June 24, 2010). Moreover, as discussed above, the 
Department's definition of ``service animal'' in the final rule does 
not affect the rights of individuals with disabilities who use 
assistance animals in their homes under the FHAct or who use 
``emotional support animals'' that are covered under the ACAA and 
its implementing regulations. See 14 CFR 382.7 et seq.; see also 
Department of Transportation, Guidance Concerning Service Animals in 
Air Transportation, 68 FR 24874, 24877 (May 9, 2003) (discussing 
accommodation of service animals and emotional support animals on 
aircraft).

``Video Remote Interpreting (VRI) Services''

    In the NPRM, the Department proposed adding ``Video Interpreting 
Services (VIS)'' to the list of auxiliary aids available to provide 
effective communication. In the preamble to the NPRM, VIS was 
defined as ``a technology composed of a video phone, video monitors, 
cameras, a high-speed Internet connection, and an interpreter. The 
video phone provides video transmission to a video monitor that 
permits the individual who is deaf or hard of hearing to view and 
sign to a video interpreter (i.e., a live interpreter in another 
location), who can see and sign to the individual through a camera 
located on or near the monitor, while others can communicate by 
speaking. The video monitor can display a split screen of two live 
images, with the interpreter in one image and the individual who is 
deaf or hard of hearing in the other image.'' 73 FR 34508, 34522 
(June 17, 2008). Comments from advocacy organizations and 
individuals unanimously requested that the Department use the term 
``video remote interpreting (VRI),'' instead of

[[Page 56270]]

VIS, for consistency with Federal Communications Commission (FCC) 
regulations, FCC Public Notice, DA-0502417 (Sept. 7, 2005), and with 
common usage by consumers. The Department has made that change 
throughout the regulation to avoid confusion and to make the 
regulation more consistent with existing regulations.
    Many commenters also requested that the Department distinguish 
between VRI and ``video relay service (VRS).'' Both VRI and VRS use 
a remote interpreter who is able to see and communicate with a deaf 
person and a hearing person, and all three individuals may be 
connected by a video link. VRI is a fee-based interpreting service 
conveyed via videoconferencing where at least one person, typically 
the interpreter, is at a separate location. VRI can be provided as 
an on-demand service or by appointment. VRI normally involves a 
contract in advance for the interpreter who is usually paid by the 
covered entity.
    VRS is a telephone service that enables persons with 
disabilities to use the telephone to communicate using video 
connections and is a more advanced form of relay service than the 
traditional voice to text telephones (TTY) relay systems that were 
recognized in the 1991 title III regulation. More specifically, VRS 
is a video relay service using interpreters connected to callers by 
video hook-up and is designed to provide telephone services to 
persons who are deaf and use American Sign Language that are 
functionally equivalent to those services provided to users who are 
hearing. VRS is funded through the Interstate Telecommunications 
Relay Services Fund and overseen by the FCC. See 47 CFR 
64.601(a)(26). There are no fees for callers to use the VRS 
interpreters and the video connection, although there may be 
relatively inexpensive initial costs to the title III entities to 
purchase the videophone or camera for on-line video connection, or 
other equipment to connect to the VRS service. The FCC has made 
clear that VRS functions as a telephone service and is not intended 
to be used for interpreting services where both parties are in the 
same room; the latter is reserved for VRI. The Department agrees 
that VRS cannot be used as a substitute for in-person interpreters 
or for VRI in situations that would not, absent one party's 
disability, entail use of the telephone.
    Many commenters strongly recommended limiting the use of VRI to 
circumstances where it will provide effective communication. 
Commenters from advocacy groups and persons with disabilities 
expressed concern that VRI may not always be appropriate to provide 
effective communication, especially in hospitals and emergency 
rooms. Examples were provided of patients who are unable to see the 
video monitor because they are semi-conscious or unable to focus on 
the video screen; other examples were given of cases where the video 
monitor is out of the sightline of the patient or the image is out 
of focus; still other examples were given of patients who could not 
see the image because the signal was interrupted, causing unnatural 
pauses in the communication, or the image was grainy or otherwise 
unclear. Many commenters requested more explicit guidelines on the 
use of VRI and some recommended requirements for equipment 
maintenance, high-speed, wide-bandwidth video links using dedicated 
lines or wireless systems, and training of staff using VRI, 
especially in hospital and health care situations. Several major 
organizations requested a requirement to include the interpreter's 
face, head, arms, hands, and eyes in all transmissions.
    After consideration of the comments and the Department's own 
research and experience, the Department has determined that VRI can 
be an effective method of providing interpreting services in certain 
circumstances, but not in others. For example, VRI should be 
effective in many situations involving routine medical care, as well 
as in the emergency room where urgent care is important, but no in-
person interpreter is available; however, VRI may not be effective 
in situations involving surgery or other medical procedures where 
the patient is limited in his or her ability to see the video 
screen. Similarly, VRI may not be effective in situations where 
there are multiple people in a room and the information exchanged is 
highly complex and fast paced. The Department recognizes that in 
these and other situations, such as where communication is needed 
for persons who are deaf-blind, it may be necessary to summon an in-
person interpreter to assist certain individuals. To ensure that VRI 
is effective in situations where it is appropriate, the Department 
has established performance standards in Sec.  36.303(f).

Subpart B--General Requirements

Section 36.208(b) Direct Threat

    The Department has revised the language of Sec.  36.208(b) 
(formerly Sec.  36.208(c) in the 1991 title III regulation) to 
include consideration of whether the provision of auxiliary aids or 
services will mitigate the risk that an individual will pose a 
direct threat to the health or safety of others. Originally, the 
reference to auxiliary aids or services as a mitigating factor was 
part of Sec.  36.208. However, that reference was removed from the 
section when, for editorial purposes, the Department removed the 
definition of ``direct threat'' from Sec.  36.208 and placed it in 
Sec.  36.104. The Department has put the reference to auxiliary aids 
or services as a mitigating factor back into Sec.  36.208(b) in 
order to maintain consistency with the current regulation.

Section 36.211 Maintenance of Accessible Features

    Section 36.211 of the 1991 title III regulation provides that a 
public accommodation must maintain in operable working condition 
those features of facilities and equipment that are required to be 
readily accessible to and usable by individuals with disabilities. 
28 CFR 36.211. In the NPRM, the Department clarified the application 
of this provision and proposed one change to the section to address 
the discrete situation in which the scoping requirements provided in 
the 2010 Standards reduce the number of required elements below the 
requirements of the 1991 Standards. In that discrete event, a public 
accommodation may reduce such accessible features in accordance with 
the requirements in the 2010 Standards.
    The Department received only four comments on this proposed 
amendment. None of the commenters opposed the change. In the final 
rule, the Department has revised the section to make it clear that 
if the 2010 Standards reduce either the technical requirements or 
the number of required accessible elements below that required by 
the 1991 Standards, then the public accommodation may reduce the 
technical requirements or the number of accessible elements in a 
covered facility in accordance with the requirements of the 2010 
Standards. One commenter, an association of convenience stores, 
urged the Department to expand the language of the section to 
include restocking of shelves as a permissible activity for isolated 
or temporary interruptions in service or access. It is the 
Department's position that a temporary interruption that blocks an 
accessible route, such as restocking of shelves, is already 
permitted by existing Sec.  36.211(b), which clarifies that 
``isolated or temporary interruptions in service or access due to 
maintenance or repairs'' are permitted. Therefore, the Department 
will not make any additional changes in the language of Sec.  36.211 
other than those discussed in the preceding paragraph.

Subpart C--Specific Requirements

Section 36.302 Modifications in Policies, Practices, or Procedures

Section 36.302(c) Service Animals

    Section 36.302(c)(1) of the 1991 title III regulation states 
that ``[g]enerally, a public accommodation shall modify [its] 
policies, practices, or procedures to permit the use of service 
animals by an individual with a disability.'' Section 36.302(c)(2) 
of the 1991 title III regulation states that ``[n]othing in this 
part requires a public accommodation to supervise or care for a 
service animal.'' The Department has decided to retain the scope of 
the 1991 title III regulation while clarifying the Department's 
longstanding policies and interpretations. Toward that end, the 
final rule has been revised to include the Department's policy 
interpretations as outlined in published technical assistance, 
Commonly Asked Questions about Service Animals in Places of Business 
(1996), available at http://www.ada.gov/qasrvc.htm, and ADA Guide 
for Small Businesses (1999), available at http://www.ada.gov/smbustxt.htm, and to add that a public accommodation may exclude a 
service animal in certain circumstances where the service animal 
fails to meet certain behavioral standards. The Department received 
extensive comments in response to proposed Sec.  36.302(c) from 
individuals, disability advocacy groups, organizations involved in 
training service animals, and public accommodations. Those comments 
and the Department's response are discussed below.
    Exclusion of service animals. The 1991 regulatory provision in 
Sec.  36.302(c) addresses reasonable modification and remains 
unchanged in the final rule. However, based

[[Page 56271]]

on comments received and the Department's analysis, the Department 
has decided to clarify those circumstances where otherwise eligible 
service animals may be excluded by public accommodations.
    In the NPRM, in Sec.  36.302(c)(2)(i), the Department proposed 
that a public accommodation may ask an individual with a disability 
to remove a service animal from the place of public accommodation if 
``[t]he animal is out of control and the animal's handler does not 
take effective action to control it.'' 73 FR 34508, 34553 (June 17, 
2008). The Department has long held that a service animal must be 
under the control of the handler at all times. Commenters 
overwhelmingly were in favor of this language, but noted that there 
are occasions when service animals are provoked to disruptive or 
aggressive behavior by agitators or troublemakers, as in the case of 
a blind individual whose service dog is taunted or pinched. While 
all service animals are trained to ignore and overcome these types 
of incidents, misbehavior in response to provocation is not always 
unreasonable. In circumstances where a service animal misbehaves or 
responds reasonably to a provocation or injury, the public 
accommodation must give the handler a reasonable opportunity to gain 
control of the animal. Further, if the individual with a disability 
asserts that the animal was provoked or injured, or if the public 
accommodation otherwise has reason to suspect that provocation or 
injury has occurred, the public accommodation should seek to 
determine the facts and, if provocation or injury occurred, the 
public accommodation should take effective steps to prevent further 
provocation or injury, which may include asking the provocateur to 
leave the place of public accommodation. This language is unchanged 
in the final rule.
    The NPRM also proposed language at Sec.  36.302(c)(2)(ii) to 
permit a public accommodation to exclude a service animal if the 
animal is not housebroken (i.e., trained so that, absent illness or 
accident, the animal controls its waste elimination) or the animal's 
presence or behavior fundamentally alters the nature of the service 
the public accommodation provides (e.g., repeated barking during a 
live performance). Several commenters were supportive of this NPRM 
language, but cautioned against overreaction by the public 
accommodation in these instances. One commenter noted that animals 
get sick, too, and that accidents occasionally happen. In these 
circumstances, simple clean up typically addresses the incident. 
Commenters noted that the public accommodation must be careful when 
it excludes a service animal on the basis of ``fundamental 
alteration,'' asserting for example, that a public accommodation 
should not exclude a service animal for barking in an environment 
where other types of noise, such as loud cheering or a child crying, 
is tolerated. The Department maintains that the appropriateness of 
an exclusion can be assessed by reviewing how a public accommodation 
addresses comparable situations that do not involve a service 
animal. The Department has retained in Sec.  36.302(c)(2) of the 
final rule the exception requiring animals to be housebroken. The 
Department has not retained the specific NPRM language stating that 
animals can be excluded if their presence or behavior fundamentally 
alters the nature of the service provided by the public 
accommodation, because the Department believes that this exception 
is covered by the general reasonable modification requirement 
contained in Sec.  36.302(c)(1).
    The NPRM also proposed in Sec.  36.302(c)(2)(iii) that a service 
animal can be excluded where ``[t]he animal poses a direct threat to 
the health or safety of others that cannot be eliminated by 
reasonable modifications.'' 73 FR 34508, 34553 (June 17, 2008). 
Commenters were universally supportive of this provision as it makes 
express the discretion of a public accommodation to exclude a 
service animal that poses a direct threat. Several commenters 
cautioned against the overuse of this provision and suggested that 
the Department provide an example of the rule's application. The 
Department has decided not to include regulatory language 
specifically stating that a service animal can be excluded if it 
poses a direct threat. The Department believes that the direct 
threat provision in Sec.  36.208 already provides this exception to 
public accommodations.
    Access to a public accommodation following the proper exclusion 
of a service animal. The NPRM proposed that in the event a public 
accommodation properly excludes a service animal, the public 
accommodation must give the individual with a disability the 
opportunity to obtain the goods and services of the public 
accommodation without having the service animal on the premises. 
Most commenters welcomed this provision as a common sense approach. 
These commenters noted that they do not wish to preclude individuals 
with disabilities from the full and equal enjoyment of the goods and 
services simply because of an isolated problem with a service 
animal. The Department has elected to retain this provision in Sec.  
36.302(c)(2).
    Other requirements. The NPRM also proposed that the regulation 
include the following requirements: that the work or tasks performed 
by the service animal must be directly related to the handler's 
disability; that a service animal must be individually trained to do 
work or perform a task, be housebroken, and be under the control of 
the handler; and that a service animal must have a harness, leash, 
or other tether. Most commenters addressed at least one of these 
issues in their responses. Most agreed that these provisions are 
important to clarify further the 1991 service animal regulation. The 
Department has moved the requirement that the work or tasks 
performed by the service animal must be related directly to the 
handler's disability to the definition of ``service animal'' in 
Sec.  36.104. In addition, the Department has modified the proposed 
language relating to the handler's control of the animal with a 
harness, leash, or other tether to state that ``[a] service animal 
shall have a harness, leash, or other tether, unless either the 
handler is unable because of a disability to use a harness, leash, 
or other tether, or the use of a harness, leash, or other tether 
would interfere with the service animal's safe, effective 
performance of work or tasks, in which case the service animal must 
be otherwise under the handler's control (e.g., voice control, 
signals, or other effective means).'' The Department has retained 
the requirement that the service animal must be individually 
trained, as well as the requirement that the service animal be 
housebroken.
    Responsibility for supervision and care of a service animal. The 
1991 title III regulation, in Sec.  36.302(c)(2), states that 
``[n]othing in this part requires a public accommodation to 
supervise or care for a service animal.'' The NPRM modified this 
language to state that ``[a] public accommodation is not responsible 
for caring for or supervising a service animal.'' 73 FR 34508, 34553 
(June 17, 2008). Most commenters did not address this particular 
provision. The Department notes that there are occasions when a 
person with a disability is confined to bed in a hospital for a 
period of time. In such an instance, the individual may not be able 
to walk or feed the service animal. In such cases, if the individual 
has a family member, friend, or other person willing to take on 
these responsibilities in the place of the individual with a 
disability, the individual's obligation to be responsible for the 
care and supervision of the service animal would be satisfied. The 
language of this section is retained, with minor modifications, in 
Sec.  36.302(c)(5) of the final rule.
    Inquiries about service animals. The NPRM proposed language at 
Sec.  36.302(c)(6) setting forth parameters about how a public 
accommodation may determine whether an animal qualifies as a service 
animal. The proposed section stated that a public accommodation may 
ask if the animal is required because of a disability and what task 
or work the animal has been trained to do but may not require proof 
of service animal certification or licensing. Such inquiries are 
limited to eliciting the information necessary to make a decision 
without requiring disclosure of confidential disability-related 
information that a public accommodation does not need.
    This language is consistent with the policy guidance outlined in 
two Department publications, Commonly Asked Questions about Service 
Animals in Places of Business (1996), available at http://www.ada.gov/qasrvc.htm, and ADA Guide for Small Businesses (1999), 
available at http://www.ada.gov/smbustxt.htm.
    Although some commenters contended that the NPRM service animal 
provisions leave unaddressed the issue of how a public accommodation 
can distinguish between a psychiatric service animal, which is 
covered under the final rule, and a comfort animal, which is not, 
other commenters noted that the Department's published guidance has 
helped public accommodations to distinguish between service animals 
and pets on the basis of an individual's response to these 
questions. Accordingly, the Department has retained the NPRM 
language incorporating its guidance concerning the permissible 
questions into the final rule.
    Some commenters suggested that a title III entity be allowed to 
require current

[[Page 56272]]

documentation, no more than one year old, on letterhead from a 
mental health professional stating the following: (1) That the 
individual seeking to use the animal has a mental health-related 
disability; (2) that having the animal accompany the individual is 
necessary to the individual's mental health or treatment or to 
assist the person otherwise; and (3) that the person providing the 
assessment of the individual is a licensed mental health 
professional and the individual seeking to use the animal is under 
that individual's professional care. These commenters asserted that 
this will prevent abuse and ensure that individuals with legitimate 
needs for psychiatric service animals may use them. The Department 
believes that this proposal would treat persons with psychiatric, 
intellectual, and other mental disabilities less favorably than 
persons with physical or sensory disabilities. The proposal would 
also require persons with disabilities to obtain medical 
documentation and carry it with them any time they seek to engage in 
ordinary activities of daily life in their communities--something 
individuals without disabilities have not been required to do. 
Accordingly, the Department has concluded that a documentation 
requirement of this kind would be unnecessary, burdensome, and 
contrary to the spirit, intent, and mandates of the ADA.
    Service animal access to areas of a public accommodation. The 
NPRM proposed at Sec.  36.302(c)(7) that an individual with a 
disability who uses a service animal has the same right of access to 
areas of a public accommodation as members of the public, program 
participants, and invitees. Commenters indicated that allowing 
individuals with disabilities to go with their service animals into 
the same areas as members of the public, program participants, 
clients, customers, patrons, or invitees is accepted practice by 
most places of public accommodation. The Department has included a 
slightly modified version of this provision in Sec.  36.302(c)(7) of 
the final rule.
    The Department notes that under the final rule, a healthcare 
facility must also permit a person with a disability to be 
accompanied by a service animal in all areas of the facility in 
which that person would otherwise be allowed. There are some 
exceptions, however. The Department follows the guidance of the 
Centers for Disease Control and Prevention (CDC) on the use of 
service animals in a hospital setting. Zoonotic diseases can be 
transmitted to humans through bites, scratches, direct contact, 
arthropod vectors, or aerosols.
    Consistent with CDC guidance, it is generally appropriate to 
exclude a service animal from limited-access areas that employ 
general infection-control measures, such as operating rooms and burn 
units. See Centers for Disease Control and Prevention, Guidelines 
for Environmental Infection Control in Health-Care Facilities: 
Recommendations of CDC and the Healthcare Infection Control 
Practices Advisory Committee (June 2003), available at http://www.cdc.gov/hicpac/pdf/guidelines/eic_in_HCF_03.pdf (last visited 
June 24, 2010). A service animal may accompany its handler to such 
areas as admissions and discharge offices, the emergency room, 
inpatient and outpatient rooms, examining and diagnostic rooms, 
clinics, rehabilitation therapy areas, the cafeteria and vending 
areas, the pharmacy, restrooms, and all other areas of the facility 
where healthcare personnel, patients, and visitors are permitted 
without taking added precautions.
    Prohibition against surcharges for use of a service animal. In 
the NPRM, the Department proposed to incorporate the previously 
mentioned policy guidance, which prohibits the assessment of a 
surcharge for the use of a service animal, into proposed Sec.  
36.302(c)(8). Several commenters agreed that this provision makes 
clear the obligation of a place of public accommodation to admit an 
individual with a service animal without surcharges, and that any 
additional costs imposed should be factored into the overall cost of 
doing business and passed on as a charge to all participants, rather 
than an individualized surcharge to the service animal user. 
Commenters also noted that service animal users cannot be required 
to comply with other requirements that are not generally applicable 
to other persons. If a public accommodation normally charges 
individuals for the damage they cause, an individual with a 
disability may be charged for damage caused by his or her service 
animals. The Department has retained this language, with minor 
modifications, in the final rule at Sec.  36.302(c)(8).
    Training requirement. Certain commenters recommended the 
adoption of formal training requirements for service animals. The 
Department has rejected this approach and will not impose any type 
of formal training requirements or certification process, but will 
continue to require that service animals be individually trained to 
do work or perform tasks for the benefit of an individual with a 
disability. While some groups have urged the Department to modify 
this position, the Department has determined that such a 
modification would not serve the full array of individuals with 
disabilities who use service animals, since individuals with 
disabilities may be capable of training, and some have trained, 
their service animal to perform tasks or do work to accommodate 
their disability. A training and certification requirement would 
increase the expense of acquiring a service animal and might limit 
access to service animals for individuals with limited financial 
resources.
    Some commenters proposed specific behavior or training standards 
for service animals, arguing that without such standards, the public 
has no way to differentiate between untrained pets and service 
animals. Many of the suggested behavior or training standards were 
lengthy and detailed. The Department believes that this rule 
addresses service animal behavior sufficiently by including 
provisions that address the obligations of the service animal user 
and the circumstances under which a service animal may be excluded, 
such as the requirements that an animal be housebroken and under the 
control of its handler.
    Miniature horses. The Department has been persuaded by 
commenters and the available research to include a provision that 
would require public accommodations to make reasonable modifications 
to policies, practices, or procedures to permit the use of a 
miniature horse by a person with a disability if the miniature horse 
has been individually trained to do work or perform tasks for the 
benefit of the individual with a disability. The traditional service 
animal is a dog, which has a long history of guiding individuals who 
are blind or have low vision, and over time dogs have been trained 
to perform an even wider variety of services for individuals with 
all types of disabilities. However, an organization that developed a 
program to train miniature horses, modeled on the program used for 
guide dogs, began training miniature horses in 1991.
    Although commenters generally supported the species limitations 
proposed in the NPRM, some were opposed to the exclusion of 
miniature horses from the definition of a service animal. These 
commenters noted that these animals have been providing assistance 
to persons with disabilities for many years. Miniature horses were 
suggested by some commenters as viable alternatives to dogs for 
individuals with allergies, or for those whose religious beliefs 
preclude the use of dogs. Another consideration mentioned in favor 
of the use of miniature horses is the longer life span and strength 
of miniature horses in comparison to dogs. Specifically, miniature 
horses can provide service for more than 25 years while dogs can 
provide service for approximately seven years, and, because of their 
strength, miniature horses can provide services that dogs cannot 
provide. Accordingly, use of miniature horses reduces the cost 
involved to retire, replace, and train replacement service animals.
    The miniature horse is not one specific breed, but may be one of 
several breeds, with distinct characteristics that produce animals 
suited to service animal work. These animals generally range in 
height from 24 inches to 34 inches measured to the withers, or 
shoulders, and generally weigh between 70 and 100 pounds. These 
characteristics are similar to those of large breed dogs, such as 
Labrador Retrievers, Great Danes, and Mastiffs. Similar to dogs, 
miniature horses can be trained through behavioral reinforcement to 
be ``housebroken.'' Most miniature service horse handlers and 
organizations recommend that when the animals are not doing work or 
performing tasks, the miniature horses should be kept outside in a 
designated area instead of indoors in a house.
    According to information provided by an organization that trains 
service horses, these miniature horses are trained to provide a wide 
array of services to their handlers, primarily guiding individuals 
who are blind or have low vision, pulling wheelchairs, providing 
stability and balance for individuals with disabilities that impair 
the ability to walk, and supplying leverage that enables a person 
with a mobility disability to get up after a fall. According to the 
commenter, miniature horses are particularly effective for large 
stature individuals. The animal can be trained to stand (and in some 
cases, lie down) at the handler's feet in venues where space is at a 
premium, such as assembly areas or inside some vehicles that

[[Page 56273]]

provide public transportation. Some individuals with disabilities 
have traveled by train and have flown commercially with their 
miniature horses.
    The miniature horse is not included in the definition of service 
animal, which is limited to dogs. However, the Department has added 
a specific provision at Sec.  36.302(c)(9) of the final rule 
covering miniature horses. Under this provision, public 
accommodations must make reasonable modifications in policies, 
practices, or procedures to permit the use of a miniature horse by 
an individual with a disability if the miniature horse has been 
individually trained to do work or perform tasks for the benefit of 
the individual with a disability. The public accommodation may take 
into account a series of assessment factors in determining whether 
to allow a miniature horse into a specific facility. These include 
the type, size, and weight of the miniature horse, whether the 
handler has sufficient control of the miniature horse, whether the 
miniature horse is housebroken, and whether the miniature horse's 
presence in a specific facility compromises legitimate safety 
requirements that are necessary for safe operation. In addition, 
paragraphs (c)(3)B-(8) of this section, which are applicable to 
dogs, also apply to miniature horses.
    Ponies and full-size horses are not covered by Sec.  
36.302(c)(9). Also, because miniature horses can vary in size and 
can be larger and less flexible than dogs, covered entities may 
exclude this type of service animal if the presence of the miniature 
horse, because of its larger size and lower level of flexibility, 
results in a fundamental alteration to the nature of the services 
provided.

Section 36.302(e) Hotel Reservations

    Section 36.302 of the 1991 title III regulation requires public 
accommodations to make reasonable modifications in policies, 
practices, or procedures when such modifications are necessary to 
afford access to any goods, services, facilities, privileges, 
advantages, or accommodations, unless the entity can demonstrate 
that making such modifications would fundamentally alter the nature 
of such goods, services, facilities, privileges, advantages, or 
accommodations. Hotels, timeshare resorts, and other places of 
lodging are subject to this requirement and must make reasonable 
modifications to reservations policies, practices, or procedures 
when necessary to ensure that individuals with disabilities are able 
to reserve accessible hotel rooms with the same efficiency, 
immediacy, and convenience as those who do not need accessible guest 
rooms.
    Each year the Department receives many complaints concerning 
failed reservations. Most of these complaints involve individuals 
who have reserved an accessible hotel room only to discover upon 
arrival that the room they reserved is either not available or not 
accessible. Although problems with reservations services were not 
addressed in the ANPRM, commenters independently noted an ongoing 
problem with hotel reservations and urged the Department to provide 
regulatory guidance. In response, the Department proposed specific 
language in the NPRM to address hotel reservations. In addition, the 
Department posed several questions regarding the current practices 
of hotels and other reservations services including questions about 
room guarantees and the holding and release of accessible rooms. The 
Department also questioned whether public accommodations that 
provide reservations services for a place or places of lodging but 
do not own, lease (or lease to), or operate a place of lodging--
referred to in this discussion as ``third-party reservations 
services''--should also be subject to the NPRM's proposals 
concerning hotel reservations.
    Although reservations issues were discussed primarily in the 
context of traditional hotels, the new rule modifies the definition 
of ``places of lodging'' to clarify the scope of the rule's coverage 
of rental accommodations in timeshare properties, condominium 
hotels, and mixed-use and corporate hotel facilities that operate as 
places of public accommodation (as that term is now defined in Sec.  
36.104), and the Department received detailed comments, discussed 
below, regarding the application of reservations requirements to 
this category of rental accommodations.
    General rule on reservations. Section 36.302(e)(1) of the NPRM 
required a public accommodation that owns, leases (or leases to), or 
operates a place of lodging to:

    Modify its policies, practices, or procedures to ensure that 
individuals with disabilities can make reservations, including 
reservations made by telephone, in-person, or through a third party, 
for accessible guest rooms during the same hours and in the same 
manner as individuals who do not need accessible rooms.
73 FR 34508, 34553 (June 17, 2008).
    Most individual commenters and organizations that represent 
individuals with disabilities strongly supported the requirement 
that individuals with disabilities should be able to make 
reservations for accessible guest rooms during the same hours and in 
the same manner as individuals who do not need accessible rooms. In 
many cases individuals with disabilities expressed frustration 
because, while they are aware of improvements in architectural 
access brought about as a result of the ADA, they are unable to take 
advantage of these improvements because of shortcomings in current 
hotel reservations systems. A number of these commenters pointed out 
that it can be difficult or impossible to obtain information about 
accessible rooms and hotel features and that even when information 
is provided it often is found to be incorrect upon arrival. They 
also noted difficulty reserving accessible rooms and the inability 
to guarantee or otherwise ensure that the appropriate accessible 
room is available when the guest arrives. The ability to obtain 
information about accessible guest rooms, to make reservations for 
accessible guest rooms in the same manner as other guests, and to be 
assured of an accessible room upon arrival was of critical 
importance to these commenters.
    Other commenters, primarily hotels, resort developers, travel 
agencies, and organizations commenting on their behalf, did not 
oppose the general rule on reservations, but recommended that the 
language requiring that reservations be made ``in the same manner'' 
be changed to require that reservations be made ``in a substantially 
similar manner.'' These commenters argued that hotel reservations 
are made in many different ways and through a variety of systems. In 
general, they argued that current reservations database systems may 
not contain sufficient information to permit guests, travel agents, 
or other third-party reservations services to select the most 
appropriate room without consulting directly with the hotel, and 
that updating these systems might be expensive and time consuming. 
They also noted that in some cases, hotels do not always 
automatically book accessible rooms when requested to do so. 
Instead, guests may select from a menu of accessibility and other 
room options when making reservations. This information is 
transmitted to the hotel's reservations staff, who then contact the 
individual to verify the guest's accessibility needs. Only when such 
verification occurs will the accessible room be booked.
    The Department is not persuaded that individuals who need to 
reserve accessible rooms cannot be served in the same manner as 
those who do not, and it appears that there are hotels of all types 
and sizes that already meet this requirement. Further, the 
Department has been able to accomplish this goal in settlement 
agreements resolving complaints about this issue. As stated in the 
preamble to the NPRM, basic nondiscrimination principles mandate 
that individuals with disabilities should be able to reserve hotel 
rooms with the same efficiency, immediacy, and convenience as those 
who do not need accessible guest rooms. The regulation does not 
require reservations services to create new methods for reserving 
hotel rooms or available timeshare units; instead, covered entities 
must make the modifications needed to ensure that individuals who 
need accessible rooms are able to reserve them in the same manner as 
other guests. If, for example, hotel reservations are not final 
until all hotel guests have been contacted by the hotel to discuss 
the guest's needs, a hotel may follow the same process when 
reserving accessible rooms. Therefore, the Department declines to 
change this language, which has been moved to Sec.  36.302(e)(1)(i). 
However, in response to the commenters who recommended a transition 
period that would allow reservations services time to modify 
existing reservations systems to meet the requirements of this rule, 
Sec.  36.302(e)(3) now provides a 18-month transition period before 
the requirements of Sec.  36.302(e)(1) will be enforced.
    Hotels and organizations commenting on their behalf also 
requested that the language be changed to eliminate any liability 
for reservations made through third parties, arguing that they are 
unable to control the actions of unrelated parties. The rule, both 
as proposed and as adopted, requires covered public accommodations 
to ensure that reservations made on their behalf by third parties 
are made in a manner that results in parity between those who need 
accessible rooms and those who do not.

[[Page 56274]]

    Hotels and other places of lodging that use third-party 
reservations services must make reasonable efforts to make 
accessible rooms available through at least some of these services 
and must provide these third-party services with information 
concerning the accessible features of the hotel and the accessible 
rooms. To the extent a hotel or other place of lodging makes 
available such rooms and information to a third-party reservation 
provider, but the third party fails to provide the information or 
rooms to people with disabilities in accordance with this section, 
the hotel or other place of lodging will not be responsible.
    Identification of accessible features in hotels and guest rooms. 
NPRM Sec.  36.302(e)(2) required public accommodations that provide 
hotel reservations services to identify and describe the accessible 
features in the hotels and guest rooms offered through that service. 
This requirement is essential to ensure that individuals with 
disabilities receive the information they need to benefit from the 
services offered by the place of lodging. As a practical matter, a 
public accommodation's designation of a guest room as ``accessible'' 
will not ensure necessarily that the room complies with all of the 
1991 Standards. In older facilities subject to barrier removal 
requirements, strict compliance with the 1991 Standards is not 
required. Instead, public accommodations must remove barriers to the 
extent that it is readily achievable to do so.
    Further, hotel rooms that are in full compliance with current 
standards may differ, and individuals with disabilities must be able 
to ascertain which features--in new and existing facilities--are 
included in the hotel's accessible guest rooms. For example, under 
certain circumstances, an accessible hotel bathroom may meet 
accessibility requirements with either a bathtub or a roll-in 
shower. The presence or absence of particular accessible features 
such as these may be the difference between a room that is usable by 
a particular person with a disability and one that is not.
    Individuals with disabilities strongly supported this 
requirement. In addition to the importance of information about 
specific access features, several commenters pointed out the 
importance of knowing the size and number of beds in a room. Many 
individuals with disabilities travel with family members, personal 
care assistants, or other companions and require rooms with at least 
two beds. Although most hotels provide this information when 
generally categorizing the type or class of room (e.g., deluxe suite 
with king bed), as described below, all hotels should consider the 
size and number of beds to be part of the basic information they are 
required to provide.
    Comments made on behalf of reservations services expressed 
concern that unless the word ``hotels'' is stricken from the text, 
Sec.  36.302(e)(2) of the NPRM essentially would require 
reservations systems to include a full accessibility report on each 
hotel or resort property in its system. Along these lines, 
commenters also suggested that the Department identify the specific 
accessible features of hotel rooms that must be described in the 
reservations system. For example, commenters suggested limiting 
features that must be included to bathroom type (tub or roll-in 
shower) and communications features.
    The Department recognizes that a reservations system is not 
intended to be an accessibility survey. However, specific 
information concerning accessibility features is essential to 
travelers with disabilities. Because of the wide variations in the 
level of accessibility that travelers will encounter, the Department 
cannot specify what information must be included in every instance. 
For hotels that were built in compliance with the 1991 Standards, it 
may be sufficient to specify that the hotel is accessible and, for 
each accessible room, to describe the general type of room (e.g., 
deluxe executive suite), the size and number of beds (e.g., two 
queen beds), the type of accessible bathing facility (e.g., roll-in 
shower), and communications features available in the room (e.g., 
alarms and visual notification devices). Based on that information, 
many individuals with disabilities will be comfortable making 
reservations.
    For older hotels with limited accessibility features, 
information about the hotel should include, at a minimum, 
information about accessible entrances to the hotel, the path of 
travel to guest check-in and other essential services, and the 
accessible route to the accessible room or rooms. In addition to the 
room information described above, these hotels should provide 
information about important features that do not comply with the 
1991 Standards. For example, if the door to the ``accessible'' room 
or bathroom is narrower than required, this information should be 
included (e.g., door to guest room measures 30 inches clear). This 
width may not meet current standards but may be adequate for some 
wheelchair users who use narrower chairs. In many cases, older 
hotels provide services through alternatives to barrier removal, for 
example, by providing check-in or concierge services at a different, 
accessible location. Reservations services for these entities should 
include this information and provide a way for guests to contact the 
appropriate hotel employee for additional information. To recognize 
that the information and level of detail needed will vary based on 
the nature and age of the facility, Sec.  36.302(e)(2) has been 
moved to Sec.  36.302(e)(1)(ii) in the final rule and modified to 
require reservations services to:
    Identify and describe accessible features in the hotels and 
guest rooms offered through its reservations service in enough 
detail to reasonably permit individuals with disabilities to assess 
independently whether a given hotel or guest room meets his or her 
accessibility needs. [Emphasis added]
    As commenters representing hotels have described, once 
reservations are made, some hotels may wish to contact the guest to 
offer additional information and services. Or, many individuals with 
disabilities may wish to contact the hotel or reservations service 
for more detailed information. At that point, trained staff 
(including staff located on-site at the hotel and staff located off-
site at a reservations center) should be available to provide 
additional information such as the specific layout of the room and 
bathroom, shower design, grab-bar locations, and other amenities 
available (e.g., bathtub bench).
    In the NPRM, the Department sought guidance concerning whether 
this requirement should be applied to third-party reservations 
services. Comments made by or on behalf of hotels, resort managers, 
and other members of the lodging and resort industry pointed out 
that, in most cases, these third parties do not have direct access 
to this information and must obtain it from the hotel or other place 
of lodging. Because third-party reservations services must rely on 
the place of lodging to provide the requisite information and to 
ensure that it is accurate and timely, the Department has declined 
to extend this requirement directly to third-party reservations 
services.
    Hold and release of accessible guest rooms. The Department has 
addressed the hold and release of accessible guest rooms in 
settlement agreements and recognizes that current practices vary 
widely. The Department is concerned about current practices by which 
accessible guest rooms are released to the general public even 
though the hotel is not sold out. In such instances, individuals 
with disabilities may be denied an equal opportunity to benefit from 
the services offered by the public accommodation, i.e., a hotel 
guest room. In the NPRM, the Department requested information 
concerning the current practices of hotels and third-party 
reservations services with respect to (1) holding accessible rooms 
for individuals with disabilities and (2) releasing accessible rooms 
to individuals without disabilities.
    Individuals with disabilities and organizations commenting on 
their behalf strongly supported requiring accessible rooms to be 
held back for rental by individuals with disabilities. In some cases 
commenters supported holding back all accessible rooms until all 
non-accessible rooms were rented. Others supported holding back 
accessible rooms in each category of rooms until all other rooms of 
that type were reserved. This latter position was also supported in 
comments received on behalf of the lodging industry; commenters also 
noted that this is the current practice of many hotels. In general, 
holding accessible rooms until requested by an individual who needs 
a room with accessible features or until it is the only available 
room of its type was viewed widely as a sensible approach to 
allocating scarce accessible rooms without imposing unnecessary 
costs on hotels.
    The Department agrees with this latter approach and has added 
Sec.  36.302(e)(1)(iii), which requires covered entities to hold 
accessible rooms for use by individuals with disabilities until all 
other guest rooms of that type have been rented and the accessible 
room requested is the only remaining room of that type. For example, 
if there are 25 rooms of a given type and two of these rooms are 
accessible, the reservations service is required to rent all 23 non-
accessible rooms before it is permitted to rent these two accessible 
rooms to individuals without disabilities. If a one-of-a-kind room 
is accessible, that room is available to the first party to request 
it. The Department believes that this is the fairest approach 
available

[[Page 56275]]

since it reserves accessible rooms for individuals who require them 
until all non-accessible rooms of that type have been reserved, and 
then provides equal access to any remaining rooms. It is also fair 
to hotels because it does not require them to forego renting a room 
that actually has been requested in favor of the possibility that an 
individual with a disability may want to reserve it at a later date.
    Requirement to block accessible guest room reservations. NPRM 
Sec.  36.302(e)(3) required a public accommodation that owns, leases 
(or leases to), or operates a place of lodging to guarantee 
accessible guest rooms that are reserved through a reservations 
service to the same extent that it guarantees rooms that are not 
accessible. In the NPRM, the Department sought comment on the 
current practices of hotels and third party reservations services 
with respect to ``guaranteed'' hotel reservations and on the impact 
of requiring a public accommodation to guarantee accessible rooms to 
the extent it guarantees other rooms.
    Comments received by the Department by and on behalf of both 
individuals with disabilities and public accommodations that provide 
reservations services made clear that, in many cases, when speaking 
of room guarantees, parties who are not familiar with hotel 
terminology actually mean to refer to policies for blocking and 
holding specific hotel rooms. Several commenters explained that, in 
most cases, when an individual makes ``reservations,'' hotels do not 
reserve specific rooms; rather the individual is reserving a room 
with certain features at a given price. When the hotel guest 
arrives, he or she is provided with a room that has those features.
    In most cases, this does not pose a problem because there are 
many available rooms of a given type. However, in comparison, 
accessible rooms are much more limited in availability and there may 
be only one room in a given hotel that meets a guest's needs. As 
described in the discussion on the identification of accessible 
features in hotels and guest rooms, the presence or absence of 
particular accessible features may be the difference between a room 
that is usable by a particular person with a disability and one that 
is not.
    For that reason, the Department has added Sec.  36.302(e)(1)(iv) 
to the final rule. Section 36.302(e)(1)(iv) requires covered 
entities to reserve, upon request, accessible guest rooms or 
specific types of guest rooms and ensure that the guest rooms 
requested are blocked and removed from all reservations systems (to 
eliminate double-booking, which is a common problem that arises when 
rooms are made available to be reserved through more than one 
reservations service). Of course, if a public accommodation 
typically requires a payment or deposit from its patrons in order to 
reserve a room, it may require the same payment or deposit from 
individuals with disabilities before it reserves an accessible room 
and removes it from all its reservations systems. These requirements 
should alleviate the widely-reported problem of arriving at a hotel 
only to discover that, although an accessible room was reserved, the 
room available is not accessible or does not have the specific 
accessible features needed. Many hotels already have a similar 
process in place for other guest rooms that are unique or one-of-a-
kind, such as ``Presidential'' suites. The Department has declined 
to extend this requirement directly to third-party reservations 
services. Comments the Department received in response to the NPRM 
indicate that most of the actions required to implement these 
requirements primarily are within the control of the entities that 
own the place of lodging or that manage it on behalf of its owners.
    Guarantees of reservations for accessible guest rooms. The 
Department recognizes that not all reservations are guaranteed, and 
the rule does not impose an affirmative duty to guarantee 
reservations. When a public accommodation does guarantee hotel or 
other room reservations, it must provide the same guarantee for 
accessible guest rooms as it makes for other rooms, except that it 
must apply that guarantee to the specific room reserved and blocked, 
even if in other situations, its guarantee policy only guarantees 
that a room of a specific type will be available at the guaranteed 
price. Without this reasonable modification to its guarantee policy, 
any guarantee for accessible rooms would be meaningless. If, for 
example, a hotel makes reservations for an accessible ``Executive 
Suite'' but, upon arrival, offers its guest an inaccessible 
Executive Suite that the guest is unable to enter, it would be 
meaningless to consider the hotel's guarantee fulfilled. As with the 
requirements for identifying, holding, and blocking accessible 
rooms, the Department has declined to extend this requirement 
directly to third-party reservations services because the 
fulfillment of guarantees largely is beyond their power to control.
    Application to rental units in timeshare, vacation communities, 
and condo-hotels. Because the Department has revised the definition 
of ``Places of Lodging'' in the final rule, the reservations 
requirements now apply to guest rooms and other rental units in 
timeshares, vacation communities, and condo-hotels where some or all 
of the units are owned and controlled by individual owners and 
rented out some portion of time to the public, as compared to 
traditional hotels and motels that are owned, controlled, and rented 
to the public by one entity. If a reservations service owns and 
controls one or more of the guest rooms or other units in the rental 
property (e.g., a developer who retains and rents out unsold 
inventory), it is subject to the requirements set forth in Sec.  
36.302(e).
    Several commenters expressed concern about any rule that would 
require accessible units that are owned individually to be removed 
from the rental pool and rented last. Commenters pointed out that 
this would be a disadvantage to the owners of accessible units 
because they would be rented last, if at all. Further, certain 
vacation property managers consider holding specific units back to 
be a violation of their ethical responsibility to present all 
properties they manage at an equal advantage. To address these 
concerns, the Department has added Sec.  36.302(e)(2), which exempts 
reservations for individual guest rooms and other units that are not 
owned or substantially controlled by the entity that owns, leases, 
or operates the overall facility from the requirement that 
accessible guest rooms be held back from rental until all other 
guest rooms of that type have been rented. Section 36.302(e)(2) also 
exempts such rooms from requirements for blocking and guaranteeing 
reserved rooms. In resort developments with mixed ownership 
structures, such as a resort where some units are operated as hotel 
rooms and others are owned and controlled individually, a 
reservations service operated by the owner of the hotel portion may 
apply the exemption only to the rooms that are not owned or 
substantially controlled by the entity that owns, manages, or 
otherwise controls the overall facility.
    Other reservations-related comments made on behalf of these 
entities reflected concerns similar to the general concerns 
expressed with respect to traditional hotel properties. For example, 
commenters noted that because of the unique nature of the timeshare 
industry, additional flexibility is needed when making reservations 
for accessible units. One commenter explained that reservations are 
sometimes made through unusual entities such as exchange companies, 
which are not public accommodations and which operate to trade 
ownership interests of millions of individual owners. The commenter 
expressed concern that developers or resort owners would be held 
responsible for the actions of these exchange entities. If, as 
described, the choice to list a unit with an exchange company is 
made by the individual owner of the property and the exchange 
company does not operate on behalf of the reservations service, the 
reservations service is not liable for the exchange company's 
actions.
    As with hotels, the Department believes that within the 18-month 
transition period these reservations services should be able to 
modify their systems to ensure that potential guests with 
disabilities who need accessible rooms can make reservations during 
the same hours and in the same manner as those who do not need 
accessible rooms.

Section 36.302(f) Ticketing

    The 1991 title III regulation did not contain specific 
regulatory language on ticketing. The ticketing policies and 
practices of public accommodations, however, are subject to title 
III's nondiscrimination provisions. Through the investigation of 
complaints, enforcement actions, and public comments related to 
ticketing, the Department became aware that some venue operators, 
ticket sellers, and distributors were violating title III's 
nondiscrimination mandate by not providing individuals with 
disabilities the same opportunities to purchase tickets for 
accessible seating as provided to spectators purchasing conventional 
seats. In the NPRM, the Department proposed Sec.  36.302(f) to 
provide explicit direction and guidance on discriminatory practices 
for entities involved in the sale or distribution of tickets.
    The Department received comments from advocacy groups, assembly 
area trade associations, public accommodations, and individuals. 
Many commenters supported the addition of regulatory language 
pertaining to ticketing and urged the Department to retain

[[Page 56276]]

it in the final rule. Several commenters, however, questioned why 
there were inconsistencies between the title II and title III 
provisions and suggested that the same language be used for both 
titles. The Department has decided to retain ticketing regulatory 
language and to ensure consistency between the ticketing provisions 
in title II and title III.
    Because many in the ticketing industry view season tickets and 
other multi-event packages differently from individual tickets, the 
Department bifurcated some season ticket provisions from those 
concerning single-event tickets in the NPRM. This structure, 
however, resulted in some provisions being repeated for both types 
of tickets but not for others even though they were intended to 
apply to both types of tickets. The result was that it was not 
entirely clear that some of the provisions that were not repeated 
also were intended to apply to season tickets. The Department is 
addressing the issues raised by these commenters using a different 
approach. For the purposes of this section, a single event refers to 
an individual performance for which tickets may be purchased. In 
contrast, a series of events includes, but is not limited to, 
subscription events, event packages, season tickets, or any other 
tickets that may be purchased for multiple events of the same type 
over the course of a specified period of time whose ownership right 
reverts to the public accommodation at the end of each season or 
time period. Series-of-events tickets that give their holders an 
enhanced ability to purchase such tickets from the public 
accommodation in seasons or periods of time that follow, such as a 
right of first refusal or higher ranking on waiting lists for more 
desirable seats, are subject to the provisions in this section. In 
addition, the final rule merges together some NPRM paragraphs that 
dealt with related topics and has reordered and renamed some of the 
paragraphs that were in the NPRM.
    Ticket sales. In the NPRM, the Department proposed, in Sec.  
36.302(f)(1), a general rule that a public accommodation shall 
modify its policies, practices, or procedures to ensure that 
individuals with disabilities can purchase tickets for accessible 
seating for an event or series of events in the same way as others 
(i.e., during the same hours and through the same distribution 
methods as other seating is sold). ``Accessible seating'' is defined 
in Sec.  36.302(f)(1)(i) of the final rule to mean ``wheelchair 
spaces and companion seats that comply with sections 221 and 802 of 
the 2010 Standards along with any other seats required to be offered 
for sale to the individual with a disability pursuant to paragraph 
(4) of this section.'' The defined term does not include designated 
aisle seats. A ``wheelchair space'' refers to a space for a single 
wheelchair and its occupant.
    The NPRM proposed requiring that accessible seats be sold 
through the ``same methods of distribution'' as non-accessible 
seats. 73 FR 34508, 34554 (June 17, 2008). Comments from venue 
managers and others in the business community, in general, noted 
that multiple parties are involved in ticketing, and because 
accessible seats may not be allotted to all parties involved at each 
stage, such parties should be protected from liability. For example, 
one commenter noted that a third-party ticket vendor, like 
Ticketmaster, can only sell the tickets it receives from its client. 
Because Sec.  36.302(f)(1) of the final rule requires venue 
operators to make available accessible seating through the same 
methods of distribution they use for their regular tickets, venue 
operators that provide tickets to third-party ticket vendors are 
required to provide accessible seating to the third-party ticket 
vendor. This provision will enhance third-party ticket vendors' 
ability to acquire and sell accessible seating for sale in the 
future. The Department notes that once third-party ticket vendors 
acquire accessible tickets, they are obligated to sell them in 
accordance with these rules.
    The Department also has received frequent complaints that 
individuals with disabilities have not been able to purchase 
accessible seating over the Internet, and instead have had to engage 
in a laborious process of calling a customer service line, or 
sending an email to a customer service representative and waiting 
for a response. Not only is such a process burdensome, but it puts 
individuals with disabilities at a disadvantage in purchasing 
tickets for events that are popular and may sell out in minutes. 
Because Sec.  36.302(f)(5) of the final rule authorizes venues to 
release accessible seating in case of a sell-out, individuals with 
disabilities effectively could be cut off from buying tickets unless 
they also have the ability to purchase tickets in real time over the 
Internet. The Department's new regulatory language is designed to 
address this problem.
    Several commenters representing assembly areas raised concerns 
about offering accessible seating for sale over the Internet. They 
contended that this approach would increase the incidence of fraud 
since anyone easily could purchase accessible seating over the 
Internet. They also asserted that it would be difficult 
technologically to provide accessible seating for sale in real time 
over the Internet, or that to do so would require simplifying the 
rules concerning the purchase of multiple additional accompanying 
seats. Moreover, these commenters argued that requiring an 
individual purchasing accessible seating to speak with a customer 
service representative would allow the venue to meet the patron's 
needs most appropriately and ensure that wheelchair spaces are 
reserved for individuals with disabilities who require wheelchair 
spaces. Finally, these commenters argued that individuals who can 
transfer effectively and conveniently from a wheelchair to a seat 
with a movable armrest seat could instead purchase designated aisle 
seats.
    The Department considered these concerns carefully and has 
decided to continue with the general approach proposed in the NPRM. 
Although fraud is an important concern, the Department believes that 
it is best combated by other means that would not have the effect of 
limiting the ability of individuals with disabilities to purchase 
tickets, particularly since restricting the purchase of accessible 
seating over the Internet will, of itself, not curb fraud. In 
addition, the Department has identified permissible means for 
covered entities to reduce the incidence of fraudulent accessible 
seating ticket purchases in Sec.  36.302(f)(8) of the final rule.
    Several commenters questioned whether ticket Web sites 
themselves must be accessible to individuals who are blind or have 
low vision, and if so, what that requires. The Department has 
consistently interpreted the ADA to cover Web sites that are 
operated by public accommodations and stated that such sites must 
provide their services in an accessible manner or provide an 
accessible alternative to the Web site that is available 24 hours a 
day, seven days a week. The final rule, therefore, does not impose 
any new obligation in this area. The accessibility of Web sites is 
discussed in more detail in the section entitled ``Other Issues.''
    In Sec.  36.302(f)(2) of the NPRM, the Department also proposed 
requiring public accommodations to make accessible seating available 
during all stages of tickets sales including, but not limited to, 
presales, promotions, lotteries, waitlists, and general sales. For 
example, if tickets will be presold for an event that is open only 
to members of a fan club, or to holders of a particular credit card, 
then tickets for accessible seating must be made available for 
purchase through those means. This requirement does not mean that 
any individual with a disability would be able to purchase those 
seats. Rather, it means that an individual with a disability who 
meets the requirement for such a sale (e.g., who is a member of the 
fan club or holds that credit card) will be able to participate in 
the special promotion and purchase accessible seating. The 
Department has maintained the substantive provisions of the NPRM's 
Sec. Sec.  36.302(f)(1) and (f)(2) but has combined them in a single 
paragraph at Sec.  36.302(f)(1)(ii) of the final rule so that all of 
the provisions having to do with the manner in which tickets are 
sold are located in a single paragraph.
    Identification of available accessible seating. In the NPRM, the 
Department proposed Sec.  36.302(f)(3), which, as modified and 
renumbered Sec.  36.302(f)(2)(iii) in the final rule, requires a 
facility to identify available accessible seating through seating 
maps, brochures, or other methods if that information is made 
available about other seats sold to the general public. This rule 
requires public accommodations to provide information about 
accessible seating to the same degree of specificity that it 
provides information about general seating. For example, if a 
seating map displays color-coded blocks pegged to prices for general 
seating, then accessible seating must be similarly color-coded. 
Likewise, if covered entities provide detailed maps that show exact 
seating and pricing for general seating, they must provide the same 
for accessible seating.
    The NPRM did not specify a requirement to identify prices for 
accessible seating. The final rule requires that if such information 
is provided for general seating, it must be provided for accessible 
seating as well.
    In the NPRM, the Department proposed in Sec.  36.302(f)(4) that 
a public accommodation, upon being asked, must inform persons with 
disabilities and their companions of the locations of all unsold or 
otherwise available seating. This provision is intended to prevent

[[Page 56277]]

the practice of ``steering'' individuals with disabilities to 
certain accessible seating so that the facility can maximize 
potential ticket sales by releasing unsold accessible seating, 
especially in preferred or desirable locations, for sale to the 
general public. The Department received no significant comment on 
this proposal. The Department has retained this provision in the 
final rule but has added it, with minor modifications, to Sec.  
36.302(f)(2) as paragraph (i).
    Ticket prices. In the NPRM, the Department proposed Sec.  
36.302(f)(7) requiring that ticket prices for accessible seating be 
set no higher than the prices for other seats in that seating 
section for that event. The NPRM's provision also required that 
accessible seating be made available at every price range, and if an 
existing facility has barriers to accessible seating within a 
particular price range, a proportionate amount of seating 
(determined by the ratio of the total number of seats at that price 
level to the total number of seats in the assembly area) must be 
offered in an accessible location at that same price. Under this 
rule, for example, if it is not readily achievable for a 20,000-seat 
facility built in 1980 to place accessible seating in the $20-price 
category, which is on the upper deck, it must place a proportionate 
number of seats in an accessible location for $20. If the upper deck 
has 2,000 seats, then the facility must place 10 percent of its 
accessible seating in an accessible location for $20 provided that 
it is part of a seating section where ticket prices are equal to or 
more than $20--a facility may not place the $20-accessible seating 
in a $10-seating section. The Department received no significant 
comment on this rule, and it has been retained, as amended, in the 
final rule in Sec.  36.302(f)(3).
    Purchase of multiple tickets. In the NPRM, the Department 
proposed Sec.  36.302(f)(9) to address one of the most common 
ticketing complaints raised with the Department: that individuals 
with disabilities are not able to purchase more than two tickets. 
The Department proposed this provision to facilitate the ability of 
individuals with disabilities to attend events with friends, 
companions, or associates who may or may not have a disability by 
enabling individuals with disabilities to purchase the maximum 
number of tickets allowed per transaction to other spectators; by 
requiring venues to place accompanying individuals in general 
seating as close as possible to accessible seating (in the event 
that a group must be divided because of the large size of the 
group); and by allowing an individual with a disability to purchase 
up to three additional contiguous seats per wheelchair space if they 
are available at the time of sale. Section 36.302(f)(9)(ii) of the 
NPRM required that a group containing one or more wheelchair users 
must be placed together, if possible, and that in the event that the 
group could not be placed together, the individuals with 
disabilities may not be isolated from the rest of the group.
    The Department asked in the NPRM whether this rule was 
sufficient to effectuate the integration of individuals with 
disabilities. Many advocates and individuals praised it as a welcome 
and much-needed change, stating that the trade-off of being able to 
sit with their family or friends was worth reducing the number of 
seats available for individuals with disabilities. Some commenters 
went one step further and suggested that the number of additional 
accompanying seats should not be restricted to three.
    Although most of the substance of the proposed provision on the 
purchase of multiple tickets has been maintained in the final rule, 
it has been renumbered as Sec.  36.302(f)(4), reorganized, and 
supplemented. To preserve the availability of accessible seating for 
other individuals with disabilities, the Department has not expanded 
the rule beyond three additional contiguous seats. Section 
36.302(f)(4)(i) of the final rule requires public accommodations to 
make available for purchase three additional tickets for seats in 
the same row that are contiguous with the wheelchair space, provided 
that at the time of purchase there are three such seats available. 
The requirement that the additional seats be ``contiguous with the 
wheelchair space'' does not mean that each of the additional seats 
must be in actual contact or have a border in common with the 
wheelchair space; however, at least one of the additional seats 
should be immediately adjacent to the wheelchair space. The 
Department recognizes that it will often be necessary to use vacant 
wheelchair spaces to provide for contiguous seating.
    The Department has added paragraphs (4)(ii) and (4)(iii) to 
clarify that in situations where there are insufficient unsold seats 
to provide three additional contiguous seats per wheelchair space or 
a ticket office restricts sales of tickets to a particular event to 
less than four tickets per customer, the obligation to make 
available three additional contiguous seats per wheelchair space 
would be affected. For example, if at the time of purchase, there 
are only two additional contiguous seats available for purchase 
because the third has been sold already, then the ticket purchaser 
would be entitled to two such seats. In this situation, the public 
entity would be required to make up the difference by offering one 
additional ticket for sale that is as close as possible to the 
accessible seats. Likewise, if ticket purchases for an event are 
limited to two per customer, a person who uses a wheelchair who 
seeks to purchase tickets would be entitled to purchase only one 
additional contiguous seat for the event.
    The Department has also added paragraph (4)(iv) to clarify that 
the requirement for three additional contiguous seats is not 
intended to serve as a cap if the maximum number of tickets that may 
be purchased by members of the general public exceeds the four 
tickets an individual with a disability ordinarily would be allowed 
to purchase (i.e., a wheelchair space and three additional 
contiguous seats). If the maximum number of tickets that may be 
purchased by members of the general public exceeds four, an 
individual with a disability is to be allowed to purchase the 
maximum number of tickets; however, additional tickets purchased by 
an individual with a disability beyond the wheelchair space and the 
three additional contiguous seats provided in Sec.  36.302(f)(4)(i) 
do not have to be contiguous with the wheelchair space.
    The NPRM proposed at Sec.  36.302(f)(9)(ii) that for group 
sales, if a group includes one or more individuals who use a 
wheelchair, then the group shall be placed in a seating area with 
accessible seating so that, if possible, the group can sit together. 
If it is necessary to divide the group, it should be divided so that 
the individuals in the group who use wheelchairs are not isolated 
from the rest of the members of their group. The final rule retains 
the NPRM language in paragraph (4)(v).
    Hold and release of unsold accessible seating. The Department 
recognizes that not all accessible seating will be sold in all 
assembly areas for every event to individuals with disabilities who 
need such seating and that public accommodations may have 
opportunities to sell such seating to the general public. The 
Department proposed in the NPRM a provision aimed at striking a 
balance between affording individuals with disabilities adequate 
time to purchase accessible seating and the entity's desire to 
maximize ticket sales. In the NPRM, the Department proposed Sec.  
36.302(f)(6), which allowed for the release of accessible seating 
under the following circumstances: (i) When all seating in the 
facility has been sold, excluding luxury boxes, club boxes, or 
suites; (ii) when all seating in a designated area has been sold and 
the accessible seating being released is in the same area; or (iii) 
when all seating in a designated price range has been sold and the 
accessible seating being released is within the same price range.
    The Department's NPRM asked ``whether additional regulatory 
guidance is required or appropriate in terms of a more detailed or 
set schedule for the release of tickets in conjunction with the 
three approaches described above. For example, does the proposed 
regulation address the variable needs of assembly areas covered by 
the ADA? Is additional regulatory guidance required to eliminate 
discriminatory policies, practices and procedures related to the 
sale, hold, and release of accessible seating? What considerations 
should appropriately inform the determination of when unsold 
accessible seating can be released to the general public?'' 73 FR 
34508, 34527 (June 17, 2008).
    The Department received comments both supporting and opposing 
the inclusion of a hold-and-release provision. One side proposed 
loosening the restrictions on the release of unsold accessible 
seating. One commenter from a trade association suggested that 
tickets should be released regardless of whether there is a sell-
out, and that these tickets should be released according to a set 
schedule. Conversely, numerous individuals, advocacy groups, and at 
least one public entity urged the Department to tighten the 
conditions under which unsold tickets for accessible seating may be 
released. These commenters suggested that venues should not be 
permitted to release tickets during the first two weeks of sale, or 
alternatively, that they should not be permitted to be released 
earlier than 48 hours before a sold-out event. Many of these 
commenters criticized the release of accessible seating under the 
second and third prongs of Sec.  36.302(f)(6) in the NPRM (when 
there is a sell-out in general seating in a

[[Page 56278]]

designated seating area or in a price range), arguing that it would 
create situations where general seating would be available for 
purchase while accessible seating would not be.
    Numerous commenters--both from the industry and from advocacy 
groups--asked for clarification of the term ``sell-out.'' Business 
groups commented that industry practice is to declare a sell-out 
when there are only ``scattered singles'' available--isolated seats 
that cannot be purchased as a set of adjacent pairs. Many of those 
same commenters also requested that ``sell-out'' be qualified with 
the phrase ``of all seating available for sale'' since it is 
industry practice to hold back from release tickets to be used for 
groups connected with that event (e.g., the promoter, home team, or 
sports league). They argued that those tickets are not available for 
sale and any return of these tickets to the general inventory 
happens close to the event date. Noting the practice of holding back 
tickets, one advocacy group suggested that covered entities be 
required to hold back accessible seating in proportion to the number 
of tickets that are held back for later release.
    The Department has concluded that it would be inappropriate to 
interfere with industry practice by defining what constitutes a 
``sell-out'' and that a public accommodation should continue to use 
its own approach to defining a ``sell-out.'' If, however, a public 
accommodation declares a sell-out by reference to those seats that 
are available for sale, but it holds back tickets that it reasonably 
anticipates will be released later, it must hold back a proportional 
percentage of accessible seating to be released as well.
    Adopting any of the alternatives proposed in the comments 
summarized above would have upset the balance between protecting the 
rights of individuals with disabilities and meeting venues' concerns 
about lost revenue from unsold accessible seating. As a result, the 
Department has retained Sec.  36.302(f)(6) renumbered as Sec.  
36.302(f)(5) in the final rule. The Department has, however, 
modified the regulation text to specify that accessible seating may 
be released only when ``all non-accessible tickets in a designated 
seating area have been sold and the tickets for accessible seating 
are being released in the same designated area.'' As stated in the 
NPRM, the Department intended for this provision to allow, for 
example, the release of accessible seating at the orchestra level 
when all other seating at the orchestra level is sold. The 
Department has added this language to the final rule at Sec.  
36.302(f)(5)(B) to clarify that venues cannot designate or 
redesignate seating areas for the purpose of maximizing the release 
of unsold accessible seating. So, for example, a venue may not 
determine on an ad hoc basis that a group of seats at the orchestra 
level is a designated seating area in order to release unsold 
accessible seating in that area.
    The Department also has maintained the hold-and-release 
provisions that appeared in the NPRM, but has added a provision to 
address the release of accessible seating for series-of-events 
tickets on a series-of-events basis. Many commenters asked the 
Department whether unsold accessible seating may be converted to 
general seating and released to the general public on a season-
ticket basis or longer when tickets typically are sold as a season-
ticket package or other long-term basis. Several disability rights 
organizations and individual commenters argued that such a practice 
should not be permitted, and, if it were, that conditions should be 
imposed to ensure that individuals with disabilities have future 
access to those seats.
    The Department interprets the fundamental principle of the ADA 
as a requirement to give individuals with disabilities equal, not 
better, access to those opportunities available to the general 
public. Thus, for example, a public accommodation that sells out its 
facility on a season-ticket only basis is not required to leave 
unsold its accessible seating if no persons with disabilities 
purchase those season-ticket seats. Of course, public accommodations 
may choose to go beyond what is required by reserving accessible 
seating for individuals with disabilities (or releasing such seats 
for sale to the general public) on an individual-game basis.
    If a covered entity chooses to release unsold accessible seating 
for sale on a season-ticket or other long-term basis, it must meet 
at least two conditions. Under Sec.  36.302(f)(5)(iii) of the final 
rule, public accommodations must leave flexibility for game-day 
change-outs to accommodate ticket transfers on the secondary market. 
And public accommodations must modify their ticketing policies so 
that, in future years, individuals with disabilities will have the 
ability to purchase accessible seating on the same basis as other 
patrons (e.g., as season tickets). Put differently, releasing 
accessible seating to the general public on a season-ticket or other 
long-term basis cannot result in that seating being lost to 
individuals with disabilities in perpetuity. If, in future years, 
season tickets become available and persons with disabilities have 
reached the top of the waiting list or have met any other 
eligibility criteria for season ticket purchases, public 
accommodations must ensure that accessible seating will be made 
available to the eligible individuals. In order to accomplish this, 
the Department has added Sec.  36.302(f)(5)(iii)(A) to require 
public accommodations that release accessible season tickets to 
individuals who do not have disabilities that require the features 
of accessible seating to establish a process to prevent the 
automatic reassignment of such ticket holders to accessible seating. 
For example, a public accommodation could have in place a system 
whereby accessible seating that was released because it was not 
purchased by individuals with disabilities is not in the pool of 
tickets available for purchase for the following season unless and 
until the conditions for ticket release have been satisfied in the 
following season. Alternatively, a public accommodation might 
release tickets for accessible seating only when a purchaser who 
does not need its features agrees that he or she has no guarantee of 
or right to the same seats in the following season, or that if 
season tickets are guaranteed for the following season, the 
purchaser agrees that the offer to purchase tickets is limited to 
non-accessible seats with, to the extent practicable, comparable 
price, view, and amenities to the accessible seats such individuals 
held in the prior year. The Department is aware that this rule may 
require some administrative changes but believes that this process 
will not create undue financial and administrative burdens. The 
Department believes that this approach is balanced and beneficial. 
It will allow public accommodations to sell all of their seats and 
will leave open the possibility, in future seasons or series of 
events, that persons who need accessible seating may have access to 
it.
    The Department also has added Sec.  36.302(f)(5)(iii)(B) to 
address how season tickets or series-of-events tickets that have 
attached ownership rights should be handled if the ownership right 
returns to the public accommodation (e.g., when holders forfeit 
their ownership right by failing to purchase season tickets or sell 
their ownership right back to a public accommodation). If the 
ownership right is for accessible seating, the public accommodation 
is required to adopt a process that allows an eligible individual 
with a disability who requires the features of such seating to 
purchase the rights and tickets for such seating.
    Nothing in the regulatory text prevents a public accommodation 
from establishing a process whereby such ticket holders agree to be 
voluntarily reassigned from accessible seating to another seating 
area so that individuals with mobility disabilities or disabilities 
that require the features of accessible seating and who become newly 
eligible to purchase season tickets have an opportunity to do so. 
For example, a public accommodation might seek volunteers to 
relocate to another location that is at least as good in terms of 
its location, price, and amenities or a public accommodation might 
use a seat with forfeited ownership rights as an inducement to get a 
ticket holder to give up accessible seating he or she does not need.
    Ticket transfer. The Department received many comments asking 
whether accessible seating has the same transfer rights as general 
seats. The proposed regulation at Sec.  36.302(f)(5) required that 
individuals with disabilities must be allowed to purchase season 
tickets for accessible seating on the same terms and conditions as 
individuals purchasing season tickets for general seating, including 
the right--if it exists for other ticket-holders--to transfer 
individual tickets to friends or associates. Some commenters pointed 
out that the NPRM proposed explicitly allowing individuals with 
disabilities holding season tickets to transfer tickets but did not 
address the transfer of tickets purchased for individual events. 
Several commenters representing assembly areas argued that persons 
with disabilities holding tickets for an individual event should not 
be allowed to sell or transfer them to third parties because such 
ticket transfers would increase the risk of fraud or would make 
unclear the obligation of the entity to accommodate secondary ticket 
transfers. They argued that individuals holding accessible seating 
should either be required to transfer their tickets to another 
individual with a disability or return them to the facility for a 
refund.

[[Page 56279]]

    Although the Department is sympathetic to concerns about 
administrative burden, curtailing transfer rights for accessible 
seating when other ticket holders are permitted to transfer tickets 
would be inconsistent with the ADA's guiding principle that 
individuals with disabilities must have rights equal to others. 
Thus, the Department has added language in the final rule in Sec.  
36.302(f)(6) that requires that individuals with disabilities 
holding accessible seating for any event have the same transfer 
rights accorded other ticket holders for that event. Section 
36.302(f)(6) also preserves the rights of individuals with 
disabilities who hold tickets to accessible seats for a series of 
events to transfer individual tickets to others, regardless of 
whether the transferee needs accessible seating. This approach 
recognizes the common practice of individuals splitting season 
tickets or other multi-event ticket packages with friends, 
colleagues, or other spectators to make the purchase of season 
tickets affordable; individuals with disabilities should not be 
placed in the burdensome position of having to find another 
individual with a disability with whom to share the package.
    This provision, however, does not require public accommodations 
to seat an individual who holds a ticket to an accessible seat in 
such seating if the individual does not need the accessible features 
of the seat. A public accommodation may reserve the right to switch 
these individuals to different seats if they are available, but a 
public accommodation is not required to remove a person without a 
disability who is using accessible seating from that seating, even 
if a person who uses a wheelchair shows up with a ticket from the 
secondary market for a non-accessible seat and wants accessible 
seating.
    Secondary ticket market. Section 36.302(f)(7) is a new provision 
in the final rule that requires a public accommodation to modify its 
policies, practices, or procedures to ensure that an individual with 
a disability, who acquires a ticket in the secondary ticket market, 
may use that ticket under the same terms and conditions as other 
ticket holders who acquire a ticket in the secondary market for an 
event or series of events. This principle was discussed in the NPRM 
in connection with Sec.  36.302(f)(5), pertaining to season-ticket 
sales. There, the Department asked for public comment regarding a 
public accommodation's proposed obligation to accommodate the 
transfer of accessible seating tickets on the secondary ticket 
market to those who do not need accessible seating and vice versa.
    The secondary ticket market, for the purposes of this rule, 
broadly means any transfer of tickets after the public 
accommodation's initial sale of tickets to individuals or entities. 
It thus encompasses a wide variety of transactions, from ticket 
transfers between friends to transfers using commercial exchange 
systems. Many commenters noted that the distinction between the 
primary and secondary ticket market has become blurred as a result 
of agreements between teams, leagues, and secondary market sellers. 
These commenters noted that the secondary market may operate 
independently of the public accommodation, and parts of the 
secondary market, such as ticket transfers between friends, 
undoubtedly are outside the direct jurisdiction of the public 
accommodation. To the extent that venues seat persons who have 
purchased tickets on the secondary market, they must similarly seat 
persons with disabilities who have purchased tickets on the 
secondary market. In addition, some public accommodations may 
acquire ADA obligations directly by formally entering the secondary 
ticket market.
    The Department's enforcement experience with assembly areas also 
has revealed that venues regularly provide for and make last-minute 
seat transfers. As long as there are vacant wheelchair spaces, 
requiring venues to provide wheelchair spaces for patrons who 
acquired inaccessible seats and need wheelchair spaces is an example 
of a reasonable modification of a policy under title III of the ADA. 
Similarly, a person who has a ticket for a wheelchair space but who 
does not require its accessible features could be offered non-
accessible seating if such seating is available.
    The Department's longstanding position that title III of the ADA 
requires venues to make reasonable modifications in their policies 
to allow individuals with disabilities who acquired non-accessible 
tickets on the secondary ticket market to be seated in accessible 
seating, where such seating is vacant, is supported by the only 
Federal court to address this issue. See Independent Living 
Resources v. Oregon Arena Corp., 1 F. Supp. 2d 1159, 1171 (D. Or. 
1998). The Department has incorporated this position into the final 
rule at Sec.  36.302(f)(7)(ii).
    The NPRM contained two questions aimed at gauging concern with 
the Department's consideration of secondary ticket market sales. The 
first question asked whether a secondary purchaser who does not have 
a disability and who buys an accessible seat should be required to 
move if the space is needed for someone with a disability.
    Many disability rights advocates answered that the individual 
should move provided that there is a seat of comparable or better 
quality available for him and his companion. Some venues, however, 
expressed concerns about this provision, and asked how they are to 
identify who should be moved and what obligations apply if there are 
no seats available that are equivalent or better in quality.
    The Department's second question asked whether there are 
particular concerns about the obligation to provide accessible 
seating, including a wheelchair space, to an individual with a 
disability who purchases an inaccessible seat through the secondary 
market.
    Industry commenters contended that this requirement would create 
a ``logistical nightmare,'' with venues scrambling to reseat patrons 
in the short time between the opening of the venues' doors and the 
commencement of the event. Furthermore, they argued that they might 
not be able to reseat all individuals and that even if they were 
able to do so, patrons might be moved to inferior seats (whether in 
accessible or non-accessible seating). These commenters also were 
concerned that they would be sued by patrons moved under such 
circumstances.
    These commenters seem to have misconstrued the rule. Covered 
entities are not required to seat every person who acquires a ticket 
for inaccessible seating but needs accessible seating, and are not 
required to move any individual who acquires a ticket for accessible 
seating but does not need it. Covered entities that allow patrons to 
buy and sell tickets on the secondary market must make reasonable 
modifications to their policies to allow persons with disabilities 
to participate in secondary ticket transfers. The Department 
believes that there is no one-size-fits-all rule that will suit all 
assembly areas. In those circumstances where a venue has accessible 
seating vacant at the time an individual with a disability who needs 
accessible seating presents his ticket for inaccessible seating at 
the box office, the venue must allow the individual to exchange his 
ticket for an accessible seat in a comparable location if such an 
accessible seat is vacant. Where, however, a venue has sold all of 
its accessible seating, the venue has no obligation to provide 
accessible seating to the person with a disability who purchased an 
inaccessible seat on the secondary market. Venues may encourage 
individuals with disabilities who hold tickets for inaccessible 
seating to contact the box office before the event to notify them of 
their need for accessible seating, even though they may not require 
ticketholders to provide such notice.
    The Department notes that public accommodations are permitted, 
though not required, to adopt policies regarding moving patrons who 
do not need the features of an accessible seat. If a public 
accommodation chooses to do so, it might mitigate administrative 
concerns by marking tickets for accessible seating as such, and 
printing on the ticket that individuals who purchase such seats but 
who do not need accessible seating are subject to being moved to 
other seats in the facility if the accessible seating is required 
for an individual with a disability. Such a venue might also develop 
and publish a ticketing policy to provide transparency to the 
general public and to put holders of tickets for accessible seating 
who do not require it on notice that they may be moved.
    Prevention of fraud in purchase of accessible seating. Assembly 
area managers and advocacy groups have informed the Department that 
the fraudulent purchase of accessible seating is a pressing concern. 
Curbing fraud is a goal that public accommodations and individuals 
with disabilities share. Steps taken to prevent fraud, however, must 
be balanced carefully against the privacy rights of individuals with 
disabilities. Such measures also must not impose burdensome 
requirements upon, nor restrict the rights of, individuals with 
disabilities.
    In the NPRM, the Department struck a balance between these 
competing concerns by proposing Sec.  36.302(f)(8), which prohibited 
public accommodations from asking for proof of disability before the 
purchase of accessible seating but provided guidance in two

[[Page 56280]]

paragraphs on appropriate measures for curbing fraud. Paragraph (i) 
proposed allowing a public accommodation to ask individuals 
purchasing single-event tickets for accessible seating whether they 
are wheelchair users. Paragraph (ii) proposed allowing a public 
accommodation to require individuals purchasing accessible seating 
for season tickets or other multi-event ticket packages to attest in 
writing that the accessible seating is for a wheelchair user. 
Additionally, the NPRM proposed to permit venues, when they have 
good cause to believe that an individual has fraudulently purchased 
accessible seating, to investigate that individual.
    Several commenters objected to this rule on the ground that it 
would require a wheelchair user to be the purchaser of tickets. The 
Department has reworded this paragraph to reflect that the 
individual with a disability does not have to be the ticket 
purchaser. The final rule allows third parties to purchase 
accessible tickets at the request of an individual with a 
disability.
    Commenters also argued that other individuals with disabilities 
who do not use wheelchairs should be permitted to purchase 
accessible seating. Some individuals with disabilities who do not 
use wheelchairs urged the Department to change the rule, asserting 
that they, too, need accessible seating. The Department agrees that 
such seating, although designed for use by a wheelchair user, may be 
used by non-wheelchair users, if those persons are persons with a 
disability who need to use accessible seating because of a mobility 
disability or because their disability requires the use of the 
features that accessible seating provides (e.g., individuals who 
cannot bend their legs because of braces, or individuals who, 
because of their disability, cannot sit in a straight-back chair).
    Some commenters raised concerns that allowing venues to ask 
questions to determine whether individuals purchasing accessible 
seating are doing so legitimately would burden individuals with 
disabilities in the purchase of accessible seating. The Department 
has retained the substance of this provision in Sec.  36.302(f)(8) 
of the final rule, but emphasizes that such questions should be 
asked at the initial time of purchase. For example, if the method of 
purchase is via the Internet, then the question(s) should be 
answered by clicking a yes or no box during the transaction. The 
public accommodation may warn purchasers that accessible seating is 
for individuals with disabilities and that individuals purchasing 
such tickets fraudulently are subject to relocation.
    One commenter argued that face-to-face contact between the venue 
and the ticket holder should be required in order to prevent fraud 
and suggested that individuals who purchase accessible seating 
should be required to pick up their tickets at the box office and 
then enter the venue immediately. The Department has declined to 
adopt that suggestion. It would be discriminatory to require 
individuals with disabilities to pick up tickets at the box office 
when other spectators are not required to do so. If the assembly 
area wishes to make face-to-face contact with accessible seating 
ticket holders to curb fraud, it may do so through its ushers and 
other customer service personnel located within the seating area.
    Some commenters asked whether it is permissible for assembly 
areas to have voluntary clubs where individuals with disabilities 
self-identify to the public accommodation in order to become a 
member of a club that entitles them to purchase accessible seating 
reserved for club members or otherwise receive priority in 
purchasing accessible seating. The Department agrees that such clubs 
are permissible, provided that a reasonable amount of accessible 
seating remains available at all prices and dispersed at all 
locations for individuals with disabilities who are non-members.

Section 36.303 Auxiliary Aids and Services

    Section 36.303(a) of the 1991 title III regulation requires a 
public accommodation to take such steps as may be necessary to 
ensure that no individual with a disability is excluded, denied 
services, segregated, or otherwise treated differently than other 
individuals because of the absence of auxiliary aids and services, 
unless the public accommodation can demonstrate that taking such 
steps would fundamentally alter the nature of the goods, services, 
facilities, advantages, or accommodations being offered or would 
result in an undue burden. Implicit in this duty to provide 
auxiliary aids and services is the underlying obligation of a public 
accommodation to communicate effectively with customers, clients, 
patients, companions, or participants who have disabilities 
affecting hearing, vision, or speech. The Department notes that 
Sec.  36.303(a) does not require public accommodations to provide 
assistance to individuals with disabilities that is unrelated to 
effective communication, although requests for such assistance may 
be otherwise subject to the reasonable modifications or barrier 
removal requirements.
    The Department has investigated hundreds of complaints alleging 
that public accommodations have failed to provide effective 
communication, and many of these investigations have resulted in 
settlement agreements and consent decrees. During the course of 
these investigations, the Department has determined that public 
accommodations sometimes misunderstand the scope of their 
obligations under the statute and the regulation. Section 36.303 in 
the final rule codifies the Department's longstanding policies in 
this area, and includes provisions based on technological advances 
and breakthroughs in the area of auxiliary aids and services that 
have occurred since the 1991 title III regulation was published.
    Video remote interpreting (VRI). Section 36.303(b)(1) sets out 
examples of auxiliary aids and services. In the NPRM, the Department 
proposed adding video remote services (hereafter referred to as 
``video remote interpreting'' or ``VRI'') and the exchange of 
written notes among the examples. The Department also proposed 
amending the provision to reflect technological advances, such as 
the wide availability of real-time capability in transcription 
services and captioning.
    VRI is defined in the final rule at Sec.  36.104 as ``an 
interpreting service that uses video conference technology over 
dedicated lines or wireless technology offering high-speed, wide-
bandwidth video connection or wireless connection that delivers 
high-quality video images as provided in Sec.  36.303(f).'' The 
Department notes that VRI generally consists of a videophone, 
monitors, cameras, a high-speed video connection, and an interpreter 
provided by the public accommodation pursuant to a contract for 
services. The term's inclusion within the definition of ``qualified 
interpreter'' makes clear that a public accommodation's use of VRI 
satisfies its title III obligations only where VRI affords effective 
communication. Comments from advocates and persons with disabilities 
expressed concern that VRI may not always provide effective 
communication, especially in hospitals and emergency rooms. Examples 
were provided of patients who are unable to see the video monitor 
because they are semi-conscious or unable to focus on the video 
screen; other examples were given of cases where the video monitor 
is out of the sightline of the patient or the image is out of focus; 
still other examples were given of patients who cannot see the 
screen because the signal is interrupted, causing unnatural pauses 
in communication, or the image is grainy or otherwise unclear. Many 
commenters requested more explicit guidelines on the use of VRI, and 
some recommended requirements for equipment maintenance, dedicated 
high-speed, wide-bandwidth video connections, and training of staff 
using VRI, especially in hospital and health care situations. 
Several major organizations requested a requirement to include the 
interpreter's face, head, arms, hands, and eyes in all 
transmissions.
    The Department has determined that VRI can be an effective 
method of providing interpreting service in certain situations, 
particularly when a live interpreter cannot be immediately on the 
scene. To ensure that VRI is effective, the Department has 
established performance standards for VRI in Sec.  36.303(f). The 
Department recognizes that reliance on VRI may not be effective in 
certain situations, such as those involving the exchange of complex 
information or involving multiple parties, and for some individuals, 
such as for persons who are deaf-blind, and using VRI in those 
circumstances would not satisfy a public accommodation's obligation 
to provide effective communication.
    Comments from several disability advocacy organizations and 
individuals discouraged the Department from adding the exchange of 
written notes to the list of available auxiliary aids in Sec.  
36.303(b). The Department consistently has recognized that the 
exchange of written notes may provide effective communication in 
certain contexts. The NPRM proposed adding an explicit reference to 
written notes because some title III entities do not understand that 
exchange of written notes using paper and pencil may be an available 
option in some circumstances. Advocates and persons with 
disabilities requested explicit limits on the use of written notes 
as a form of auxiliary aid because, they argued, most exchanges are 
not simple, and handwritten notes do not afford effective

[[Page 56281]]

communication. One major advocacy organization, for example, noted 
that the speed at which individuals communicate orally or use sign 
language averages about 200 words per minute or more, and thus, the 
exchange of notes may provide only truncated or incomplete 
communication. For persons whose primary language is American Sign 
Language (ASL), some commenters pointed out, using written English 
in exchange of notes often is ineffective because ASL syntax and 
vocabulary is dissimilar from English. By contrast, some commenters 
from professional medical associations sought more specific guidance 
on when notes are allowed, especially in the context of medical 
offices and health care situations.
    Exchange of notes likely will be effective in situations that do 
not involve substantial conversation, for example, when blood is 
drawn for routine lab tests or regular allergy shots are 
administered. However, interpreters should be used when the matter 
involves more complexity, such as in communication of medical 
history or diagnoses, in conversations about medical procedures and 
treatment decisions, or in communication of instructions for care at 
home or elsewhere. The Department discussed in the NPRM the kinds of 
situations in which use of interpreters or captioning is necessary. 
Additional guidance on this issue can be found in a number of 
agreements entered into with health care providers and hospitals 
that are available on the Department's Web site at http://www.ada.gov.
    In addition, commenters requested that the Department include 
``real-time'' before any mention of ``computer-aided'' or 
``captioning'' technology to highlight the value of simultaneous 
translation of any communication. The Department has added to the 
final rule appropriate references to ``real-time'' to recognize this 
aspect of effective communication. Lastly, in this provision and 
elsewhere in the title III regulation, the Department has replaced 
the term ``telecommunications devices for deaf persons (TDD)'' with 
``text telephones (TTYs).'' As noted in the NPRM, TTY has become the 
commonly accepted term and is consistent with the terminology used 
by the Access Board in the 2004 ADAAG. Comments from advocates and 
persons with disabilities expressed approval of the substitution of 
TTY for TDD in the proposed regulation, but expressed the view that 
the Department should expand the definition to ``voice, text, and 
video-based telecommunications products and systems, including 
TTY's, videophones, and captioned telephones, or equally effective 
telecommunications systems.'' The Department has expanded its 
definition of ``auxiliary aids and services'' in Sec.  36.303 to 
include those examples in the final rule. Other additions proposed 
in the NPRM, and retained in the final rule, include Brailled 
materials and displays, screen reader software, magnification 
software, optical readers, secondary auditory programs (SAP), and 
accessible electronic and information technology.
    As the Department noted in the preamble to the NPRM, the list of 
auxiliary aids in Sec.  36.303(b) is merely illustrative. The 
Department does not intend that every public accommodation covered 
by title III must have access to every device or all new technology 
at all times, as long as the communication provided is effective.
    Companions who are individuals with disabilities. The Department 
has added several new provisions to Sec.  36.303(c), but these 
provisions do not impose new obligations on places of public 
accommodation. Rather, these provisions simply codify the 
Department's longstanding positions. Section 36.303(c)(1) now states 
that ``[a] public accommodation shall furnish appropriate auxiliary 
aids and services where necessary to ensure effective communication 
with individuals with disabilities. This includes an obligation to 
provide effective communication to companions who are individuals 
with disabilities.'' Section 36.303(c)(1)(i) defines ``companion'' 
as ``a family member, friend, or associate of an individual seeking 
access to, or participating in, the goods, services, facilities, 
privileges, advantages, or accommodations of a public accommodation, 
who, along with such individual, is an appropriate person with whom 
the public accommodation should communicate.''
    This provision makes clear that if the companion is someone with 
whom the public accommodation normally would or should communicate, 
then the public accommodation must provide appropriate auxiliary 
aids and services to that companion to ensure effective 
communication with the companion. This commonsense rule provides the 
necessary guidance to public accommodations to implement properly 
the nondiscrimination requirements of the ADA. Commenters also 
questioned why, in the NPRM, the Department defined companion as ``a 
family member, friend, or associate of a program participant * * 
*,'' noting that the scope of a public accommodation's obligation is 
not limited to ``program participants'' but rather includes all 
individuals seeking access to, or participating in, the goods, 
services, facilities, privileges, advantages, or accommodations of 
the public accommodation. 73 FR 34508, 34554 (June 17, 2008). The 
Department agrees and has amended the regulatory language 
accordingly. Many commenters supported inclusion of companions in 
the rule and requested that the Department clarify that a companion 
with a disability may be entitled to effective communication from 
the public accommodation, even though the individual seeking access 
to, or participating in, the goods, services, facilities, 
privileges, advantages, or accommodations of the public 
accommodation is not an individual with a disability. Some 
commenters asked the Department to make clear that if the individual 
seeking access to or participating in the public accommodation's 
program or services is an individual with a disability and the 
companion is not, the public accommodation may not limit its 
communication to the companion, instead of communicating directly 
with the individual with a disability, when it would otherwise be 
appropriate to communicate with the individual with the disability.
    Most entities and individuals from the medical field objected to 
the Department's proposal, suggesting that medical and health care 
providers, and they alone, should determine to whom medical 
information should be communicated and when auxiliary aids and 
services should be provided to companions. Others asked that the 
Department limit the public accommodation's obligation to 
communicate effectively with a companion to situations where such 
communication is necessary to serve the interests of the person who 
is receiving the public accommodation's services. It also was 
suggested that companions should receive auxiliary aids and services 
only when necessary to ensure effective communication with the 
person receiving the public accommodation's services, with an 
emphasis on the particular needs of the patient requiring 
assistance, not the patient's family or guardian.
    Some in the medical community objected to the inclusion of any 
regulatory language regarding companions, asserting that such 
language is overbroad, seeks services for individuals whose presence 
is neither required by the public accommodation nor necessary for 
the delivery of the services or good, places additional burdens on 
the medical community, and represents an uncompensated mandate. One 
medical association commenter stated that such a mandate was 
particularly burdensome in situations where a patient is fully and 
legally capable of participating in the decision-making process and 
needs little or no assistance in obtaining care and following 
through on physician's instructions.
    The final rule codifies the Department's longstanding 
interpretation of the ADA, and clarifies that public accommodations 
have effective communication obligations with respect to companions 
who are individuals with disabilities even where the individual 
seeking to participate in or benefit from what a public 
accommodation offers does not have a disability. There are many 
instances in which such an individual may not be an individual with 
a disability but his or her companion is an individual with a 
disability. The effective communication requirement applies equally 
to that companion.
    Effective communication with companions is particularly critical 
in health care settings where miscommunication may lead to 
misdiagnosis and improper or delayed medical treatment. The 
Department has encountered confusion and reluctance by medical care 
providers regarding the scope of their obligation with respect to 
such companions. Effective communication with a companion is 
necessary in a variety of circumstances. For example, a companion 
may be legally authorized to make health care decisions on behalf of 
the patient or may need to help the patient with information or 
instructions given by hospital personnel. In addition, a companion 
may be the patient's next of kin or health care surrogate with whom 
hospital personnel need to communicate concerning the patient's 
medical condition. Moreover, a companion could be designated by the 
patient to communicate with hospital personnel about the patient's 
symptoms, needs, condition, or medical history. Furthermore, the 
companion could be a family member with whom

[[Page 56282]]

hospital personnel normally would communicate. It has been the 
Department's longstanding position that public accommodations are 
required to provide effective communication to companions when they 
accompany patients to medical care providers for treatment.
    The individual with a disability does not need to be present 
physically to trigger the public accommodation's obligation to 
provide effective communication to a companion. The controlling 
principle regarding whether appropriate auxiliary aids and services 
should be provided is whether the companion is an appropriate person 
with whom the public accommodation should communicate. Examples of 
such situations include back-to-school night or parent-teacher 
conferences at a private school. If the faculty writes on the board 
or otherwise displays information in a visual context during back-
to-school night, this information must be communicated effectively 
to parents or guardians who are blind or have low vision. At a 
parent-teacher conference, deaf parents or guardians are to be 
provided with appropriate auxiliary aids and service to communicate 
effectively with the teacher and administrators. Likewise, when a 
deaf spouse attempts to communicate with private social service 
agencies about the services necessary for the hearing spouse, 
appropriate auxiliary aids and services must be provided to the deaf 
spouse by the public accommodation to ensure effective 
communication.
    One medical association sought approval to impose a charge 
against an individual with a disability, either the patient or the 
companion, where that person had stated he or she needed an 
interpreter for a scheduled appointment, the medical provider had 
arranged for an interpreter to appear, and then the individual 
requiring the interpreter did not show up for the scheduled 
appointment. Section 36.301(c) of the 1991 title III regulation 
prohibits the imposition of surcharges to cover the costs of 
necessary auxiliary aids and services. As such, medical providers 
cannot pass along to their patients with disabilities the cost of 
obtaining an interpreter, even in situations where the individual 
cancels his or her appointment at the last minute or is a ``no-
show'' for the scheduled appointment. The medical provider, however, 
may charge for the missed appointment if all other patients are 
subject to such a charge in the same circumstances.
    Determining appropriate auxiliary aids. The type of auxiliary 
aid the public accommodation provides is dependent on which 
auxiliary aid is appropriate under the particular circumstances. 
Section 36.303(c)(1)(ii) codifies the Department's longstanding 
interpretation that the type of auxiliary aid or service necessary 
to ensure effective communication will vary in accordance with the 
method of communication used by the individual; the nature, length, 
and complexity of the communication involved; and the context in 
which the communication is taking place. As the Department explained 
in the NPRM, this provision lists factors the public accommodation 
should consider in determining which type of auxiliary aids and 
services are necessary. For example, an individual with a disability 
who is deaf or hard of hearing may need a qualified interpreter to 
discuss with hospital personnel a diagnosis, procedures, tests, 
treatment options, surgery, or prescribed medication (e.g., dosage, 
side effects, drug interactions, etc.). In comparison, an individual 
who is deaf or hard of hearing who purchases an item in the hospital 
gift shop may need only an exchange of written notes to achieve 
effective communication.
    The language in the first sentence of Sec.  36.303(c)(1)(ii) is 
derived from the Department's Technical Assistance Manual. See 
Department of Justice, Americans with Disabilities Act, ADA Title 
III Technical Assistance Manual Covering Public Accommodations and 
Commercial Facilities, III-4.3200, available at http://www.ada.gov/taman3.html. There were few comments regarding inclusion of this 
policy in the regulation itself, and those received were positive.
    Many advocacy groups, particularly those representing blind 
individuals and those with low vision, urged the Department to add 
language in the final rule requiring the provision of accessible 
material in a manner that is timely, accurate, and private. This, 
they argued, would be especially important with regard to billing 
information, other time-sensitive material, or confidential 
information. The Department has added a provision in Sec.  
36.303(c)(1)(ii) stating that in ``order to be effective, auxiliary 
aids and services must be provided in accessible formats, in a 
timely manner, and in such a way so as to protect the privacy and 
independence of the individual with a disability.''
    The second sentence of Sec.  36.303(c)(1)(ii) states that ``[a] 
public accommodation should consult with individuals with 
disabilities whenever possible to determine what type of auxiliary 
aid is needed to ensure effective communication, but the ultimate 
decision as to what measures to take rests with the public 
accommodation, provided that the method chosen results in effective 
communication.'' Many commenters urged the Department to amend this 
provision to require public accommodations to give primary 
consideration to the expressed choice of an individual with a 
disability. However, as the Department explained when it initially 
promulgated the 1991 title III regulation, the Department believes 
that Congress did not intend under title III to impose upon a public 
accommodation the requirement that it give primary consideration to 
the request of the individual with a disability. See 28 CFR part 36, 
app. B at 726 (2009). The legislative history does, however, 
demonstrate congressional intent to strongly encourage consulting 
with persons with disabilities. Id. As the Department explained in 
the 1991 preamble, ``the House Education and Labor Committee stated 
that it `expects' that `public accommodation(s) will consult with 
the individual with a disability before providing a particular 
auxiliary aid or service.' (Education and Labor report at 107).'' 
Id.
    The commenters who urged that primary consideration be given to 
the individual with a disability noted, for example, that a public 
accommodation would not provide effective communication by using 
written notes where the individual requiring an auxiliary aid is in 
severe pain, or by providing a qualified ASL interpreter when an 
individual needs an oral interpreter instead. Both examples 
illustrate the importance of consulting with the individual with a 
disability in order to ensure that the communication provided is 
effective. When a public accommodation ignores the communication 
needs of the individual requiring an auxiliary aid or service, it 
does so at its peril, for if the communication provided is not 
effective, the public accommodation will have violated title III of 
the ADA.
    Consequently, the regulation strongly encourages the public 
accommodation to engage in a dialogue with the individual with a 
disability to determine what auxiliary aids and services are 
appropriate under the circumstances. This dialogue should include a 
communication assessment of the individual with a disability 
initially, regularly, and as needed, because the auxiliary aids and 
services necessary to provide effective communication to the 
individual may fluctuate. For example, a deaf individual may go to a 
private community health center with what is at first believed to be 
a minor medical emergency, such as a sore knee, and the individual 
with a disability and the community health center both may believe 
that exchanging written notes will be effective; however, during 
that individual's visit, it may be determined that the individual 
is, in fact, suffering from an anterior cruciate ligament tear and 
must have surgery to repair the torn ligament. As the situation 
develops and the diagnosis and recommended course of action evolve 
into surgery, an interpreter likely will be necessary. The community 
health center has a continuing obligation to assess the auxiliary 
aids and services it is providing, and should consult with 
individuals with disabilities on a continuing basis to assess what 
measures are required to ensure effective communication.
    Similarly, the Department strongly encourages public 
accommodations to keep individuals with disabilities apprised of the 
status of the expected arrival of an interpreter or the delivery of 
other requested or anticipated auxiliary aids and services. Also, 
when the public accommodation decides not to provide the auxiliary 
aids and services requested by an individual with a disability, the 
public accommodation should provide that individual with the reason 
for its decision.
    Family members and friends as interpreters. Section 
36.303(c)(2), which was proposed in the NPRM, has been included in 
the final rule to make clear that a public accommodation shall not 
require an individual with a disability to bring another individual 
to interpret for him or her. The Department has added this 
regulatory requirement to emphasize that when a public accommodation 
is interacting with a person with a disability, it is the public 
accommodation's responsibility to provide an interpreter to ensure 
effective communication. It is not appropriate to require the person 
with a disability to bring another individual to provide such 
services.

[[Page 56283]]

    Many commenters supported inclusion of this language in the new 
rule. A representative from a cruise line association opined, 
however, that if a guest chose to cruise without an interpreter or 
companion, the ship would not be compelled to provide an interpreter 
for the medical facility. On the contrary, when an individual with a 
disability goes on a cruise, the cruise ship has an obligation to 
provide effective communication, including, if necessary, a 
qualified interpreter as defined in the rule.
    Some representatives of pediatricians objected to this 
provision, stating that parents of children with disabilities often 
know best how to interpret their children's needs and health status 
and relay that information to the child's physician, and to remove 
that parent, or add a stranger into the examining room, may frighten 
children. These commenters requested clarification in the regulation 
that public accommodations should permit parents, guardians, or 
caregivers of children with disabilities to accompany them in 
medical settings to ensure effective communication. The regulation 
does not prohibit parents, guardians, or caregivers from being 
present or providing effective communication for children. Rather, 
it prohibits medical professionals (and other public accommodations) 
from requiring or forcing individuals with disabilities to bring 
other individuals with them to facilitate communication so that the 
public accommodation will not have to provide appropriate auxiliary 
aids and services. The public accommodation cannot avoid its 
obligation to provide an interpreter except under the circumstances 
described in Sec.  36.303(c)(3)-(4).
    A State medical association also objected to this provision, 
opining that medical providers should have the authority to ask 
patients to bring someone with them to provide interpreting services 
if the medical provider determines that such a practice would result 
in effective communication and that patient privacy and 
confidentiality would be maintained. While the public accommodation 
has the obligation to determine what type of auxiliary aids and 
services are necessary to ensure effective communication, it cannot 
unilaterally determine whether the patient's privacy and 
confidentiality would be maintained.
    Section 36.303(c)(3) of the final rule codifies the Department's 
position that there are certain limited instances when a public 
accommodation may rely on an accompanying adult to interpret or 
facilitate communication: (1) In an emergency involving an imminent 
threat to the safety or welfare of an individual or the public; or 
(2) if the individual with a disability specifically requests it, 
the accompanying adult agrees to provide the assistance, and 
reliance on that adult for this assistance is appropriate under the 
circumstances. In such instances, the public accommodation should 
first offer to provide appropriate auxiliary aids and services free 
of charge.
    Commenters requested that the Department make clear that the 
public accommodation cannot request, rely on, or coerce an 
accompanying adult to provide effective communication for an 
individual with a disability, and that only a voluntary offer of 
assistance is acceptable. The Department states unequivocally that 
consent of, and for, the accompanying adult to facilitate 
communication must be provided freely and voluntarily both by the 
individual with a disability and the accompanying adult--absent an 
emergency involving an imminent threat to the safety or welfare of 
an individual or the public. The public accommodation cannot coerce 
or attempt to persuade another adult to provide effective 
communication for the individual with a disability.
    Several commenters asked that the Department make clear that 
children are not to be used to provide effective communication for 
family members and friends and that it is the responsibility of the 
public accommodation to provide effective communication, stating 
that interpreters often are needed in settings where it would not be 
appropriate for children to be interpreting, such as those involving 
medical issues, domestic violence, or other situations involving the 
exchange of confidential or adult-related material. Children often 
are hesitant to decline requests to provide communication services, 
which puts them in a very difficult position vis-a-vis family 
members and friends. The Department agrees. It is the Department's 
position that a public accommodation shall not rely on a minor child 
to facilitate communication with a family member, friend, or other 
individual except in an emergency involving an imminent threat to 
the safety or welfare of an individual or the public where no 
interpreter is available. Accordingly, the Department has revised 
the rule to state that ``[a] public accommodation shall not rely on 
a minor child to interpret or facilitate communication, except in an 
emergency involving an imminent threat to the safety or welfare of 
an individual or the public where there is no interpreter 
available.'' Sec.  36.303(c)(4). Sections 36.303(c)(3) and (c)(4) 
have no application in circumstances where an interpreter would not 
otherwise be required in order to provide effective communication 
(e.g., in simple transactions such as purchasing movie tickets at a 
theater).
    The Department stresses that privacy and confidentiality must be 
maintained but notes that covered entities, such as hospitals, that 
are subject to the Privacy Rules, 45 CFR parts 160 and 164, of the 
Health Insurance Portability and Accountability Act of 1996 (HIPAA), 
Public Law 104-191, are permitted to disclose to a patient's 
relative, close friend, or any other person identified by the 
patient (such as an interpreter) relevant patient information if the 
patient agrees to such disclosures. See 45 CFR parts 160 and 164. 
The agreement need not be in writing. Covered entities should 
consult the HIPAA Privacy Rules regarding other ways disclosures may 
be made to such persons.
    With regard to emergency situations, proposed Sec.  36.303(c)(3) 
permitted reliance on an individual accompanying an individual with 
a disability to interpret or facilitate communication in an 
emergency involving a threat to the safety or welfare of an 
individual or the public. Commenters requested that the Department 
make clear that often a public accommodation can obtain appropriate 
auxiliary aids and services in advance of an emergency, particularly 
in anticipated emergencies, such as predicted dangerous weather, or 
in certain medical situations, such as pending childbirth, by making 
necessary pre-arrangements. These commenters did not want public 
accommodations to be relieved of their responsibilities to provide 
effective communication in emergency situations, noting that the 
need for effective communication in emergencies is heightened. For 
the same reason, several commenters requested a separate rule that 
requires public accommodations to provide timely and effective 
communication in the event of an emergency.
    One group of commenters asked that the Department narrow the 
regulation permitting reliance on a companion to interpret or 
facilitate communication in emergency situations so that it is not 
available to entities with responsibilities for emergency 
preparedness and response. Some commenters noted that certain 
exigent circumstances, such as those that exist during and, perhaps, 
immediately after a major hurricane, temporarily may excuse public 
accommodations of their responsibilities to provide effective 
communication. However, they asked that the Department clarify that 
these obligations are ongoing, and that as soon as such situations 
begin to abate or become stabilized, the public accommodation must 
provide effective communication.
    The Department recognizes the need for effective communication 
is critical in emergency situations. After due consideration of all 
of these concerns raised by commenters, the Department has revised 
Sec.  36.303(c) to narrow the exception permitting reliance on 
individuals accompanying the individual with a disability during an 
emergency to make it clear that it applies only to emergencies 
involving an ``imminent threat to the safety or welfare of an 
individual or the public * * *.'' Sec.  36.303(c)(3)-(4). The 
Department wishes to emphasize, however, that application of this 
exception is narrowly tailored to emergencies involving an imminent 
threat to the safety or welfare of individuals or the public. 
Arguably, all visits to an emergency room are by definition 
emergencies. Likewise, an argument can be made that most situations 
to which emergency workers respond involve, in one way or another, a 
threat to the safety or welfare of an individual or the public. The 
imminent threat exception in Sec.  36.303(c)(3)-(4) is not intended 
to apply to typical and foreseeable emergency situations that are 
part of the normal operations of these institutions. As such, a 
public accommodation may rely on an accompanying individual to 
interpret or facilitate communication under the Sec.  36.303(c)(3)-
(4) imminent threat exception only where there is a true emergency, 
i.e., where any delay in providing immediate services to the 
individual could have life-altering or life-ending consequences.
    Telecommunications. In addition to the changes discussed in 
Sec.  36.303(b) regarding

[[Page 56284]]

telecommunications, telephones, and text telephones, the Department 
has adopted provisions in Sec.  36.303(d) of the final rule (which 
also were included in the NPRM) requiring that public accommodations 
must not disconnect or refuse to take calls from FCC-approved 
telecommunications relay systems, including Internet-based relay 
systems. Commenters from some State agencies, many advocacy 
organizations, and individuals strongly urged the Department to 
mandate such action because of the high proportion of TTY calls and 
relay service calls to title III entities that are not completed 
because of phone systems or employees not taking the calls. This 
refusal presents a significant obstacle for persons using TTYs who 
do business with public accommodations and denies persons with 
disabilities telephone access for business that typically is handled 
over the telephone.
    Section 36.303(d)(1)(ii) of the NPRM added public telephones 
equipped with volume control mechanisms and hearing aid-compatible 
telephones to the examples of types of telephone equipment to be 
provided. Commenters from the disability community and from 
telecommunications relay service providers argued that requirements 
for these particular features on telephones are obsolete not only 
because the deaf and hard of hearing community uses video technology 
more frequently than other types of telecommunication, but also 
because all public coin phones have been hearing aid compatible 
since 1983, pursuant to the Telecommunications for the Disabled Act 
of 1982, 47 U.S.C. 610. The Hearing Aid Compatibility Act of 1988, 
47 U.S.C. 610, extended this requirement to all wireline telephones 
imported into or manufactured in the United States since 1989. In 
1997, the FCC further required that all such phones also be equipped 
with volume control. See 47 CFR 68.6. Given these existing statutory 
obligations, the proposed language is unnecessary. Accordingly, the 
Department has deleted that language from the final rule.
    The Department understands that there are many new devices and 
advances in technology that should be included in the definition of 
available auxiliary aids and is including many of the 
telecommunications devices and some new technology. While much of 
this technology is not expensive and should be available to most 
title III entities, there may be legitimate reasons why in a 
particular situation some of these new and developing auxiliary aids 
may not be available, may be prohibitively costly (thus supporting 
an undue burden defense), or may otherwise not be suitable given 
other circumstances related to the particular terrain, situation, or 
functionality in specialized areas where security, among other 
things, may be a factor limiting the appropriateness of the use of a 
particular technology or device. The Department recognizes that the 
available new technology may provide more effective communication 
than existing technology and that providing effective communication 
often will include use of new technology and video relay services, 
as well as interpreters. However, the Department has not mandated 
that title III entities make all technology or services available 
upon demand in all situations. When a public accommodation provides 
the opportunity to make outgoing phone calls on more than an 
incidental-convenience basis, it shall make available accessible 
public telephones, TTYs, or other telecommunications products and 
systems for use by an individual who is deaf or hard of hearing, or 
has a speech impairment.
    Video remote interpreting (VRI) services. In Sec.  36.303(f) of 
the NPRM, the Department proposed the inclusion of four performance 
standards for VRI (which the NPRM termed video interpreting services 
(VIS)), for effective communication: (1) High-quality, clear, real-
time, full-motion video, and audio over a dedicated high-speed 
Internet connection; (2) a clear, sufficiently large, and sharply 
delineated picture of the participants' heads, arms, hands, and 
fingers, regardless of their body position; (3) clear transmission 
of voices; and (4) persons who are trained to set up and operate the 
VIS quickly and efficiently.
    Commenters generally approved of these proposed performance 
standards, but recommended that some additional standards be 
included in the final rule. For persons who are deaf with limited 
vision, commenters requested that the Department include an explicit 
requirement that interpreters wear high-contrast clothing with no 
patterns that might distract from their hands as they are 
interpreting, so that a person with limited vision could still see 
the signs made by the interpreter. While the Department reiterates 
the importance of such practices in the delivery of effective VRI as 
well as in-person interpreting, the Department declines to adopt 
such performance standards as part of this rule. In general, 
professional interpreters already follow such practices, as the Code 
of Professional Conduct for interpreters developed by the Registry 
of Interpreter for the Deaf and the National Association of the Deaf 
incorporates attire considerations into their standards of 
professionalism and conduct. Moreover, as a result of this code, 
many VRI agencies have adopted detailed dress standards that 
interpreters hired by the agency must follow. Commenters also urged 
explicit requirement of a clear image of the face and eyes of the 
interpreter and others. Because the face includes the eyes, the 
Department has amended Sec.  36.303(f)(2) of the final rule to 
include a requirement that the interpreter's face be displayed. 
Other commenters requested requirement of a wide-bandwidth video 
connection for the VRI system, and the Department has included this 
requirement in Sec.  36.303(f)(1) of the final rule.
    ATMs. The 2010 Standards set out detailed requirements for ATMs, 
including communication-related requirements to make ATMs usable by 
individuals who are blind or have low vision. In the NPRM, the 
Department discussed the application of a safe harbor to the 
communication-related elements of ATMs. The NPRM explained that the 
Department considers the communication-related elements of ATMs to 
be auxiliary aids and services, to which the safe harbor for 
elements built in compliance with the 1991 standards does not apply.
    The Department received several comments regarding this issue. 
Several commenters representing banks objected to the exclusion of 
communication-related aspects of ATMs from the safe harbor 
provision. They explained that the useful life of ATMs--on average 
10 years--was longer than the Department noted; thus, without the 
safe harbor, banks would be forced to retrofit many ATMs in order to 
comply with the proposed regulation. Such retrofitting, they noted, 
would be costly to the industry. A few representatives of the 
disability community commented that communication-related aspects of 
ATMs should be excluded from the safe harbor.
    The Department consistently has taken the position that the 
communication-related elements of ATMs are auxiliary aids and 
services, rather than structural elements. See 28 CFR part 36, app. 
B at 728 (2009). Thus, the safe harbor provision does not apply to 
these elements. The Department believes that the limitations on the 
effective communication requirements, which provide that a covered 
entity does not have to take measures that would result in a 
fundamental alteration of its program or would cause undue burdens, 
provide adequate protection to covered entities that operate ATMs.
    Captioning at sporting venues. In Sec.  36.303(g) of the NPRM, 
the Department proposed that sports stadiums that have a capacity of 
25,000 or more shall provide captioning for safety and emergency 
information on scoreboards and video monitors. In addition, the 
Department posed four questions about captioning of information, 
especially safety and emergency information announcements, provided 
over public address (PA) systems. The Department received many 
detailed and divergent responses to each of the four questions and 
the proposed regulatory text. Because comments submitted on the 
Department's title II and title III proposals were intertwined, 
because of the similarity of issues involved for title II entities 
and title III entities, and in recognition of the fact that many 
large sports stadiums are covered by both title II and title III as 
joint operations of State or local government and one or more public 
accommodations, the Department presents here a single consolidated 
review and summary of the issues raised in comments.
    The Department asked whether requiring captioning of safety and 
emergency information made over the public address system in 
stadiums seating fewer than 25,000 would create an undue burden for 
smaller entities, and whether it would be feasible for small 
stadiums to provide such captioning, or whether a larger threshold, 
such as sports stadiums with a capacity of 50,000 or more, would be 
appropriate.
    There was a consensus among the commenters, including disability 
advocates as well as venue owners and stadium designers and 
operators, that using the stadium size or seating capacity should 
not be the exclusive deciding factor for any obligation to provide 
captioning for safety and emergency information broadcast over the 
PA system. Most disability advocacy organizations and individuals 
with

[[Page 56285]]

disabilities complained that using size or seating capacity as a 
threshold for captioning safety and emergency information would 
undermine the ``undue burden'' defense found in both titles II and 
III. Many commenters provided examples of facilities such as 
professional hockey arenas that seat less than 25,000 fans but that, 
commenters argued, should be able to provide real-time captioning. 
Other commenters suggested that some high school or college 
stadiums, for example, may hold 25,000 fans or more and yet lack the 
resources to provide real-time captioning. Many commenters noted 
that real-time captioning would require use of trained 
stenographers, and that most high school and college sports 
facilities rely upon volunteers to operate scoreboards and PA 
systems and they would not be qualified stenographers, especially in 
case of an emergency. One national association noted that the 
typical stenographer expense for a professional football game in 
Washington, DC, is about $550 per game. Similarly, one trade 
association representing venues estimated that the cost for a 
professional stenographer at a sporting event runs between $500 and 
$1,000 per game or event, the cost of which, they argued, would be 
unduly burdensome in many cases. Some commenters posited that 
schools that do not sell tickets to athletic events would be 
challenged to meet such expenses, in contrast to major college 
athletic programs and professional sports teams, which would be less 
likely to prevail using an ``undue burden'' defense.
    Some venue owners and operators and other covered entities also 
argued that stadium size should not be the key consideration for 
whether scoreboard captioning will be required. Instead, these 
entities suggested that equipment already installed in the stadium, 
including necessary electrical equipment and backup power supply, 
should be the determining factor for whether captioning is mandated. 
Many commenters argued that the requirement to provide captioning 
should apply only to stadiums with scoreboards that meet the 
National Fire Protection Association (NFPA) National Fire Alarm 
Code. Commenters reported that NFPA 72 requires at least two 
independent and reliable power supplies for emergency information 
systems, including one source that is a generator or a battery 
sufficient to run the system in the event the primary power fails. 
Alternatively, some stadium designers and title II entities 
commented that the requirement should arise when the facility has at 
least one elevator providing firefighter emergency operation, along 
with approval of authorities with responsibility for fire safety. An 
organization concerned with fire safety codes commented that the 
Department lacks the expertise to regulate on this topic. Other 
commenters argued for flexibility in the requirements for providing 
captioning and contended that any requirement should apply only to 
stadiums constructed after the effective date of the regulation.
    In the NPRM, the Department also asked whether the rule should 
address the specific means of captioning equipment, whether 
captioning should be provided through any effective means (e.g., 
scoreboards, line boards, handheld devices, or other means), or 
whether some means, such as handheld devices, should be eliminated 
as options. This question elicited many comments from advocates for 
persons with disabilities as well as from covered entities. Advocacy 
organizations and individuals with experience using handheld devices 
argued that such devices do not provide effective communication. 
These commenters noted that information is often delayed in the 
transmission to such devices, making them hard to use when following 
action on the playing field or in the event of an emergency when the 
crowd is already reacting to aural information provided over the PA 
system well before it is received on the handheld device.
    Several venue owners and operators and others commented that 
handheld technology offers advantages of flexibility and portability 
so that it may be used successfully regardless of where in the 
facility the user is located, even when not in the line of sight of 
a scoreboard or other captioning system. Still other commenters 
urged the Department not to regulate in such a way as to limit 
innovation and use of such technology now and in the future. Cost 
considerations were included in comments from some stadium designers 
and venue owners and operators who reported that the cost of 
providing handheld systems is far less than the cost of providing 
real-time captioning on scoreboards, especially in facilities that 
do not currently have the capacity to provide real-time captions on 
existing equipment. Others noted that handheld technology is not 
covered by fire and safety model codes, including the NFPA, and thus 
would be more easily adapted into existing facilities if captioning 
were required by the Department.
    The Department also asked about requiring open captioning of all 
public address announcements, rather than limiting the captioning 
requirement to safety and emergency information. A variety of 
advocates and persons with disabilities argued that all information 
broadcast over a PA system should be captioned in real time at all 
facilities in order to provide effective communication, and that a 
requirement only to provide emergency and safety information would 
not be sufficient. A few organizations representing persons with 
disabilities commented that installation of new systems should not 
be required, but that all systems within existing facilities that 
are capable of providing captioning should provide captioning of 
information to the maximum extent possible. Several organizations 
for persons with disabilities commented that all facilities should 
include in their safety planning measures a requirement that all 
aurally provided information for patrons with communication 
disabilities be captioned. Some advocates suggested that demand for 
captions will only increase as the number of deaf and hard of 
hearing persons grows with the aging of the general population and 
with increasing numbers of veterans returning from war with 
disabilities. Multiple commenters noted that the captioning would 
benefit others as well as those with communication disabilities.
    By contrast, venue owners and operators and others commented 
that the action on the sports field is self-explanatory and does not 
require captioning. These commenters objected to an explicit 
requirement to provide real-time captioning for all information 
broadcast on the PA system at a sporting event. Other commenters 
objected to requiring captioning even for emergency and safety 
information over the scoreboard rather than through some other 
means. By contrast, venue operators, State government agencies, and 
some model code groups, including the NFPA, commented that emergency 
and safety information must be provided in an accessible format and 
that public safety is a paramount concern. Other commenters argued 
that the best method to deliver safety and emergency information 
would be television monitors showing local TV broadcasts with 
captions already mandated by the FCC. Some commenters posited that 
the most reliable information about a major emergency would be 
provided on the television news broadcasts. They argued that 
television monitors may be located throughout the facility, 
improving line of sight for patrons, some of whom might not be able 
to see the scoreboard from their seats or elsewhere in the facility. 
Some stadium designers, venue operators, and model code groups 
pointed out that video monitors are not regulated by the NFPA or 
other agencies, so that such monitors could be more easily provided. 
Video monitors may receive transmissions from within the facility 
and could provide real-time captions if there is the necessary 
software and equipment to feed the captioning signal to a closed 
video network within the facility. Several commenters suggested that 
using monitors would be preferable to requiring captions on the 
scoreboard if the regulation mandates real-time captioning. Some 
venue owners and operators argued that retrofitting existing 
stadiums with new systems could easily cost in the hundreds of 
thousands of dollars per scoreboard or system. Some stadium 
designers and others argued that captioning should be required only 
in stadiums built after the effective date of the regulation. For 
stadiums with existing systems that allow for real-time captioning, 
one commenter posited that dedicating the system exclusively to 
real-time captioning would lead to an annual loss of between two and 
three million dollars per stadium in revenue from advertising 
currently running in that space.
    After carefully considering the wide range of public comments on 
this issue, the Department has concluded that the final rule will 
not provide additional requirements for effective communication or 
emergency information provided at sports stadiums at this time. The 
1991 title II and title III regulations and statutory requirements 
are not in any way affected by this decision. The decision to 
postpone rulemaking on this complex issue is based on a number of 
factors, including the multiple layers of existing regulations by 
various agencies and levels of government, and the wide array of 
information, requests, and recommendations related to developing 
technology offered by the public. The diversity of existing 
information and communication systems and

[[Page 56286]]

other characteristics among sports stadiums also complicates the 
regulation of captioning. The Department has concluded that further 
consideration and review is prudent before it issues specific 
regulatory requirements.
    Movie captioning. In the NPRM, the Department stated that 
options were being considered to require movie theater owners and 
operators to exhibit movies that are captioned for patrons who are 
deaf or hard of hearing. Captioning makes films accessible to 
individuals whose hearing is too limited to benefit from assistive 
listening devices. Both open and closed captioning are examples of 
auxiliary aids and services required under the Department's 1991 
title III regulation. See 28 CFR 36.303(b)(1). Open captions are 
similar to subtitles in that the text is visible to everyone in the 
theater, while closed captioning displays the written text of the 
audio only to those individuals who request it.
    In the NPRM, the Department also stated that options were being 
considered to require movie theater owners and operators to exhibit 
movies with video description,\3\ a technology that enables 
individuals who are blind or have low vision to enjoy movies by 
providing a spoken interpretation of key visual elements of a movie, 
such as actions, settings, facial expressions, costumes, and scene 
changes. The descriptions are narrated and recorded onto an 
audiotape or disk that can be synchronized with the film as it is 
projected. An audio recording is an example of an auxiliary aid and 
service required under the Department's 1991 title III regulation. 
See 28 CFR 36.303(b)(2).
---------------------------------------------------------------------------

    \3\ In the NPRM, the Department referred to this technology as 
``narrative description.'' 73 FR 34508, 34531 (June 17, 2008). 
Several commenters informed the Department that the more accurate 
and commonly understood term is ``video description,'' even though 
the subject is movies, not video, and so the Department decided to 
employ that term.
---------------------------------------------------------------------------

    The NPRM stated that technological advances since the early 
1990s have made open and closed captioning and video description for 
movies more readily available and effective and noted that the 
Department was considering options to require captioning and video 
description for movies exhibited by public accommodations. The NPRM 
also noted that the Department is aware that the movie industry is 
transitioning, in whole or in part, to movies in digital format and 
that movie theater owners and operators are beginning to purchase 
digital projectors. The Department noted in the NPRM that movie 
theater owners and operators with digital projectors may have 
available to them different capabilities than those without digital 
projectors. The Department sought comment regarding whether and how 
to require captioning and video description while the film industry 
makes this transition. In addition, the NPRM stated the Department's 
concern about the potential cost to exhibit captioned movies, noting 
that cost may vary depending upon whether open or closed captioning 
is used and whether or not digital projectors are used, and stated 
that the cost of captioning must stay within the parameters of the 
undue burden requirement in 28 CFR 36.303(a). The Department further 
noted that it understands the cost of video description equipment to 
be less than that for closed captioning. The Department then stated 
that it was considering the possibility of requiring public 
accommodations to exhibit all new movies in captioned format and 
with video description at every showing. The NPRM stated that the 
Department would not specify the types of captioning required, 
leaving such decisions to the discretion of the movie theater owners 
and operators.
    In the NPRM, the Department requested public comment as to 
whether public accommodations should be required to exhibit all new 
movies in captioned format at every showing, whether it would be 
more appropriate to require captioning less frequently, and, if so, 
with what frequency captioning should be provided. The Department 
also inquired as to whether the requirement for captioning should be 
tied to the conversion of movies from film to the use of a digital 
format. The Department also asked for public comment regarding the 
exhibition of all new movies with narrative description, whether it 
would it be more appropriate to require narrative description less 
frequently, and whether narrative description of movies should be 
tied to the use of a digital format.
    Representatives from the movie industry, a commenter from a non-
profit organization, and a disability rights advocacy group provided 
information in their comments on the status of captioning and video 
description technology today as well as an update on the transition 
to digital cinema in the industry. A representative of major movie 
producers and distributors commented that traditionally open 
captions were created by ``burning'' the captions onto a special 
print of a selected movie, which the studios would make available to 
the exhibitors (movie theater owners and operators). Releases with 
open captions typically would be presented at special screenings. 
More recently, according to this commenter, alternative methods have 
been developed for presenting movies with open captions, but their 
common feature is that the captions are visible to all theater-
goers. Closed captioning is an innovation in technology that was 
first made available in a feature film presentation in late 1997. 
Closed captioning technology currently in use allows viewers to see 
captions using a clear panel that is mounted in front of the 
viewer's seat.\4\ According to commenters from the industry, the 
panel reflects captions that are shown in reverse on an LED display 
in the back of the theater, with captions appearing on or near the 
movie image. Moviegoers may use this technology at any showing at a 
theater that has been equipped with the technology, so that the 
theater does not have to arrange limited special screenings.
---------------------------------------------------------------------------

    \4\ Other closed captioning technologies for movies that have 
been developed but are not in use at this time include hand-held 
displays similar to a PDA (personal digital assistant); eyeglasses 
fitted with a prism over one lens; and projected bitmap captions. 
The PDA and eyeglass systems use a wireless transmitter to send the 
captions to the display device.
---------------------------------------------------------------------------

    Video description technology also has existed since 1997, 
according to a commenter who works with the captioning and video 
description industry. According to a movie industry commenter, video 
description requires the creation of a separate script written by 
specially trained writers called ``describers.'' As the commenter 
explained, a describer initially listens to the movie without 
watching it in order to approximate the experience of an audience 
member who is blind or has low vision. Using software to map out the 
pauses in the soundtrack, the describer writes a description in the 
space available. After an initial script is written for video 
description, it is edited and checked for timing, continuity, 
accuracy, and a natural flow. A narrator then records the new script 
to match the corresponding movie. This same industry commenter said 
that video description currently is provided in theaters through 
screens equipped with the same type of technology as that used for 
closed captioning. As commenters explained, technologies in use 
today deliver video descriptions via infrared or FM listening 
systems to headsets worn by individuals who are blind or have low 
vision.
    According to the commenter representing major movie producers 
and distributors, the percentage of motion pictures produced with 
closed captioning by its member studios had grown to 88 percent of 
total releases by 2007; the percentage of motion pictures produced 
with open captioning by its member studios had grown to 78 percent 
of total releases by 2007; and the percentage of motion pictures 
provided with video description has ranged consistently between 50 
percent and 60 percent of total releases. It is the movie producers 
and distributors, not the movie theater owners and operators, who 
determine what to caption and describe, the type of captioning to 
use, and the content of the captions and video description script. 
These same producers and distributors also assume the costs of 
captioning and describing movies. Movie theater owners and operators 
simply purchase the equipment to display the captions and play the 
video description in their auditoria.
    The transition to digital cinema, considered by the industry to 
be one of the most profound advancements in motion picture 
production and technology of the last 100 years, will provide 
numerous advantages both for the industry and the audience. 
According to one commenter, currently there are sufficient standards 
and interim solutions to support captioning and video description 
now in digital format. Additionally, movie studios are supporting 
those efforts by providing accessibility tracks (captioning and 
video description) in many digital cinema content packages. 
Moreover, a group of industry commenters composed in pertinent part 
of members of the motion picture industry, the central standards 
organizations for this industry, and key digital equipment vendors, 
noted that they are participating in a joint venture to establish 
the remaining accessibility specifications and standards for access 
audio tracks. Access audio tracks are supplemental sound audio 
tracks for the hard of hearing and narrative audio tracks for 
individuals who have vision disabilities. According to a commenter 
and to industry documents, these standards were expected to

[[Page 56287]]

be in place by spring 2009. According to a commenter, at that time, 
all of the major digital cinema equipment vendors were expected to 
have support for a variety of closed caption display and video 
description products. This same commenter stated that these 
technologies will be supported by the studios that produce and 
distribute feature films, by the theaters that show these films to 
the public, and by the full complement of equipment in the 
production, distribution, and display chain.
    The initial investment for movie theater owners and operators to 
convert to digital cinema is expensive. One industry commenter 
estimated that converting theaters to digital projection costs 
between $70,000 and $100,000 per screen and that maintenance costs 
for digital projectors are estimated to run between $5,000 and 
$10,000 a year--approximately five times as expensive as the 
maintenance costs for film projectors. According to this same 
commenter, while there has been progress in making the conversion, 
only approximately 5,000 screens out of 38,794 nationwide have been 
converted, and the cost to make the remaining conversions involves a 
total investment of several billion dollars. According to another 
commenter, predictions as to when more than half of all screens will 
have been converted to digital projection are 10 years or more, 
depending on the finances of the movie theater owners and operators, 
the state of the economy, and the incentives supporting conversion. 
That said, according to one commenter who represents movie theater 
owners and operators, the majority of screens in the United States 
were expected to enter into agreements by the end of 2008 to convert 
to digital cinema. Most importantly, however, according to a few 
commenters, the systems in place today for captioning and video 
description will not become obsolete once a theater has converted to 
digital cinema but still can be used by the movie theater owner and 
operator to exhibit captions and video description. The only 
difference for a movie theater owner or operator will be the way the 
data is delivered to the captioning and video description equipment 
in place in an auditorium.
    Despite the current availability of movies that are captioned 
and provide video description, movie theater owners and operators 
rarely exhibit the captions or descriptions. According to several 
commenters, less than 1 percent of all movies being exhibited in 
theaters are shown with captions.
    Individuals with disabilities, advocacy groups, the 
representative from a non-profit, and representatives of State 
governments, including 11 State attorneys general, overwhelmingly 
supported issuance of a regulation requiring movie theater owners 
and operators to exhibit captioned and video described movies at all 
showings unless doing so would result in an undue burden or 
fundamental alteration of the goods and services offered by the 
public accommodation. In addition, this same group of commenters 
urged that any such regulation should be made effective now, and 
should not be tied to the conversion to digital cinema by the movie 
theater owners and operators. In support of such arguments, these 
commenters stated that the technology exists now to display movies 
with captions and video descriptions, regardless of whether the 
movie is exhibited on film or using digital cinema. Moreover, since 
the technology in use for displaying captions and video descriptions 
on film will be compatible with digital projection systems, they 
argued, there is no need to postpone implementation of a captioning 
or video description regulation until the conversion to digital has 
been made. Furthermore, since the conversion to digital may take 
years, commenters urged the Department to issue a regulation 
requiring captioning and video description now, rather than several 
years from now.
    Advocacy groups and the 11 State attorneys general also 
requested that any regulation include factors describing what 
constitutes effective captioning and video description. 
Recommendations included requiring that captioning be within the 
same line of sight to the screen as the movie so that individuals 
who are deaf or hard of hearing can watch the movie and read the 
captions at the same time; that the captioning be accessible from 
each seat; that the captions be of sufficient size and contrast to 
the background so as to be readable easily; and that the recent 
recommendations of the Telecommunications and Electronics and 
Information Technology Advisory Committee Report to the Access Board 
that captions be ``timely, accurate, complete, and efficient'' \5\ 
also be included.
---------------------------------------------------------------------------

    \5\ Refreshed Accessibility Standards and Guidelines in 
Telecommunications and Electronic and Information Technology (April 
2008), available at http://www.access-board.gov/sec508/refresh/report/ (last visited June 24, 2010).
---------------------------------------------------------------------------

    The State attorneys general supported the Department's statement 
in the NPRM that the Department did not anticipate specifying which 
type of captioning to provide or what type of technology to use to 
provide video description, but would instead leave that to the 
discretion of the movie theater owners and operators. These State 
attorneys general opined that such discretion in the selection of 
the type of technology was consistent with the statutory and 
regulatory scheme of the ADA and would permit any new regulation to 
keep pace with future advancements in captioning and video 
description technology. These same commenters stated that such 
discretion may result in a mixed use of both closed captioning and 
open captioning, affording more choices both for the movie theater 
owners and operators and for individuals who are deaf or hard of 
hearing.
    The representatives from the movie theater industry strongly 
urged the Department against issuing a regulation requiring 
captioning or video description. These commenters argued that the 
legislative history of the ADA expressly precluded regulating in the 
area of captioning. (These same commenters were silent with regard 
to video description on this issue.) The industry commenters also 
argued that to require movie theater owners and operators to exhibit 
captioned and video described movies would constitute a fundamental 
alteration in the nature of the goods and services offered by the 
movie theater owners and operators. In addition, some industry 
commenters argued that any such regulation by the Department would 
be inconsistent with the Access Board's guidelines. Also, these 
commenters noted the progress that has been made in the industry in 
making cinema more accessible even though there is no mandate to 
caption or describe movies, and they questioned whether any mandate 
is necessary. Finally, all the industry commenters argued that to 
require captioning or video description in 100 percent of movie 
theater screens for all showings would constitute an undue burden.
    The comments have provided the Department with significant 
information on the state of the movie industry with regard to the 
availability of captioning and video description, the status of 
closed captioning technology, and the status of the transition to 
digital cinema. The Department also has given due consideration to 
the comments it has received from individuals, advocacy groups, 
governmental entities, and representatives of the movie industry. 
Recently, the United States Court of Appeals for the Ninth Circuit 
held that the ADA requires a chain of movie theaters to exhibit 
movies with closed captioning and video description unless the 
theaters can show that to do so would amount to a fundamental 
alteration or undue burden. Arizona ex rel. Goddard v. Harkins 
Amusement Enterprises, Inc., 603 F.3d 666 (9th Cir. 2010). However, 
rather than issue specific regulatory text at this time, the 
Department has determined that it should obtain additional 
information regarding issues raised by commenters that were not 
contemplated at the time of the 2008 NPRM, supplemental technical 
information, and updated information regarding the current and 
future status of the conversion to digital cinema by movie theater 
owners and operators. To this end, the Department is planning to 
engage in rulemaking relating specifically to movie captioning under 
the ADA in the near future.

Section 36.304 Removal of Barriers

    With the adoption of the 2010 Standards, an important issue that 
the Department must address is the effect that the new (referred to 
as ``supplemental'') and revised ADA Standards will have on the 
continuing obligation of public accommodations to remove 
architectural, transportation, and communication barriers in 
existing facilities to the extent that it is readily achievable to 
do so. See 42 U.S.C. 12182(b)(2)(A)(iv). This issue was not 
addressed in the 2004 ADAAG because it was outside the scope of the 
Access Board's statutory authority under the ADA and section 502 of 
the Rehabilitation Act of 1973. See 29 U.S.C. 792(b)(3)(A)-(B) 
(authorizing the Access Board to establish and maintain minimum 
guidelines for the standards issued pursuant to the Architectural 
Barriers Act of 1968 and titles II and III of the ADA). 
Responsibility for implementing title III's requirement that public 
accommodations eliminate barriers in existing facilities where such 
removal is readily achievable rests solely with the Department. The 
term ``existing facility'' is defined in Sec.  36.104 of the final 
rule. This definition is discussed in more detail above.

[[Page 56288]]

See Appendix A discussion of definitions (Sec.  36.104).
    The requirements for barrier removal by public accommodations 
are established in the Department's title III regulation. 28 CFR 
36.304. Under this regulation, the Department used the 1991 
Standards as a guide to identify what constitutes an architectural 
barrier, as well as the specifications that covered entities must 
follow in making architectural changes to remove the barrier to the 
extent that such removal is readily achievable. 28 CFR 36.304(d); 28 
CFR part 36, app. A (2009). With adoption of the final rule, public 
accommodations will now be guided by the 2010 Standards, defined in 
Sec.  36.104 as the 2004 ADAAG and the requirements contained in 
subpart D of 28 CFR part 36.
    The 2010 Standards include technical and scoping specifications 
for a number of elements that were not addressed specifically in the 
1991 Standards; these new requirements were identified as 
``supplemental requirements'' in the NPRM. The 2010 Standards also 
include revisions to technical or scoping specifications for certain 
elements that were addressed in the 1991 Standards, i.e., elements 
for which there already were technical and scoping specifications. 
Requirements for which there are revised technical or scoping 
specifications in the 2010 Standards are referred to in the NPRM as 
``incremental changes.''
    The Department expressed concern that requiring barrier removal 
for incremental changes might place unnecessary cost burdens on 
businesses that already had removed barriers in existing facilities 
in compliance with the 1991 Standards. With this rulemaking, the 
Department sought to strike an appropriate balance between ensuring 
that individuals with disabilities are provided access to facilities 
and mitigating potential financial burdens from barrier removal on 
existing places of public accommodation that satisfied their 
obligations under the 1991 Standards.
    In the NPRM, the Department proposed several potential additions 
to Sec.  36.304(d) that might reduce such financial burdens. First, 
the Department proposed a safe harbor for elements in existing 
facilities that were compliant with the 1991 Standards. Under this 
approach, an element that is not altered after the effective date of 
the 2010 Standards and that complies with the scoping and technical 
requirements for that element in the 1991 Standards would not be 
required to undergo modification to comply with the 2010 Standards 
to satisfy the ADA's barrier removal obligations. The public 
accommodation would thus be deemed to have met its barrier removal 
obligation with respect to that element.
    The Department received many comments on this issue during the 
60-day public comment period. After consideration of all relevant 
information presented on the issue, it is the Department's view that 
this element-by-element safe harbor provision should be retained in 
the final rule. This issue is discussed further below.
    Second, the NPRM proposed several exceptions and exemptions from 
certain supplemental requirements to mitigate the barrier removal 
obligations of existing play areas and recreation facilities under 
the 2004 ADAAG. These proposals elicited many comments from both the 
business and disability communities. After consideration of all 
relevant information presented on the issue, it is the Department's 
view that these exceptions and exemptions should not be retained in 
the final rule. The specific proposals and comments, and the 
Department's conclusions, are discussed below.
    Third, the NPRM proposed a new safe harbor approach to readily 
achievable barrier removal as applied to qualified small businesses. 
This proposed small business safe harbor was based on suggestions 
from small business advocacy groups that requested clearer guidance 
on the barrier removal obligations for small businesses. According 
to these groups, the Department's traditional approach to barrier 
removal disproportionately affects small businesses. They argued 
that most small businesses owners neither are equipped to understand 
the ADA Standards nor can they afford the architects, consultants, 
and attorneys that might provide some level of assurance of 
compliance with the ADA. For these same reasons, these commenters 
contended, small business owners are vulnerable to litigation, 
particularly lawsuits arising under title III, and often are forced 
to settle because the ADA Standards' complexity makes inadvertent 
noncompliance likely, even when a small business owner is acting in 
good faith, or because the business cannot afford the costs of 
litigation.
    To address these and similar concerns, the NPRM proposed a level 
of barrier removal expenditures at which qualified small businesses 
would be deemed to have met their readily achievable barrier removal 
obligations for certain tax years. This safe harbor would have 
provided some protection from litigation because compliance could be 
assessed easily. Such a rule, the Department believed, also could 
further accessibility, because qualified small businesses would have 
an incentive to incorporate barrier removal into short- and long-
term planning. The Department recognized that a qualified small 
business safe harbor would be a significant change to the 
Department's title III enforcement scheme. Accordingly, the 
Department sought comment on whether such an approach would further 
the aims underlying the statute's barrier removal provisions, and, 
if so, the appropriate parameters of the provision.
    After consideration of the many comments received on this issue, 
the Department has decided not to include a qualified small business 
safe harbor in the final rule. This decision is discussed more fully 
below.
    Element-by-element safe harbor for public accommodations. Public 
accommodations have a continuing obligation to remove certain 
architectural, communications, and transportation barriers in 
existing facilities to the extent readily achievable. 42 U.S.C. 
12182(b)(2)(A)(iv). Because the Department uses the ADA Standards as 
a guide to identifying what constitutes an architectural barrier, 
the 2010 Standards, once they become effective, will provide a new 
reference point for assessing an entity's barrier removal 
obligations. The 2010 Standards introduce technical and scoping 
specifications for many elements that were not included in the 1991 
Standards. Accordingly, public accommodations will have to consider 
these supplemental requirements when evaluating whether there are 
covered barriers in existing facilities, and, if so, remove them to 
the extent readily achievable. Also included in the 2010 Standards 
are revised technical and scoping requirements for elements that 
were addressed in the 1991 Standards. These incremental changes were 
made to address technological changes that have occurred since the 
promulgation of the 1991 Standards, to reflect additional study by 
the Access Board, and to harmonize ADAAG requirements with the model 
codes.
    In the NPRM, the Department sought input on a safe harbor in 
proposed Sec.  36.304(d)(2) intended to address concerns about the 
practical effects of the incremental changes on public 
accommodations' readily achievable barrier removal obligations. The 
proposed element-by-element safe harbor provided that in existing 
facilities elements that are, as of the effective date of the 2010 
Standards, fully compliant with the applicable technical and scoping 
requirements in the 1991 Standards, need not be modified or 
retrofitted to meet the 2010 Standards, until and unless those 
elements are altered. The Department posited that it would be an 
inefficient use of resources to require covered entities that have 
complied with the 1991 Standards to retrofit already compliant 
elements when the change might only provide a minimal improvement in 
accessibility. In addition, the Department was concerned that 
covered entities would have a strong disincentive for voluntary 
compliance if every time the applicable standards were revised 
covered entities would be required once again to modify elements to 
keep pace with new requirements. The Department recognized that 
revisions to some elements might confer a significant benefit on 
some individuals with disabilities and because of the safe harbor 
these benefits would be unavailable until the facility undergoes 
alterations.
    The Department received many comments on this issue from the 
business and disability communities. Business owners and operators, 
industry groups and trade associations, and business advocacy 
organizations strongly supported the element-by-element safe harbor. 
By contrast, disability advocacy organizations and individuals 
commenting on behalf of the disability community were opposed to 
this safe harbor with near unanimity.
    Businesses and business groups agreed with the concerns outlined 
by the Department in the NPRM, and asserted that the element-by-
element safe harbor is integral to ensuring continued good faith 
compliance efforts by covered entities. These commenters argued that 
the financial cost and business disruption resulting from 
retrofitting elements constructed or previously modified to comply 
with 1991 Standards would be detrimental to nearly all businesses 
and not

[[Page 56289]]

readily achievable for most. They contended that it would be 
fundamentally unfair to place these entities in a position where, 
despite full compliance with the 1991 Standards, the entities would 
now, overnight, be vulnerable to barrier removal litigation. They 
further contended that public accommodations will have little 
incentive to undertake large barrier removal projects or incorporate 
barrier removal into long-term planning if there is no assurance 
that the actions taken and money spent for barrier removal would 
offer some protection from litigation. One commenter also pointed 
out that the proposed safe harbor would be consistent with practices 
under other Federal accessibility standards, including the Uniform 
Federal Accessibility Standards (UFAS) and the ADAAG.
    Some business commenters urged the Department to expand the 
element-by-element safe harbor to include supplemental requirements. 
These commenters argued that imposing the 2010 Standards on existing 
facilities will provide a strong incentive for such facilities to 
eliminate some elements entirely, particularly where the element is 
not critical to the public accommodation's business or operations 
(e.g., play areas in fast food restaurants) or the cost of 
retrofitting is significant. Some of these same commenters urged the 
Department to include within the safe harbor those elements not 
covered by the 1991 Standards, but which an entity had built in 
compliance with State or local accessibility laws. Other commenters 
requested safe harbor protection where a business had attempted 
barrier removal prior to the establishment of technical and scoping 
requirements for a particular element (e.g., play area equipment) if 
the business could show that the element now covered by the 2010 
Standards was functionally accessible.
    Other commenters noted ambiguity in the NPRM as to whether the 
element-by-element safe harbor applies only to elements that comply 
fully with the 1991 Standards, or also encompasses elements that 
comply with the 1991 Standards to the extent readily achievable. 
Some commenters proposed that the safe harbor should exist in 
perpetuity--that an element subject to a safe harbor at one point in 
time also should be afforded the same protection with respect to all 
future revisions to the ADA Standards (as with many building codes). 
These groups contended that allowing permanent compliance with the 
1991 Standards will ensure readily accessible and usable facilities 
while also mitigating the need for expensive and time-consuming 
documentation of changes and maintenance.
    A number of commenters inquired about the effect of the element-
by-element safe harbor on elements that are not in strict compliance 
with the 1991 Standards, but conform to the terms of settlement 
agreements or consent decrees resulting from private litigation or 
Federal enforcement actions. These commenters noted that litigation 
or threatened litigation often has resulted in compromise among 
parties as to what is readily achievable. Business groups argued 
that facilities that have made modifications subject to those 
negotiated agreements should not be subject to the risk of further 
litigation as a result of the 2010 Standards.
    Lastly, some business groups that supported the element-by-
element safe harbor nevertheless contended that a better approach 
would be to separate barrier removal altogether from the 2010 
Standards, such that the 2010 Standards would not be used to 
determine whether access to an existing facility is impeded by 
architectural barriers. These commenters argued that application of 
the 2010 Standards to barrier removal obligations is contrary to the 
ADA's directive that barrier removal is required only where ``easily 
accomplishable and able to be carried out without much difficulty or 
expense,'' 42 U.S.C. 12181(9).
    Nearly all commenters from the disability community objected to 
the proposed element-by-element safe harbor. These commenters 
asserted that the adoption of this safe harbor would permit and 
sanction the retention of outdated access standards even in cases 
where retrofitting to the 2010 Standards would be readily 
achievable. They argued that title III's readily achievable defense 
is adequate to address businesses' cost concerns, and rejected the 
premise that requiring businesses to retrofit currently compliant 
elements would be an inefficient use of resources where readily 
achievable to do so. The proposed regulations, these commenters 
asserted, incorporate advances in technology, design, and 
construction, and reflect congressional and societal understanding 
that accessibility is not a static concept and that the ADA is a 
civil rights law intended to maximize accessibility. Additionally, 
these commenters noted that since the 2004 revision of the ADAAG 
will not be the last, setting a precedent of safe harbors for 
compliant elements will have the effect of preserving and protecting 
layers of increasingly outdated accessibility standards.
    Many commenters objected to the Department's characterization of 
the requirements subject to the safe harbor as reflecting only 
incremental changes and asserted that many of these incremental 
changes will result in significantly enhanced accessibility at 
little cost. The requirement concerning side-reach ranges was 
highlighted as an example of such requirements. Commenters from the 
disability community argued that the revised maximum side-reach 
range (from 54 inches to 48 inches) will result in a substantial 
increase in accessibility for many persons with disabilities--
particularly individuals of short stature, for whom the revised 
reach range represents the difference between independent access to 
many features and dependence--and that the revisions should be made 
where readily achievable to do so. Business commenters, on the other 
hand, contended that application of the safe harbor to this 
requirement is critical because retrofitting items, such as light 
switches and thermostats often requires work (e.g., rewiring, 
patching, painting, and re-wallpapering), that would be extremely 
burdensome for entities to undertake. These commenters argued that 
such a burden is not justified where many of the affected entities 
already have retrofitted to meet the 1991 Standards.
    Some commenters that were opposed to the element-by-element safe 
harbor proposed that an entity's past efforts to comply with the 
1991 Standards might appropriately be a factor in the readily 
achievable analysis. Several commenters proposed a temporary 5-year 
safe harbor that would provide reassurance and stability to covered 
entities that have recently taken proactive steps for barrier 
removal, but would also avoid the problems of preserving access 
deficits in perpetuity and creating multiple standards as subsequent 
updates are adopted.
    After consideration of all relevant information presented on 
this issue during the comment period, the Department has decided to 
retain the proposed element-by-element safe harbor. Title III's 
architectural-barrier provisions place the most significant 
requirements of accessibility on new construction and alterations. 
The aim is to require businesses to make their facilities fully 
accessible at the time they are first constructing or altering those 
facilities, when burdens are less and many design elements will 
necessarily be in flux, and to impose a correspondingly lesser duty 
on businesses that are not changing their facilities. The Department 
believes that it would be consistent with this statutory structure 
not to change the requirements for design elements that were 
specifically addressed in our prior standards for those facilities 
that were built or altered in full compliance with those standards. 
The Department similarly believes it would be consistent with the 
statutory scheme not to change the requirements for design elements 
that were specifically addressed in our prior standards for those 
existing facilities that came into full compliance with those 
standards. Accordingly, the final rule at Sec.  36.304(d)(2)(i) 
provides that elements that have not been altered in existing 
facilities on or after March 15, 2012 and that comply with the 
corresponding technical and scoping specifications for those 
elements in the 1991 Standards are not required to be modified in 
order to comply with the requirements set forth in the 2010 
Standards. The safe harbor adopted is consistent in principle with 
the proposed provision in the NPRM, and reflects the Department's 
determination that this approach furthers the statute's barrier 
removal provisions and promotes continued good-faith compliance by 
public accommodations.
    The element-by-element safe harbor adopted in this final rule is 
a narrow one. The Department recognizes that this safe harbor will 
delay, in some cases, the increased accessibility that the 
incremental changes would provide and that for some individuals with 
disabilities the impact may be significant. This safe harbor, 
however, is not a blanket exemption for every element in existing 
facilities. Compliance with the 1991 Standards is determined on an 
element-by-element basis in each existing facility.
    Section 36.304(d)(2)(ii)(A) provides that prior to the 
compliance date of the rule March 15, 2012, noncompliant elements 
that have not been altered are obligated to be modified to the 
extent readily achievable to comply with the requirements set forth 
in the 1991 Standards or the 2010 Standards.

[[Page 56290]]

Section 36.304(d)(2)(ii)(B) provides that after the date the 2010 
Standards take effect (18 months after publication of the rule), 
noncompliant elements that have not been altered must be modified to 
the extent readily achievable to comply with the requirements set 
forth in the 2010 Standards. Noncomplying newly constructed and 
altered elements may also be subject to the requirements of Sec.  
36.406(a)(5).
    The Department has not expanded the scope of the element-by-
element safe harbor beyond those elements subject to the incremental 
changes. The Department has added Sec.  36.304(d)(2)(iii), 
explicitly clarifying that existing elements subject to supplemental 
requirements for which scoping and technical specifications are 
provided for the first time in the 2010 Standards (e.g., play area 
requirements) are not covered by the safe harbor and, therefore, 
must be modified to comply with the 2010 Standards to the extent 
readily achievable. Section 36.304(d)(2)(iii) also identifies the 
elements in the 2010 Standards that are not eligible for the 
element-by-element safe harbor. The safe harbor also does not apply 
to the accessible routes not previously scoped in the 1991 
standards, such as those required to connect the boundary of each 
area of sport activity, including soccer fields, basketball courts, 
baseball fields, running tracks, skating rinks, and areas 
surrounding a piece of gymnastic equipment. See Advisory note to 
section F206.2.2 of the 2010 Standards. The resource and fairness 
concerns underlying the element-by-element safe harbor are not 
implicated by barrier removal involving supplemental requirements. 
Public accommodations have not been subject previously to technical 
and scoping specifications for these supplemental requirements. 
Thus, with respect to supplemental requirements, the existing 
readily achievable standard best maximizes accessibility in the 
built environment without imposing unnecessary burdens on public 
accommodations.
    The Department also has declined to expand the element-by-
element safe harbor to cover existing elements subject to 
supplemental requirements that also may have been built in 
compliance with State or local accessibility laws. Measures taken to 
remove barriers under a Federal accessibility provision logically 
must be considered in regard to Federal standards, in this case the 
2010 Standards. This approach is based on the Department's 
determination that reference to ADA Standards for barrier removal 
will promote certainty, safety, and good design while still 
permitting slight deviations through readily achievable alternative 
methods. The Department continues to believe that this approach 
provides an appropriate and workable framework for implementation of 
title III's barrier removal provisions. Because compliance with 
State or local accessibility codes is not a reliable indicator of 
effective access for purposes of the ADA Standards, the Department 
has decided not to include reliance on such codes as part of the 
safe harbor provision.
    Only elements compliant with the 1991 Standards are eligible for 
the safe harbor. Thus, where a public accommodation attempted 
barrier removal but full compliance with the 1991 Standards was not 
readily achievable, the modified element does not fall within the 
scope of the safe harbor provision. A public accommodation at any 
point in time must remove barriers to the extent readily achievable. 
For existing elements, for which removal is not readily achievable 
at any given time, the public accommodation must provide its goods, 
services, facilities, privileges, advantages, or accommodations 
through alternative methods that are readily achievable. See 42 
U.S.C. 12182(b)(2)(A)(iv), (v).
    One-time evaluation and implementation of the readily achievable 
standard is not the end of the public accommodation's barrier-
removal obligation. Public accommodations have a continuing 
obligation to reevaluate barrier removal on a regular basis. For 
example, if a public accommodation identified barriers under the 
1991 Standards but did not remove them because removal was not 
readily achievable based on cost considerations, it has a continuing 
obligation to remove these barriers if the economic considerations 
for the public accommodation change. The fact that the public 
accommodation has been providing its goods or services through 
alternative methods does not negate the continuing obligation to 
assess whether removal of the barrier at issue has become readily 
achievable. Public accommodations should incorporate consideration 
of their continuing barrier removal obligations in both short-term 
and long-term business planning.
    The Department notes that commenters across the board expressed 
concern with recordkeeping burdens implicated by the element-by-
element safe harbor. Businesses noted the additional costs and 
administrative burdens associated with identifying elements that 
fall within the element-by-element safe harbor, as well as tracking, 
documenting, and maintaining data on installation dates. Disability 
advocates expressed concern that varying compliance standards will 
make enforcement efforts more difficult, and urged the Department to 
clarify that title III entities bear the burden of proof regarding 
entitlement to safe harbor protection. The Department emphasizes 
that public accommodations wishing to benefit from the element-by-
element safe harbor must demonstrate their safe harbor eligibility. 
The Department encourages public accommodations to take appropriate 
steps to confirm and document the compliance of existing elements 
with the 1991 Standards. Finally, while the Department has decided 
not to adopt in this rulemaking the suggestion by some commenters to 
make the protection afforded by the element-by-element safe harbor 
temporary, the Department believes this proposal merits further 
consideration. The Department, therefore, will continue to evaluate 
the efficacy and appropriateness of a safe harbor expiration or 
sunset provision.
    Application to specific scenarios raised in comments. In 
response to the NPRM, the Department received a number of comments 
that raised issues regarding application of the element-by-element 
safe harbor to particular situations. Business commenters requested 
guidance on whether the replacement for a broken or malfunctioning 
element that is covered by the 1991 Standards would have to comply 
with the 2010 Standards. These commenters expressed concern that in 
some cases replacement of a broken fixture might necessitate moving 
a number of other accessible fixtures (such as in a bathroom) in 
order to comply with the fixture and space requirements of the 2010 
Standards. Others questioned the effect of the new standards where 
an entity replaces an existing element currently protected by the 
safe harbor provision for water or energy conservation reasons. The 
Department intends to address these types of scenarios in technical 
guidance.
    Effective date for barrier removal. Several commenters expressed 
concern that the NPRM did not propose a transition period for 
applying the 2004 ADAAG to barrier removal in existing facilities in 
cases where the safe harbors do not apply. These commenters argued 
that for newly covered elements, they needed time to hire attorneys 
and consultants to assess the impact of the new requirements, 
determine whether they need to make additional retrofits, price 
those retrofits, assess whether the change actually is ``readily 
achievable,'' obtain approval for the removal from owners who must 
pay for the changes, obtain permits, and then do the actual work. 
The commenters recognized that there may be some barrier removal 
actions that require little planning, but stated that other actions 
cost significantly more and require more budgeting, planning, and 
construction time.
    Barrier removal has been an ongoing requirement that has applied 
to public accommodations since the original regulation took effect 
on January 26, 1992. The final rule maintains the existing 
regulatory provision that barrier removal does not have to be 
undertaken unless it is ``readily achievable.'' The Department has 
provided in Sec.  36.304(d)(2)(ii)(B) that public accommodations are 
not required to apply the 2010 Standards to barrier removal until 18 
months after the publication date of this rule. It is the 
Department's view that 18 months is a sufficient amount of time for 
application of the 2010 Standards to barrier removal for those 
elements not subject to the safe harbor. This is also consistent 
with the compliance date the Department has specified for applying 
the 2010 Standards to new construction and alterations.
    Reduced scoping for play areas and other recreation facilities.
    Play areas. The Access Board published final guidelines for play 
areas in October 2000. 65 FR 62498 (Oct. 18, 2000). The guidelines 
include requirements for ground-level and elevated play components, 
accessible routes connecting the components, accessible ground 
surfaces, and maintenance of those surfaces. They have been 
referenced in Federal playground construction and safety guidelines 
and in some State and local codes and have been used voluntarily 
when many play areas across the country have been altered or 
constructed.
    In adopting the 2004 ADAAG (which includes the play area 
guidelines published in 2000), the Department acknowledges both

[[Page 56291]]

the importance of integrated, full access to play areas for children 
and parents with disabilities as well as the need to avoid placing 
an untenable fiscal burden on businesses. Consequently, the 
Department asked seven questions in the NPRM related to existing 
play areas. Two questions related to safe harbors: one on the 
appropriateness of a general safe harbor for existing play areas and 
another on public accommodations that have complied with State or 
local standards specific to play areas. The others related to 
reduced scoping, limited exemptions, and whether there is a 
``tipping point'' at which the costs of compliance with supplemental 
requirements would be so burdensome that a public accommodation 
would shut down a program rather than comply with the new 
requirements. In the nearly 100 comments received on title III play 
areas, the majority of commenters strongly opposed all safe harbors, 
exemptions, and reductions in scoping, and questioned the 
feasibility of determining a tipping point. A smaller number of 
commenters advocated for a safe harbor from compliance with the 2004 
ADAAG play area requirements along with reduced scoping and 
exemptions for both readily achievable barrier removal and 
alterations.
    Commenters were split as to whether the Department should exempt 
owners and operators of public accommodations from compliance with 
the supplemental requirements for play areas and recreation 
facilities and instead continue to determine accessibility in these 
facilities on a case-by-case basis under existing law. Many 
commenters were of the view that the exemption was not necessary 
because concerns of financial burden are addressed adequately by the 
defenses inherent in the standard for what constitutes readily 
achievable barrier removal. A number of commenters found the 
exemption inappropriate because no standards for play areas 
previously existed. Commenters also were concerned that a safe 
harbor applicable only to play areas and recreation facilities (but 
not to other facilities operated by a public accommodation) would 
create confusion, significantly limit access for children and 
parents with disabilities, and perpetuate the discrimination and 
segregation individuals with disabilities face in the important 
social arenas of play and recreation--areas where little access has 
been provided in the absence of specific standards. Many commenters 
suggested that instead of an exemption, the Department should 
provide guidance on barrier removal with respect to play areas and 
other recreation facilities.
    Several commenters supported the exemption, mainly on the basis 
of the cost of barrier removal. More than one commenter noted that 
the most expensive aspect of barrier removal on existing play areas 
is the surfaces for the accessible routes and use zones. Several 
commenters expressed the view that where a play area is ancillary to 
a public accommodation (e.g., in quick service restaurants or 
shopping centers), the play area should be exempt from compliance 
with the supplemental requirements because barrier removal would be 
too costly, and as a result, the public accommodation might 
eliminate the area.
    The Department has been persuaded that the ADA's approach to 
barrier removal, the readily achievable standard, provides the 
appropriate balance for the application of the 2010 Standards to 
existing play areas. Thus, in existing playgrounds, public 
accommodations will be required to remove barriers to access where 
these barriers can be removed without much difficulty or expense.
    The NPRM asked if there are State and local standards 
specifically regarding play and recreation area accessibility and 
whether facilities currently governed by, and in compliance with, 
such State and local standards or codes should be subject to a safe 
harbor from compliance with similar applicable requirements in the 
2004 ADAAG. The Department also requested comments on whether it 
would be appropriate for the Access Board to consider the 
implementation of guidelines that would extend such a safe harbor to 
play and recreation areas undertaking alterations. In response, no 
comprehensive State or local codes were identified, and commenters 
generally noted that because the 2004 ADAAG contained comprehensive 
accessibility requirements for these unique areas, public 
accommodations should not be afforded a safe harbor from compliance 
with them when altering play and recreation areas. The Department is 
persuaded by these comments that there is insufficient basis to 
apply a safe harbor for readily achievable barrier removal or 
alterations for play areas built in compliance with State or local 
laws.
    In the NPRM, the Department requested that public accommodations 
identify a ``tipping point'' at which the costs of compliance with 
the supplemental requirements for existing play areas would be so 
burdensome that the entity simply would shut down the playground. In 
response, no tipping point was identified. Some commenters noted, 
however, that the scope of the requirements may create the choice 
between wholesale replacement of play areas and discontinuance of 
some play areas, while others speculated that some public 
accommodations may remove play areas that are merely ancillary 
amenities rather than incur the cost of barrier removal under the 
2010 Standards. The Department has decided that the comments did not 
establish any clear tipping point and therefore that no regulatory 
response is appropriate in this area.
    The NPRM also asked for comment about the potential effect of 
exempting existing play areas of less than 1,000 square feet in size 
from the requirements applicable to play areas. Many trade and 
business associations favored exempting these small play areas, with 
some arguing that where the play areas are only ancillary amenities, 
the cost of barrier removal may dictate that they be closed down. 
Some commenters sought guidance on the definition of a 1,000-square-
foot play area, seeking clarification that seating and bathroom 
spaces associated with a play area are not included in the size 
definition. Disability rights advocates, by contrast, overwhelmingly 
opposed this exemption, arguing that these play areas may be some of 
the few available in a community; that restaurants and day care 
facilities are important places for socialization between children 
with disabilities and those without disabilities; that integrated 
play is important to the mission of day care centers and that many 
day care centers and play areas in large cities, such as New York 
City, have play areas that are less than 1,000 square feet in size; 
and that 1,000 square feet was an arbitrary size requirement.
    The Department agrees that children with disabilities are 
entitled to access to integrated play opportunities. However, the 
Department is aware that small public accommodations are concerned 
about the costs and efforts associated with barrier removal. The 
Department has given careful consideration as to how best to 
insulate small entities from overly burdensome costs and 
undertakings and has concluded that the existing readily achievable 
standard, not a separate exemption, is an effective and employable 
method by which to protect these entities. Under the existing 
readily achievable standard, small public accommodations would be 
required to comply only with the scoping and technical requirements 
of the 2010 Standards that are easily accomplishable and able to be 
carried out without much difficulty or expense. Thus, concerns about 
prohibitive costs and efforts clearly are addressed by the existing 
readily achievable standard. Moreover, as evidenced by comments 
inquiring as to how 1,000-square-foot play areas are to be measured 
and complaining that the 1,000-square-foot cut-off is arbitrary, the 
exemption posited in the NPRM would have been difficult to apply. 
Finally, a separate exemption would have created confusion as to 
whether, or when, to apply the exemption or the readily achievable 
standard. Consequently, the Department has decided that an 
exemption, separate and apart from the readily achievable standard, 
is not appropriate or necessary for small private play areas.
    In the NPRM, the Department requested public comment as to 
whether existing play areas should be permitted to substitute 
additional ground-level play components for the elevated play 
components that they otherwise would have been required to make 
accessible. Most commenters opposed this substitution because the 
guidelines as well as considerations of ``readily achievable barrier 
removal'' inherently contain the flexibility necessary for a variety 
of situations. Such commenters also noted that the Access Board 
adopted extensive guidelines with ample public input, including 
significant negotiation and balancing of costs. In addition, 
commenters advised that including additional ground level play 
components might result in higher costs because more accessible 
route surfaces might be required. A limited number of commenters 
favored substitution. The Department is persuaded by these comments 
that the proposed substitution of elements may not be beneficial. 
The current rules applicable to readily achievable barrier removal 
will be used to determine the number and type of accessible elements 
appropriate for a specific facility.
    In the NPRM, the Department requested public comment on whether 
it would be

[[Page 56292]]

appropriate for the Access Board to consider issuing guidelines for 
alterations to play and recreation facilities that would permit 
reduced scoping of accessible components or substitution of ground 
level play components in lieu of elevated play components. The 
Department received little input on this issue, and most commenters 
disfavored the suggestion. One commenter that supported this 
approach conjectured that it would encourage public accommodations 
to maintain and improve their playgrounds as well as provide more 
accessibility. The Department is persuaded that it is not necessary 
to ask the Access Board to revisit this issue.
    The NPRM also asked whether only one play area of each type 
should be required to comply at existing sites with multiple play 
areas and whether there are other select requirements applicable to 
play areas in the 2004 ADAAG for which the Department should 
consider exemptions or reduced scoping. Some commenters were opposed 
to the concept of requiring compliance at one play area of each type 
at a site with multiple play areas, citing lack of choice and 
ongoing segregation of children and adults with disabilities. Other 
commenters who supported an exemption and reduced scoping for 
alterations noted that the play equipment industry has adjusted to, 
and does not take issue with, the provisions of the 2004 ADAAG; 
however, they asked for some flexibility in the barrier removal 
requirements as applied to play equipment, arguing that augmentation 
of the existing equipment and installation of accessible play 
surfacing equates to wholesale replacement of the play equipment. 
The Department is persuaded that the current rules applicable to 
readily achievable barrier removal should be used to decide which 
play areas must comply with the supplemental requirements presented 
in the 2010 Standards.
    Swimming pools, wading pools, saunas, and steam rooms. Section 
36.304(d)(3)(ii) in the NPRM specified that for measures taken to 
comply with the barrier removal requirements, existing swimming 
pools with at least 300 linear feet of swimming pool wall would need 
to provide only one accessible means of entry that complies with 
section 1009.2 or section 1009.3 of the 2004 ADAAG, instead of the 
two means required for new construction. Commenters opposed the 
Department's reducing the scoping from that required in the 2004 
ADAAG. The following were among the factors cited in comments: that 
swimming is a common therapeutic form of exercise for many 
individuals with disabilities; that the cost of a swimming pool lift 
or other options for pool access is readily achievable and can be 
accomplished without much difficulty or expense; and that the 
readily achievable standard already provides public accommodations 
with a means to reduce their scoping requirements. A few commenters 
cited safety concerns resulting from having just one accessible 
means of access, and stated that because pools typically have one 
ladder for every 75 linear feet of pool wall, they should have more 
than one accessible means of egress. Other commenters either 
approved or did not oppose providing one accessible means of access 
for larger pools so long as a lift was used.
    Section 36.304(d)(4)(ii) of the NPRM proposed to exempt existing 
swimming pools with fewer than 300 linear feet of swimming pool wall 
from the obligation to provide an accessible means of entry. Most 
commenters strongly opposed this provision, arguing that aquatic 
activity is a safe and beneficial form of exercise that is 
particularly appropriate for individuals with disabilities. Many 
argued that the readily achievable standard for barrier removal is 
available as a defense and is preferable to creating an exemption 
for pool operators for whom providing an accessible means of entry 
would be readily achievable. Commenters who supported this provision 
apparently assumed that providing an accessible means of entry would 
be readily achievable and that therefore the exemption is needed so 
that small pool operators do not have to provide an accessible means 
of entry.
    The Department has carefully considered all the information 
available to it as well as the comments submitted on these two 
proposed exemptions for swimming pools owned or operated by title 
III entities. The Department acknowledges that swimming provides 
important therapeutic, exercise, and social benefits for many 
individuals with disabilities and is persuaded that exemption of the 
vast majority of privately owned or operated pools from the 2010 
Standards is neither appropriate nor necessary. The Department 
agrees with the commenters that title III already contains 
sufficient limitations on private entities' obligations to remove 
barriers. In particular, the Department agrees that those public 
accommodations that can demonstrate that making particular existing 
swimming pools accessible in accordance with the 2010 Standards is 
not readily achievable are sufficiently protected from excessive 
compliance costs. Thus, the Department has eliminated proposed Sec.  
36.304(d)(3)(ii) and (d)(4)(ii) from the final rule.
    Proposed Sec.  36.304(d)(4)(iii) would have exempted existing 
saunas and steam rooms that seat only two individuals from the 
obligation to remove barriers. This provision generated far fewer 
comments than the provisions for swimming pools. People who 
commented were split fairly evenly between those who argued that the 
readily achievable standard for barrier removal should be applied to 
all existing saunas and steam rooms and those who argued that all 
existing saunas and steam rooms, regardless of size, should be 
exempt from any barrier removal obligations. The Department 
considered these comments and has decided to eliminate the exemption 
for existing saunas and steam rooms that seat only two people. Such 
an exemption for saunas and steam rooms that seat only two people is 
unnecessary because the readily achievable standard provides 
sufficient protection against barrier removal that is overly 
expensive or too difficult. Moreover, the Department believes 
barrier removal likely will not be readily achievable for most of 
these small saunas because the nature of their prefabricated forms, 
which include built-in seats, make it either technically infeasible 
or too difficult or expensive to remove barriers. Consequently a 
separate exemption for saunas and steam rooms would have been 
superfluous. Finally, employing the readily achievable standard for 
small saunas and steam rooms is consistent with the Department's 
decisions regarding the proposed exemptions for play areas and 
swimming pools.
    Several commenters also argued in favor of a specific exemption 
for existing spas. The Department notes that the technically 
infeasible and readily achievable defenses are applicable equally to 
existing spas and declines to adopt such an exemption.
    The Department also solicited comment on the possibility of 
exempting existing wading pools from the obligation to remove 
barriers where readily achievable. Most commenters stated that 
installing a sloped entry in an existing wading pool is not likely 
to be feasible. Because covered entities are not required to 
undertake modifications that are not readily achievable or that 
would be technically infeasible, the Department believes that the 
rule as drafted provides sufficient protection from unwarranted 
expense to the operators of small existing wading pools. Other 
existing wading pools, particularly those large wading pools found 
in facilities such as water parks, must be assessed on a case-by-
case basis. Therefore, the Department has not included an exemption 
for wading pools in its final rule.
    The Department received several comments recommending that 
existing wave pools be exempt from barrier removal requirements. The 
commenters pointed out that existing wave pools often have a sloped 
entry, but do not have the handrails, level landings, or edge 
protection required for accessible entry. Because pool bottom slabs 
are structural, they could be subject to catastrophic failure if the 
soil pressure stability or the under slab dewatering are not 
maintained during the installation of these accessibility features 
in an already-constructed pool. They also argue that the only safe 
design scenario is to design the wheelchair ramp, pool lift, or 
transfer access in a side cove where the mean water level largely is 
unaffected by the wave action, and that this additional construction 
to an existing wave pool is not readily achievable. If located in 
the main pool area, the handrails, stanchions, and edge protection 
for sloped entry will become underwater hazards when the wave action 
is pushing onto pool users, and the use of a pool lift will not be 
safe without a means of stabilizing the person against the forces of 
the waves while using the lift. They also pointed out that a 
wheelchair would pose a hazard to all wave pool users, in that the 
wave action might push other pool users into the wheelchair or push 
the wheelchair into other pool users. The wheelchair would have to 
be removed from the pool after the user has entered (and has 
transferred to a flotation device if needed). The commenters did not 
specify if these two latter concerns are applicable to all wave 
pools or only to those with more aggressive wave action. The 
Department has decided that the issue of modifications to wave pools 
is best addressed on a case-by-case basis, and therefore, this rule 
does not contain barrier removal exemptions applicable to wave 
pools.

[[Page 56293]]

    The Department also received comments suggesting that it is not 
appropriate to require two accessible means of entry to wave pools, 
lazy rivers, sand bottom pools, and other water amusements that have 
only one point of entry. The Department agrees. The 2010 Standards 
(at section 242.2, Exception 2) provide that only one means of entry 
is required for wave pools, lazy rivers, sand bottom pools, and 
other water amusement where user access is limited to one area.
    Other recreation facilities. In the NPRM, the Department asked 
about a number of issues relating to recreation facilities, such as 
team or player seating areas, areas of sport activity, exercise 
machines, boating facilities, fishing piers and platforms, golf 
courses, and miniature golf courses. The Department asked for public 
comment on the costs and benefits of applying the 2004 ADAAG to 
these spaces and facilities. The discussion of the comments received 
by the Department on these issues and the Department's response to 
those comments can be found in either the section entitled ``Other 
Issues'' of Appendix A to this final rule.
    Safe harbor for qualified small businesses. Section 36.304(d)(5) 
of the NPRM would have provided that a qualified small business 
would meet its obligation to remove architectural barriers where 
readily achievable for a given year if, during that tax year, the 
entity spent at least 1 percent of its gross revenue in the 
preceding tax year on measures undertaken in compliance with barrier 
removal requirements. Proposed Sec.  36.304(d)(5) has been omitted 
from the final rule.
    The qualified small business safe harbor was proposed in 
response to small business advocates' requests for clearer guidance 
on when barrier removal is, and is not, readily achievable. 
According to these groups, the Department's approach to readily 
achievable barrier removal disproportionately affects small business 
for the following reasons: (1) Small businesses are more likely to 
operate in older buildings and facilities; (2) the 1991 Standards 
are too numerous and technical for most small business owners to 
understand and determine how they relate to State and local building 
or accessibility codes; and (3) small businesses are vulnerable to 
title III litigation and often are compelled to settle because they 
cannot afford the litigation costs involved in proving that an 
action is not readily achievable.
    The 2010 Standards go a long way toward meeting the concern of 
small businesses with regard to achieving compliance with both 
Federal and State accessibility requirements, because the Access 
Board harmonized the 2004 ADAAG with the model codes that form the 
basis of most State and local accessibility codes. Moreover, the 
element-by-element safe harbor will ensure that unless and until a 
small business engages in alteration of affected elements, the small 
business will not have to retrofit elements that were constructed in 
compliance with the 1991 Standards or, with respect to elements in 
an existing facility, that were retrofitted to the 1991 Standards in 
conjunction with the business's barrier removal obligation prior to 
the rule's compliance date.
    In proposing an additional safe harbor for small businesses, the 
Department had sought to promulgate a rule that would provide small 
businesses a level of certainty in short-term and long-term planning 
with respect to barrier removal. This in turn would benefit 
individuals with disabilities in that it would encourage small 
businesses to consider and incorporate barrier removal in their 
yearly budgets. Such a rule also would provide some protection, 
through diminished litigation risks, to small businesses that 
undertake significant barrier removal projects.
    As proposed in the NPRM, the qualified small business safe 
harbor would provide that a qualified small business has met its 
readily achievable barrier removal obligations for a given year if, 
during that tax year, the entity has spent at least 1 percent of its 
gross revenue in the preceding tax year on measures undertaken to 
comply with title III barrier removal requirements. (Several small 
business advocacy organizations pointed out an inconsistency between 
the Department's description of the small business safe harbor in 
the Section-by-Section Analysis for Sec.  36.304 and the proposed 
regulatory text for that provision. The proposed regulatory text 
sets out the correct parameters of the proposed rule. The Department 
does not believe that the error substantively affected the comments 
on this issue. Some commenters noted the discrepancy and commented 
on both; others commented more generally on the proposal, so the 
discrepancy was not relevant.) The Department noted that the 
efficacy of any proposal for a small business safe harbor would turn 
on the following two determinations: (1) The definition of a 
qualified small business, and (2) the formula for calculating what 
percentage of revenue is sufficient to satisfy the readily 
achievable presumption.
    As proposed in Sec.  36.104 in the NPRM, a ``qualified small 
business'' is a business entity defined as a small business concern 
under the regulations promulgated by the Small Business 
Administration (SBA) pursuant to the Small Business Act. See 15 
U.S.C. 632; 13 CFR part 121. The Department noted that under section 
3(a)(2)(C) of the Small Business Act, Federal departments and 
agencies are prohibited from prescribing a size standard for 
categorizing a business concern as a small business unless the 
department or agency has been authorized specifically to do so or 
has proposed a size standard in compliance with the criteria set 
forth in the SBA regulations, has provided an opportunity for public 
notice and comment on the proposed standard, and has received 
approval from the Administrator of the SBA to use the standard. See 
15 U.S.C. 632(a)(2)(C). The Department further noted that Federal 
agencies or departments promulgating regulations relating to small 
businesses usually use SBA size criteria, and they otherwise must be 
prepared to justify how they arrived at a different standard and why 
the SBA's regulations do not satisfy the agency's program 
requirements. See 13 CFR 121.903. The ADA does not define ``small 
business'' or specifically authorize the Department to prescribe 
size standards.
    In the NPRM, the Department indicated its belief that the size 
standards developed by the SBA are appropriate for determining which 
businesses subject to the ADA should be eligible for the small 
business safe harbor provisions, and proposed to adopt the SBA's 
size standards to define small businesses for purposes of the 
qualified small business safe harbor. The SBA's small business size 
standards define the maximum size that a concern, together with all 
of its affiliates, may be if it is to be eligible for Federal small 
business programs or to be considered a small business for the 
purpose of other Federal agency programs. Concerns primarily engaged 
in the same kind of economic activity are classified in the same 
industry regardless of their types of ownership (such as sole 
proprietorship, partnership, or corporation). Approximately 1200 
industries are described in detail in the North American Industry 
Classification System--United States, 2007. For most businesses, the 
SBA has established a size standard based on average annual 
receipts. The majority of places of public accommodation will be 
classified as small businesses if their average annual receipts are 
less than $6.5 million. However, some will qualify with higher 
annual receipts. The SBA small business size standards should be 
familiar to many if not most small businesses, and using these 
standards in the ADA regulation would provide some certainty to 
owners, operators, and individuals because the SBA's current size 
standards can be changed only after notice and comment rulemaking.
    The Department explained in the NPRM that the choice of gross 
revenue as the basis for calculating the safe harbor threshold was 
intended to avoid the effect of differences in bookkeeping practices 
and to maximize accessibility consistent with congressional intent. 
The Department recognized, however, that entities with similar gross 
revenue could have very different net revenue, and that this 
difference might affect what is readily achievable for a particular 
entity. The Department also recognized that adopting a small 
business safe harbor would effect a marked change to the 
Department's current position on barrier removal. Accordingly, the 
Department sought public comment on whether a presumption should be 
adopted whereby qualifying small businesses are presumed to have 
done what is readily achievable for a given year if, during that tax 
year, the entity spent at least 1 percent of its gross revenue in 
the preceding tax year on barrier removal, and on whether 1 percent 
is an appropriate amount or whether gross revenue would be the 
appropriate measure.
    The Department received many comments on the proposed qualified 
small business safe harbor. From the business community, comments 
were received from individual business owners and operators, 
industry and trade groups, and advocacy organizations for business 
and industry. From the disability community, comments were received 
from individuals, disability advocacy groups, and nonprofit 
organizations involved in providing services for persons with 
disabilities or involved in disability-related fields. The 
Department has considered all relevant matter submitted on this 
issue during the 60-day public comment period.
    Small businesses and industry groups strongly supported a 
qualified small business

[[Page 56294]]

safe harbor of some sort, but none supported the structure proposed 
by the Department in the NPRM. All felt strongly that clarifications 
and modifications were needed to strengthen the provision and to 
provide adequate protection from litigation.
    Business commenters' objections to the proposed qualified small 
business safe harbor fell generally into three categories: (1) That 
gross revenue is an inappropriate and inaccurate basis for 
determining what is readily achievable by a small business since it 
does not take into account expenses that may result in a small 
business operating at a loss; (2) that courts will interpret the 
regulation to mean that a small business must spend 1 percent of 
gross revenue each year on barrier removal, i.e., that expenditure 
of 1 percent of gross revenue on barrier removal is always ``readily 
achievable''; and (3) that a similar misinterpretation of the 1 
percent gross revenue concept, i.e., that 1 percent of gross revenue 
is always ``readily achievable,'' will be applied to public 
accommodations that are not small businesses and that have 
substantially larger gross revenue. Business groups also expressed 
significant concern about the recordkeeping burdens they viewed as 
inherent in the Department's proposal.
    Across the board, business commenters objected to the 
Department's proposed use of gross revenue as the basis for 
calculating whether the small business safe harbor has been met. All 
contended that 1 percent of gross revenue is too substantial a 
trigger for safe harbor protection and would result in barrier 
removal burdens far exceeding what is readily achievable or ``easily 
accomplishable and able to be carried out without much difficulty or 
expense.'' 42 U.S.C. 12181(9). These commenters further pointed out 
that gross revenue and receipts vary considerably from industry to 
industry depending on the outputs sold in each industry, and that 
the use of gross revenue or receipts would therefore result in 
arbitrary and inequitable burdens on those subject to the rule. 
These commenters stated that the readily achievable analysis, and 
thus the safe harbor threshold, should be premised on a business's 
net revenue so that operating expenses are offset before determining 
what amount might be available for barrier removal. Many business 
commenters contended that barrier removal is not readily achievable 
if an entity is operating at a loss, and that a spending formula 
premised on net revenue can reflect more accurately businesses' 
ability to engage in barrier removal.
    There was no consensus among the business commenters as to a 
formula that would reflect more accurately what is readily 
achievable for small businesses with respect to barrier removal. 
Those that proposed alternative formulas offered little in the way 
of substantive support for their proposals. One advocacy 
organization representing a large cross-section of small businesses 
provided some detail on the gross and net revenue of various 
industry types and sizes in support of its position that for nearly 
all small businesses, net revenue is a better indicator of a 
business's financial ability to spend money on barrier removal. The 
data also incidentally highlighted the importance and complexity of 
ensuring that each component in a safe harbor formula accurately 
informs and contributes to the ultimate question of what is and is 
not readily achievable for a small business.
    Several business groups proposed that a threshold of 0.5 percent 
(or one-half of 1 percent) of gross revenue, or 2.5 percent of net 
revenue, spent on ADA compliance might be a workable measure of what 
is ``readily achievable'' for small businesses. Other groups 
proposed 3 to 5 percent of net revenue as a possible measure. 
Several commenters proposed affording small businesses an option of 
using gross or net revenue to determine safe harbor eligibility. 
Another commenter proposed premising the safe harbor threshold on a 
designated percentage of the amount spent on renovation in a given 
year. Others proposed averaging gross or net revenue over a number 
of years to account for cyclical changes in economic and business 
environments. Additionally, many proposed that an entity should be 
able to roll over expenditures in excess of the safe harbor for 
inclusion in safe harbor analysis in subsequent years, to facilitate 
barrier removal planning and encourage large-scale barrier removal 
measures.
    Another primary concern of many businesses and business groups 
is that the 1 percent threshold for safe harbor protection would 
become a de facto ``floor'' for what is readily achievable for any 
small business entity. These commenters urged the Department to 
clarify that readily achievable barrier removal remains the 
standard, and that in any given case, an entity retains the right to 
assert that barrier removal expenditures below the 1 percent 
threshold are not readily achievable. Other business groups worried 
that courts would apply the 1 percent calculus to questions of 
barrier removal by businesses too large to qualify for the small 
business safe harbor. These commenters requested clarification that 
the rationale underlying the Department's determination that a 
percentage of gross revenue can appropriately approximate readily 
achievable barrier removal for small businesses does not apply 
outside the small business context.
    Small businesses and business groups uniformly requested 
guidance as to what expenses would be included in barrier removal 
costs for purposes of determining whether the safe harbor threshold 
has been met. These commenters contended that any and all expenses 
associated with ADA compliance--e.g., consultants, architects, 
engineers, staff training, and recordkeeping--should be included in 
the calculation. Some proposed that litigation-related expenses, 
including defensive litigation costs, also should be accounted for 
in a small business safe harbor. Additionally, several commenters 
urged the Department to issue a small business compliance guide with 
detailed guidance and examples regarding application of the readily 
achievable barrier removal standard and the safe harbor. Some 
commenters felt that the Department's regulatory efforts should be 
focused on clarifying the readily achievable standard rather than on 
introducing a safe harbor based on a set spending level.
    Businesses and business groups expressed concern that the 
Department's proposed small business safe harbor would not alleviate 
small business vulnerability to litigation. Individuals and advocacy 
groups were equally concerned that the practical effect of the 
Department's proposal likely would be to accelerate or advance the 
initiation of litigation. These commenters pointed out that an 
individual encountering barriers in small business facilities will 
not know whether the entity is noncompliant or entitled to safe 
harbor protection. Safe harbor eligibility can be evaluated only 
after review of the small business's barrier removal records and 
financial records. Individuals and advocacy groups argued that the 
Department should not promulgate a rule by which individuals must 
file suit to obtain the information needed to determine whether a 
lawsuit is appropriate in a particular case, and that, therefore, 
the rule should clarify that small businesses are required to 
produce such documentation to any individual upon request.
    Several commenters noted that a small business safe harbor based 
on net, rather than gross, revenue would complicate exponentially 
its efficacy as an affirmative defense, because accounting practices 
and asserted expenses would be subject to discovery and dispute. One 
business advocacy group representing a large cross-section of small 
businesses noted that some small business owners and operators 
likely would be uncomfortable with producing detailed financial 
information, or could be prevented from using the safe harbor 
because of inadvertent recordkeeping deficiencies.
    Individuals, advocacy groups, and nonprofit organizations 
commenting on behalf of the disability community uniformly and 
strongly opposed a safe harbor for qualified small businesses, 
saying it is fundamentally at odds with the intent of Congress and 
the plain language of the ADA. These commenters contended that the 
case-specific factors underlying the statute's readily achievable 
standard cannot be reconciled with a formulaic accounting approach, 
and that a blanket formula inherently is less fair, less flexible, 
and less effective than the current case-by-case determination for 
whether an action is readily achievable. Moreover, they argued, a 
small business safe harbor for readily achievable barrier removal is 
unnecessary because the statutory standard explicitly provides that 
a business need only spend what is readily achievable--an amount 
that may be more or less than 1 percent of revenue in any given 
year.
    Several commenters opined that the formulaic approach proposed 
by the Department overlooks the factors that often prove most 
conducive and integral to readily achievable barrier removal--
planning and prioritization. Many commenters expressed concern that 
the safe harbor creates an incentive for business entities to forego 
large-scale barrier removal in favor of smaller, less costly removal 
projects, regardless of the relative access the measures might 
provide. Others commented that an emphasis on a formulaic amount 
rather than readily achievable barrier removal might result in

[[Page 56295]]

competition among types of disabilities as to which barriers get 
removed first, or discrimination against particular types of 
disabilities if barrier removal for those groups is more expensive.
    Many commenters opposed to the small business safe harbor 
proposed clarifications and limiting rules. A substantial number of 
commenters were strongly opposed to what they perceived as a vastly 
overbroad and overly complicated definition of ``qualified small 
business'' for purposes of eligibility for the safe harbor, and 
urged the Department to limit the qualified small business safe 
harbor to those businesses eligible for the ADA small business tax 
credit under section 44 of the Tax Code. Some commenters from the 
disability community contended that the spending level that triggers 
the safe harbor should be cumulative, to reflect the continuing 
nature of the readily achievable barrier obligation and to preclude 
a business from erasing years of unjustifiable inaction or 
insufficient action by spending up to the safe harbor threshold for 
one year. These commenters also sought explicit clarification that 
the small business safe harbor is an affirmative defense.
    A number of commenters proposed that a business seeking to use 
the qualified small business safe harbor should be required to have 
a written barrier removal plan that contains a prioritized list of 
significant access barriers, a schedule for removal, and a 
description of the methods used to identify and prioritize barriers. 
These commenters argued that only spending consistent with the plan 
should count toward the qualified small business threshold.
    After consideration of all relevant matter presented, the 
Department has concluded that neither the qualified small business 
safe harbor proposed in the NPRM nor any of the alternatives 
proposed by commenters will achieve the Department's intended 
results. Business and industry commenters uniformly objected to a 
safe harbor based on gross revenue, argued that 1 percent of gross 
revenue was out of reach for most, if not all, small businesses, and 
asserted that a safe harbor based on net revenue would better 
capture whether and to what extent barrier removal is readily 
achievable for small businesses. Individuals and disability advocacy 
groups rejected a set formula as fundamentally inconsistent with the 
case-specific approach reflected in the statute.
    Commenters on both sides noted ambiguity as to which ADA-related 
costs appropriately should be included in the calculation of the 
safe harbor threshold, and expressed concern about the practical 
effect of the proposed safe harbor on litigation. Disability 
organizations expressed concern that the proposal might increase 
litigation because individuals with disabilities confronted with 
barriers in places of public accommodation would not be able to 
independently assess whether an entity is noncompliant or is, in 
fact, protected by the small business safe harbor. The Department 
notes that the concerns about enforcement-related complexity and 
expense likely would increase exponentially with a small business 
safe harbor based on net revenue.
    The Department continues to believe that promulgation of a small 
business safe harbor would be within the scope of the Attorney 
General's mandate under 42 U.S.C. 12186(b) to issue regulations to 
carry out the provisions of title III. Title III defines ``readily 
achievable'' to mean ``easily accomplishable and able to be carried 
out without much difficulty or expense,'' 42 U.S.C. 12181(9), and 
sets out factors to consider in determining whether an action is 
readily achievable. While the statutory factors reflect that whether 
an action is readily achievable is a fact-based determination, there 
is no inherent inconsistency with the Department's proposition that 
a formula based on revenue and barrier removal expenditure could 
accurately approximate the high end of the level of expenditure that 
can be considered readily achievable for a circumscribed subset of 
title III entities defined, in part, by their maximum annual average 
receipts. Moreover, the Department's obligation under the SBREFA to 
consider alternative means of compliance for small businesses, see 5 
U.S.C. 603(c), further supports the Department's conclusion that a 
well-targeted formula is a reasonable approach to implementation of 
the statute's readily achievable standard. While the Department 
ultimately has concluded that a small business safe harbor should 
not be included in the final rule, the Department continues to 
believe that it is within the Department's authority to develop and 
implement such a safe harbor.
    As noted above, the business community strongly objected to a 
safe harbor premised on gross revenue, on the ground that gross 
revenue is an unreliable indicator of an entity's ability to remove 
barriers, and urged the Department to formulate a safe harbor based 
on net revenue. The Department's proposed use of gross revenue was 
intended to offer a measure of certainty for qualified small 
businesses while ensuring that those businesses continue to meet 
their ongoing obligation to remove architectural barriers where 
doing so is readily achievable.
    The Department believes that a qualified small business safe 
harbor based on net revenue would be an unreliable indicator of what 
is readily achievable and would be unworkable in practice. 
Evaluation of what is readily achievable for a small business cannot 
rest solely on a business's net revenue because many decisions about 
expenses are inherently subjective, and in some cases a net loss may 
be more beneficial (in terms of taxes, for example) than a small net 
profit. The Department does not read the ADA's readily achievable 
standard to mean necessarily that architectural barrier removal is 
to be, or should be, a business's last concern, or that a business 
can claim that every barrier removal obligation is not readily 
achievable. Therefore, if a qualified small business safe harbor 
were to be premised on net revenue, assertion of the affirmative 
defense would trigger discovery and examination of the business's 
accounting methods and the validity or necessity of offsetting 
expenses. The practical benefits and legal certainty intended by the 
NPRM would be lost.
    Because there was little to no support for the Department's 
proposed use of gross revenue and no workable alternatives are 
available at this time, the Department will not adopt a small 
business safe harbor in this final rule. Small business public 
accommodations are subject to the barrier removal requirements set 
out in Sec.  36.304 of the final rule. In addition, the Department 
plans to provide small businesses with more detailed guidance on 
assessing and meeting their barrier removal obligations in a small 
business compliance guide.

Section 36.308 Seating in Assembly Areas

    In the 1991 rule, Sec.  36.308 covered seating obligations for 
public accommodations in assembly areas. It was bifurcated into (a) 
existing facilities and (b) new construction and alterations. The 
new construction and alterations provision, Sec.  36.308(b), merely 
stated that assembly areas should be built or altered in accordance 
with the applicable provisions in the 1991 Standards. Section 
36.308(a), by contrast, provided detailed guidelines on what barrier 
removal was required.
    The Department explained in the preamble to the 1991 rule that 
Sec.  36.308 provided specific rules on assembly areas to ensure 
that wheelchair users, who typically were relegated to inferior 
seating in the back of assembly areas separate from their friends 
and family, would be provided access to seats that were integrated 
and equal in quality to those provided to the general public. 
Specific guidance on assembly areas was desirable because they are 
found in many different types of places of public accommodation, 
ranging from opera houses (places of exhibition or entertainment) to 
private university lecture halls (places of education), and include 
assembly areas that range in size from small movie theaters of 100 
or fewer seats to 100,000-seat sports stadiums.
    In the NPRM, the Department proposed to update Sec.  36.308(a) 
by incorporating some of the applicable assembly area provisions 
from the 2010 Standards. Upon further review, however, the 
Department has determined that the need to provide special guidance 
for assembly areas in a separate section no longer exists, except 
for specialty seating areas, as discussed below. Since enactment of 
the ADA, the Department has interpreted the 1991 Standards as a 
guide for determining the existence of barriers. Courts have 
affirmed this interpretation. See, e.g., Colorado Cross Disability 
Coalition v. Too, Inc., 344 F. Supp. 2d 707 (D. Colo. 2004); Access 
Now, Inc. v. AMH CGH, Inc., 2001 WL 1005593 (S.D. Fla. 2001); 
Pascuiti v. New York Yankees, 87 F. Supp. 2d 221 (S.D.N.Y. 1999). 
The 2010 Standards now establish detailed guidance for newly 
constructed and altered assembly areas, which is provided in Sec.  
36.406(f), and these Standards will serve as a new guide for barrier 
removal. Accordingly, the former Sec.  36.308(a) has been replaced 
in the final rule. Assembly areas will benefit from the same safe 
harbor provisions applicable to barrier removal in all places of 
public accommodations as provided in Sec.  36.304(d)(2) of the final 
rule.
    The Department has also decided to remove proposed Sec.  
36.308(c)(2) from the final rule. This provision would have required 
assembly areas with more than 5,000 seats to provide five wheelchair 
spaces with at least

[[Page 56296]]

three designated companion seats for each of those five wheelchair 
spaces. The Department agrees with commenters who asserted that 
group seating already is addressed more appropriately in ticketing 
under Sec.  36.302(f).
    The Department has determined that proposed Sec.  36.308(c)(1), 
addressing specialty seating in assembly areas, should remain as 
Sec.  36.308 in the final rule with additional language. This 
paragraph is designed to ensure that individuals with disabilities 
have an opportunity to access specialty seating areas that entitle 
spectators to distinct services or amenities not generally available 
to others. This provision is not, as several commenters mistakenly 
thought, designed to cover luxury boxes and suites. Those areas have 
separate requirements outlined in section 221 of the 2010 Standards.
    Section 36.308 requires only that accessible seating be provided 
in each area with distinct services or amenities. To the extent a 
covered entity provides multiple seating areas with the same 
services and amenities, each of those areas would not be distinct 
and thus all of them would not be required to be accessible. For 
example, if a facility has similar dining service in two areas, both 
areas would not need to be made accessible; however, if one dining 
service area is open to families, while the other is open only to 
individuals over the age of 21, both areas would need to be made 
accessible. Factors distinguishing specialty seating areas generally 
are dictated by the type of facility or event, but may include, for 
example, such distinct services and amenities as access to wait 
staff for in-seat food or beverage service; availability of catered 
food or beverages for pre-game, intermission, or post-game events; 
restricted access to lounges with special amenities, such as couches 
or flat-screen televisions; or access to team personnel or 
facilities for team-sponsored events (e.g., autograph sessions, 
sideline passes, or facility tours) not otherwise available to other 
spectators.
    The NPRM required public accommodations to locate wheelchair 
seating spaces and companion seats in each specialty seating area 
within the assembly area. The Department has added language in the 
final rule stating that public accommodations that cannot place 
wheelchair seating spaces and companion seats in each specialty area 
because it is not readily achievable to do so may meet their 
obligation by providing specialty services or amenities to 
individuals with disabilities and their companions at other 
designated accessible locations at no additional cost. For example, 
if a theater that only has barrier removal obligations provides wait 
service to spectators in the mezzanine, and it is not readily 
achievable to place accessible seating there, it may meet its 
obligation by providing wait service to patrons with disabilities 
who use wheelchairs and their companions at other designated 
accessible locations at no additional cost. This provision does not 
obviate the obligation to comply with applicable requirements for 
new construction and alterations, including dispersion of accessible 
seating.

Section 36.309 Examinations and Courses

    Section 36.309(a) sets forth the general rule that any private 
entity that offers examinations or courses relating to applications, 
licensing, certification, or credentialing for secondary or 
postsecondary education, professional, or trade purposes shall offer 
such examinations or courses in a place and manner accessible to 
persons with disabilities or offer alternative accessible 
arrangements for such individuals. In the NPRM preamble and proposed 
regulatory amendment and in this final rule, the Department relied 
on its history of enforcement efforts, research, and body of 
knowledge of testing and modifications, accommodations, and aids in 
detailing steps testing entities should take to ensure that persons 
with disabilities receive appropriate modifications, accommodations, 
or auxiliary aids in examination and course settings as required by 
the ADA. The Department received comments from disability rights 
groups, organizations that administer tests, State governments, 
professional associations, and individuals on the language appearing 
in the NPRM preamble and amended regulation and has carefully 
considered these comments.
    The Department initially set out the parameters of appropriate 
documentation requests relating to examinations and courses covered 
by this section in the 1991 preamble at 28 CFR part 36, stating that 
``requests for documentation must be reasonable and must be limited 
to the need for the modification or aid requested.'' See 28 CFR part 
36, app. B at 735 (2009). Since that time, the Department, through 
its enforcement efforts pursuant to section 309, has addressed 
concerns that requests by testing entities for documentation 
regarding the existence of an individual's disability and need for a 
modification or auxiliary aid or service were often inappropriate 
and burdensome. The Department proposed language stating that while 
it may be appropriate for a testing entity to request that an 
applicant provide documentation supporting the existence of a 
disability and the need for a modification, accommodation, or 
auxiliary aid or service, the request by the testing entity for such 
documentation must be reasonable and limited. The NPRM proposed that 
testing entities should narrowly tailor requests for documentation, 
limiting those requests to materials that will allow the testing 
entities to ascertain the nature of the disability and the 
individual's need for the requested modification, accommodation, or 
auxiliary aid or service. This proposal codified the 1991 rule's 
preamble language regarding testing entities' requests for 
information supporting applicants' requests for testing 
modifications or accommodations.
    Overall, most commenters supported this addition to the 
regulation. These commenters generally agreed that documentation 
sought by testing entities to support requests for modifications and 
testing accommodations should be reasonable and tailored. Commenters 
noted, for example, that the proposal to require reasonable and 
tailored documentation requests ``is not objectionable. Indeed, it 
largely tracks DOJ's long-standing informal guidance that `requests 
for documentation must be reasonable and limited to the need for the 
modification or aid requested.' ''
    Commenters including disability rights groups, State 
governments, professional associations, and individuals made it 
clear that, in addition to the proposed regulatory change, other 
significant problems remain for individuals with disabilities who 
seek necessary modifications to examinations and courses. These 
problems include detailed questions about the nature of 
documentation materials submitted by candidates, testing entities' 
questioning of documentation provided by qualified professionals 
with expertise in the particular disability at issue, and lack of 
timeliness in determining whether to provide requested 
accommodations or modifications. Several commenters expressed 
enthusiasm for the preamble language addressing some of these 
issues, and some of these commenters recommended the incorporation 
of portions of this preamble language into the regulatory text. Some 
testing entities expressed concerns and uncertainty about the 
language in the preamble and sought clarifications about its 
meaning. These commenters focused most of their attention on the 
following language from the NPRM preamble:

    Generally, a testing entity should accept without further 
inquiry documentation provided by a qualified professional who has 
made an individualized assessment of the applicant. Appropriate 
documentation may include a letter from a qualified professional or 
evidence of a prior diagnosis, or accommodation, or classification, 
such as eligibility for a special education program. When an 
applicant's documentation is recent and demonstrates a consistent 
history of a diagnosis, there is no need for further inquiry into 
the nature of the disability. A testing entity should consider an 
applicant's past use of a particular auxiliary aid or service.

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

    Professional organizations, State governments, individuals, and 
disability rights groups fully supported the Department's preamble 
language and recommended further modification of the regulations to 
encompass the issues raised in the preamble. A disability rights 
group recommended that the Department incorporate the preamble 
language into the regulations to ensure that ``documentation demands 
are strictly limited in scope and met per se when documentation of 
previously provided accommodations or aids is provided.'' One 
professional education organization noted that many testing 
corporations disregard the documented diagnoses of qualified 
professionals, and instead substitute their own, often unqualified 
diagnoses of individuals with disabilities. Commenters confirmed 
that testing entities sometimes ask for unreasonable information 
that is either impossible, or extremely onerous, to provide. A 
disability rights organization supported the Department's proposals 
and noted that private testing companies impose burdensome 
documentation requirements upon applicants with disabilities seeking 
accommodations and that complying with

[[Page 56297]]

the documentation requests is frequently so difficult, and 
negotiations over the requests so prolonged, that test applicants 
ultimately forgo taking the test. Another disability rights group 
urged the Department to ``expand the final regulatory language to 
ensure that regulations accurately provide guidance and support the 
comments made about reducing the burden of documenting the diagnosis 
and existence of a disability.''
    Testing entities, although generally supportive of the proposed 
regulatory amendment, expressed concern regarding the Department's 
proposed preamble language. The testing entities provided the 
Department with lengthy comments in which they suggested that the 
Department's rationale delineated in the preamble potentially could 
limit them from gathering meaningful and necessary documentation to 
determine whether, in any given circumstance, a disability is 
presented, whether modifications are warranted, and which 
modifications would be most appropriate. Some testing entities 
raised concerns about individuals skewing testing results by falsely 
claiming or feigning disabilities as an improper means of seeking 
advantage on an examination. Several testing entities raised 
concerns about and sought clarification regarding the Department's 
use of certain terms and concepts in the preamble, including 
``without further inquiry,'' ``appropriate documentation,'' 
``qualified professional,'' ``individualized assessment,'' and 
``consider.'' These entities discussed the preamble language at 
length, noting that testing entities need to be able to question 
some aspects of testing applicants' documentation or to request 
further documentation from some candidates when the initial 
documentation is unclear or incomplete. One testing entity expressed 
concern that the Department's preamble language would require the 
acceptance of a brief note on a doctor's prescription pad as 
adequate documentation of a disability and the need for an 
accommodation. One medical examination organization stated that the 
Department's preamble language would result in persons without 
disabilities receiving accommodations and passing examinations as 
part of a broad expansion of unwarranted accommodations, potentially 
endangering the health and welfare of the general public. Another 
medical board ``strenuously objected'' to the ``without further 
inquiry'' language. Several of the testing entities expressed 
concern that the Department's preamble language might require 
testing companies to accept documentation from persons with 
temporary or questionable disabilities, making test scores less 
reliable, harming persons with legitimate entitlements, and 
resulting in additional expense for testing companies to accommodate 
more test takers.
    It remains the Department's view that, when testing entities 
receive documentation provided by a qualified professional who has 
made an individualized assessment of an applicant that supports the 
need for the modification, accommodation, or aid requested, they 
shall generally accept such documentation and provide the 
accommodation.
    Several commenters sought clarifications on what types of 
documentation are acceptable to demonstrate the existence of a 
disability and the need for a requested modification, accommodation, 
or aid. The Department believes that appropriate documentation may 
vary depending on the nature of the disability and the specific 
modification or aid requested, and accordingly, testing entities 
should consider a variety of types of information submitted. 
Examples of types of information to consider include recommendations 
of qualified professionals familiar with the individual, results of 
psycho-educational or other professional evaluations, an applicant's 
history of diagnosis, participation in a special education program, 
observations by educators, or the applicant's past use of testing 
accommodations. If an applicant has been granted accommodations 
post-high school by a standardized testing agency, there is no need 
for reassessment for a subsequent examination.
    Some commenters expressed concern regarding the use of the term 
``letter'' in the proposed preamble sentence regarding appropriate 
documentation. The NPRM preamble language stated that 
``[a]ppropriate documentation may include a letter from a qualified 
professional or evidence of a prior diagnosis, accommodation, or 
classification, such as eligibility for a special education 
program.'' 73 FR 34508, 34539 (June 17, 2008). Some testing entities 
posited that the preamble language would require them to accept a 
brief letter from a doctor or even a doctor's note on a prescription 
pad indicating ``I've been treating (student) for ADHD and he/she is 
entitled to extend time on the ACT.'' The Department's reference in 
the NPRM preamble to letters from physicians or other professionals 
was provided in order to offer examples of some types of acceptable 
documentation that may be considered by testing entities in 
evaluating the existence of an applicant's disability and the need 
for a certain modification, accommodation, or aid. No one piece of 
evidence may be dispositive in make a testing accommodation 
determination. The significance of a letter or other communication 
from a doctor or other qualified professional would depend on the 
professional's relationship with the candidate and the specific 
content of the communication, as well as how the letter fits in with 
the totality of the other factors used to determine testing 
accommodations under this rule. Similarly, an applicant's failure to 
provide results from a specific test or evaluation instrument should 
not of itself preclude approval of requests for modifications, 
accommodations, or aids if the documentation provided by the 
applicant, in its entirety, is sufficient to demonstrate that the 
individual has a disability and requires a requested modification, 
accommodation, or aid on the relevant examination. This issue is 
discussed in more detail below.
    One disability rights organization noted that requiring a 25-
year old who was diagnosed in junior high school with a learning 
disability and accommodated ever since ``to produce elementary 
school report cards to demonstrate symptomology before the age of 
seven is unduly burdensome.'' The same organization commented that 
requiring an individual with a long and early history of disability 
to be assessed within three years of taking the test in question is 
similarly burdensome, stating that ``[t]here is no scientific 
evidence that learning disabilities abate with time, nor that 
Attention Deficits abate with time * * *.'' This organization noted 
that there is no justification for repeatedly subjecting people to 
expensive testing regimens simply to satisfy a disbelieving 
industry. This is particularly true for adults with, for example, 
learning disabilities such as dyslexia, a persistent condition 
without the need for retesting once the diagnosis has been 
established and accepted by a standardized testing agency.
    Some commenters from testing entities sought clarification 
regarding who may be considered a ``qualified professional.'' 
Qualified professionals are licensed or otherwise properly 
credentialed and possess expertise in the disability for which 
modifications or accommodations are sought. For example, a 
podiatrist would not be considered to be a qualified professional to 
diagnose a learning disability or support a request for testing 
accommodations on that basis. Types of professionals who might 
possess the appropriate credentials and expertise are doctors 
(including psychiatrists), psychologists, nurses, physical 
therapists, occupational therapists, speech therapists, vocational 
rehabilitation specialists, school counselors, and licensed mental 
health professionals. Additionally, while testing applicants should 
present documentation from qualified professionals with expertise in 
the pertinent field, it also is critical that testing entities that 
review documentation submitted by prospective examinees in support 
of requests for testing modifications or accommodations ensure that 
their own reviews are conducted by qualified professionals with 
similarly relevant expertise.
    Commenters also sought clarification of the term individualized 
assessment. The Department's intention in using this term is to 
ensure that documentation provided on behalf of a testing candidate 
is not only provided by a qualified professional, but also reflects 
that the qualified professional has individually and personally 
evaluated the candidate as opposed to simply considering scores from 
a review of documents. This is particularly important in the 
learning disabilities context, where proper diagnosis requires face-
to-face evaluation. Reports from experts who have personal 
familiarity with the candidate should take precedence over those 
from, for example, reviewers for testing agencies, who have never 
personally met the candidate or conducted the requisite assessments 
for diagnosis and treatment.
    Some testing entities objected to the NPRM preamble's use of the 
phrase ``without further inquiry.'' The Department's intention here 
is to address the extent to which testing entities should accept 
documentation provided by an applicant when the testing entity is 
determining the need for modifications, accommodations, or auxiliary 
aids or services. The Department's view is that applicants who 
submit appropriate documentation, e.g., documentation that is

[[Page 56298]]

based on the careful individual consideration of the candidate by a 
professional with expertise relating to the disability in question, 
should not be subjected to unreasonably burdensome requests for 
additional documentation. While some testing commenters objected to 
this standard, it reflects the Department's longstanding position. 
When an applicant's documentation demonstrates a consistent history 
of a diagnosis of a disability, and is prepared by a qualified 
professional who has made an individualized evaluation of the 
applicant, there is little need for further inquiry into the nature 
of the disability and generally testing entities should grant the 
requested modification, accommodation, or aid.
    After a careful review of the comments, the Department has 
decided to maintain the proposed regulatory language on the scope of 
appropriate documentation in Sec.  36.309(b)(1)(iv). The Department 
has also added new regulatory language at Sec.  36.309(b)(1)(v) that 
provides that testing entities shall give considerable weight to 
documentation of past modifications, accommodations, or auxiliary 
aids or services received in similar testing situations as well as 
such modifications, accommodations, or related aids and services 
provided in response to an Individualized Education Program (IEP) 
provided under the Individuals with Disabilities Education Act 
(IDEA) or a plan providing services pursuant to section 504 of the 
Rehabilitation Act of 1973, as amended (often referred to as a 
Section 504 Plan). These additions to the regulation are necessary 
because the Department's position on the bounds of appropriate 
documentation contained in Appendix B, 28 CFR part 36, app. B 
(2009), has not been implemented consistently and fully by 
organizations that administer tests.
    The new regulatory language clarifies that an applicant's past 
use of a particular modification, accommodation, or auxiliary aid or 
service in a similar testing setting or pursuant to an IEP or 
Section 504 Plan provides critical information in determining those 
examination modifications that would be applicable in a given 
circumstance. The addition of this language and the appropriate 
weight to be accorded it is seen as important by the Department 
because the types of accommodations provided in both these 
circumstances are typically granted in the context of individual 
consideration of a student's needs by a team of qualified and 
experienced professionals. Even though these accommodations 
decisions form a common sense and logical basis for testing entities 
to rely upon, they are often discounted and ignored by testing 
entities.
    For example, considerable weight is warranted when a student 
with a Section 504 Plan in place since middle school that includes 
the accommodations of extra time and a quiet room for testing is 
seeking these same accommodations from a testing entity covered by 
section 309 of the Act. In this example, a testing entity receiving 
such documentation should clearly grant the request for 
accommodations. A history of test accommodations in secondary 
schools or in post-secondary institutions, particularly when 
determined through the rigors of a process required and detailed by 
Federal law, is as useful and instructive for determining whether a 
specific accommodation is required as accommodations provided in 
standardized testing situations.
    It is important to note, however, that the inclusion of this 
weight does not suggest that individuals without IEPs or Section 504 
Plans are not also entitled to receive testing accommodations. 
Indeed, it is recommended that testing entities must consider the 
entirety of an applicant's history to determine whether that 
history, even without the context of a IEP or Section 504 Plan, 
indicates a need for accommodations. In addition, many students with 
learning disabilities have made use of informal, but effective 
accommodations. For example, such students often receive 
undocumented accommodations such as time to complete tests after 
school or at lunchtime, or being graded on content and not form or 
spelling of written work. Finally, testing entities shall also 
consider that because private schools are not subject to the IDEA, 
students at private schools may have a history of receiving 
accommodations in similar settings that are not pursuant to an IEP 
or Section 504 Plan.
    Some testing entities sought clarification that they should only 
be required to consider particular use of past modifications, 
accommodations, auxiliary aids or services received by testing 
candidates for prior testing and examination settings. These 
commenters noted that it would be unhelpful to consider the 
classroom accommodations for a testing candidate, as those 
accommodations would not typically apply in a standardized test 
setting. The Department's history of enforcement in this area has 
demonstrated that a recent history of past accommodations is 
critical to an understanding of the applicant's disability and the 
appropriateness of testing accommodations.
    The Department also incorporates the NPRM preamble's ``timely 
manner'' concept into the new regulatory language at Sec.  
36.309(b)(1)(vi). Under this provision, testing entities are 
required to respond in a timely manner to requests for testing 
accommodations in order to ensure equal opportunity for persons with 
disabilities. Testing entities are to ensure that their established 
process for securing testing accommodations provides applicants with 
a reasonable opportunity to supplement the testing entities' 
requests for additional information, if necessary, and still be able 
to take the test in the same testing cycle. A disability rights 
organization commented that testing entities should not subject 
applicants to unreasonable and intrusive requests for information in 
a process that should provide persons with disabilities effective 
modifications in a timely manner, fulfilling the core objective of 
title III to provide equal access. Echoing this perspective, several 
disability rights organizations and a State government commenter 
urged that testing entities should not make unreasonably burdensome 
demands for documentation, particularly where those demands create 
impediments to receiving accommodations in a timely manner. Access 
to examinations should be offered to persons with disabilities in as 
timely a manner as it is offered to persons without disabilities. 
Failure by a testing entity to act in a timely manner, coupled with 
seeking unnecessary documentation, could result in such an extended 
delay that it constitutes a denial of equal opportunity or equal 
treatment in an examination setting for persons with disabilities.

Section 36.311 Mobility Devices

    Section 36.311 of the NPRM clarified the scope and circumstances 
under which covered entities are legally obligated to accommodate 
various ``mobility devices.'' Section 36.311 set forth specific 
requirements for the accommodation of mobility devices, including 
wheelchairs, manually-powered mobility aids, and other power-driven 
mobility devices.
    In both the NPRM and the final rule, Sec.  36.311(a) states the 
general rule that in any areas open to pedestrians, public 
accommodations shall permit individuals with mobility disabilities 
to use wheelchairs and manually-powered mobility aids, including 
walkers, crutches, canes, braces, or similar devices. Because 
mobility scooters satisfy the definition of ``wheelchair'' (i.e., 
``a manually-operated or power-driven device designed primarily for 
use by an individual with a mobility disability for the main purpose 
of indoor, or of both indoor and outdoor locomotion''), the 
reference to them in Sec.  36.311(a) of the final rule has been 
omitted to avoid redundancy.
    Most business commenters expressed concern that permitting the 
use of other power-driven mobility devices by individuals with 
mobility disabilities would make such devices akin to wheelchairs 
and would require them to make physical changes to their facilities 
to accommodate their use. This concern is misplaced. If a facility 
complies with the applicable design requirements in the 1991 
Standards or the 2010 Standards, the public accommodation will not 
be required to exceed those standards to accommodate the use of 
wheelchairs or other power-driven mobility devices that exceed those 
requirements.
    Legal standard for other power-driven mobility devices. The NPRM 
version of Sec.  36.311(b) provided that a public accommodation 
``shall make reasonable modifications in its policies, practices, 
and procedures to permit the use of other power-driven mobility 
devices by individuals with disabilities, unless the public 
accommodation can demonstrate that the use of the device is not 
reasonable or that its use will result in a fundamental alteration 
in the nature of the public accommodation's goods, services, 
facilities, privileges, advantages, or accommodations.'' 73 FR 
34508, 34556 (June 17, 2008). In other words, public accommodations 
are by default required to permit the use of other power-driven 
mobility devices; the burden is on them to prove the existence of a 
valid exception.
    Most commenters supported the notion of assessing whether the 
use of a particular device is reasonable in the context of a 
particular venue. Commenters, however, disagreed about the meaning 
of the word ``reasonable'' as it is used in Sec.  36.311(b) of the

[[Page 56299]]

NPRM. Virtually every business and industry commenter took the use 
of the word ``reasonable'' to mean that a general reasonableness 
standard would be applied in making such an assessment. Advocacy and 
nonprofit groups almost universally objected to the use of a general 
reasonableness standard with regard to the assessment of whether a 
particular device should be allowed at a particular venue. They 
argued that the assessment should be based on whether reasonable 
modifications could be made to allow a particular device at a 
particular venue, and that the only factors that should be part of 
the calculus that results in the exclusion of a particular device 
are undue burden, direct threat, and fundamental alteration.
    A few commenters opposed the proposed provision requiring public 
accommodations to assess whether reasonable modifications can be 
made to allow other power-driven mobility devices, preferring 
instead that the Department issue guidance materials so that public 
accommodations would not have to incur the cost of such analyses. 
Another commenter noted a ``fox guarding the hen house''-type of 
concern with regard to public accommodations developing and 
enforcing their own modification policy.
    In response to comments received, the Department has revised 
Sec.  36.311(b) to provide greater clarity regarding the development 
of legitimate safety requirements regarding other power-driven 
mobility devices. The Department has not retained the proposed NPRM 
language stating that an other power-driven mobility device can be 
excluded if a public accommodation can demonstrate that the use of 
the device is not reasonable or that its use fundamentally alters 
the nature of the goods, services, facilities, privileges, 
advantages, or accommodations offered by the public accommodation 
because the Department believes that these exceptions are covered by 
the general reasonable modification requirement contained in Sec.  
36.302.
    Assessment factors. Section 36.311(c) of the NPRM required 
public accommodations to ``establish policies to permit the use of 
other power-driven mobility devices'' and articulated four factors 
upon which public accommodations must base decisions as to whether a 
modification is reasonable to allow the use of a class of other 
power-driven mobility devices by individuals with disabilities in 
specific venues (e.g., doctors' offices, parks, commercial 
buildings, etc.). 73 FR 34508, 34556 (June 17, 2008).
    The Department has relocated and modified the NPRM text that 
appeared in Sec.  36.311(c) to new paragraph Sec.  36.311(b)(2) to 
clarify what factors the public accommodation shall use in 
determining whether a particular other power-driven mobility device 
can be allowed in a specific facility as a reasonable modification. 
Section 36.311(b)(2) now states that ``[i]n determining whether a 
particular other power-driven mobility device can be allowed in a 
specific facility as a reasonable modification under (b)(1), a 
public accommodation shall consider'' certain enumerated factors. 
The assessment factors are designed to assist public accommodations 
in determining whether allowing the use of a particular other power-
driven mobility device in a specific facility is reasonable. Thus, 
the focus of the analysis must be on the appropriateness of the use 
of the device at a specific facility, rather than whether it is 
necessary for an individual to use a particular device.
    The NPRM proposed the following specific assessment factors: (1) 
The dimensions, weight, and operating speed of the mobility device 
in relation to a wheelchair; (2) the potential risk of harm to 
others by the operation of the mobility device; (3) the risk of harm 
to the environment or natural or cultural resources or conflict with 
Federal land management laws and regulations; and (4) the ability of 
the public accommodation to stow the mobility device when not in 
use, if requested by the user.
    Factor 1 was designed to help public accommodations assess 
whether a particular device was appropriate, given its particular 
physical features, for a particular location. Virtually all 
commenters said the physical features of the device affected their 
view of whether a particular device was appropriate for a particular 
location. For example, while many commenters supported the use of an 
other power-driven mobility device if the device were a 
Segway[supreg] PT, because of environmental and health concerns they 
did not offer the same level of support if the device were an off-
highway vehicle, all-terrain vehicle (ATV), golf car, or other 
device with a fuel-powered or combustion engine. Most commenters 
noted that indicators such as speed, weight, and dimension really 
were an assessment of the appropriateness of a particular device in 
specific venues and suggested that factor 1 say this more 
specifically.
    The term ``in relation to a wheelchair'' in the NPRM's factor 1 
apparently created some concern that the same legal standards that 
apply to wheelchairs would be applied to other power-driven mobility 
devices. The Department has omitted the term ``in relation to a 
wheelchair'' from Sec.  36.311(b)(2)(i) to clarify that if a 
facility that is in compliance with the applicable provisions of the 
1991 Standards or the 2010 Standards grants permission for an other 
power-driven mobility device to go on-site, it is not required to 
exceed those standards to accommodate the use of other power-driven 
mobility devices.
    In response to requests that NPRM factor 1 state more 
specifically that it requires an assessment of an other power-driven 
mobility device's appropriateness under particular circumstances or 
in particular venues, the Department has added several factors and 
more specific language. In addition, although the NPRM made 
reference to the operation of other power-driven mobility devices in 
``specific venues,'' the Department's intent is captured more 
clearly by referencing ``specific facility'' in paragraph (b)(2). 
The Department also notes that while speed is included in factor 1, 
public accommodations should not rely solely on a device's top speed 
when assessing whether the device can be accommodated; instead, 
public accommodations should also consider the minimum speeds at 
which a device can be operated and whether the development of speed 
limit policies can be established to address concerns regarding the 
speed of the device. Finally, since the ability of the public 
accommodation to stow the mobility device when not in use is an 
aspect of its design and operational characteristics, the text 
proposed as factor 4 in the NPRM has been incorporated in paragraph 
(b)(2)(iii).
    The NPRM's version of factor 2 provided that the ``potential 
risk of harm to others by the operation of the mobility device'' is 
one of the determinants in the assessment of whether other power-
driven mobility devices should be excluded from a site. With this 
language, the Department intended to incorporate the safety standard 
found in Sec.  36.301(b), which provides that public accommodations 
may ``impose legitimate safety requirements that are necessary for 
safe operation'' into the assessment. However, several commenters 
indicated that they read this language, particularly the phrase 
``potential risk of harm'' to mean that the Department had adopted a 
concept of risk analysis different from that which is in the 
existing standards. The Department did not intend to create a new 
standard and has changed the language in paragraphs (b)(1) and 
(b)(2) to clarify the applicable standards, thereby avoiding the 
introduction of new assessments of risk beyond those necessary for 
the safe operation of the public accommodation.
    While all applicable affirmative defenses are available to 
public accommodations in the establishment and execution of their 
policies regarding other power-driven mobility devices, the 
Department did not explicitly incorporate the direct threat defense 
into the assessment factors because Sec.  36.301(b) provides public 
accommodations the appropriate framework with which to assess 
whether legitimate safety requirements that may preclude the use of 
certain other power-driven mobility devices are necessary for the 
safe operation of the public accommodation. In order to be 
legitimate, the safety requirement must be based on actual risks and 
not mere speculation regarding the device or how it will be 
operated. Of course, public accommodations may enforce legitimate 
safety rules established for the operation of other-power driven 
mobility devices (e.g., reasonable speed restrictions). Finally, 
NPRM factor 3 concerning environmental resources and conflicts of 
law has been relocated to paragraph (b)(2)(v).
    As a result of these comments and requests, NPRM factors 1, 2, 
3, and 4 have been revised and renumbered within paragraph 
36.311(b)(2) in the final rule.
    Several commenters requested that the Department provide 
guidance materials or more explicit concepts of which considerations 
might be appropriate for inclusion in a policy that allows the use 
of other power-driven mobility devices. A public accommodation that 
has determined that reasonable modifications can be made in its 
policies, practices, or procedures to allow the use of other power-
driven mobility devices should develop a policy that clearly states 
the circumstances under which the use of other power-driven mobility 
devices by individuals with a mobility disability will be permitted. 
It also should include clear,

[[Page 56300]]

concise statements of specific rules governing the operation of such 
devices. Finally, the public accommodation should endeavor to 
provide individuals with disabilities who use other power-driven 
mobility devices with advanced notice of its policy regarding the 
use of such devices and what rules apply to the operation of these 
devices.
    For example, the U.S. General Services Administration (GSA) has 
developed a policy allowing the use of the Segway[supreg] PT and 
other EPAMDs in all Federal buildings under GSA's jurisdiction. See 
General Services Administration, Interim Segway[supreg] Personal 
Transporter Policy (Dec. 3, 2007), available at http://www.gsa.gov/graphics/pbs/Interim_Segway_Policy_121007.pdf (last visited June 
24, 2010). The GSA policy defines the policy's scope of coverage by 
setting out what devices are and are not covered by the policy. The 
policy also sets out requirements for safe operation, such as a 
speed limit, prohibits the use of EPAMDs on escalators, and provides 
guidance regarding security screening of these devices and their 
operators.
    A public accommodation that determines that it can make 
reasonable modifications to permit the use of an other power-driven 
mobility device by an individual with a mobility disability might 
include in its policy the procedure by which claims that the other 
power-driven mobility device is being used for a mobility disability 
will be assessed for legitimacy (i.e., a credible assurance that the 
device is being used for a mobility disability, including a verbal 
representation by the person with a disability that is not 
contradicted by observable fact, or the presentation of a disability 
parking space placard or card, or State-issued proof of disability); 
the type or classes of other power-driven mobility devices are 
permitted to be used by individuals with mobility disabilities; the 
size, weight, and dimensions of the other power-driven mobility 
devices that are permitted to be used by individuals with mobility 
disabilities; the speed limit for the other power-driven mobility 
devices that are permitted to be used by individuals with mobility 
disabilities; the places, times, or circumstances under which the 
use of the other power-driven mobility devices is or will be 
restricted or prohibited; safety, pedestrian, and other rules 
concerning the use of the other power-driven mobility devices; 
whether, and under which circumstances, storage for the other power-
driven mobility devices will be made available; and how and where 
individuals with a mobility disability can obtain a copy of the 
other power-driven mobility device policy.
    Public accommodations also might consider grouping other power-
driven mobility devices by type (e.g., EPAMDs, golf cars, gasoline-
powered vehicles, and other devices). For example, an amusement park 
may determine that it is reasonable to allow individuals with 
disabilities to use EPAMDs in a variety of outdoor programs and 
activities, but that it would not be reasonable to allow the use of 
golf cars as mobility devices in similar circumstances. At the same 
time, the entity may address its concerns about factors such as 
space limitations by disallowing use of EPAMDs by members of the 
general public who do not have mobility disabilities.
    The Department anticipates that in many circumstances, public 
accommodations will be able to develop policies that will allow the 
use of other power-driven mobility devices by individuals with 
mobility disabilities without resulting in a fundamental alteration 
of a public accommodation's goods, services, facilities, privileges, 
advantages, or accommodations. Consider the following examples:

    Example 1: Although individuals who do not have mobility 
disabilities are prohibited from operating EPAMDs at a theme park, 
the park has developed a policy allowing individuals with mobility 
disabilities to use EPAMDs as their mobility device at the park. The 
policy states that EPAMDs are allowed in all areas of the theme park 
that are open to pedestrians as a reasonable modification to its 
general policy on EPAMDs. The public accommodation has determined 
that the facility provides adequate space for a taller device, such 
as an EPAMD, and that it does not fundamentally alter the nature of 
the theme park's goods and services. The theme park's policies do, 
however, require that EPAMDs be operated at a safe speed limit. A 
theme park employee may inquire at the ticket gate whether the 
device is needed due to the user's disability or may request the 
presentation of a valid, State-issued, disability parking placard 
(though presentation of such a placard is not necessary), or other 
State-issued proof of disability or a credible assurance that the 
use of the EPAMD is for the individual's mobility disability. The 
park employee also may inform an individual with a disability using 
an EPAMD that the theme park's policy requires that it be operated 
at or below the park's designated speed limit.
    Example 2: A shopping mall has developed a policy whereby EPAMDs 
may be operated by individuals with mobility disabilities in the 
common pedestrian areas of the mall if the operator of the device 
agrees to the following: to operate the device no faster than the 
speed limit set by the policy; to use the elevator, not the 
escalator, to transport the EPAMD to different levels; to yield to 
pedestrian traffic; not to leave the device unattended unless it can 
stand upright and has a locking system; to refrain from using the 
device temporarily if the mall manager determines that the volume of 
pedestrian traffic is such that the operation of the device would 
interfere with legitimate safety requirements; and to present the 
mall management office with a valid, State-issued, disability 
parking placard (though presentation of such a placard is not 
necessary), or State-issued proof of disability, as a credible 
assurance that the use of the EPAMD is for the individual's mobility 
disability, upon entry to the mall.

    Inquiry into the use of other power-driven mobility device. 
Section 36.311(d) of the NPRM provided that a ``public accommodation 
may ask a person using a power-driven mobility device if the 
mobility device is required because of the person's disability. A 
public accommodation shall not ask a person using a mobility device 
questions about the nature and extent of the person's disability.'' 
73 FR 34508, 34556 (June 17, 2008).
    While business commenters did not take issue with applying this 
standard to individuals who use wheelchairs, they were not satisfied 
with the application of this standard to other power-driven mobility 
devices. Business commenters expressed concern about people feigning 
mobility disabilities to be able to use other power-driven mobility 
devices in public accommodations in which their use is otherwise 
restricted. These commenters felt that a mere inquiry into whether 
the device is being used for a mobility disability was an 
insufficient mechanism by which to detect fraud by other power-
driven mobility device users who do not have mobility disabilities. 
These commenters believed they should be given more latitude to make 
inquiries of other power-driven mobility device users claiming a 
mobility disability than they would be given for wheelchair users. 
They sought the ability to establish a policy or method by which 
public accommodations may assess the legitimacy of the mobility 
disability. They suggested some form of certification, sticker, or 
other designation. One commenter suggested a requirement that a 
sticker bearing the international symbol for accessibility be placed 
on the device or that some other identification be required to 
signal that the use of the device is for a mobility disability. 
Other suggestions included displaying a disability parking placard 
on the device or issuing EPAMDs, like the Segway[supreg] PT, a 
permit that would be similar to permits associated with parking 
spaces reserved for those with disabilities.
    Advocacy, nonprofit, and several individual commenters balked at 
the notion of allowing any inquiry beyond whether the device is 
necessary for a mobility disability and encouraged the Department to 
retain the NPRM's language on this topic. Other commenters, however, 
were empathetic with commenters who had concerns about fraud. At 
least one Segway[supreg] PT advocate suggested it would be 
permissible to seek documentation of the mobility disability in the 
form of a simple sign or permit.
    The Department has sought to find common ground by balancing the 
needs of businesses and individuals with mobility disabilities 
wishing to use other power-driven mobility devices with the 
Department's longstanding, well-established policy of not allowing 
public accommodations or establishments to require proof of a 
mobility disability. There is no question that public accommodations 
have a legitimate interest in ferreting out fraudulent 
representations of mobility disabilities, especially given the 
recreational use of other power-driven mobility devices and the 
potential safety concerns created by having too many such devices in 
a specific facility at one time. However, the privacy of individuals 
with mobility disabilities and respect for those individuals are 
also vitally important.
    Neither Sec.  36.311(d) of the NPRM nor Sec.  36.311(c) of the 
final rule permits inquiries into the nature of a person's mobility

[[Page 56301]]

disability. However, the Department does not believe it is 
unreasonable or overly intrusive for an individual with a mobility 
disability seeking to use an other power-driven mobility device to 
provide a credible assurance to verify that the use of the other 
power-driven mobility device is for a mobility disability. The 
Department sought to minimize the amount of discretion and 
subjectivity exercised by public accommodations in assessing whether 
an individual has a mobility disability and to allow public 
accommodations to verify the existence of a mobility disability. The 
solution was derived from comments made by several individuals who 
said they have been admitted with their Segway[supreg] PTs into 
public entities and public accommodations that ordinarily do not 
allow these devices on-site when they have presented or displayed 
State-issued disability parking placards. In the examples provided 
by commenters, the parking placards were accepted as verification 
that the Segway[supreg] PTs were being used as mobility devices.
    Because many individuals with mobility disabilities avail 
themselves of State programs that issue disability parking placards 
or cards and because these programs have penalties for fraudulent 
representations of identity and disability, utilizing the parking 
placard system as a means to establish the existence of a mobility 
disability strikes a balance between the need for privacy of the 
individual and fraud protection for the public accommodation. 
Consequently, the Department has decided to include regulatory text 
in Sec.  36.311(c)(2) of the final rule that requires public 
accommodations to accept the presentation of a valid, State-issued 
disability parking placard or card, or State-issued proof of 
disability, as verification that an individual uses the other power-
driven mobility device for his or her mobility disability. A 
``valid'' disability placard or card is one that is presented by the 
individual to whom it was issued and is otherwise in compliance with 
the State of issuance's requirements for disability placards or 
cards. Public accommodations are required to accept a valid, State-
issued disability parking placard or card, or State-issued proof of 
disability, as a credible assurance, but they cannot demand or 
require the presentation of a valid disability placard or card, or 
State-issued proof of disability, as a prerequisite for use of an 
other power-driven mobility device, because not all persons with 
mobility disabilities have such means of proof. If an individual 
with a mobility disability does not have such a placard or card, or 
State-issued proof of disability, he or she may present other 
information that would serve as a credible assurance of the 
existence of a mobility disability.
    In lieu of a valid, State-issued disability parking placard or 
card, or State-issued proof of disability, a verbal representation, 
not contradicted by observable fact, shall be accepted as a credible 
assurance that the other power-driven mobility device is being used 
because of a mobility disability. This does not mean, however, that 
a mobility disability must be observable as a condition for allowing 
the use of an other power-driven mobility device by an individual 
with a mobility disability, but rather that if an individual 
represents that a device is being used for a mobility disability and 
that individual is observed thereafter engaging in a physical 
activity that is contrary to the nature of the represented 
disability, the assurance given is no longer credible and the 
individual may be prevented from using the device.
    Possession of a valid, State-issued disability parking placard 
or card or a verbal assurance does not trump a public 
accommodation's valid restrictions on the use of other power-driven 
mobility devices. Accordingly, a credible assurance that the other 
power-driven mobility device is being used because of a mobility 
disability is not a guarantee of entry to a public accommodation 
because notwithstanding such a credible assurance, use of the device 
in a particular venue may be at odds with the legal standard in 
Sec.  36.311(b)(1) or with one or more of the Sec.  36.311(b)(2) 
factors. Only after an individual with a disability has satisfied 
all of the public accommodation's policies regarding the use of 
other power-driven mobility devices does a credible assurance become 
a factor in allowing the use of the device. For example, if an 
individual seeking to use an other power-driven mobility device 
fails to satisfy any of the public accommodation's stated policies 
regarding the use of other power-driven mobility devices, the fact 
that the individual legitimately possesses and presents a valid, 
State-issued disability parking placard or card, or State-issued 
proof of disability, does not trump the policy and require the 
public accommodation to allow the use of the device. In fact, in 
some instances, the presentation of a legitimately held placard or 
card, or State-issued proof of disability, will have no relevance or 
bearing at all on whether the other power-driven mobility device may 
be used, because the public accommodation's policy does not permit 
the device in question on-site under any circumstances (e.g., 
because its use would create a substantial risk of serious harm to 
the immediate environment or natural or cultural resources). Thus, 
an individual with a mobility disability who presents a valid 
disability placard or card, or State-issued proof of disability, 
will not be able to use an ATV as an other power-driven mobility 
device in a mall or a restaurant if the mall or restaurant has 
adopted a policy banning their use for any or all of the above-
mentioned reasons.
    However, an individual with a mobility disability who has 
complied with a public accommodation's stated policies cannot be 
refused use of the other power-driven mobility device if he or she 
has provided a credible assurance that the use of the device is for 
a mobility disability.

Subpart D--New Construction and Alterations

    Subpart D establishes the title III requirements applicable to 
new construction and alterations. The Department has amended this 
subpart to adopt the 2004 ADAAG, set forth the effective dates for 
implementation of the 2010 Standards, and make related revisions as 
described below.

Section 36.403 Alterations: Path of Travel

    In the NPRM, the Department proposed one change to Sec.  36.403 
on alterations and path of travel by adding a path of travel safe 
harbor. Proposed Sec.  36.403(a)(1) stated that if a private entity 
has constructed or altered required elements of a path of travel in 
accordance with the 1991 Standards, the private entity is not 
required to retrofit such elements to reflect incremental changes in 
the 2010 Standards solely because of an alteration to a primary 
function area served by that path of travel.
    A substantial number of commenters objected to the Department's 
creation of a safe harbor for alterations to required elements of a 
path of travel that comply with the current 1991 Standards. These 
commenters argued that if a public accommodation already is in the 
process of altering its facility, there should be a legal 
requirement that individuals with disabilities are entitled to 
increased accessibility provided by the 2004 ADAAG for path of 
travel work. These commenters also stated that they did not believe 
there was a statutory basis for ``grandfathering'' facilities that 
comply with the 1991 Standards. Another commenter argued that the 
updates incorporated into the 2004 ADAAG provide very substantial 
improvements for access, and that since there already is a 20 
percent cost limit on the amount that can be expended on path of 
travel alterations, there is no need for a further limitation.
    Some commenters supported the safe harbor as lessening the 
economic costs of implementing the 2004 ADAAG for existing 
facilities. One commenter also stated that without the safe harbor, 
entities that already have complied with the 1991 Standards will 
have to make and pay for compliance twice, as compared to those 
entities that made no effort to comply in the first place. Another 
commenter asked that the safe harbor be revised to include pre-ADA 
facilities that have been made compliant with the 1991 Standards to 
the extent ``readily achievable'' or, in the case of alterations, 
``to the maximum extent feasible,'' but that are not in full 
compliance with the 1991 Standards.
    The final rule retains the safe harbor for required elements of 
a path of travel to altered primary function areas for private 
entities that already have complied with the 1991 Standards with 
respect to those required elements. As discussed with respect to 
Sec.  36.304, the Department believes that this safe harbor strikes 
an appropriate balance between ensuring that individuals with 
disabilities are provided access to buildings and facilities and 
mitigating potential financial burdens on existing places of public 
accommodation that are undertaking alterations subject to the 2010 
Standards. This safe harbor is not a blanket exemption for 
facilities. If a private entity undertakes an alteration to a 
primary function area, only the required elements of a path of 
travel to that area that already comply with the 1991 Standards are 
subject to the safe harbor. If a private entity undertakes an 
alteration to a primary function area and the required

[[Page 56302]]

elements of a path of travel to the altered area do not comply with 
the 1991 Standards, then the private entity must bring those 
elements into compliance with the 2010 Standards.

Section 36.405 Alterations: Historic Preservation

    In the 1991 rule, the Department provided guidance on making 
alterations to buildings or facilities that are eligible for listing 
in the National Register of Historic Places under the National 
Historic Preservation Act or that are designated as historic under 
State or local law. That provision referenced the 1991 Standards. 
Because those cross-references to the 1991 Standards are no longer 
applicable, it is necessary in this final rule to provide new 
regulatory text. No substantive change in the Department's approach 
in this area is intended by this revision.

Section 36.406 Standards for New Construction and Alterations

    Applicable standards. Section 306 of the ADA, 42 U.S.C. 12186, 
directs the Attorney General to issue regulations to implement title 
III that are consistent with the guidelines published by the Access 
Board. As described in greater detail elsewhere in this Appendix, 
the Department is a statutory member of the Access Board and was 
involved significantly in the development of the 2004 ADAAG. 
Nonetheless, the Department has reviewed the standards and has 
determined that additional regulatory provisions are necessary to 
clarify how the Department will apply the 2010 Standards to places 
of lodging, social service center establishments, housing at a place 
of education, assembly areas, and medical care facilities. Those 
provisions are contained in Sec.  36.406(c)-(g). Each of these 
provisions is discussed below.
    Section 36.406(a) adopts the 2004 ADAAG as part of the 2010 
Standards and establishes the compliance date and triggering events 
for the application of those standards to both new construction and 
alterations. Appendix B of this final rule (Analysis and Commentary 
on the 2010 ADA Standards for Accessible Design) provides a 
description of the major changes in the 2010 Standards (as compared 
to the 1991 ADAAG) and a discussion of the public comments that the 
Department received on specific sections of the 2004 ADAAG. A number 
of commenters asked the Department to revise certain provisions in 
the 2004 ADAAG in a manner that would reduce either the required 
scoping or specific technical accessibility requirements. As 
previously stated, the ADA requires the Department to adopt 
standards consistent with the guidelines adopted by the Access 
Board. The Department will not adopt any standards that provide less 
accessibility than is provided under the guidelines contained in the 
2004 ADAAG because the guidelines adopted by the Access Board are 
``minimum guidelines.'' 42 U.S.C. 12186(c).
    In the NPRM, the Department specifically proposed amending Sec.  
36.406(a) by dividing it into two sections. Proposed Sec.  
36.406(a)(1) specified that new construction and alterations subject 
to this part shall comply with the 1991 Standards if physical 
construction of the property commences less than six months after 
the effective date of the rule. Proposed Sec.  36.406(a)(2) 
specified that new construction and alterations subject to this part 
shall comply with the proposed standards if physical construction of 
the property commences six months or more after the effective date 
of the rule. The Department also proposed deleting the advisory 
information now published in a table at Sec.  36.406(b).
    Compliance date. When the ADA was enacted, the compliance dates 
for various provisions were delayed in order to provide time for 
covered entities to become familiar with their new obligations. 
Titles II and III of the ADA generally became effective on January 
26, 1992, six months after the regulations were published. See 42 
U.S.C. 12131 note; 42 U.S.C. 12181 note. New construction under 
title II and alterations under either title II or title III had to 
comply with the design standards on that date. See 42 U.S.C. 12131 
note; 42 U.S.C. 12183(a)(2). For new construction under title III, 
the requirements applied to facilities designed and constructed for 
first occupancy after January 26, 1993--18 months after the 1991 
Standards were published by the Department. See 42 U.S.C. 
12183(a)(1).
    The Department received numerous comments on the issue of 
effective date, many of them similar to those received in response 
to the ANPRM. A substantial number of commenters advocated a minimum 
of 18 months from publication of the final rule to the effective 
date for application of the standards to new construction, 
consistent with the time period used for implementation of the 1991 
Standards. Many of these commenters argued that the 18-month period 
was necessary to minimize the likelihood of having to redesign 
projects already in the design and permitting stages at the time 
that the final rule is published. According to these commenters, 
large projects take several years from design to occupancy, and can 
be subject to delays from obtaining zoning, site approval, third-
party design approval (i.e., architectural review), and governmental 
permits. To the extent the new standards necessitate changes in any 
previous submissions or permits already issued, businesses might 
have to expend significant funds and incur delays due to redesign 
and resubmission.
    Some commenters also expressed concern that a six-month period 
would be hard to implement given that many renovations are planned 
around retail selling periods, holidays, and other seasonal 
concerns. For example, hotels plan renovations during their slow 
periods, retail establishments avoid renovations during the major 
holiday selling periods, and businesses in certain parts of the 
country cannot do any major construction during parts of the winter.
    Some commenters argued that chain establishments need additional 
time to redesign their ``master facility'' designs for replication 
at multiple locations, taking into account both the new standards 
and applicable State and local accessibility requirements.
    Other commenters argued for extending the effective date from 
six months to a minimum of 12 months for many of the same reasons, 
and one commenter argued that there should be a tolling of the 
effective date for those businesses that are in the midst of the 
permitting process if the necessary permits are delayed due to legal 
challenges or other circumstances outside the business's control.
    Several commenters took issue with the Department's 
characterization of the 2004 ADAAG and the 1991 Standards as two 
similar rules. These commenters argued that many provisions in the 
2004 ADAAG represent a ``substantial and significant'' departure 
from the 1991 Standards and that it will take a great deal of time 
and money to identify all the changes and implement them. In 
particular, they were concerned that small businesses lacked the 
internal resources to respond quickly to the new changes and that 
they would have to hire outside experts to assist them. One 
commenter expressed concern that regardless of familiarity with the 
2004 ADAAG, since the 2004 ADAAG standards are organized in an 
entirely different manner from the 1991 Standards, and contain, in 
the commenter's view, extensive changes, it will make the shift from 
the old to the new standards quite complicated.
    Several commenters also took issue with the Department's 
proffered rationale that by adopting a six-month effective date, the 
Department was following the precedent of other Federal agencies 
that have adopted the 2004 ADAAG for facilities whose accessibility 
they regulate. These commenters argued that the Department's title 
III regulation applies to a much broader range and number of 
facilities and programs than the other Federal agencies (i.e., 
Department of Transportation and the General Services 
Administration) and that those agencies regulate accessibility 
primarily in either governmental facilities or facilities operated 
by quasi-governmental authorities.
    Several commenters representing the travel, vacation, and golf 
industries argued that the Department should adopt a two-year 
effective date for new construction. In addition to many of the 
arguments made by commenters in support of an 18-month effective 
date, these commenters also argued that a two-year time frame would 
allow States with DOJ-certified building codes to have the time to 
amend their codes to meet the 2004 ADAAG so that design 
professionals can work from compatible codes and standards.
    Several commenters recommended treating alterations differently 
than new construction, arguing for a one-year effective date for 
alterations. Another commenter representing building officials 
argued that a minimum of a six-month phase-in for alterations was 
sufficient, since a very large percentage of alteration projects 
``are of a scale that they should be able to accommodate the phase-
in.''
    In contrast, many commenters argued that the proposed six-month 
effective date should be retained in the final rule.
    The Department has been persuaded by concerns raised by some of 
the commenters that the six month compliance date proposed in the 
NPRM for application of the 2010 Standards may be too short for 
certain projects that are already in the midst of the

[[Page 56303]]

design and permitting process. The Department has determined that 
for new construction and alterations, compliance with the 2010 
Standards will not be required until 18 months from the date the 
final rule is published. This is consistent with the amount of time 
given when the 1991 regulation was published. Since many State and 
local building codes contain provisions that are consistent with 
2004 ADAAG, the Department has decided that public accommodations 
that choose to comply with the 2010 Standards as defined in Sec.  
36.104 before the compliance date will still be considered in 
compliance with the ADA. However, public accommodations that choose 
to comply with the 2010 Standards in lieu of the 1991 Standards 
prior to the compliance date described in this rule must choose one 
or the other standard, and may not rely on some of the requirements 
contained in one standard and some of the requirements contained in 
the other standard.
    Triggering event. In the NPRM, the Department proposed using the 
start of physical construction as the triggering event for applying 
the proposed standards to new construction under title III. This 
triggering event parallels that for the alterations provisions 
(i.e., the date on which construction begins), and would apply 
clearly across all types of covered public accommodations. The 
Department also proposed that for prefabricated elements, such as 
modular buildings and amusement park rides and attractions, or 
installed equipment, such as ATMs, the start of construction means 
the date on which the site preparation begins. Site preparation 
includes providing an accessible route to the element.
    The Department's NPRM sought public comment on how to define the 
start of construction and the practicality of applying commencement 
of construction as a triggering event. The Department also requested 
input on whether the proposed definition of the start of 
construction was sufficiently clear and inclusive of different types 
of facilities. The Department also sought input about facilities 
subject to title III for which commencement of construction would be 
ambiguous or problematic.
    The Department received numerous comments recommending that the 
Department adopt a two-pronged approach to defining the triggering 
event. In those cases where permits are required, the Department 
should use ``date of permit application'' as the effective date 
triggering event, and if no permit is required, the Department 
should use ``start of construction.'' A number of these commenters 
argued that the date of permit application is appropriate because 
the applicant would have to consider the applicable State and 
Federal accessibility standards in order to submit the designs 
usually required with the application. Moreover, the date of permit 
application is a typical triggering event in other code contexts, 
such as when jurisdictions introduce an updated building code. Some 
commenters expressed concern that using the date of ``start of 
construction'' was problematic because the date can be affected by 
factors that are outside the control of the owner. For example, an 
owner can plan construction to start before the new standards take 
effect and therefore use the 1991 Standards in the design. If 
permits are not issued in a timely manner, then the construction 
could be delayed until after the effective date, and then the 
project would have to be redesigned. This problem would be avoided 
if the permit application date was the triggering event. Two 
commenters expressed concern that the term ``start of construction'' 
is ambiguous, because it is unclear whether start of construction 
means the razing of structures on the site to make way for a new 
facility or means site preparation, such as regrading or laying the 
foundation.
    One commenter recommended using the ``signing date of a 
construction contract,'' and an additional commenter recommended 
that the new standards apply only to ``buildings permitted after the 
effective date of the regulations.''
    One commenter stated that for facilities that fall outside the 
building permit requirements (ATMs, prefabricated saunas, small 
sheds), the triggering event should be the date of installation, 
rather than the date the space for the facility is constructed.
    The Department is persuaded by the comments to adopt a two-
pronged approach to defining the triggering event for new 
construction and alterations. The final rule states that in those 
cases where permits are required, the triggering event shall be the 
date when the last application for a building permit application or 
permit extension is certified to be complete by a State, county, or 
local government, or in those jurisdictions where the government 
does not certify completion of applications, the date when the last 
application for a building permit or permit extension is received by 
the State, county, or local government. If no permits are required, 
then the triggering event shall be the ``start of physical 
construction or alterations.'' The Department has also added 
clarifying language related to the term ``start of physical 
construction or alterations'' to make it clear that ``start of 
physical construction or alterations'' is not intended to mean the 
date of ceremonial groundbreaking or the date a structure is razed 
to make it possible for construction of a facility to take place.
    Amusement rides. Section 234 of the 2010 Standards provides 
accessibility guidelines for newly designed and constructed 
amusement rides. The amusement ride provisions do not provide a 
``triggering event'' for new construction or alteration of an 
amusement ride. An industry commenter requested that the triggering 
event of ``first use'' as noted in the Advisory note to section 
234.1 of the 2004 ADAAG be included in the final rule. The Advisory 
note provides that ``[a] custom designed and constructed ride is new 
upon its first use, which is the first time amusement park patrons 
take the ride.'' The Department declines to treat amusement rides 
differently than other types of new construction and alterations and 
under the final rule, they are subject to Sec.  36.406(a)(3). Thus, 
newly constructed and altered amusement rides shall comply with the 
2010 Standards if the start of physical construction or the 
alteration is on or after 18 months from the publication date of 
this rule. The Department also notes that section 234.4.2 of the 
2010 Standards only applies where the structural or operational 
characteristics of an amusement ride are altered. It does not apply 
in cases where the only change to a ride is the theme.
    Noncomplying new construction and alterations. The element-by-
element safe harbor referenced in Sec.  36.304(d)(2) has no effect 
on new or altered elements in existing facilities that were subject 
to the 1991 Standards on the date that they were constructed or 
altered, but do not comply with the technical and scoping 
specifications for those elements in the 1991 Standards. Section 
36.406(a)(5) of the final rule sets forth the rules for noncompliant 
new construction or alterations in facilities that were subject to 
the requirements of this part. Under those provisions, noncomplying 
new construction and alterations constructed or altered after the 
effective date of the applicable ADA requirements and before March 
15, 2012 shall, before March 15, 2012, be made accessible in 
accordance with either the 1991 Standards or the 2010 Standards. 
Noncomplying new construction and alterations constructed or altered 
after the effective date of the applicable ADA requirements and 
before March 15, 2012, shall, on or after March 15, 2012, be made 
accessible in accordance with the 2010 Standards.

Section 36.406(b) Application of Standards to Fixed Elements

    The final rule contains a new Sec.  36.406(b) that clarifies 
that the requirements established by this section, including those 
contained in the 2004 ADAAG, prescribe the requirements necessary to 
ensure that fixed or built-in elements in new or altered facilities 
are accessible to individuals with disabilities. Once the 
construction or alteration of a facility has been completed, all 
other aspects of programs, services, and activities conducted in 
that facility are subject to the operational requirements 
established elsewhere in this final rule. Although the Department 
has often chosen to use the requirements of the 1991 Standards as a 
guide to determining when and how to make equipment and furnishings 
accessible, those coverage determinations fall within the 
discretionary authority of the Department.
    The Department is also clarifying that the advisory notes, 
appendix notes, and figures that accompany the 1991 and 2010 
Standards do not establish separately enforceable requirements 
unless otherwise specified in the text of the standards. This 
clarification has been made to address concerns expressed by ANPRM 
commenters who mistakenly believed that the advisory notes in the 
2004 ADAAG established requirements beyond those established in the 
text of the guidelines (e.g., Advisory 504.4 suggests, but does not 
require, that covered entities provide visual contrast on stair 
tread nosings to make them more visible to individuals with low 
vision). The Department received no comments on this provision in 
the NPRM.

[[Page 56304]]

Section 36.406(c) Places of Lodging

    In the NPRM, the Department proposed a new definition for public 
accommodations that are ``places of lodging'' and a new Sec.  
36.406(c) to clarify the scope of coverage for places of public 
accommodation that meet this definition. For many years the 
Department has received inquiries from members of the public seeking 
clarification of ADA coverage of rental accommodations in 
timeshares, condominium hotels, and mixed-use and corporate hotel 
facilities that operate as places of public accommodation (as that 
term is now defined in Sec.  36.104). These facilities, which have 
attributes of both residential dwellings and transient lodging 
facilities, have become increasingly popular since the ADA's 
enactment in 1990 and make up the majority of new hotel construction 
in some vacation destinations. The hybrid residential and lodging 
characteristics of these new types of facilities, as well as their 
ownership characteristics, complicate determinations of ADA 
coverage, prompting questions from both industry and individuals 
with disabilities. While the Department has interpreted the ADA to 
encompass these hotel-like facilities when they are used to provide 
transient lodging, the regulation previously has specifically not 
addressed them. In the NPRM, the Department proposed a new Sec.  
36.406(c), entitled ``Places of Lodging,'' which was intended to 
clarify that places of lodging, including certain timeshares, 
condominium hotels, and mixed-use and corporate hotel facilities, 
shall comply with the provisions of the proposed standards, 
including, but not limited to, the requirements for transient 
lodging in sections 224 and 806 of the 2004 ADAAG.
    The Department's NPRM sought public input on this proposal. The 
Department received a substantial number of comments on these issues 
from industry representatives, advocates for persons with 
disabilities, and individuals. A significant focus of these comments 
was on how the Department should define and regulate vacation rental 
units in timeshares, vacation communities, and condo-hotels where 
the units are owned and controlled by individual owners and rented 
out some portion of time to the public, as compared to traditional 
hotels and motels that are owned, controlled, and rented to the 
public by one entity.
    Scoping and technical requirements applicable to ``places of 
lodging.'' In the NPRM, the Department asked for public comment on 
its proposal in Sec.  36.406(c) to apply to places of lodging the 
scoping and technical requirements for transient lodging, rather 
than the scoping and technical requirements for residential dwelling 
units.
    Commenters generally agreed that the transient lodging 
requirements should apply to places of lodging. Several commenters 
stated that the determination as to which requirements apply should 
be made based on the intention for use at the time of design and 
construction. According to these commenters, if units are intended 
for transient rentals, then the transient lodging standards should 
apply, and if they are intended to be used for residential purposes, 
the residential standards should apply. Some commenters agreed with 
the application of transient lodging standards to places of lodging 
in general, but disagreed about the characterization of certain 
types of facilities as covered places of lodging.
    The Department agrees that the scoping and technical standards 
applicable to transient lodging should apply to facilities that 
contain units that meet the definition of ``places of lodging.''
    Scoping for timeshare or condominium hotels. In the NPRM, the 
Department sought comment on the appropriate basis for determining 
scoping for a timeshare or condominium-hotel. A number of commenters 
indicated that scoping should be based on the usage of the facility. 
Only those units used for short-term stays should be counted for 
application of the transient lodging standards, while units sold as 
residential properties should be treated as residential units not 
subject to the ADA. One commenter stated that scoping should be 
based on the maximum number of sleeping units available for public 
rental. Another commenter pointed out that unlike traditional hotels 
and motels, the number of units available for rental in a facility 
or development containing individually owned units is not fixed over 
time. Owners have the right to participate in a public rental 
program some, all, or none of the time, and individual owner 
participation changes from year to year.
    The Department believes that the determination for scoping 
should be based on the number of units in the project that are 
designed and constructed with the intention that their owners may 
participate in a transient lodging rental program. The Department 
cautions that it is not the number of owners that actually exercise 
their right to participate in the program that determines the 
scoping. Rather it is the units that could be placed into an on-site 
or off-site transient lodging rental program. In the final rule, the 
Department has added a provision to Sec.  36.406(c)(3), which states 
that units intended to be used exclusively for residential purposes 
that are contained in facilities that also meet the definition of 
place of lodging are not covered by the transient lodging standards. 
Title III of the ADA does not apply to units designed and 
constructed with the intention that they be rented or sold as 
exclusively residential units. Such units are covered by the Fair 
Housing Act (FHAct), which contains requirements for certain 
features of accessible and adaptable design both for units and for 
public and common use areas. All units designed and constructed with 
the intention that they may be used for both residential and 
transient lodging purposes are covered by the ADA and must be 
counted for determining the required number of units that must meet 
the transient lodging standards in the 2010 Standards. Public use 
and common use areas in facilities containing units subject to the 
ADA also must meet the 2010 Standards. In some developments, units 
that may serve as residential units some of the time and rental 
units some of the time will have to meet both the FHAct and the ADA 
requirements. For example, all of the units in a vacation 
condominium facility whose owners choose to rent to the public when 
they are not using the units themselves would be counted for the 
purposes of determining the appropriate number of units that must 
comply with the 2010 Standards. In a newly constructed condominium 
that has three floors with units dedicated to be sold solely as 
residential housing and three floors with units that may be used as 
residences or hotel units, only the units on the three latter floors 
would be counted for applying the 2010 Standards. In a newly 
constructed timeshare development containing 100 units, all of which 
may be made available to the public through an exchange or rental 
program, all 100 units would be counted for purposes of applying the 
2010 Standards.
    One commenter also asked the Department for clarification of how 
to count individually owned ``lock-off units.'' Lock-off units are 
units that are multi-bedroom but can be ``locked off'' into two 
separate units, each having individual external access. This 
commenter requested that the Department state in the final rule that 
individually owned lock-off units do not constitute multiple guest 
rooms for purposes of calculating compliance with the scoping 
requirements for accessible units, since for the most part the lock-
off units are used as part of a larger accessible unit, and portions 
of a unit not locked off would constitute both an accessible one-
bedroom unit or an accessible two-bedroom unit with the lock-off 
unit.
    It is the Department's view that lock-off units that are 
individually owned that can be temporarily converted into two units 
do not constitute two separate guest rooms for purposes of 
calculating compliance with the scoping requirements.
    One commenter asked the Department how developers should scope 
units where buildings are constructed in phases over a span of 
years, recommending that the scoping be based on the total number of 
units expected to be constructed at the project and not on a 
building-by-building basis or on a phase-by-phase basis. The 
Department does not think scoping should be based on planned number 
of units, which may or may not be actually constructed over a period 
of years. However, the Department recognizes that resort 
developments may contain buildings and facilities that are of all 
sizes from single-unit cottages to facilities with hundreds of 
units. The Department believes it would be appropriate to allow 
designers, builders, and developers to aggregate the units in 
facilities with 50 or fewer units that are subject to a single 
permit application and that are on a common site or that are 
constructed at the same time for the purposes of applying the 
scoping requirements in table 224.2. Facilities with more than 50 
units should be scoped individually in accordance with the table. 
The regulation has been revised to reflect this application of the 
scoping requirements.
    One commenter also asked the Department to use the title III 
regulation to declare that timeshares subject to the transient 
lodging standards are exempt from the design and construction 
requirements of the FHAct. The coverage of the FHAct is set by 
Congress and interpreted by regulations issued by the Department of 
Housing and Urban

[[Page 56305]]

Development. The Department has no authority to exempt anyone from 
coverage of the FHAct.
    Application of ADA to places of lodging that contain 
individually owned units. The Department believes that regardless of 
ownership structure for individual units, rental programs (whether 
they are on- or off-site) that make transient lodging guest rooms 
available to the public must comply with the general 
nondiscrimination requirements of the ADA. In addition, as provided 
in Sec.  36.406(c), newly constructed facilities that contain 
accommodations intended to be used for transient lodging purposes 
must comply with the 2010 Standards.
    In the NPRM, the Department asked for public comment on several 
issues related to ensuring the availability of accessible units in a 
rental program operated by a place of lodging. The Department sought 
input on how it could address a situation in which a new or 
converted facility constructs the required number of accessible 
units, but the owners of those units choose not to participate in 
the rental program; whether the facility has an obligation to 
encourage or require owners of accessible units to participate in 
the rental program; and whether the facility developer, the 
condominium association, or the hotel operator has an obligation to 
retain ownership or control over a certain number of accessible 
units to avoid this problem.
    In the NPRM, the Department sought public input on how to 
regulate scoping for a timeshare or condominium-rental facility that 
decides, after the sale of units to individual owners, to begin a 
rental program that qualifies the facility as a place of lodging, 
and how the condominium association, operator, or developer should 
determine which units to make accessible.
    A number of commenters expressed concerns about the ability of 
the Department to require owners of accessible units to participate 
in the rental program, to require developers, condo associations, or 
homeowners associations to retain ownership of accessible units, and 
to impose accessibility requirements on individual owners who choose 
to place inaccessible units into a rental program after purchase. 
These commenters stated that individuals who purchase accessible 
vacation units in condominiums, individual vacation homes, and 
timeshares have ownership rights in their units and may choose 
lawfully to make their units available to the public some, all, or 
none of the time. Commenters advised the Department that the 
Securities and Exchange Commission takes the position that if 
condominium units are offered in connection with participation in a 
required rental program for any part of the year, require the use of 
an exclusive rental agent, or impose conditions otherwise 
restricting the occupancy or rental of the unit, then that offering 
will be viewed as an offering of securities in the form of an 
investment (rather than a real estate offering). SEC Release No. 33-
5347, Guidelines as to the Applicability of the Federal Securities 
Laws to Offers and Sales of Condominiums or Units in a Real Estate 
Development (Jan. 4, 1973). Consequently, most condominium 
developers do not impose such restrictions at the time of sale. 
Moreover, owners who choose to rent their units as a short-term 
vacation rental can select any rental or management company to lease 
and manage their unit, or they may rent them out on their own. They 
also may choose never to lease those units. Thus, there are no 
guarantees that at any particular time, accessible units will be 
available for rental by the public. According to this commenter, 
providing incentives for owners of accessible units to place their 
units in the rental program will not work, because it does not 
guarantee the availability of the requisite number of rooms 
dispersed across the development, and there is not any reasonable, 
identifiable source of funds to cover the costs of such incentives.
    A number of commenters also indicated that it potentially is 
discriminatory as well as economically infeasible to require that a 
developer hold back the accessible units so that the units can be 
maintained in the rental program year-round. One commenter pointed 
out that if a developer did not sell the accessible condominiums or 
timeshares in the building inventory, the developer would be subject 
to a potential ADA or FHAct complaint because persons with 
disabilities who wanted to buy accessible units rather than rent 
them each year would not have the option to purchase them. In 
addition, if a developer held back accessible units, the cost of 
those units would have to be spread across all the buyers of the 
inaccessible units, and in many cases would make the project 
financially infeasible. This would be especially true for smaller 
projects. Finally, this commenter argued that requiring units to be 
part of the common elements that are owned by all of the individual 
unit owners is infeasible because the common ownership would result 
in pooled rental income, which would transform the owners into 
participants in a rental pool, and thus turn the sale of the 
condominiums into the sale of securities under SEC Release 33-5347.
    Several commenters noted that requiring the operator of the 
rental program to own the accessible units is not feasible either 
because the operator of the rental program would have to have the 
funds to invest in the purchase of all of the accessible units, and 
it would not have a means of recouping its investment. One commenter 
stated that in Texas, it is illegal for on-site rental programs to 
own condominium units. Another commenter noted that such a 
requirement might lead to the loss of on-site rental programs, 
leaving owners to use individual third-party brokers, or rent the 
units privately. One commenter acknowledged that individual owners 
cannot be required to place their units in a rental pool simply to 
offer an accessible unit to the public, since the owners may be 
purchasing units for their own use. However, this commenter 
recommended that owners who choose to place their units in a rental 
pool be required to contribute to a fund that would be used to 
renovate units that are placed in the rental pool to increase the 
availability of accessible units. One commenter argued that the 
legal entity running the place of lodging has an obligation to 
retain control over the required number of accessible units to 
ensure that they are available in accordance with title III.
    A number of commenters also argued that the Department has no 
legal authority to require individual owners to engage in barrier 
removal where an existing development adds a rental program. One 
commenter stated that Texas law prohibits the operator of on-site 
rental program from demanding that alterations be made to a 
particular unit. In addition, under Texas law, condominium 
declarations may not require some units and not others to make 
changes, because that would lead to unequal treatment of units and 
owners, which is not permissible.
    One commenter stated that since it was not possible for 
operators of rental programs offering privately owned condominiums 
to comply with accessible scoping, the Department should create 
exemptions from the accessible scoping, especially for existing 
facilities. In addition, this commenter stated that if an operator 
of an on-site rental program were to require renovations as a 
condition of participation in the rental program, unit owners might 
just rent their units through a different broker or on their own, in 
which case such requirements would not apply.
    A number of commenters argued that if a development decides to 
create a rental program, it must provide accessible units. Otherwise 
the development would have to ensure that units are retrofitted. A 
commenter argued that if an existing building is being converted, 
the Department should require that if alterations of the units are 
performed by an owner or developer prior to sale of the units, then 
the alterations requirements should apply, in order to ensure that 
there are some accessible units in the rental pool. This commenter 
stated that because of the proliferation of these type of 
developments in Hawaii, mandatory alteration is the only way to 
guarantee the availability of accessible units in the long run. In 
this commenter's view, since conversions almost always require 
makeover of existing buildings, this will not lead to a significant 
expense.
    The Department agrees with the commenters that it would not be 
feasible to require developers to hold back or purchase accessible 
units for the purposes of making them available to the public in a 
transient lodging rental program, nor would it be feasible to 
require individual owners of accessible units to participate in 
transient lodging rental programs.
    The Department recognizes that places of lodging are developed 
and financed under myriad ownership and management structures and 
agrees that there will be circumstances where there are legal 
barriers to requiring compliance with either the alterations 
requirements or the requirements related to barrier removal. The 
Department has added an exception to Sec.  36.406(c), providing that 
in existing facilities that meet the definition of places of 
lodging, where the guest rooms are not owned or substantially 
controlled by the entity that owns, leases, or operates the overall 
facility and the physical features of the guest room interiors are 
controlled by their individual owners, the units are not subject to 
the alterations requirement, even where the owner rents the

[[Page 56306]]

unit out to the public through a transient lodging rental program. 
In addition, the Department has added an exception to the barrier 
removal requirements at Sec.  36.304(g) providing that in existing 
facilities that meet the definition of places of lodging, where the 
guest rooms are not owned or substantially controlled by the entity 
that owns, leases, or operates the overall facility and the physical 
features of the guest room interiors are controlled by their 
individual owners, the units are not subject to the barrier removal 
requirement. The Department notes, however, that there are legal 
relationships for some timeshares and cooperatives where the 
ownership interests do not convey control over the physical features 
of units. In those cases, it may be the case that the facility has 
an obligation to meet the alterations or barrier removal 
requirements or to maintain accessible features.

Section 36.406(d) Social Service Center Establishments

    In the NPRM, the Department proposed a new Sec.  36.406(d) 
requiring group homes, halfway houses, shelters, or similar social 
service center establishments that provide temporary sleeping 
accommodations or residential dwelling units to comply with the 
provisions of the 2004 ADAAG that apply to residential facilities, 
including, but not limited to, the provisions in sections 233 and 
809.
    The NPRM explained that this proposal was based on two important 
changes in the 2004 ADAAG. First, for the first time, residential 
dwelling units are explicitly covered in the 2004 ADAAG in section 
233. Second, the 2004 ADAAG eliminates the language contained in the 
1991 Standards addressing scoping and technical requirements for 
homeless shelters, group homes, and similar social service center 
establishments. Currently, such establishments are covered in 
section 9.5 of the transient lodging section of the 1991 Standards. 
The deletion of section 9.5 creates an ambiguity of coverage that 
must be addressed.
    The NPRM explained the Department's belief that transferring 
coverage of social service center establishments from the transient 
lodging standards to the residential facilities standards would 
alleviate conflicting requirements for social service providers. The 
Department believes that a substantial percentage of social service 
providers are recipients of Federal financial assistance from the 
Department of Housing and Urban Development (HUD). The Department of 
Health and Human Services (HHS) also provides financial assistance 
for the operation of shelters through the Administration for 
Children and Families programs. As such, they are covered both by 
the ADA and section 504. UFAS is currently the design standard for 
new construction and alterations for entities subject to section 
504. The two design standards for accessibility--the 1991 Standards 
and UFAS--have confronted many social service providers with 
separate, and sometimes conflicting, requirements for design and 
construction of facilities. To resolve these conflicts, the 
residential facilities standards in the 2004 ADAAG have been 
coordinated with the section 504 requirements. The transient lodging 
standards, however, are not similarly coordinated. The deletion of 
section 9.5 of the 1991 Standards from the 2004 ADAAG presented two 
options: (1) Require coverage under the transient lodging standards, 
and subject such facilities to separate, conflicting requirements 
for design and construction; or (2) require coverage under the 
residential facilities standards, which would harmonizes the 
regulatory requirements under the ADA and section 504. The 
Department chose the option that harmonizes the regulatory 
requirements: coverage under the residential facilities standards.
    In the NPRM, the Department expressed concern that the 
residential facilities standards do not include a requirement for 
clear floor space next to beds similar to the requirement in the 
transient lodging standards; as a result, the Department proposed 
adding a provision that would require certain social service center 
establishments that provide sleeping rooms with more than 25 beds to 
ensure that a minimum of 5 percent of the beds have clear floor 
space in accordance with section 806.2.3 of the 2004 ADAAG.
    The Department requested information from providers who operate 
homeless shelters, transient group homes, halfway houses, and other 
social service center establishments, and from the clients of these 
facilities who would be affected by this proposed change. In the 
NPRM, the Department asked to what extent conflicts between the ADA 
and section 504 have affected these facilities and what the effect 
would be of applying the residential dwelling unit requirements to 
these facilities, rather than the requirements for transient lodging 
guest rooms.
    Many of the commenters supported applying the residential 
facilities requirements to social service center establishments 
stating that even though the residential facilities requirements are 
less demanding, in some instances, the existence of one clear 
standard will result in an overall increased level of accessibility 
by eliminating the confusion and inaction that are sometimes caused 
by the current existence of multiple requirements. One commenter 
stated that the residential facilities guidelines were more 
appropriate because individuals housed in social service center 
establishments typically stay for a prolonged period of time, and 
guests of a transient lodging facility typically are not housed to 
participate in a program or receive services.
    One commenter opposed to the proposed section argued for the 
application of the transient lodging standards to all social service 
center establishments except those that were ``intended as a 
person's place of abode,'' referencing the Department's question 
related to the definition of place of lodging in the title III NPRM. 
A second commenter stated that the use of transient lodging 
guidelines would lead to greater accessibility.
    The Department continues to be concerned about alleviating the 
challenges for social service providers that are also subject to 
section 504 and that would likely be subject to conflicting 
requirements if the transient lodging standard were applied. Thus, 
the Department has retained the requirement that social service 
center establishments comply with the residential dwelling 
standards. The Department did not receive comments regarding adding 
a requirement for bathing options, such as a roll-in shower, in 
social service center establishments operated by public 
accommodations. The Department did, however, receive comments in 
support of adding such a requirement regarding public entities under 
title II. The Department believes that social service center 
establishments that provide emergency shelter to large transient 
populations should be able to provide bathing facilities that are 
accessible to persons with mobility disabilities who need roll-in 
showers. Because of the transient nature of the population of these 
large shelters, it will not be feasible to modify bathing facilities 
in a timely manner when faced with a need to provide a roll-in 
shower with a seat when requested by an overnight visitor. As a 
result, the Department has added a requirement that social service 
center establishments with sleeping accommodations for more than 50 
individuals must provide at least one roll-in shower with a seat 
that complies with the relevant provisions of section 608 of the 
2010 Standards. Transfer-type showers are not permitted in lieu of a 
roll-in shower with a seat, and the exceptions in sections 608.3 and 
608.4 for residential dwelling units are not permitted. When 
separate shower facilities are provided for men and for women, at 
least one roll-in shower must be provided for each group. This 
supplemental requirement to the residential facilities standards is 
in addition to the supplemental requirement that was proposed in the 
NPRM for clear floor space in sleeping rooms with more than 25 beds.
    The Department also notes that while dwelling units at some 
social service center establishments are also subject to FHAct 
design and construction requirements that require certain features 
of adaptable and accessible design, FHAct units do not provide the 
same level of accessibility that is required for residential 
facilities under the 2010 Standards. The FHAct requirements, where 
also applicable, should not be considered a substitute for the 2010 
Standards. Rather, the 2010 Standards must be followed in addition 
to the FHAct requirements.
    The Department also notes that while in the NPRM the Department 
used the term ``social service establishment,'' the final rule uses 
the term ``social service center establishment.'' The Department has 
made this editorial change so that the final rule is consistent with 
the terminology used in the ADA. See 42 U.S.C. 12181(7)(K).

Section 36.406(e) Housing at a Place of Education

    The Department of Justice and the Department of Education share 
responsibility for regulation and enforcement of the ADA in 
postsecondary educational settings, including architectural 
features. Housing types in educational settings range from 
traditional residence halls and dormitories to apartment or 
townhouse-style residences. In

[[Page 56307]]

addition to title III of the ADA, universities and schools that are 
recipients of Federal financial assistance also are subject to 
section 504, which contains its own accessibility requirements 
currently through the application of UFAS. Residential housing, 
including housing in an educational setting, is also covered by the 
FHAct, which requires newly constructed multifamily housing to 
include certain features of accessible and adaptable design. Covered 
entities subject to the ADA must always be aware of, and comply 
with, any other Federal statutes or regulations that govern the 
operation of residential properties.
    Although the 1991 Standards mention dormitories as a form of 
transient lodging, they do not specifically address how the ADA 
applies to dormitories and other types of residential housing 
provided in an educational setting. The 1991 Standards also do not 
contain any specific provisions for residential facilities, allowing 
covered entities to elect to follow the residential standards 
contained in UFAS. Although the 2004 ADAAG contains provisions for 
both residential facilities and transient lodging, the guidelines do 
not indicate which requirements apply to housing provided in an 
educational setting, leaving it to the adopting agencies to make 
that choice. After evaluating both sets of standards, the Department 
concluded that the benefits of applying the transient lodging 
standards outweighed the benefits of applying the residential 
facilities standards. Consequently, in the NPRM, the Department 
proposed a new Sec.  36.406(e) that provided that residence halls or 
dormitories operated by or on behalf of places of education shall 
comply with the provisions of the proposed standards for transient 
lodging, including, but not limited to, the provisions in sections 
224 and 806 of the 2004 ADAAG.
    Private universities and schools covered by title III as public 
accommodations are required to make their programs and activities 
accessible to persons with disabilities. The housing facilities that 
they provide have varied characteristics. College and university 
housing facilities typically provide housing for up to one academic 
year, but may be closed during school vacation periods. In the 
summer, they often are used for short-term stays of one to three 
days, a week, or several months. Graduate and faculty housing often 
is provided year-round in the form of apartments, which may serve 
individuals or families with children. These housing facilities are 
diverse in their layout. Some are double-occupancy rooms with a 
shared toilet and bathing room, which may be inside or outside the 
unit. Others may contain cluster, suite, or group arrangements where 
several rooms are located inside a defined unit with bathing, 
kitchen, and similar common facilities. In some cases, these suites 
are indistinguishable in features from traditional apartments. 
Universities may build their own housing facilities or enter into 
agreements with private developers to build, own, or lease housing 
to the educational institution or to its students. Academic housing 
may be located on the campus of the university or may be located in 
nearby neighborhoods.
    Throughout the school year and the summer, academic housing can 
become program areas in which small groups meet, receptions and 
educational sessions are held, and social activities occur. The 
ability to move between rooms--both accessible rooms and standard 
rooms--in order to socialize, to study, and to use all public use 
and common use areas is an essential part of having access to these 
educational programs and activities. Academic housing also is used 
for short-term transient educational programs during the time 
students are not in regular residence and may be rented out to 
transient visitors in a manner similar to a hotel for special 
university functions.
    The Department was concerned that applying the new construction 
requirements for residential facilities to educational housing 
facilities could hinder access to educational programs for students 
with disabilities. Elevators generally are not required under the 
2004 ADAAG residential facilities standards unless they are needed 
to provide an accessible route from accessible units to public use 
and common use areas, while under the 2004 ADAAG as it applies to 
other types of facilities, multistory private facilities must have 
elevators unless they meet very specific exceptions. In addition, 
the residential facilities standards do not require accessible roll-
in showers in bathrooms, while the transient lodging requirements 
require some of the accessible units to be served by bathrooms with 
roll-in showers. The transient lodging standards also require that a 
greater number of units have accessible features for persons with 
communication disabilities. The transient lodging standards provide 
for installation of the required accessible features so that they 
are available immediately, but the residential facilities standards 
allow for certain features of the unit to be adaptable. For example, 
only reinforcements for grab bars need to be provided in residential 
dwellings, but the actual grab bars must be installed under the 
transient lodging standards. By contrast, the residential facilities 
standards do require certain features that provide greater 
accessibility within units, such as usable kitchens and an 
accessible route throughout the dwelling. The residential facilities 
standards also require 5 percent of the units to be accessible to 
persons with mobility disabilities, which is a continuation of the 
same scoping that is currently required under UFAS and is therefore 
applicable to any educational institution that is covered by section 
504. The transient lodging standards require a lower percentage of 
accessible sleeping rooms for facilities with large numbers of rooms 
than is required by UFAS. For example, if a dormitory has 150 rooms, 
the transient lodging standards would require 7 accessible rooms, 
while the residential standards would require 8. In a large 
dormitory with 500 rooms, the transient lodging standards would 
require 13 accessible rooms, and the residential facilities 
standards would require 25. There are other differences between the 
two sets of standards, including requirements for accessible 
windows, alterations, kitchens, an accessible route throughout a 
unit, and clear floor space in bathrooms allowing for a side 
transfer.
    In the NPRM, the Department requested public comment on how to 
scope educational housing facilities, and it asked whether the 
residential facilities requirements or the transient lodging 
requirements in the 2004 ADAAG would be more appropriate for housing 
at places of education and asked how the different requirements 
would affect the cost of building new dormitories and other student 
housing. See 73 FR 34508, 34545 (June 17, 2008).
    The Department received several comments on this issue under 
title III. One commenter stated that the Department should adopt the 
residential facilities standards for housing at a place of 
education. In the commenter's view, the residential facilities 
standards are congruent with overlapping requirements imposed by 
HUD, and the residential facilities requirements would ensure 
dispersion of accessible features more effectively. This commenter 
also argued that while the increased number of required accessible 
units for residential facilities as compared to transient lodging 
may increase the cost of construction or alteration, this cost would 
be offset by a reduced need later to adapt rooms if the demand for 
accessible rooms exceeds the supply. The commenter also encouraged 
the Department to impose a visitability (accessible doorways and 
necessary clear floor space for turning radius) requirement for both 
the residential facilities and transient lodging requirements to 
allow students with mobility impairments to interact and socialize 
in a fully integrated fashion. Another commenter stated that while 
dormitories should be treated like residences as opposed to 
transient lodging, the Department should ensure that ``all floors 
are accessible,'' thus ensuring community integration and 
visitability. Another commenter argued that housing at a place of 
education is comparable to residential housing, and that most of the 
housing types used by schools do not have the same amenities and 
services or function like transient lodging and should not be 
treated as such.
    Several commenters focused on the length of stay at this type of 
housing and suggested that if the facilities are subject to 
occupancy for greater than 30 days, the residential standards should 
apply. Another commenter supported the Department's adoption of the 
transient lodging standards, arguing this will provide greater 
accessibility and therefore increase opportunities for students with 
disabilities to participate. One commenter, while supporting the use 
of transient lodging standards in this area, argued that the 
Department also should develop regulations relating to the usability 
of equipment in housing facilities by persons who are blind or 
visually impaired. Another commenter argued that the Department 
should not impose the transient lodging requirements on K-12 schools 
because the cost of adding elevators can be prohibitive, and because 
there are safety concerns related to evacuating students in 
wheelchairs living on floors above the ground floor in emergencies 
causing elevator failures.
    The Department has considered the comments recommending the use 
of the

[[Page 56308]]

residential facilities standards and acknowledges that they require 
certain features that are not included in the transient lodging 
standards and that should be required for housing provided at a 
place of education. In addition, the Department notes that since 
educational institutions often use their academic housing facilities 
as short-term transient lodging in the summers, it is important that 
accessible features be installed at the outset. It is not realistic 
to expect that the educational institution will be able to adapt a 
unit in a timely manner in order to provide accessible 
accommodations to someone attending a one-week program during the 
summer.
    The Department has determined that the best approach to this 
type of housing is to continue to require the application of 
transient lodging standards but, at the same time, to add several 
requirements drawn from the residential facilities standards related 
to accessible turning spaces and work surfaces in kitchens, and the 
accessible route throughout the unit. This will ensure the 
maintenance of the transient lodging standard requirements related 
to access to all floors of the facility, roll-in showers in 
facilities with more than 50 sleeping rooms, and other important 
accessibility features not found in the residential facilities 
standards, but also will ensure usable kitchens and access to all 
the rooms in a suite or apartment.
    The Department has added a new definition to Sec.  36.104, 
``Housing at a Place of Education,'' and has revised Sec.  36.406(e) 
to reflect the accessible features that now will be required in 
addition to the requirements set forth under the transient lodging 
standards. The Department also recognizes that some educational 
institutions provide some residential housing on a year-round basis 
to graduate students and staff that is comparable to private rental 
housing but contains no facilities for educational programming. 
Section 36.406(e)(3) exempts from the transient lodging standards 
apartments or townhouse facilities that are provided with a lease on 
a year-round basis exclusively to graduate students or faculty and 
that do not contain any public use or common use areas available for 
educational programming; instead, such housing must comply with the 
requirements for residential facilities in sections 233 and 809 of 
the 2010 Standards.
    The regulatory text uses the term ``sleeping room'' in lieu of 
the term ``guest room,'' which is the term used in the transient 
lodging standards. The Department is using this term because it 
believes that for the most part, it provides a better description of 
the sleeping facilities used in a place of education than ``guest 
room.'' The final rule states in Sec.  36.406(e) that the Department 
intends the terms to be used interchangeably in the application of 
the transient lodging standards to housing at a place of education.

Section 36.406(f) Assembly Areas

    In the NPRM, the Department proposed Sec.  36.406(f) to 
supplement the assembly area requirements of the 2004 ADAAG, which 
the Department is adopting as part of the 2010 Standards. The NPRM 
proposed at Sec.  36.406(f)(1) to require wheelchair spaces and 
companion seating locations to be dispersed to all levels of the 
facility that are served by an accessible route. The Department 
received no significant comments on this paragraph and has decided 
to adopt the proposed language with minor modifications.
    Section 36.406(f)(1) ensures that there is greater dispersion of 
wheelchair spaces and companion seats throughout stadiums, arenas, 
and grandstands than would otherwise be required by sections 221 and 
802 of the 2004 ADAAG. In some cases, the accessible route may not 
be the same route that other individuals use to reach their seats. 
For example, if other patrons reach their seats on the field by an 
inaccessible route (e.g., by stairs), but there is an accessible 
route that complies with section 206.3 of the 2004 ADAAG that could 
be connected to seats on the field, wheelchair spaces and companion 
seats must be placed on the field even if that route is not 
generally available to the public.
    Regulatory language that was included in the 2004 ADAAG 
advisory, but that did not appear in the NPRM, has been added by the 
Department in Sec.  36.406(f)(2). Section 36.406(f)(2) now requires 
an assembly area that has seating encircling, in whole or in part, a 
field of play or performance area, such as an arena or stadium, to 
place wheelchair spaces and companion seats around the entire 
facility. This rule, which is designed to prevent a public 
accommodation from placing wheelchair spaces and companion seats on 
one side of the facility only, is consistent with the Department's 
enforcement practices and reflects its interpretation of section 
4.33.3 of the 1991 Standards.
    In the NPRM, the Department proposed Sec.  36.406(f)(2), which 
prohibits wheelchair spaces and companion seating locations from 
being ``located on (or obstructed by) temporary platforms * * *.'' 
73 FR 34508, 34557 (June 17, 2008). Through its enforcement actions, 
the Department discovered that some venues place wheelchair spaces 
and companion seats on temporary platforms that, when removed, 
reveal conventional seating underneath, or cover the wheelchair 
spaces and companion seats with temporary platforms on top of which 
they place risers of conventional seating. These platforms cover 
groups of conventional seats and are used to provide groups of 
wheelchair seats and companion seats.
    Several commenters requested an exception to the prohibition of 
the use of temporary platforms for public accommodations that sell 
most of their tickets on a season-ticket or other multi-event basis. 
Such commenters argued that they should be able to use temporary 
platforms because they know, in advance, that the patrons sitting in 
certain areas for the whole season do not need wheelchair spaces and 
companion seats. The Department declines to adopt such an exception. 
As it explained in detail in the NPRM, the Department believes that 
permitting the use of movable platforms that seat four or more 
wheelchair users and their companions have the potential to reduce 
the number of available wheelchair seating spaces below the level 
required, thus reducing the opportunities for persons who need 
accessible seating to have the same choice of ticket prices and 
amenities that are available to other patrons in the facility. In 
addition, use of removable platforms may result in instances where 
last minute requests for wheelchair and companion seating cannot be 
met because entire sections of accessible seating will be lost when 
a platform is removed. See 73 FR 34508, 34546 (June 17, 2008). 
Further, use of temporary platforms allows facilities to limit 
persons who need accessible seating to certain seating areas, and to 
relegate accessible seating to less desirable locations. The use of 
temporary platforms has the effect of neutralizing dispersion and 
other seating requirements (e.g., line of sight) for wheelchair 
spaces and companion seats. Cf. Independent Living Resources v. 
Oregon Arena Corp., 1 F. Supp. 2d 1159, 1171 (D. Or. 1998) (holding 
that while a public accommodation may ``infill'' wheelchair spaces 
with removable seats when the wheelchair spaces are not needed to 
accommodate individuals with disabilities, under certain 
circumstances ``[s]uch a practice might well violate the rule that 
wheelchair spaces must be dispersed throughout the arena in a manner 
that is roughly proportionate to the overall distribution of 
seating''). In addition, using temporary platforms to convert unsold 
wheelchair spaces to conventional seating undermines the flexibility 
facilities need to accommodate secondary ticket market exchanges as 
required by Sec.  36.302(f)(7) of the final rule.
    As the Department explained in the NPRM, however, this provision 
was not designed to prohibit temporary seating that increases 
seating for events (e.g., placing temporary seating on the floor of 
a basketball court for a concert). Consequently, the final rule, at 
Sec.  36.406(f)(3), has been amended to clarify that if an entire 
seating section is on a temporary platform for a particular event, 
then wheelchair spaces and companion seats may also be in that 
seating section. However, adding a temporary platform to create 
wheelchair spaces and companion seats that are otherwise dissimilar 
from nearby fixed seating and then simply adding a small number of 
additional seats to the platform would not qualify as an ``entire 
seating section'' on the platform. In addition, Sec.  36.406(f)(3) 
clarifies that facilities may fill in wheelchair spaces with 
removable seats when the wheelchair spaces are not needed by persons 
who use wheelchairs.
    The Department has been responsive to assembly areas' concerns 
about reduced revenues due to unused accessible seating. 
Accordingly, the Department has reduced scoping requirements 
significantly--by almost half in large assembly areas--and 
determined that allowing assembly areas to in-fill unsold wheelchair 
spaces with readily removable temporary individual seats 
appropriately balances their economic concerns with the rights of 
individuals with disabilities. See section 221.1 of the 2010 
Standards.
    For stadium-style movie theaters, in Sec.  36.406(f)(4) of the 
NPRM the Department

[[Page 56309]]

proposed requiring placement of wheelchair seating spaces and 
companion seats on a riser or cross-aisle in the stadium section of 
the theater that satisfies at least one of the following criteria: 
(1) It is located within the rear 60 percent of the seats provided 
in the auditorium; or (2) It is located within the area of the 
auditorium where the vertical viewing angles are between the 40th 
and 100th percentile of vertical viewing angles for all seats in 
that theater as ranked from the first row (1st percentile) to the 
back row (100th percentile). The vertical viewing angle is the angle 
between a horizontal line perpendicular to the seated viewer's eye 
to the screen and a line from the seated viewer's eye to the top of 
the screen.
    The Department proposed this bright-line rule for two reasons: 
(1) the movie theater industry petitioned for such a rule; and (2) 
the Department has acquired expertise in the design of stadium-style 
theaters during its litigation with several major movie theater 
chains. See United States. v. AMC Entertainment, Inc., 232 F. 
Supp.2d 1092 (C.D. Cal. 2002), rev'd in part, 549 F.3d 760 (9th Cir. 
2008); United States v. Cinemark USA, Inc., 348 F.3d 569 (6th Cir. 
2003). Two industry commenters--at least one of whom otherwise 
supported this rule--requested that the Department explicitly state 
that this rule does not apply retroactively to existing theaters. 
Although this provision on its face applies to new construction and 
alterations, these commenters were concerned that the rule could be 
interpreted to apply retroactively because of the Department's 
statements in the NPRM and ANPRM that this bright line rule, 
although newly articulated, is not a new standard but ``merely 
codifi[es] longstanding Department requirement[s],'' 73 FR 34508, 
34534 (June 17, 2008), and does not represent a ``substantive change 
from the existing line-of-sight requirements'' of section 4.33.3 of 
the 1991 Standards, 69 FR 58768, 58776 (Sept. 30, 2004).
    Although the Department intends for Sec.  36.406(f)(4) of this 
rule to apply prospectively to new construction and alterations, 
this rule is not a departure from, and is consistent with, the line-
of-sight requirements in the 1991 Standards. The Department has 
always interpreted the line-of-sight requirements in the 1991 
Standards to require viewing angles provided to patrons who use 
wheelchairs to be comparable to those afforded to other spectators. 
Section 36.406(f)(4) merely represents the application of these 
requirements to stadium-style movie theaters.
    One commenter from a trade association sought clarification 
whether Sec.  36.406(f)(4) applies to stadium-style theaters with 
more than 300 seats, and argued that it should not since dispersion 
requirements apply in those theaters. The Department declines to 
limit this rule to stadium-style theaters with 300 or fewer seats; 
stadium-style theaters of all sizes must comply with this rule. So, 
for example, stadium-style theaters that must vertically disperse 
wheelchair spaces and companion seats must do so within the 
parameters of this rule.
    The NPRM included a provision that required assembly areas with 
more than 5,000 seats to provide at least five wheelchair spaces 
with at least three companion seats for each of those five 
wheelchair spaces. The Department agrees with commenters who 
asserted that group seating is better addressed through ticketing 
policies rather than design and has deleted that provision from this 
section of the final rule.

Section 36.406(g) Medical Care Facilities

    In the 1991 title III regulation, there was no provision 
addressing the dispersion of accessible sleeping rooms in medical 
care facilities. The Department is aware, however, of problems that 
individuals with disabilities face in receiving full and equal 
medical care when accessible sleeping rooms are not adequately 
dispersed. When accessible rooms are not fully dispersed, a person 
with a disability is often placed in an accessible room in an area 
that is not medically appropriate for his or her condition, and is 
thus denied quick access to staff with expertise in that medical 
specialty and specialized equipment. While the Access Board did not 
establish specific design requirements for dispersion in the 2004 
ADAAG, in response to extensive comments in support of dispersion it 
added an advisory note, Advisory 223.1 General, encouraging 
dispersion of accessible rooms within the facility so that 
accessible rooms are more likely to be proximate to appropriate 
qualified staff and resources.
    In the NPRM, the Department sought additional comment on the 
issue, asking whether it should require medical care facilities, 
such as hospitals, to disperse their accessible sleeping rooms, and 
if so, by what method (by specialty area, floor, or other criteria). 
All of the comments the Department received on this issue supported 
dispersing accessible sleeping rooms proportionally by specialty 
area. These comments from individuals, organizations, and a building 
code association, argued that it would not be difficult for 
hospitals to disperse rooms by specialty area, given the high level 
of regulation to which hospitals are subject and the planning that 
hospitals do based on utilization trends. Further, comments suggest 
that without a requirement, it is unlikely that hospitals would 
disperse the rooms. In addition, concentrating accessible rooms in 
one area perpetuates segregation of individuals with disabilities, 
which is counter to the purpose of the ADA.
    The Department has decided to require medical care facilities to 
disperse their accessible sleeping rooms in a manner that is 
proportionate by type of medical specialty. This does not require 
exact mathematical proportionality, which at times would be 
impossible. However, it does require that medical care facilities 
disperse their accessible rooms by medical specialty so that persons 
with disabilities can, to the extent practical, stay in an 
accessible room within the wing or ward that is appropriate for 
their medical needs. The language used in this rule (``in a manner 
that is proportionate by type of medical specialty'') is more 
specific than that used in the NPRM (``in a manner that enables 
patients with disabilities to have access to appropriate specialty 
services'') and adopts the concept of proportionality proposed by 
the commenters. Accessible rooms should be dispersed throughout all 
medical specialties, such as obstetrics, orthopedics, pediatrics, 
and cardiac care.

Subpart F--Certification of State Laws or Local Building Codes

    Subpart F contains procedures implementing section 
308(b)(1)(A)(ii) of the ADA, which provides that on the application 
of a State or local jurisdiction, the Attorney General may certify 
that a State or local building code or similar ordinance meets or 
exceeds the minimum accessibility requirements of the Act. In 
enforcement proceedings, this certification will constitute 
rebuttable evidence that the law or code meets or exceeds the ADA's 
requirements. In its NPRM, the Department proposed three changes in 
subpart F that would streamline the process for public entities 
seeking certification, all of which are adopted in this final rule.
    First, the Department proposed deleting the existing Sec.  
36.603, which establishes the obligations of a submitting authority 
that is seeking certification of its code, and issue in its place 
informal regulatory guidance regarding certification submission 
requirements. Due to the deletion of Sec.  36.603, Sec. Sec.  36.604 
through 36.608 are renumbered, and Sec.  36.603 in the final rule is 
modified to indicate that the Assistant Attorney General for the 
Civil Rights Division (Assistant Attorney General) shall make a 
preliminary determination of equivalency after ``receipt and review 
of all information relevant to a request filed by a submitting 
official for certification of a code.'' Second, the Department 
proposed that the requirement in renumbered Sec.  36.604 (previously 
Sec.  36.605) that an informal hearing be held in Washington, DC, if 
the Assistant Attorney General makes a preliminary determination of 
equivalency be changed to a requirement that the hearing be held in 
the State or local jurisdiction charged with administration and 
enforcement of the code. Third, the Department proposed adding 
language to renumbered Sec.  36.606 (previously Sec.  36.607) to 
explain the effect of the 2010 Standards on the codes of State or 
local jurisdictions that were determined in the past to meet or 
exceed the 1991 Standards. Once the 2010 Standards take effect, 
certifications issued under the 1991 Standards would not have any 
future effect, and States and local jurisdictions with codes 
certified under the 1991 Standards would need to reapply for 
certification under the 2010 Standards. With regard to elements of 
existing buildings and facilities constructed in compliance with a 
code when a certification of equivalency was in effect, the final 
rule requires that in any enforcement action this compliance would 
be treated as rebuttable evidence of compliance with the standards 
then in effect. The new provision added to Sec.  36.606 may also 
have implications in determining an entity's eligibility for the 
element-by-element safe harbor.
    No substantive comments were received regarding the Department's 
proposed changes in subpart F, and no other changes have been made 
to this subpart in the final rule. The

[[Page 56310]]

Department did receive several comments addressing other issues 
raised in the NPRM that are related to subpart F. Because the 2010 
Standards include specific design requirements for recreation 
facilities and play areas that may be new to many title III 
facilities, the Department sought comments in the NPRM about how the 
certification review process would be affected if the State or local 
jurisdiction allocates the authority to implement the new 
requirements to State or local agencies that are not ordinarily 
involved in administering building codes. One commenter, an 
association of building owners and managers, suggested that because 
of the increased scope of the 2010 Standards, it is likely that 
parts of covered elements in the new standards will be under the 
jurisdiction of multiple State or local agencies. In light of these 
circumstances, the commenter recommended that the Department allow 
State or local agencies to seek certification even if only one State 
or local regulatory agency requests certification. For example, if a 
State agency that regulates buildings seeks certification of its 
building code, it should be able to do so, even if another State 
agency that regulates amusement rides and miniature golf courses 
does not seek certification.
    The Department's discussion of this issue in the NPRM 
contemplated that all of a State or local government's accessibility 
requirements for title III facilities would be the subject of a 
request for certification. Any other approach would require the 
Department to certify only part of a State or local government's 
accessibility requirements as compared to the entirety of the 
revised ADA standards. As noted earlier, the Attorney General is 
authorized by section 308(b)(1)(A)(ii) of the ADA to certify that a 
State or local building code meets or exceeds the ADA's minimum 
accessibility requirements, which are contained in this regulation. 
The Department has concluded that this is a decision that must be 
made on a case-by-case basis because of the wide variety of 
enforcement schemes adopted by the States. Piecemeal certification 
of laws or codes that do not contain all of the minimum 
accessibility requirements could fail to satisfy the Attorney 
General's responsibility to ensure that a State or local building 
code meets or exceeds the minimum accessibility requirements of the 
Act before granting certification. However, the Department wants to 
permit State and local code administrators to have maximum 
flexibility, so the Department will leave open the possibility for 
case-by-case review to determine if a State has successfully met the 
burden of demonstrating that its accessibility codes or other laws 
meet or exceed the ADA requirements.
    The commenter representing building owners and managers also 
urged the Department to extend the proposed effective date for the 
final rule. The commenter explained that a six-month phase-in period 
is inadequate for States to begin and complete a code amendment 
process. The commenter asserted that the inadequate phase-in period 
will place entities undertaking new construction and alterations, 
particularly in those States with certified codes, in a difficult 
position because State officials will continue to enforce previously 
certified State or local accessibility requirements that may be in 
conflict with the new 2010 Standards. The Department received 
numerous comments on the issue of the effective date, many of them 
similar to the concerns expressed above, in response to both the 
NPRM and the ANPRM. See Appendix A discussion of compliance dates 
for new construction and alterations (Sec.  36.406). The Department 
has been persuaded by the concerns raised by many commenters 
addressing the time and costs related to the design process for both 
new construction and alterations, and has determined that for new 
construction and alterations, compliance with the 2010 Standards 
will not be required until 18 months from the date the final rule is 
published. For more information on the issue of the compliance date, 
refer to subpart D--New Construction and Alterations.
    One commenter, an association of theater owners, recommended 
that the Department establish a training program for State building 
inspectors for those States that receive certification to ensure 
more consistent ADA compliance and to facilitate the review of 
builders' architectural plans. The commenter also recommended that 
State building inspectors, once trained, review architectural plans, 
and after completion and inspection of facilities, be authorized to 
certify that the inspected building or facility meets both the 
certified State and the Federal accessibility requirements. Although 
supportive of the idea of additional training for State and local 
building code officials regarding ADA compliance, the Department 
believes that the approach suggested by the commenter of allowing 
State and local code officials to determine if a covered facility is 
in compliance with Federal accessibility requirements is not 
consistent with or permissible under the statutory enforcement 
scheme established by the ADA. As the Department stated in the NPRM, 
certification of State and local codes serves, to some extent, to 
mitigate the absence of a Federal mechanism for conducting at the 
national level a review of all architectural plans and inspecting 
all covered buildings under construction to ensure compliance with 
the ADA. In this regard, certification operates as a bridge between 
the obligation to comply with the 1991 Standards in new construction 
and alterations, and the administrative schemes of State and local 
governments that regulate the design and construction process. By 
ensuring consistency between State or local codes and Federal 
accessibility standards, certification has the additional benefit of 
streamlining the regulatory process, thereby making it easier for 
those in the design and construction industry to satisfy both State 
and Federal requirements. The Department notes, however, that 
although certification has the potential to increase compliance with 
the ADA, this result, however desirable, is not guaranteed. The ADA 
contemplated that there could be enforcement actions brought even in 
States with certified codes, and it provided some protection in 
litigation to builders who adhered to the provisions of the code 
certified to be ADA-equivalent. The Department's certification 
determinations make it clear that to get the benefit of 
certification, a facility must comply with the applicable code 
requirements--without relying on waivers or variances. The certified 
code, however, remains within the authority of the adopting State or 
local jurisdiction to interpret and enforce: Certification does not 
transform a State's building code into Federal law. Nor can 
certification alone authorize State and local building code 
officials implementing a certified code to do more than they are 
authorized to do under State or local law, and these officials 
cannot acquire authority through certification to render binding 
interpretations of Federal law. Therefore, the Department, while 
understanding the interest in obtaining greater assurance of 
compliance with the ADA through the interpretation and enforcement 
of a certified code by local code officials, declined in the NPRM to 
confer on local officials the authority not granted to them under 
the ADA to certify the compliance of individual facilities. The 
Department in the final rule finds no reason to alter its position 
on this issue in response to the comments that were received.
    The commenter representing theater owners also urged the 
Department to provide a safe harbor to facilities constructed in 
compliance with State or local building codes certified under the 
1991 Standards. With regard to elements of facilities constructed in 
compliance with a certified code prior to the effective date of the 
2010 Standards, and during the period when a certification of 
equivalency was in effect, the Department noted in the NPRM that its 
approach would be consistent with the approach to the safe harbor 
discussed in subpart C, Sec.  36.304 of the NPRM, with respect to 
elements in existing facilities constructed in compliance with the 
1991 Standards. For example, elements in existing facilities in 
States with codes certified under the 1991 Standards would be 
eligible for a safe harbor if they were constructed in compliance 
with an ADA-certified code. In this scenario, compliance with the 
certified code would be treated as evidence of compliance with the 
1991 Standards for purposes of determining the application of the 
safe harbor provision to those elements. For more information on 
safe harbor, refer to subpart C, Sec.  36.304 of the final rule.
    One commenter, an advocacy group for the blind, suggested that, 
similar to the procedures for certifying a State or local building 
code, the Department should establish a program to certify an 
entity's obligation to make its goods and services accessible to 
persons with sensory disabilities. The Department believes that this 
commenter was suggesting that covered entities should be able to 
request that the Department review their business operations to 
determine if they have met their ADA obligations. As noted earlier, 
subpart F contains procedures implementing section 308(b)(1)(A)(ii) 
of the ADA, which provides that on the application of a State or 
local jurisdiction, the Attorney General may certify that a State or 
local building code or similar ordinance meets or exceeds the 
minimum accessibility requirements of the ADA. The

[[Page 56311]]

only mechanism through which the Department is authorized to ensure 
a covered entity's compliance with the ADA is the enforcement scheme 
established under section 308(b)(1)(A)(i) of the ADA. The Department 
notes, however, that title III of the ADA and its implementing 
regulation, which includes the standards for accessible design, 
already require existing, altered, and newly constructed places of 
public accommodation, such as retail stores, hotels, restaurants, 
movie theaters, and stadiums, to make their facilities readily 
accessible to and usable by individuals with disabilities, which 
includes individuals with sensory disabilities, so that individuals 
with disabilities have a full and equal opportunity to enjoy the 
benefits of a public accommodation's goods, services, facilities, 
privileges and advantages.

Other Issues

Questions Posed in the NPRM Regarding Costs and Benefits of 
Complying With the 2010 Standards

    In the NPRM, the Department requested comments on various cost 
and benefit issues related to eight requirements in the Department's 
Initial RIA, that were projected to have incremental costs that 
exceeded monetized benefits by more than $100 million when using the 
1991 Standards as a comparative baseline, i.e., side reach, water 
closet clearances in single-user toilet rooms with in-swinging 
doors, stairs, elevators, location of accessible routes to stages, 
accessible attorney areas and witness stands, assistive listening 
systems, and accessible teeing grounds, putting greens, and weather 
shelters at golf courses. 73 FR 34508, 34512 (June 17, 2008). The 
Department was particularly concerned about how these costs applied 
to alterations. The Department noted that pursuant to the ADA, the 
Department does not have statutory authority to modify the 2004 
ADAAG and is required instead to issue regulations implementing the 
ADA that are consistent with the Board's guidelines. In that regard, 
the Department also requested comment about whether any of these 
eight elements in the 2010 Standards should be returned to the 
Access Board for further consideration, in particular as applied to 
alterations. Many of the comments received by the Department in 
response to these questions addressed both titles II and III. As a 
result, the Department's discussion of these comments and its 
response are collectively presented for both titles.
    Side reach. The 1991 Standards at section 4.2.6 establish a 
maximum side-reach height of 54 inches. The 2010 Standards at 
section 308.3.1 reduce that maximum height to 48 inches. The 2010 
Standards also add exceptions for certain elements to the scoping 
requirement for operable parts.
    The vast majority of comments the Department received were in 
support of the lower side-reach maximum of 48 inches in the 2010 
Standards. Most of these comments, but not all, were received from 
individuals of short stature, relatives of individuals of short 
stature, or organizations representing the interests of persons with 
disabilities, including individuals of short stature. Comments from 
individuals with disabilities and disability advocacy groups stated 
that the 48-inch side reach would permit independence in performing 
many activities of daily living for individuals with disabilities, 
including individuals of short stature, persons who use wheelchairs, 
and persons who have limited upper body strength. In this regard, 
one commenter who is a business owner pointed out that as a person 
of short stature there were many occasions when he was unable to 
exit a public restroom independently because he could not reach the 
door handle. The commenter said that often elevator control buttons 
are out of his reach, and, if he is alone, he often must wait for 
someone else to enter the elevator so that he can ask that person to 
press a floor button for him. Another commenter, who is also a 
person of short stature, said that he has on several occasions 
pulled into a gas station only to find that he was unable to reach 
the credit card reader on the gas pump. Unlike other customers who 
can reach the card reader, swipe their credit or debit cards, pump 
their gas, and leave the station, he must use another method to pay 
for his gas. Another comment from a person of short stature pointed 
out that as more businesses take steps to reduce labor costs--a 
trend expected to continue--staffed booths are being replaced with 
automatic machines for the sale, for example, of parking tickets and 
other products. He observed that the ``ability to access and operate 
these machines becomes ever more critical to function in society,'' 
and, on that basis, urged the Department to adopt the 48-inch side-
reach requirement. Another individual commented that persons of 
short stature should not have to carry with them adaptive tools in 
order to access building or facility elements that are out of their 
reach, any more than persons in wheelchairs should have to carry 
ramps with them in order to gain access to facilities.
    Many of the commenters who supported the revised side-reach 
requirement pointed out that lowering the side-reach requirement to 
48 inches would avoid a problem sometimes encountered in the built 
environment when an element was mounted for a parallel approach at 
54 inches, only to find afterwards that a parallel approach was not 
possible. Some commenters also suggested that lowering the maximum 
unobstructed side reach to 48 inches would reduce confusion among 
design professionals by making the unobstructed forward and side-
reach maximums the same (the unobstructed forward reach in both the 
1991 and 2010 Standards is 48 inches maximum). These commenters also 
pointed out that the ICC/ANSI A117.1 Standard, which is a private 
sector model accessibility standard, has included a 48-inch maximum 
high side-reach requirement since 1998. Many jurisdictions have 
already incorporated this requirement into their building codes, 
which these commenters believed would reduce the cost of compliance 
with the 2010 Standards. Because numerous jurisdictions have already 
adopted the 48-inch side-reach requirement, the Department's failure 
to adopt the 48-inch side-reach requirement in the 2010 Standards, 
in the view of many commenters, would result in a significant 
reduction in accessibility, and would frustrate efforts that have 
been made to harmonize private sector model construction and 
accessibility codes with Federal accessibility requirements. Given 
these concerns, they overwhelmingly opposed the idea of returning 
the revised side-reach requirement to the Access Board for further 
consideration.
    The Department also received comments in support of the 48-inch 
side-reach requirement from an association of professional 
commercial property managers and operators and from State 
governmental entities. The association of property managers pointed 
out that the revised side-reach requirement provided a reasonable 
approach to ``regulating elevator controls and all other operable 
parts'' in existing facilities in light of the manner in which the 
safe harbor, barrier removal, and alterations obligations will 
operate in the 2010 Standards. One governmental entity, while fully 
supporting the 48-inch side-reach requirement, encouraged the 
Department to adopt an exception to the lower reach range for 
existing facilities similar to the exception permitted in the ICC/
ANSI A117.1 Standard. In response to this latter concern, the 
Department notes that under the safe harbor, existing facilities 
that are in compliance with the 1991 Standards, which required a 54-
inch side-reach maximum, would not be required to comply with the 
lower side-reach requirement, unless there is an alteration. See 
Sec.  36.304(d)(2)(i).
    A number of commenters expressed either concern with, or 
opposition to, the 48-inch side-reach requirement and suggested that 
it be returned to the Access Board for further consideration. These 
commenters included trade and business associations, associations of 
retail stores, associations of restaurant owners, retail and 
convenience store chains, and a model code organization. Several 
businesses expressed the view that the lower side-reach requirement 
would discourage the use of their products and equipment by most of 
the general public. In particular, concerns were expressed by a 
national association of pay phone service providers regarding the 
possibility that pay telephones mounted at the lower height would 
not be used as frequently by the public to place calls, which would 
result in an economic burden on the pay phone industry. The 
commenter described the lower height required for side reach as 
creating a new ``barrier'' to pay phone use, which would reduce 
revenues collected from pay phones and, consequently, further 
discourage the installation of new pay telephones. In addition, the 
commenter expressed concern that phone service providers would 
simply decide to remove existing pay phones rather than incur the 
costs of relocating them at the lower height. With regard to this 
latter concern, the commenter misunderstood the manner in which the 
safe harbor and barrier removal obligations under Sec.  36.304 will 
operate in the revised title III regulation for elements that comply 
with the 1991 Standards. The Department does not anticipate that 
wholesale relocation of pay telephones in existing facilities will 
be required under the final rule where the telephones in existing 
facilities already are in

[[Page 56312]]

compliance with the 1991 Standards. If the pay phones comply with 
the 1991 Standards, the adoption of the 2010 Standards does not 
require retrofitting of these elements to reflect incremental 
changes in the 2010 Standards. See Sec.  36.304(d)(2). However, pay 
telephones that were required to meet the 1991 Standards as part of 
new construction or alterations, but do not in fact comply with 
those standards, will need to be brought into compliance with the 
2010 Standards as of 18 months from the publication date of this 
final rule. See Sec.  36.406(a)(5).
    The Department does not agree with the concerns expressed by the 
commenter about reduced revenues from pay phones mounted at lower 
heights. The Department believes that while given the choice some 
individuals may prefer to use a pay phone that is at a higher 
height, the availability of some phones at a lower height will not 
deter individuals from making needed calls.
    The 2010 Standards will not require every pay phone to be 
installed or moved to a lowered height. The table accompanying 
section 217.2 of the 2010 Standards makes clear that where one or 
more telephones are provided on a floor, level, or an exterior site, 
only one phone per floor, level, or exterior site must be placed at 
an accessible height. Similarly, where there is one bank of phones 
per floor, level, or exterior site, only one phone per floor, level, 
or exterior site must be accessible. And if there are two or more 
banks of phones per floor, level, or exterior site, only one phone 
per bank must be placed at an accessible height.
    Another comment in opposition to the lower reach range 
requirement was submitted on behalf of a chain of convenience stores 
with fuel stops. The commenter expressed the concern that the 48-
inch side reach ``will make it uncomfortable for the majority of the 
public,'' including persons of taller stature who would need to 
stoop to use equipment such as fuel dispensers mounted at the lower 
height. The commenter offered no objective support for the 
observation that a majority of the public would be rendered 
uncomfortable if, as required in the 2010 Standards, at least one of 
each type of fuel dispenser at a facility was made accessible in 
compliance with the lower reach range. Indeed, the Department 
received no comments from any individuals of tall stature expressing 
concern about accessible elements or equipment being mounted at the 
48-inch height.
    Several retail, convenience store, restaurant, and amusement 
park commenters expressed concern about the burden the lower side-
reach requirement would place on their businesses in terms of self-
service food stations and vending areas if the 48-inch requirement 
were applied retroactively. The cost of lowering counter height, in 
combination with the lack of control businesses exercise over 
certain prefabricated service or vending fixtures, outweighed, they 
argued, any benefits to persons with disabilities. For this reason, 
they suggested the lower side-reach requirement be referred back to 
the Access Board.
    These commenters misunderstood the safe harbor and barrier 
removal obligations that will be in effect under the 2010 Standards. 
Those existing self-service food stations and vending areas that 
already are in compliance with the 1991 Standards will not be 
required to satisfy the 2010 Standards unless they engage in 
alterations. With regard to prefabricated vending machines and food 
service components that will be purchased and installed in 
businesses after the 2010 Standards become effective, the Department 
expects that companies will design these machines and fixtures to 
comply with the 2010 Standards in the future, as many have already 
done in the 10 years since the 48-inch side-reach requirement has 
been a part of the model codes and standards used by many 
jurisdictions as the basis for their construction codes.
    A model code organization commented that the lower side-reach 
requirement would create a significant burden if it required 
entities to lower the mounting height for light switches, 
environmental controls, and outlets when an alteration did not 
include the walls where these elements were located, such as when 
``an area is altered or as a path of travel obligation.'' The 
Department believes that the final rule adequately addresses those 
situations about which the commenter expressed concern by not 
requiring the relocation of existing elements, such as light 
switches, environmental controls, and outlets, unless they are 
altered. Moreover, under Sec.  36.403 of the 1991 rule, costs for 
altering the path of travel to an altered area of primary function 
that exceed 20 percent of the overall costs of the alteration will 
continue to be deemed disproportionate.
    The Department has determined that the revised side-reach 
requirement should not be returned to the Access Board for further 
consideration based in large part on the views expressed by a 
majority of the commenters regarding the need for, and importance 
of, the lower side-reach requirement to ensure access for persons 
with disabilities.
    Alterations and water closet clearances in single-user toilet 
rooms with in-swinging doors. The 1991 Standards allow a lavatory to 
be placed a minimum of 18 inches from the water closet centerline 
and a minimum of 36 inches from the side wall adjacent to the water 
closet, which precludes side transfers. The 1991 Standards do not 
allow an in-swinging door in a toilet or bathing room to overlap the 
required clear floor space at any accessible fixture. To allow 
greater transfer options, section 604.3.2 of the 2010 Standards 
prohibits lavatories from overlapping the clear floor space at water 
closets, except in certain residential dwelling units. Section 
603.2.3 of the 2010 Standards maintains the prohibition on doors 
swinging into the clear floor space or clearance required for any 
fixture, except that they permit the doors of toilet or bathing 
rooms to swing into the required turning space, provided that there 
is sufficient clearance space for the wheelchair outside the door 
swing. In addition, in single-user toilet or bathing rooms, 
exception 2 of section 603.2.3 of the 2010 Standards permits the 
door to swing into the clear floor space of an accessible fixture if 
a clear floor space that measures at least 30 inches by 48 inches is 
available outside the arc of the door swing.
    The majority of commenters believed that this requirement would 
increase the number of toilet rooms accessible to individuals with 
disabilities who use wheelchairs or mobility scooters, and will make 
it easier for them to transfer. A number of commenters stated that 
there was no reason to return this provision to the Access Board. 
Numerous commenters noted that this requirement is already included 
in other model accessibility standards and many State and local 
building codes and that the adoption of the 2010 Standards is an 
important part of harmonization efforts.
    Other commenters, mostly trade associations, opposed this 
requirement, arguing that the added cost to the industry outweighs 
any increase in accessibility. Two commenters stated that these 
proposed requirements would add two feet to the width of an 
accessible single-user toilet room; however, another commenter said 
the drawings in the proposed regulation demonstrated that there 
would be no substantial increase in the size of the toilet room. 
Several commenters stated that this requirement would require moving 
plumbing fixtures, walls, or doors at significant additional 
expense. Two commenters wanted the permissible overlap between the 
door swing and clearance around any fixture eliminated. One 
commenter stated that these new requirements will result in fewer 
alterations to toilet rooms to avoid triggering the requirement for 
increased clearances, and suggested that the Department specify that 
repairs, maintenance, or minor alterations would not trigger the 
need to provide increased clearances. Another commenter requested 
that the Department exempt existing guest room bathrooms and single-
user toilet rooms that comply with the 1991 Standards from complying 
with the increased clearances in alterations.
    After careful consideration of these comments, the Department 
believes that the revised clearances for single-user toilet rooms 
will allow safer and easier transfers for individuals with 
disabilities, and will enable a caregiver, aide, or other person to 
accompany an individual with a disability into the toilet room to 
provide assistance. The illustrations in Appendix B to this final 
rule, ``Analysis and Commentary on the 2010 ADA Standards for 
Accessible Design,'' describe several ways for public entities and 
public accommodations to make alterations while minimizing 
additional costs or loss of space. Further, in any isolated 
instances where existing structural limitations may entail loss of 
space, the public entity and public accommodation may have a 
technical infeasibility defense for that alteration. The Department 
has, therefore, decided not to return this requirement to the Access 
Board.
    Alterations to stairs. The 1991 Standards only require interior 
and exterior stairs to be accessible when they provide access to 
levels that are not connected by an elevator, ramp, or other 
accessible means of vertical access. In contrast, section 210.1 of 
the 2010 Standards requires all newly constructed stairs that are 
part of a means of egress to be accessible. However, exception 2 of 
section 210.1 of the 2010 Standards provides that in alterations, 
stairs between levels connected by an accessible route need not be 
accessible, except that handrails shall be provided. Most

[[Page 56313]]

commenters were in favor of this requirement for handrails in 
alterations, and stated that adding handrails to stairs during 
alterations was not only feasible and not cost prohibitive, but also 
provided important safety benefits. One commenter stated that making 
all points of egress accessible increased the number of people who 
could use the stairs in an emergency. A majority of the commenters 
did not want this requirement returned to the Access Board for 
further consideration.
    The International Building Code (IBC), which is a private sector 
model construction code, contains a similar provision, and most 
jurisdictions enforce a version of the IBC as their building code, 
thereby minimizing the impact of this provision on public entities 
and public accommodations. The Department believes that by requiring 
only the addition of handrails to altered stairs where levels are 
connected by an accessible route, the costs of compliance for public 
entities and public accommodations are minimized, while safe egress 
for individuals with disabilities is increased. Therefore, the 
Department has decided not to return this requirement to the Access 
Board.
    Alterations to elevators. Under the 1991 Standards, if an 
existing elevator is altered, only that altered elevator must comply 
with the new construction requirements for accessible elevators to 
the maximum extent feasible. It is therefore possible that a bank of 
elevators controlled by a single call system may contain just one 
accessible elevator, leaving an individual with a disability with no 
way to call an accessible elevator and thus having to wait 
indefinitely until an accessible elevator happens to respond to the 
call system. In the 2010 Standards, when an element in one elevator 
is altered, section 206.6.1 will require the same element to be 
altered in all elevators that are programmed to respond to the same 
call button as the altered elevator. Almost all commenters favored 
the proposed requirement. This requirement, according to these 
commenters, is necessary so a person with a disability need not wait 
until an accessible elevator responds to his or her call. One 
commenter suggested that elevator owners also could comply by 
modifying the call system so the accessible elevator could be 
summoned independently. One commenter suggested that this 
requirement would be difficult for small businesses located in older 
buildings, and one commenter suggested that this requirement be sent 
back to the Access Board.
    After considering the comments, the Department agrees that this 
requirement is necessary to ensure that when an individual with a 
disability presses a call button, an accessible elevator will 
arrive. The IBC contains a similar provision, and most jurisdictions 
enforce a version of the IBC as their building code, minimizing the 
impact of this provision on public entities and public 
accommodations. Public entities and small businesses located in 
older buildings need not comply with this requirement where it is 
technically infeasible to do so. Further, as pointed out by one 
commenter, modifying the call system so the accessible elevator can 
be summoned independently is another means of complying with this 
requirement in lieu of altering all other elevators programmed to 
respond to the same call button. Therefore, the Department has 
decided not to return this requirement to the Access Board.
    Location of accessible routes to stages. The 1991 Standards, at 
section 4.33.5, require an accessible route to connect the 
accessible seating and the stage, as well as other ancillary spaces 
used by performers. The 2010 Standards, at section 206.2.6, provide 
in addition that where a circulation path directly connects the 
seating area and the stage, the accessible route must connect 
directly the accessible seating and the stage, and, like the 1991 
Standards, an accessible route must connect the stage with the 
ancillary spaces used by performers.
    In the NPRM, the Department asked operators of auditoria about 
the extent to which auditoria already provide direct access to 
stages and whether there were planned alterations over the next 15 
years that included accessible direct routes to stages. The 
Department also asked how to quantify the benefits of this 
requirement for persons with disabilities, and invited commenters to 
provide illustrative anecdotal experiences about the requirement's 
benefits.
    The Department received many comments regarding the costs and 
benefits of this requirement. Although little detail was provided, 
many industry and governmental entity commenters anticipated that 
the costs of this requirement would be great and that it would be 
difficult to implement. They noted that premium seats may have to be 
removed and that load-bearing walls may have to be relocated. These 
commenters suggested that the significant costs would deter 
alterations to the stage area for a great many auditoria. Some 
commenters suggested that ramps to the front of the stage may 
interfere with means of egress and emergency exits. Several 
commenters requested that the requirement apply to new construction 
only, and one industry commenter requested an exemption for stages 
used in arenas or amusement parks where there is no audience 
participation or where the stage is a work area for performers only. 
One commenter requested that the requirement not apply to temporary 
stages.
    The final rule does not require a direct accessible route to be 
constructed where a direct circulation path from the seating area to 
the stage does not exist. Consequently, those commenters who 
expressed concern about the burden imposed by the revised 
requirement (i.e., where the stage is constructed with no direct 
circulation path connecting the general seating and performing area) 
should note that the final rule will not require the provision of a 
direct accessible route under these circumstances. The final rule 
applies to permanent stages, as well as ``temporary stages,'' if 
there is a direct circulation path from the seating area to the 
stage. However, the Department recognizes that in some 
circumstances, such as an alteration to a primary function area, the 
ability to provide a direct accessible route to a stage may be 
costly or technically infeasible, and the auditorium owner is not 
precluded by the revised requirement from asserting defenses 
available under the regulation. In addition, the Department notes 
that since section 4.33.5 of the 1991 Standards requires an 
accessible route to a stage, the safe harbor will apply to existing 
facilities whose stages comply with the 1991 Standards.
    Several governmental entities supported accessible auditoria and 
the revised requirement. One governmental entity noted that its 
State building code already required direct access, that it was 
possible to provide direct access, and that creative solutions had 
been found to do so.
    Many advocacy groups and individual commenters strongly 
supported the revised requirement, discussing the acute need for 
direct access to stages, as such access has an impact on a great 
number of people at important life events, such as graduations and 
awards ceremonies, at collegiate and competitive performances and 
other school events, and at entertainment events that include 
audience participation. Many commenters expressed the belief that 
direct access is essential for integration mandates to be satisfied, 
and that separate routes are stigmatizing and unequal. The 
Department agrees with these concerns.
    Commenters described the impact felt by persons in wheelchairs 
who are unable to access the stage at all when others are able to do 
so. Some of these commenters also discussed the need for the 
performers and production staff who use wheelchairs to have direct 
access to the stage, and they provided a number of examples that 
illustrated the importance of the rule proposed in the NPRM. 
Personal anecdotes were provided in comments and at the Department's 
public hearing on the NPRM. One mother spoke passionately and 
eloquently about the unequal treatment experienced by her daughter, 
who uses a wheelchair, at awards ceremonies and band concerts. Her 
daughter was embarrassed and ashamed to be carried by her father 
onto a stage at one band concert. When the venue had to be changed 
for another concert to an accessible auditorium, the band director 
made sure to comment that he was unhappy with the switch. Rather 
than endure the embarrassment and indignities, her child dropped out 
of band the following year.
    Another father commented about how he was unable to speak from 
the stage at a PTA meeting at his child's school. Speaking from the 
floor limited his line of sight and his participation. Several 
examples were provided of children who could not participate on 
stage during graduation, awards programs, or special school events, 
such as plays and festivities. One student did not attend his 
college graduation because he would not be able to get on stage. 
Another student was unable to participate in the class Christmas 
programs or end-of-year parties unless her father could attend and 
lift her onto the stage. These commenters did not provide a method 
to quantify the benefits that would accrue by having direct access 
to stages. One commenter stated, however, that ``the cost of dignity 
and respect is without measure.''
    Many industry commenters and governmental entities suggested 
that the

[[Page 56314]]

requirement be sent back to the Access Board for further 
consideration. One industry commenter mistakenly noted that some 
international building codes do not incorporate the requirement and 
that, therefore, there is a need for further consideration. However, 
the Department notes that both the 2003 and 2006 editions of the IBC 
include scoping provisions that are almost identical to this 
requirement and that these editions of the model code are the most 
frequently used. Many individuals and advocacy group commenters 
requested that the requirement be adopted without further delay. 
These commenters spoke of the acute need for direct access to stages 
and the amount of time it would take to resubmit the requirement to 
the Access Board. Several commenters noted that the 2004 ADAAG 
tracks recent model codes, and that there is thus no need for 
further consideration. The Department agrees that no further delay 
is necessary and therefore has decided it will not return the 
requirement to the Access Board for further consideration.
    Assistive listening systems. The 1991 Standards at sections 
4.33.6 and 4.33.7 require assistive listening systems (ALS) in 
assembly areas and prescribe general performance standards for ALS 
systems. In the NPRM, the Department proposed adopting the technical 
specifications in the 2004 ADAAG for ALS that are intended to ensure 
better quality and effective delivery of sound and information for 
persons with hearing impairments, especially those using hearing 
aids. The Department noted in the NPRM that since 1991, advancements 
in ALS and the advent of digital technology have made these systems 
more amenable to uniform standards, which, among other things, 
should ensure that a certain percentage of required ALS systems are 
hearing-aid compatible. 73 FR 34508, 34513 (June 17, 2008). The 2010 
Standards at section 219 provide scoping requirements and at section 
706 address receiver jacks, hearing aid compatibility, sound 
pressure level, signal-to-noise ratio, and peak clipping level. The 
Department requested comments specifically from arena and assembly 
area administrators on the cost and maintenance issues associated 
with ALS, and asked generally about the costs and benefits of ALS, 
and asked whether, based upon the expected costs of ALS, the issue 
should be returned to the Access Board for further consideration.
    Commenters from advocacy organizations noted that persons who 
develop significant hearing loss often discontinue their normal 
routines and activities, including meetings, entertainment, and 
large group events, due to a sense of isolation caused by the 
hearing loss or embarrassment. Individuals with longstanding hearing 
loss may never have participated in group activities for many of the 
same reasons. Requiring ALS may allow individuals with disabilities 
to contribute to the community by joining in government and public 
events, and through increased economic activity associated with 
community activities and entertainment. Making public events and 
entertainment accessible to persons with hearing loss also brings 
families and other groups that include persons with hearing loss 
into more community events and activities, thus exponentially 
increasing the benefit from ALS.
    Many commenters noted that when a person has significant hearing 
loss, that person may be able to hear and understand information in 
a quiet situation with the use of hearing aids or cochlear implants; 
however, as background noise increases and the distance between the 
source of the sound and the listener grows, and especially where 
there is distortion in the sound, an ALS becomes essential for basic 
comprehension and understanding. Commenters noted that among the 31 
million Americans with hearing loss, and with a projected increase 
to over 78 million Americans with hearing loss by 2030, the benefit 
from ALS is huge and growing. Advocates for persons with 
disabilities and individuals commented that they appreciated the 
improvements in the 2004 ADAAG standards for ALS, including 
specifications for the ALS systems and performance standards. They 
noted that providing neckloops that translate the signal from the 
ALS transmitter to a frequency that can be heard on a hearing aid or 
cochlear implant are much more effective than separate ALS system 
headsets, which sometimes create feedback, often malfunction, and 
may create distractions for others seated nearby. Comments from 
advocates and users of ALS systems consistently noted that the 
Department's regulation should, at a minimum, be consistent with the 
2004 ADAAG. Although there were requests for adjustments in the 
scoping requirements from advocates seeking increased scoping 
requirements, and from large venue operators seeking fewer 
requirements, there was no significant concern expressed by 
commenters about the technical specifications for ALS in the 2004 
ADAAG.
    Some commenters from trade associations and large venue owners 
criticized the scoping requirements as too onerous, and one 
commenter asked for a remand to the Access Board for new scoping 
rules. However, one State agency commented that the 2004 ADAAG 
largely duplicates the requirements in the 2006 IBC and the 2003 
ANSI codes, which means that entities that comply with those 
standards would not incur additional costs associated with ADA 
compliance.
    According to one State office of the courts, the costs to 
install either an infrared system or an FM system at average-sized 
facilities, including most courtrooms covered by title II, would be 
between $500 and $2,000, which the agency viewed as a small price in 
comparison to the benefits of inclusion. Advocacy organizations 
estimated wholesale costs of ALS systems at about $250 each, and 
individual neckloops to link the signal from the ALS transmitter to 
hearing aids or cochlear implants at less than $50 per unit. Many 
commenters pointed out that if a facility already is using induction 
neckloops, it would already be in compliance already and would not 
have any additional installation costs. One major city commented 
that annual maintenance is about $2,000 for the entire system of 
performance venues in the city. A trade association representing 
very large venues estimated annual maintenance and upkeep expenses, 
including labor and replacement parts, to be at most about $25,000 
for a very large professional sports stadium.
    One commenter suggested that the scoping requirements for ALS in 
the 2004 ADAAG were too stringent and that the Department should 
refer them back to the Access Board for further review and 
consideration. Others commented that the requirement for new ALS 
systems should mandate multichannel receivers capable of receiving 
audio description for persons who are blind, in addition to a 
channel for amplification for persons who are hard of hearing. Some 
commenters suggested that the Department should require a set 
schedule and protocol of mandatory maintenance. Department 
regulations already require maintenance of accessible features at 
Sec.  36.211(a) of the title III regulation, which obligates a title 
III entity to maintain ALS in good working order. The Department 
recognizes that maintenance of ALS is key to its usability. 
Necessary maintenance will vary dramatically from venue to venue 
based upon a variety of factors including frequency of use, number 
of units, quality of equipment, and other items. Accordingly, the 
Department has determined that it is not appropriate to mandate 
details of maintenance, but notes that failure to maintain ALS would 
violate Sec.  36.211(a) of this rule.
    The NPRM asked whether the Department should return the issue of 
ALS requirements to the Access Board for further review. The 
Department has received substantial feedback on the technical and 
scoping requirements for ALS and is convinced that these 
requirements are reasonable--especially in light of the fact that 
the requirements largely duplicate those in the 2006 IBC and the 
2003 ANSI codes already adopted in many States--and that the 
benefits justify the requirements. In addition, the Department 
believes that the new specifications will make ALS work more 
effectively for more persons with disabilities, which, together with 
a growing population of new users, will increase demand for ALS, 
thus mooting criticism from some large venue operators about 
insufficient demand. Thus, the Department has determined that it is 
unnecessary to refer this issue back to the Access Board for 
reconsideration.
    Accessible teeing grounds, putting greens, and weather shelters. 
The Department's NPRM sought public input on the proposed 
requirements for accessible golf courses. These requirements 
specifically relate to accessible routes within the boundaries of 
the courses, as well as the accessibility of golfing elements (e.g., 
teeing grounds, putting greens, weather shelters).
    In the NPRM, the Department sought information from the owners 
and operators of golf courses, both public and private, on the 
extent to which their courses already have golf car passages, and, 
if so, whether they intended to avail themselves of the proposed 
accessible route exception for golf car passages. 73 FR 34508, 34513 
(June 17, 2008).
    Most commenters expressed support for the adoption of an 
accessible route requirement that includes an exception permitting 
golf car passage as all or part of

[[Page 56315]]

an accessible route. Comments in favor of the proposed standard came 
from golf course owners and operators, individuals, organizations, 
and disability rights groups, while comments opposing adoption of 
the golf course requirements generally came from golf courses and 
organizations representing the golf course industry.
    The majority of commenters expressed the general viewpoint that 
nearly all golf courses provide golf cars and have either well-
defined paths or permit golf cars to drive on the course where paths 
are not present--and thus meet the accessible route requirement. 
Several commenters disagreed with the assumption in the Initial RIA 
that virtually every tee and putting green on an existing course 
would need to be regraded in order to provide compliant accessible 
routes. According to one commenter, many golf courses are relatively 
flat with little slope, especially those heavily used by 
recreational golfers. This commenter concurred with the Department 
that it is likely that most existing golf courses have a golf car 
passage to tees and greens, thereby substantially minimizing the 
cost of bringing an existing golf course into compliance with the 
proposed standards. One commenter reported that golf course access 
audits found that the vast majority of public golf courses would 
have little difficulty in meeting the proposed golf course 
requirements. In the view of some commenters, providing access to 
golf courses would increase golf participation by individuals with 
disabilities.
    The Department also received many comments requesting 
clarification of the term ``golf car passage.'' For example, one 
commenter requesting clarification of the term ``golf car passage'' 
argued that golf courses typically do not provide golf car paths or 
pedestrian paths onto the actual teeing grounds or greens, many of 
which are higher or lower than the car path. This commenter argued 
that if golf car passages were required to extend onto teeing 
grounds and greens in order to qualify for an exception, then some 
golf courses would have to substantially regrade teeing grounds and 
greens at a high cost.
    After careful consideration of the comments, the Department has 
decided to adopt the 2010 Standards specific to golf facilities. The 
Department believes that in order for individuals with mobility 
disabilities to have an opportunity to play golf that is equal to 
golfers without disabilities, it is essential that golf courses 
provide an accessible route or accessible golf car passage to 
connect accessible elements and spaces within the boundary of the 
golf course, including teeing grounds, putting greens, and weather 
shelters.

Public Comments on Other NPRM Issues

    Equipment and furniture. Equipment and furniture are covered 
under the Department's ADA regulations, including under the 
provision requiring modifications in policies, practices, and 
procedures and the provision requiring barrier removal. See 28 CFR 
36.302, 36.304. The Department has not issued specific regulatory 
guidance on equipment and furniture, but proposed such regulations 
in 1991. The Department decided not to establish specific equipment 
requirements at that time because the requirements could be 
addressed under other sections of the regulation and because there 
were no appropriate accessibility standards applicable to many types 
of equipment at that time. See 28 CFR part 36, app. B (2009) 
(``Proposed Section 36.309 Purchase of Furniture and Equipment'').
    In the NPRM, the Department announced its intention not to 
regulate equipment, proposing instead to continue with the current 
approach. The Department received numerous comments objecting to 
this decision and urging the Department to issue equipment and 
furniture regulations. Based on these comments, the Department has 
decided that it needs to revisit the issuance of equipment and 
furniture regulations, and it intends to do so in future rulemaking.
    Among the commenters' key concerns, many from the disability 
community objected to the Department's earlier decision not to issue 
equipment regulations, especially for medical equipment. These 
groups recommended that the Department list by name certain types of 
medical equipment that must be accessible, including exam tables 
(that lower to 15 inches above the floor or lower), scales, medical 
and dental chairs, and radiologic equipment (including mammography 
equipment). These commenters emphasized that the provision of 
medically-related equipment and furniture also should be 
specifically regulated since they are not included in the 2004 ADAAG 
(while depositories, change machines, fuel dispensers, and ATMs are) 
and because of their crucial role in the provision of healthcare. 
Commenters described how the lack of accessible medical equipment 
negatively affects the health of individuals with disabilities. For 
example, some individuals with mobility disabilities do not get 
thorough medical care because their health providers do not have 
accessible examination tables or scales.
    Commenters also said that the Department's stated plan to assess 
the financial impact of free-standing equipment on businesses was 
not necessary, as any regulations could include a financial-
balancing test. Other commenters representing persons who are blind 
or have low vision urged the Department to mandate accessibility for 
a wide range of equipment--including household appliances (stoves, 
washers, microwaves, and coffee makers), audiovisual equipment 
(stereos and DVD players), exercise machines, vending equipment, 
ATMs, computers at Internet cafes or hotel business centers, 
reservations kiosks at hotels, and point-of-sale devices--through 
speech output and tactile labels and controls. They argued that 
modern technology allows such equipment to be made accessible at 
minimal cost. According to these commenters, the lack of such 
accessibility in point-of-sale devices is particularly problematic 
because it forces blind individuals to provide personal or sensitive 
information (such as personal identification numbers) to third 
parties, which exposes them to identity fraud. Because the ADA does 
not apply directly to the manufacture of products, the Department 
lacks the authority to issue design requirements for equipment 
designed exclusively for use in private homes. See Department of 
Justice, Americans with Disabilities Act, ADA Title III Technical 
Assistance Manual Covering Public Accommodations and Commercial 
Facilities, III-4.4200, available at http://www.ada.gov/taman3.html. 
To the extent that equipment intended for such use is used by a 
covered entity to facilitate a covered service or activity, that 
covered entity must make the equipment accessible to the extent that 
it can. See id.: 28 CFR part 36, app. B (2009) (``Proposed Section 
36.309 Purchase of Furniture and Equipment'').
    Some commenters urged the Department to require swimming pool 
operators to provide aquatic wheelchairs for the use of persons with 
disabilities when the swimming pool has a sloped entry. If there is 
a sloped entry, a person who uses a wheelchair would require a 
wheelchair designed for use in the water in order to gain access to 
the pool since taking a personal wheelchair into water would rust 
and corrode the metal on the chair and damage any electrical 
components of a power wheelchair. Providing an aquatic wheelchair 
made of non-corrosive materials and designed for access into the 
water will protect the water from contamination and avoid damage to 
personal wheelchairs or other mobility aids.
    Additionally, many commenters urged the Department to regulate 
the height of beds in accessible hotel guest rooms and to ensure 
that such beds have clearance at the floor to accommodate a 
mechanical lift. These commenters noted that in recent years, hotel 
beds have become higher as hotels use thicker mattresses, thereby 
making it difficult or impossible for many individuals who use 
wheelchairs to transfer onto hotel beds. In addition, many hotel 
beds use a solid-sided platform base with no clearance at the floor, 
which prevents the use of a portable lift to transfer an individual 
onto the bed. Consequently, individuals who bring their own lift to 
transfer onto the bed cannot independently get themselves onto the 
bed. Some commenters suggested various design options that might 
avoid these situations.
    The Department intends to provide specific guidance relating to 
both hotel beds and aquatic wheelchairs in a future rulemaking. For 
the present, the Department reminds covered entities that they have 
the obligation to undertake reasonable modifications to their 
current policies and procedures and to undertake barrier removal or 
provide alternatives to barrier removal to make their facilities 
accessible to persons with disabilities. In many cases, providing 
aquatic wheelchairs or adjusting hotel bed heights may be necessary 
to comply with those requirements.
    Commenters from the business community objected to the lack of 
clarity from the NPRM as to which equipment must be accessible and 
how to make it accessible. Several commenters urged the Department 
to clarify that equipment located in a public accommodation need not 
meet the technical specifications of ADAAG so long as the service 
provided by the equipment can be provided by alternative means, such 
as an

[[Page 56316]]

employee. For example, the commenters suggested that a self-service 
check-in kiosk in a hotel need not comply with the reach range 
requirement so long as a guest can check in at the front desk 
nearby. Several commenters argued that the Department should not 
require that point-of-sale devices be accessible to individuals who 
are blind or have low vision (although complying with accessible 
route and reach range was acceptable), especially until the 
Department adopts specific standards governing such access.
    The Department has decided not to add specific scoping or 
technical requirements for equipment and furniture in this final 
rule. Other provisions of the regulation, including those requiring 
reasonable modifications of policies, practices, or procedures, 
readily achievable barrier removal, and effective communication will 
require the provision of accessible equipment in appropriate 
circumstances. Because it is clear that many commenters want the 
Department to provide additional specific requirements for 
accessible equipment, the Department plans to initiate a rulemaking 
to address these issues in the near future.
    Accessible golf cars. An accessible golf car means a device that 
is designed and manufactured to be driven on all areas of a golf 
course, is independently usable by individuals with mobility 
disabilities, has a hand-operated brake and accelerator, carries 
golf clubs in an accessible location, and has a seat that both 
swivels and raises to put the golfer in a standing or semi-standing 
position. The 1991 regulation contained no language specifically 
referencing accessible golf cars. After considering the comments 
addressing the ANPRM's proposed requirement that golf courses make 
at least one specialized golf car available for the use of 
individuals with disabilities, and the safety of accessible golf 
cars and their use on golf course greens, the Department stated in 
the NPRM that it would not issue regulations specific to golf cars.
    The Department received many comments in response to its 
decision to propose no new regulation specific to accessible golf 
cars. The majority of commenters urged the Department to require 
golf courses to provide accessible golf cars. These comments came 
from individuals, disability advocacy and recreation groups, a 
manufacturer of accessible golf cars, and representatives of local 
government. Comments supporting the Department's decision not to 
propose a new regulation came from golf course owners, associations, 
and individuals.
    Many commenters argued that while the existing title III 
regulation covered the issue, the Department should nonetheless 
adopt specific regulatory language requiring golf courses to provide 
accessible golf cars. Some commenters noted that many local 
governments and park authorities that operate public golf courses 
have already provided accessible golf cars. Experience indicates 
that such golf cars may be used without damaging courses. Some 
argued that having accessible golf cars would increase golf course 
revenue by enabling more golfers with disabilities to play the game. 
Several commenters requested that the Department adopt a regulation 
specifically requiring each golf course to provide one or more 
accessible golf cars. Other commenters recommended allowing golf 
courses to make ``pooling'' arrangements to meet demands for such 
cars. A few commenters expressed support for using accessible golf 
cars to accommodate golfers with and without disabilities. 
Commenters also pointed out that the Departments of the Interior and 
Defense have already mandated that golf courses under their 
jurisdictional control must make accessible golf cars available 
unless it can be demonstrated that doing so would change the 
fundamental nature of the game.
    While an industry association argued that at least two models of 
accessible golf cars meet the specifications recognized in the 
field, and that accessible golf cars cause no more damage to greens 
or other parts of golf courses than players standing or walking 
across the course, other commenters expressed concerns about the 
potential for damage associated with the use of accessible golf 
cars. Citing safety concerns, golf organizations recommended that an 
industry safety standard be developed.
    Although the Department declines to add specific scoping or 
technical requirements for golf cars to this final rule, the 
Department expects to address requirements for accessible golf cars 
in future rulemaking. In the meantime, the Department believes that 
golfers with disabilities who need accessible golf cars are 
protected by other existing provisions in the title III regulation, 
including those requiring reasonable modifications of policies, 
practices, or procedures, and readily achievable barrier removal.
    Web site accessibility. Many commenters expressed disappointment 
that the NPRM did not specifically require title III-covered 
entities to make their Web sites, through which they offer goods and 
services, accessible to individuals with disabilities. Commenters 
urged the Department to require specifically that entities that 
provide goods or services on the Internet make their Web sites 
accessible, regardless of whether or not these entities also have a 
``bricks and mortar'' location. The commenters explained that such 
clarification was needed because of the current ambiguity caused by 
court decisions as to whether web-only businesses are covered under 
title III. Commenters argued that the cost of making Web sites 
accessible through Web site design is minimal, yet critical, to 
enabling individuals with disabilities to benefit from the goods and 
services an entity offers through its Web site. The Internet has 
become an essential tool for many Americans and, when accessible, 
provides individuals with disabilities great independence. 
Commenters recommended that, at a minimum, the Department require 
covered entities to meet the Electronic and Information Technology 
Accessibility Standards issued pursuant to section 508. Under 
section 508 of the Rehabilitation Act of 1973, Federal agencies are 
required to make their Web sites accessible. 29 U.S.C. 794(d); 36 
CFR Part 1194.
    The Department agrees that the ability to access the goods and 
services offered on the Internet through the Web sites of public 
accommodations is of great importance to individuals with 
disabilities, particularly those who are blind or who have low 
vision. When the ADA was enacted in 1990, the Internet was unknown 
to most of the public. Today, the Internet plays a critical role in 
daily life for personal, civic, commercial, and business purposes. 
In light of the growing importance of eBcommerce, ensuring 
nondiscriminatory access to the goods and services offered through 
the Web sites of covered entities can play a significant role in 
fulfilling the goals of the ADA.
    Although the language of the ADA does not explicitly mention the 
Internet, the Department has taken the position that title III 
covers access to Web sites of public accommodations. The Department 
has issued guidance on the ADA as applied to the Web sites of public 
entities, which includes the availability of standards for Web site 
accessibility. See Accessibility of State and Local Government 
Websites to People with Disabilities (June 2003), available at 
www.ada.gov/websites2.htm. As the Department stated in that 
publication, an agency (and similarly a public accommodation) with 
an inaccessible Web site also may meet its legal obligations by 
providing an accessible alternative for individuals to enjoy its 
goods or services, such as a staffed telephone information line. 
However, such an alternative must provide an equal degree of access 
in terms of hours of operation and range of options and programs 
available. For example, if retail goods or bank services are posted 
on an inaccessible Web site that is available 24 hours a day, 7 days 
a week to individuals without disabilities, then the alternative 
accessible method must also be available 24 hours a day, 7 days a 
week. Additional guidance is available in the Web Content 
Accessibility Guidelines (WCAG), available at http://www.w3.org/TR/WAI-WEBCONTENT (last visited June 24, 2010), which are developed and 
maintained by the Web Accessibility Initiative, a subgroup of the 
World Wide Web Consortium (W3C[supreg]).
    The Department did not issue proposed regulations as part of its 
NPRM, and thus is unable to issue specific regulatory language on 
Web site accessibility at this time. However, the Department expects 
to engage in rulemaking relating to Web site accessibility under the 
ADA in the near future.
    Multiple chemical sensitivities. The Department received 
comments from a number of individuals asking the Department to add 
specific language to the final rule addressing the needs of 
individuals with chemical sensitivities. These commenters expressed 
concern that the presence of chemicals interferes with their ability 
to participate in a wide range of activities. These commenters also 
urged the Department to add multiple chemical sensitivities to the 
definition of a disability.
    The Department has determined not to include specific provisions 
addressing multiple chemical sensitivities in the final rule. In 
order to be viewed as a disability under the ADA, an impairment must 
substantially limit one or more major life activities. An 
individual's major life

[[Page 56317]]

activities of respiratory or neurological functioning may be 
substantially limited by allergies or sensitivity to a degree that 
he or she is a person with a disability. When a person has this type 
of disability, a covered entity may have to make reasonable 
modifications in its policies and practices for that person. 
However, this determination is an individual assessment and must be 
made on a case-by-case basis.

0
22. Redesignate Appendix B to part 36 as Appendix C to part 36 and add 
Appendix B to part 36 to read as follows:

Appendix B to Part 36--Analysis and Commentary on the 2010 ADA 
Standards for Accessible Design

Appendix B to Part 36

Analysis and Commentary on the 2010 ADA Standards for Accessible 
Design

    The following is a discussion of substantive changes in the 
scoping and technical requirements for new construction and 
alterations resulting from the adoption of new ADA Standards for 
Accessible Design (2010 Standards) in the final rules for title II 
(28 CFR part 35) and title III (28 CFR part 36) of the Americans 
with Disabilities Act (ADA). The full text of the 2010 Standards is 
available for review at http://www.ada.gov.
    In the Department's revised ADA title II regulation, 28 CFR 
35.104 Definitions, the Department defines the term ``2010 
Standards'' to mean the 2010 ADA Standards for Accessible Design. 
The 2010 Standards consist of the 2004 ADA Accessibility Guidelines 
(ADAAG) and the requirements contained in 28 CFR 35.151.
    In the Department's revised ADA title III regulation, 28 CFR 
36.104 Definitions, the Department defines the term ``2010 
Standards'' to mean the 2010 ADA Standards for Accessible Design. 
The 2010 Standards consist of the 2004 ADA Accessibility Guidelines 
(ADAAG) and the requirements contained in 28 CFR part 36 subpart D.
    This summary addresses selected substantive changes between the 
1991 ADA Standards for Accessible Design (1991 Standards) codified 
at 28 CFR part 36, app. A (2009) and the 2010 Standards.
    Editorial changes are not discussed. Scoping and technical 
requirements are discussed together, where appropriate, for ease of 
understanding the requirements. In addition, this document addresses 
selected public comments received by the Department in response to 
its September 2004 Advance Notice of Proposed Rulemaking (ANPRM) and 
its June 2008 Notice of Proposed Rulemaking (NPRM).
    The ANPRM and NPRM issued by the Department concerning the 
proposed 2010 Standards stated that comments received by the Access 
Board in response to its development of the ADAAG upon which the 
2010 Standards are based would be considered in the development of 
the final Standards. Therefore, the Department will not restate here 
all of the comments and responses to them issued by the Access 
Board. The Department is supplementing the Access Board's comments 
and responses with substantive comments and responses here. Comments 
and responses addressed by the Access Board that also were 
separately submitted to the Department will not be restated in their 
entirety here.

Section-by-Section Analysis With Public Comments

Application and Administration

102 Dimensions for Adults and Children

    Section 2.1 of the 1991 Standards stated that the specifications 
were based upon adult dimensions and anthropometrics. The 1991 
Standards did not provide specific requirements for children's 
elements or facilities.
    Section 102 of the 2010 Standards states that the technical 
requirements are based on adult dimensions and anthropometrics. In 
addition, technical requirements are also provided based on 
children's dimensions and anthropometrics for drinking fountains, 
water closets and other elements located in toilet compartments, 
lavatories and sinks, dining surfaces, and work surfaces.

103 Equivalent Facilitation

    This section acknowledges that nothing in these requirements 
prevents the use of designs, products, or technologies as 
alternatives to those prescribed, provided that the alternatives 
result in substantially equivalent or greater accessibility and 
usability.
    A commenter encouraged the Department to include a procedure for 
determining equivalent facilitation. The Department believes that 
the responsibility for determining and demonstrating equivalent 
facilitation properly rests with the covered entity. The purpose of 
allowing for equivalent facilitation is to encourage flexibility and 
innovation while still ensuring access. The Department believes that 
establishing potentially cumbersome bureaucratic provisions for 
reviewing requests for equivalent facilitation is inappropriate.

104 Conventions

    Dimensions. Section 104.1 of the 2010 Standards notes that 
dimensions not stated as a ``maximum'' or ``minimum'' are absolute. 
Section 104.1.1 of the 2010 Standards provides that all dimensions 
are subject to conventional industry tolerances except where the 
requirement is stated as a range with specific minimum and maximum 
end points. A commenter stated that the 2010 Standards restrict the 
application of construction tolerances only to those few 
requirements that are expressed as an absolute dimension.
    This is an incorrect interpretation of sections 104.1 and 
104.1.1 of the 2010 Standards. Construction and manufacturing 
tolerances apply to absolute dimensions as well as to dimensions 
expressed as a maximum or minimum. When the requirement states a 
specified range, such as in section 609.4 where grab bars must be 
installed between 33 inches and 36 inches above the finished floor, 
that range provides an adequate tolerance. Advisory 104.1.1 gives 
further guidance about tolerances.
    Section 104.2 of the 2010 Standards provides that where the 
required number of elements or facilities to be provided is 
determined by calculations of ratios or percentages and remainders 
or fractions result, the next greater whole number of such elements 
or facilities shall be provided. Where the determination of the 
required size or dimension of an element or facility involves ratios 
or percentages, rounding down for values less than one-half is 
permissible.
    A commenter stated that it is customary in the building code 
industry to round up rather than down for values less than one-half. 
As noted here, where the 2010 Standards provide for scoping, any 
resulting fractional calculations will be rounded to the next whole 
number. The Department is retaining the portion of section 104.2 
that permits rounding down for values less than one-half where the 
determination of the required size or dimension of an element or 
facility involves ratios or percentages. Such practice is standard 
with the industry, and is in keeping with model building codes.

105 Referenced Standards

    Section 105 lists the industry requirements that are referenced 
in the 2010 Standards. This section also clarifies that where there 
is a difference between a provision of the 2010 Standards and the 
referenced requirements, the provision of the 2010 Standards 
applies.

106 Definitions

    Various definitions have been added to the 2010 Standards and 
some definitions have been deleted.
    One commenter asked that the term public right-of-way be 
defined; others asked that various terms and words defined by the 
1991 Standards, but which were eliminated from the 2010 Standards, 
plus other words and terms used in the 2010 Standards, be defined.
    The Department believes that it is not necessary to add 
definitions to this text because section 106.3 of the 2010 Standards 
provides that the meanings of terms not specifically defined in the 
2010 Standards, in the Department's ADA regulations, or in 
referenced standards are to be defined by collegiate dictionaries in 
the sense that the context implies. The Department believes that 
this provision adequately addresses these commenters' concerns.

Scoping and Technical Requirements

202 Existing Buildings and Facilities

    Alterations. Under section 4.1.6(1)(c) of the 1991 Standards if 
alterations to single elements, when considered together, amount to 
an alteration of a room or space in a building or facility, the 
entire room or space would have to be made accessible. This 
requirement was interpreted to mean that if a covered entity chose 
to alter several elements in a room there would come a point when so 
much work had been done that it would be considered that the entire 
room or space would have to be made accessible. Under section 202.3 
of the 2010 Standards entities can alter as many elements within a 
room or space as they like without triggering a requirement to make 
the entire room or space accessible based on the alteration of 
individual elements. This does not, however, change the requirement 
that if the intent was to alter the entire room or space, the entire

[[Page 56318]]

room or space must be made accessible and comply with the applicable 
requirements of Chapter 2 of the 2010 Standards.
    Alterations to Primary Function Areas. Section 202.4 restates a 
current requirement under title III, and therefore represents no 
change for title III facilities or for those title II facilities 
that have elected to comply with the 1991 Standards. However, under 
the revised title II regulation, state and local government 
facilities that have previously elected to comply with the Uniform 
Federal Accessibility Standards (UFAS) instead of the 1991 Standards 
will no longer have that option, and thus will now be subject to the 
path of travel requirement. The path of travel requirement provides 
that when a primary function area of an existing facility is 
altered, the path of travel to that area (including restrooms, 
telephones, and drinking fountains serving the area) must also be 
made accessible, but only to the extent that the cost of doing so 
does not exceed twenty percent (20%) of the cost of the alterations 
to the primary function area. The UFAS requirements for a 
substantial alteration, though different, may have covered some of 
the items that will now be covered by the path of travel 
requirement.
    Visible Alarms in Alterations to Existing Facilities. The 1991 
Standards, at sections 4.1.3(14) and 4.1.6(1)(b), and sections 202.3 
and 215.1 of the 2010 Standards require that when existing elements 
and spaces of a facility are altered, the alterations must comply 
with new construction requirements. Section 215.1 of the 2010 
Standards adds a new exception to the scoping requirement for 
visible alarms in existing facilities so that visible alarms must be 
installed only when an existing fire alarm system is upgraded or 
replaced, or a new fire alarm system is installed.
    Some commenters urged the Department not to include the 
exception and to make visible alarms a mandatory requirement for all 
spaces, both existing and new. Other commenters said that the 
exception will make the safety of individuals with disabilities 
dependent upon the varying age of existing fire alarm systems. Other 
commenters suggested that including this requirement, even with the 
exception, will result in significant cost to building owners and 
operators.
    The Department believes that the language of the exception to 
section 215.1 of the 2010 Standards strikes a reasonable balance 
between the interests of individuals with disabilities and those of 
the business community. If undertaken at the time a system is 
installed, whether in a new facility or in a planned system upgrade, 
the cost of adding visible alarms is reasonable. Over time, existing 
facilities will become fully accessible to individuals who are deaf 
or hard of hearing, and will add minimal costs to owners and 
operators.

203 General Exceptions

    Limited Access Spaces and Machinery Spaces. The 1991 Standards, 
at section 4.1.1, contain an exception that exempts ``non-
occupiable'' spaces that have limited means of access, such as 
ladders or very narrow passageways, and that are visited only by 
service personnel for maintenance, repair, or occasional monitoring 
of equipment, from all accessibility requirements. Sections 203.4 
and 203.5 of the 2010 Standards expand this exception by removing 
the condition that the exempt spaces be ``non-occupiable,'' and by 
separating the other conditions into two independent exceptions: one 
for spaces with limited means of access, and the other for machinery 
spaces. More spaces are exempted by the exception in the 2010 
Standards.

203, 206 and 215 Employee Work Areas

    Common Use Circulation Paths in Employee Work Areas. The 1991 
Standards at section 4.1.1(3), and the 2010 Standards at section 
203.9, require employee work areas in new construction and 
alterations only to be designed and constructed so that individuals 
with disabilities can approach, enter, and exit the areas. Section 
206.2.8 of the 2010 Standards requires accessible common use 
circulation paths within employee work areas unless they are subject 
to exceptions in sections 206.2.8, 403.5, 405.5, and 405.8. The ADA, 
42 U.S.C. 12112 (b)(5)(A) and (B), requires employers to make 
reasonable accommodations in the workplace for individuals with 
disabilities, which may include modifications to work areas when 
needed. Providing increased access in the facility at the time of 
construction or alteration will simplify the process of providing 
reasonable accommodations when they are needed.
    The requirement for accessible common use circulation paths will 
not apply to existing facilities pursuant to the readily achievable 
barrier removal requirement. The Department has consistently taken 
the position that barrier removal requirements do not apply to areas 
used exclusively by employees because the purpose of title III is to 
ensure that access is provided to clients and customers. See 
Appendix B to the 1991 regulation implementing title III, 28 CFR 
part 36.
    Several exceptions to section 206.2.8 of the 2010 Standards 
exempt common use circulation paths in employee work areas from the 
requirements of section 402 where it may be difficult to comply with 
the technical requirements for accessible routes due to the size or 
function of the area:
    <bullet> Employee work areas, or portions of employee work 
areas, that are less than 300 square feet and are elevated 7 inches 
or more above the ground or finish floor, where elevation is 
essential to the function of the space, are exempt.
    <bullet> Common use circulation paths within employee work areas 
that are less than 1,000 square feet and are defined by permanently 
installed partitions, counters, casework, or furnishings are exempt. 
Kitchens in quick service restaurants, cocktail bars, and the 
employee side of service counters are frequently covered by this 
exception.
    <bullet> Common use circulation paths within exterior employee 
work areas that are fully exposed to the weather are exempt. Farms, 
ranches, and outdoor maintenance facilities are covered by this 
exception.
    The 2010 Standards in sections 403.5 and 405.8 also contain 
exceptions to the technical requirements for accessible routes for 
circulation paths in employee work areas:
    <bullet> Machinery and equipment are permitted to reduce the 
clear width of common use circulation paths where the reduction is 
essential to the function of the work performed. Machinery and 
equipment that must be placed a certain way to work properly, or for 
ergonomics or to prevent workplace injuries are covered by this 
exception.
    <bullet> Handrails are not required on ramps, provided that they 
can be added in the future.
    Commenters stated that the requirements set out in the 2010 
Standards for accessible common use circulation paths in employee 
work areas are inappropriate, particularly in commercial kitchens, 
storerooms, and behind cocktail bars where wheelchairs would not be 
easily accommodated. These commenters further urged the Department 
not to adopt a requirement that circulation paths in employee work 
areas be at least 36 inches wide, including those at emergency 
exits.
    These commenters misunderstand the scope of the provision. 
Nothing in the 2010 Standards requires all circulation paths in non-
exempt areas to be accessible. The Department recognizes that 
building codes and fire and life safety codes, which are adopted by 
all of the states, require primary circulation paths in facilities, 
including employee work areas, to be at least 36 inches wide for 
purposes of emergency egress. Accessible routes also are at least 36 
inches wide. Therefore, the Department anticipates that covered 
entities will be able to satisfy the requirement to provide 
accessible circulation paths by ensuring that their required primary 
circulation paths are accessible.
    Individual employee work stations, such as a grocery checkout 
counter or an automobile service bay designed for use by one person, 
do not contain common use circulation paths and are not required to 
comply. Other work areas, such as stockrooms that typically have 
narrow pathways between shelves, would be required to design only 
one accessible circulation path into the stockroom. It would not be 
necessary to make each circulation path in the room accessible. In 
alterations it may be technically infeasible to provide accessible 
common use circulation paths in some employee work areas. For 
example, in a stock room of a department store significant existing 
physical constraints, such as having to move walls to avoid the loss 
of space to store inventory, may mean that it is technically 
infeasible (see section 106.5 ``Defined Terms'' of the 2010 
Standards) to make even the primary common use circulation path in 
that stock room wide enough to be accessible. In addition, the 2010 
Standards include exceptions for common use circulation paths in 
employee work areas where it may be difficult to comply with the 
technical requirements for accessible routes due to the size or 
function of the areas. The Department believes that these exceptions 
will provide the flexibility necessary to ensure that this 
requirement does not interfere with legitimate business operations.
    Visible Alarms. Section 215.3 of the 2010 Standards provides 
that where employee work areas in newly constructed facilities have 
audible alarm coverage they are

[[Page 56319]]

required to have wiring systems that are capable of supporting 
visible alarms that comply with section 702 of the 2010 Standards. 
The 1991 Standards, at section 4.1.1(3), require visible alarms to 
be provided where audible fire alarm systems are provided, but do 
not require areas used only by employees as work areas to be 
equipped with accessibility features. As applied to office 
buildings, the 1991 Standards require visible alarms to be provided 
in public and common use areas such as hallways, conference rooms, 
break rooms, and restrooms, where audible fire alarm systems are 
provided.
    Commenters asserted that the requirements of section 215.3 of 
the 2010 Standards would be burdensome to meet. These commenters 
also raised concerns that all employee work areas within existing 
buildings and facilities must be equipped with accessibility 
features.
    The commenters' concerns about section 215.3 of the 2010 
Standards represent a misunderstanding of the requirements 
applicable to employee work areas.
    Newly constructed buildings and facilities merely are required 
to provide wiring so that visible alarm systems can be added as 
needed to accommodate employees who are deaf or hard of hearing. 
This is a minimal requirement without significant impact.
    The other issue in the comments represents a misunderstanding of 
the Department's existing regulatory requirements. Employee common 
use areas in covered facilities (e.g., locker rooms, break rooms, 
cafeterias, toilet rooms, corridors to exits, and other common use 
spaces) were required to be accessible under the 1991 Standards; 
areas in which employees actually perform their jobs are required to 
enable a person using a wheelchair or mobility device to approach, 
enter, and exit the area. The 2010 Standards require increased 
access through the accessible common use circulation path 
requirement, but neither the 1991 Standards nor the 2010 Standards 
require employee work stations to be accessible. Access to specific 
employee work stations is governed by title I of the ADA.

205 and 309 Operable Parts

    Section 4.1.3, and more specifically sections 4.1.3(13), 4.27.3, 
and 4.27.4 of the 1991 Standards, require operable parts on 
accessible elements, along accessible routes, and in accessible 
rooms and spaces to comply with the technical requirements for 
operable parts, including height and operation. The 1991 Standards, 
at section 4.27.3, contain an exception, ``* * * where the use of 
special equipment dictates otherwise or where electrical and 
communications systems receptacles are not normally intended for use 
by building occupants,'' from the technical requirement for the 
height of operable parts. Section 205.1 of the 2010 Standards 
divides this exception into three exceptions covering operable parts 
intended only for use by service or maintenance personnel, 
electrical or communication receptacles serving a dedicated use, and 
floor electrical receptacles. Operable parts covered by these new 
exceptions are exempt from all of the technical requirements for 
operable parts in section 309. The 2010 Standards also add 
exceptions that exempt certain outlets at kitchen counters; heating, 
ventilating and air conditioning diffusers; redundant controls 
provided for a single element, other than light switches; and 
exercise machines and equipment from all of the technical 
requirements for operable parts. Exception 7, in section 205.1 of 
the 2010 Standards, exempts cleats and other boat securement devices 
from the accessible height requirement. Similarly, section 309.4 of 
the 2010 Standards exempts gas pump nozzles, but only from the 
technical requirement for activating force.
    Reach Ranges. The 1991 Standards set the maximum height for side 
reach at 54 inches above the floor. The 2010 Standards, at section 
308.3, lower that maximum height to 48 inches above the finish floor 
or ground. The 2010 Standards also add exceptions, as discussed 
above, to the scoping requirement for operable parts for certain 
elements that, among other things, will exempt them from the reach 
range requirements in section 308.
    The 1991 Standards, at sections 4.1.3, 4.27.3, and 4.2.6, and 
the 2010 Standards, at sections 205.1, 228.1, 228.2, 308.3, and 
309.3, require operable parts of accessible elements, along 
accessible routes, and in accessible rooms and spaces to be placed 
within the forward or side-reach ranges specified in section 308. 
The 2010 Standards also require at least five percent (5%) of 
mailboxes provided in an interior location and at least one of each 
type of depository, vending machine, change machine, and gas pump to 
meet the technical requirements for a forward or a side reach.
    Section 4.2.6 of the 1991 Standards specifies a maximum 54-inch 
high side reach and a minimum 9-inch low side reach for an 
unobstructed reach depth of 10 inches maximum. Section 308.3.1 of 
the 2010 Standards specifies a maximum 48-inch high side reach and a 
minimum 15-inch low side reach where the element being reached for 
is unobstructed. Section 308.3.1, Exception 1, permits an 
obstruction that is no deeper than 10 inches between the edge of the 
clear floor or ground space and the element that the individual with 
a disability is trying to reach. Changes in the side-reach range for 
new construction and alterations in the 2010 Standards will affect a 
variety of building elements such as light switches, electrical 
outlets, thermostats, fire alarm pull stations, card readers, and 
keypads.
    Commenters were divided in their views about the changes to the 
unobstructed side-reach range. Disability advocacy groups and 
others, including individuals of short stature, supported the 
modifications to the proposed reach range requirements. Other 
commenters stated that the new reach range requirements will be 
burdensome for small businesses to comply with. These comments 
argued that the new reach range requirements restrict design 
options, especially in residential housing.
    The Department continues to believe that data submitted by 
advocacy groups and others provides compelling evidence that lowered 
reach range requirements will better serve significantly greater 
numbers of individuals with disabilities, including individuals of 
short stature, persons with limited upper body strength, and others 
with limited use of their arms and fingers. The change to the side-
reach range was developed by the Access Board over a prolonged 
period in which there was extensive public participation. This 
process did not produce any significant data to indicate that 
applying the new unobstructed side-reach range requirement in new 
construction or during alterations would impose a significant 
burden.

206 and Chapter 4 Accessible Routes

    Slope. The 2010 Standards provide, at section 403.3, that the 
cross slope of walking surfaces not be steeper than 1:48. The 1991 
Standards' cross slope requirement was that it not exceed 1:50. A 
commenter recommended increasing the cross slope requirement to 
allow a maximum of \1/2\ inch per foot (1:24) to prevent 
imperfections in concrete surfaces from ponding water. The 
Department continues to believe that the requirement that a cross 
slope not be steeper than 1:48 adequately provides for water 
drainage in most situations. The suggested changes would double the 
allowable cross slope and create a significant impediment for many 
wheelchair users and others with a mobility disability.
    Accessible Routes from Site Arrival Points and Within Sites. The 
1991 Standards, at sections 4.1.2(1) and (2), and the 2010 
Standards, at sections 206.2.1 and 206.2.2, require that at least 
one accessible route be provided within the site from site arrival 
points to an accessible building entrance and that at least one 
accessible route connect accessible facilities on the same site. The 
2010 Standards also add two exceptions that exempt site arrival 
points and accessible facilities within a site from the accessible 
route requirements where the only means of access between them is a 
vehicular way that does not provide pedestrian access.
    Commenters urged the Department to eliminate the exception that 
exempts site arrival points and accessible facilities from the 
accessible route requirements where the only means of access between 
them is a vehicular way not providing pedestrian access. The 
Department declines to accept this recommendation because the 
Department believes that its use will be limited. If it can be 
reasonably anticipated that the route between the site arrival point 
and the accessible facilities will be used by pedestrians, 
regardless of whether a pedestrian route is provided, then this 
exception will not apply. It will apply only in the relatively rare 
situations where the route between the site arrival point and the 
accessible facility dictates vehicular access--for example, an 
office complex on an isolated site that has a private access road, 
or a self-service storage facility where all users are expected to 
drive to their storage units.
    Another commenter suggested that the language of section 406.1 
of the 2010 Standards is confusing because it states that curb ramps 
on accessible routes shall comply with 406, 405.2 through 405.5, and 
405.10. The 1991 Standards require that curb ramps be provided 
wherever an accessible route crosses a curb.
    The Department declines to change this language because the 
change is purely

[[Page 56320]]

editorial, resulting from the overall changes in the format of the 
2010 Standards. It does not change the substantive requirement. In 
the 2010 Standards all elements on a required accessible route must 
be accessible; therefore, if the accessible route crosses a curb, a 
curb ramp must be provided.
    Areas of Sport Activity. Section 206.2.2 of the 2010 Standards 
requires at least one accessible route to connect accessible 
buildings, facilities, elements, and spaces on the same site. 
Advisory section 206.2.2 adds the explanation that an accessible 
route must connect the boundary of each area of sport activity 
(e.g., courts and playing fields, whether indoor or outdoor). 
Section 206.2.12 of the 2010 Standards further requires that in 
court sports the accessible route must directly connect both sides 
of the court.
    Limited-Use/Limited-Application Elevators, Destination-Oriented 
Elevators and Private Residence Elevators. The 1991 Standards, at 
section 4.1.3(5), and the 2010 Standards, at sections 206.2 and 
206.6, include exceptions to the scoping requirement for accessible 
routes that exempt certain facilities from connecting each story 
with an elevator. If a facility is exempt from the scoping 
requirement, but nonetheless installs an elevator, the 1991 
Standards require the elevator to comply with the technical 
requirements for elevators. The 2010 Standards add a new exception 
that allows a facility that is exempt from the scoping requirement 
to install a limited-use/limited-application (LULA) elevator. LULA 
elevators are also permitted in the 1991 Standards and the 2010 
Standards as an alternative to platform lifts. The 2010 Standards 
also add a new exception that permits private residence elevators in 
multi-story dwelling and transient lodging units. The 2010 Standards 
contain technical requirements for LULA elevators at section 408 and 
private residence elevators at section 409.
    Section 407.2.1.4 of the 2010 Standards includes an exception to 
the technical requirements for locating elevator call buttons for 
destination-oriented elevators. The advisory at section 407.2.1.4 
describes lobby controls for destination-oriented elevator systems. 
Many elevator manufacturers have recently developed these new 
``buttonless'' elevator control systems. These new, more efficient 
elevators are usually found in high-rise buildings that have several 
elevators. They require passengers to enter their destination floor 
on an entry device, usually a keypad, in the elevator lobby. The 
system then sends the most efficient car available to take all of 
the passengers going to the sixth floor, for example, only to the 
sixth floor, without making stops at the third, fourth, and fifth 
floors on the way to the sixth floor. The challenge for individuals 
who are blind or have low vision is how to know which elevator car 
to enter, after they have entered their destination floor into the 
keypad.
    Commenters requested that the Department impose a moratorium on 
the installation of destination-oriented elevators arguing that this 
new technology presents wayfinding challenges for persons who are 
blind or have low vision.
    Section 407.2.1.5 of the 2010 Standards allows destination-
oriented elevators to not provide call buttons with visible signals 
to indicate when each call is registered and when each call is 
answered provided that visible and audible signals, compliant with 
407.2.2 of the 2010 Standards, indicating which elevator car to 
enter, are provided. This will require the responding elevator car 
to automatically provide audible and visible communication so that 
the system will always verbally and visually indicate which elevator 
car to enter.
    As with any new technology, all users must have time to become 
acquainted with how to use destination-oriented elevators. The 
Department will monitor the use of this new technology and work with 
the Access Board so that there is not a decrease in accessibility as 
a result of permitting this new technology to be installed.
    Accessible Routes to Tiered Dining Areas in Sports Facilities. 
The 1991 Standards, at sections 4.1.3(1) and 5.4, and section 
206.2.5 of the 2010 Standards require an accessible route to be 
provided to all dining areas in new construction, including raised 
or sunken dining areas. The 2010 Standards add a new exception for 
tiered dining areas in sports facilities. Dining areas in sports 
facilities are typically integrated into the seating bowl and are 
tiered to provide adequate lines of sight for individuals with 
disabilities. The new exception requires accessible routes to be 
provided to at least 25 percent (25%) of the tiered dining areas in 
sports facilities. Each tier must have the same services and the 
accessible routes must serve the accessible seating.
    Accessible Routes to Press Boxes. The 1991 Standards, at 
sections 4.1.1(1) and 4.1.3(1), cover all areas of newly constructed 
facilities required to be accessible, and require an accessible 
route to connect accessible entrances with all accessible spaces and 
elements within the facility. Section 201.1 of the 2010 Standards 
requires that all areas of newly designed and constructed buildings 
and facilities and altered portions of existing buildings and 
facilities be accessible. Sections 206.2.7(1) and (2) of the 2010 
Standards add two exceptions that exempt small press boxes that are 
located in bleachers with entrances on only one level, and small 
press boxes that are free-standing structures elevated 12 feet or 
more above grade, from the accessible route requirement when the 
aggregate area of all press boxes in a sports facility does not 
exceed 500 square feet. The Department anticipates that this change 
will significantly reduce the economic impact on smaller sports 
facilities, such as those associated with high schools or community 
colleges.
    Public Entrances. The 1991 Standards, at sections 4.1.3(8) and 
4.1.6(1)(h), require at least fifty percent (50%) of public 
entrances to be accessible. Additionally, the 1991 Standards require 
the number of accessible public entrances to be equivalent to the 
number of exits required by applicable building and fire codes. With 
very few exceptions, building and fire codes require at least two 
exits to be provided from spaces within a building and from the 
building itself. Therefore, under the 1991 Standards where two 
public entrances are planned in a newly constructed facility, both 
entrances are required to be accessible.
    Instead of requiring accessible entrances based on the number of 
public entrances provided or the number of exits required (whichever 
is greater), section 206.4.1 of the 2010 Standards requires at least 
sixty percent (60%) of public entrances to be accessible. The 
revision is intended to achieve the same result as the 1991 
Standards. Thus, under the 2010 Standards where two public entrances 
are planned in a newly constructed facility, both entrances must be 
accessible.
    Where multiple public entrances are planned to serve different 
site arrival points, the 1991 Standards, at section 4.1.2(1), and 
section 206.2.1 of the 2010 Standards require at least one 
accessible route to be provided from each type of site arrival point 
provided, including accessible parking spaces, accessible passenger 
loading zones, public streets and sidewalks, and public 
transportation stops, to an accessible public entrance that serves 
the site arrival point.
    Commenters representing small businesses recommended retaining 
the 1991 requirement for fifty percent (50%) of public entrances of 
covered entities to be accessible. These commenters also raised 
concerns about the impact upon existing facilities of the new sixty 
percent (60%) requirement.
    The Department believes that these commenters misunderstand the 
1991 Standards. As explained above, the requirements of the 1991 
Standards generally require more than fifty percent (50%) of 
entrances in small facilities to be accessible. Model codes require 
that most buildings have more than one means of egress. Most 
buildings have more than one entrance, and the requirements of the 
1991 Standards typically resulted in these buildings having more 
than one accessible entrance. Requiring at least sixty percent (60%) 
of public entrances to be accessible is not expected to result in a 
substantial increase in the number of accessible entrances compared 
to the requirements of the 1991 Standards. In some very large 
facilities this change may result in fewer accessible entrances 
being required by the 2010 Standards. However, the Department 
believes that the realities of good commercial design will result in 
more accessible entrances being provided for the convenience of all 
users.
    The 1991 Standards and the 2010 Standards also contain 
exceptions that limit the number of accessible entrances required in 
alterations to existing facilities. When entrances to an existing 
facility are altered and the facility has an accessible entrance, 
the entrance being altered is not required to be accessible, unless 
a primary function area also is altered and then an accessible path 
of travel must be provided to the primary function area to the 
extent that the cost to do so is not disproportionate to the overall 
cost of the alteration.
    Alterations to Existing Elevators. When a single space or 
element is altered, the 1991 Standards, at sections 4.1.6(1)(a) and 
(b), require the space or element to be made accessible. When an 
element in one elevator is altered, the 2010 Standards, at section 
206.6.1, require the same element to be

[[Page 56321]]

altered in all elevators that are programmed to respond to the same 
call button as the altered elevator.
    The 2010 Standards, at sections 407.2.1-407.4.7.1.2, also 
contain exceptions to the technical requirements for elevators when 
existing elevators are altered that minimize the impact of this 
change.
    Commenters expressed concerns about the requirement that when an 
element in one elevator is altered, the 2010 Standards, at section 
206.6.1, will require the same element to be altered in all 
elevators that are programmed to respond to the same call button as 
the altered elevator. Commenters noted that such a requirement is 
burdensome and will result in costly efforts without significant 
benefit to individuals with disabilities.
    The Department believes that this requirement is necessary to 
ensure that when an individual with a disability presses a call 
button, an accessible elevator will arrive. Without this 
requirement, individuals with disabilities would have to wait 
unnecessarily for an accessible elevator to make its way to them 
arbitrarily. The Department also believes that the effort required 
to meet this provision is minimal in the majority of situations 
because it is typical to upgrade all of the elevators in a bank at 
the same time.
    Accessible Routes in Dwelling Units with Mobility Features. 
Sections 4.34.1 and 4.34.2 of the UFAS require the living area, 
kitchen and dining area, bedroom, bathroom, and laundry area, where 
provided, in covered dwelling units with mobility features to be on 
an accessible route. Where covered dwelling units have two or more 
bedrooms, at least two bedrooms are required to be on an accessible 
route.
    The 2010 Standards at sections 233.3.1.1, 809.1, 809.2, 809.2.1, 
and 809.4 will require all spaces and elements within dwelling units 
with mobility features to be on an accessible route. These changes 
exempt unfinished attics and unfinished basements from the 
accessible route requirement. Section 233.3.5 of the 2010 Standards 
also includes an exception to the dispersion requirement that 
permits accessible single-story dwelling units to be constructed, 
where multi-story dwelling units are one of the types of units 
provided.
    Location of Accessible Routes. Section 4.3.2(1) of the 1991 
Standards requires accessible routes connecting site arrival points 
and accessible building entrances to coincide with general 
circulation paths, to the maximum extent feasible. The 2010 
Standards require all accessible routes to coincide with or be 
located in the same general area as general circulation paths. 
Additionally, a new provision specifies that where a circulation 
path is interior, the required accessible route must also be located 
in the interior of the facility. The change affects a limited number 
of buildings. Section 206.3 of the 2010 Standards requires all 
accessible routes to coincide with or be located in the same general 
area as general circulation paths. Designing newly constructed 
interior accessible routes to coincide with or to be located in the 
same area as general circulation paths will not typically present a 
difficult design challenge and is expected to impose limited design 
constraints. The change will have no impact on exterior accessible 
routes. The 1991 Standards and the 2010 Standards also require 
accessible routes to be located in the interior of the facility 
where general circulation paths are located in the interior of the 
facility. The revision affects a limited number of buildings.
    Location of Accessible Routes to Stages. The 1991 Standards at 
section 4.33.5 require an accessible route to connect the accessible 
seating and the performing area. Section 206.2.6 of the 2010 
Standards requires the accessible route to directly connect the 
seating area and the accessible seating, stage, and all areas of the 
stage, where a circulation path directly connects the seating area 
and the stage. Both the 1991 Standards and the 2010 Standards also 
require an accessible route to connect the stage and ancillary 
areas, such as dressing rooms, used by performers. The 2010 
Standards do not require an additional accessible route to be 
provided to the stage. Rather, the changes specify where the 
accessible route to the stage, which is required by the 1991 
Standards, must be located.

207 Accessible Means of Egress

    General. The 1991 Standards at sections 4.1.3(9); 4.1.6(1)(g); 
and 4.3.10 establish scoping and technical requirements for 
accessible means of egress. Section 207.1 of the 2010 Standards 
reference the International Building Code (IBC) for scoping and 
technical requirements for accessible means of egress.
    The 1991 Standards require the same number of accessible means 
of egress to be provided as the number of exits required by 
applicable building and fire codes. The IBC requires at least one 
accessible means of egress and at least two accessible means of 
egress where more than one means of egress is required by other 
sections of the building code. The changes in the 2010 Standards are 
expected to have minimal impact since the model fire and life safety 
codes, which are adopted by all of the states, contain equivalent 
requirements with respect to the number of accessible means of 
egress.
    The 1991 Standards require areas of rescue assistance or 
horizontal exits in facilities with levels above or below the level 
of exit discharge. Areas of rescue assistance are spaces that have 
direct access to an exit, stair, or enclosure where individuals who 
are unable to use stairs can go to call for assistance and wait for 
evacuation. The 2010 Standards incorporate the requirements 
established by the IBC. The IBC requires an evacuation elevator 
designed with standby power and other safety features that can be 
used for emergency evacuation of individuals with disabilities in 
facilities with four or more stories above or below the exit 
discharge level, and allows exit stairways and evacuation elevators 
to be used as an accessible means of egress in conjunction with 
areas of refuge or horizontal exits. The change is expected to have 
minimal impact since the model fire and life safety codes, adopted 
by most states, already contain parallel requirements with respect 
to evacuation elevators.
    The 1991 Standards exempt facilities equipped with a supervised 
automatic sprinkler system from providing areas of rescue 
assistance, and also exempt alterations to existing facilities from 
providing an accessible means of egress. The IBC exempts buildings 
equipped with a supervised automatic sprinkler system from certain 
technical requirements for areas of refuge, and also exempts 
alterations to existing facilities from providing an accessible 
means of egress.
    The 1991 and 2010 Standards require signs that provide direction 
to or information about functional spaces to meet certain technical 
requirements. The 2010 Standards, at section 216.4, address exit 
signs. This section is consistent with the requirements of the IBC. 
Signs used for means of egress are covered by this scoping 
requirement. The requirements in the 2010 Standards require tactile 
signs complying with sections 703.1, 703.2 and 703.5 at doors at 
exit passageways, exit discharge, and at exit stairways. Directional 
exit signs and signs at areas of refuge required by section 216.4.3 
must have visual characters and features complying with section 
703.5.
    Standby Power for Platform Lifts. The 2010 Standards at section 
207.2 require standby power to be provided for platform lifts that 
are permitted to serve as part of an accessible means of egress by 
the IBC. The IBC permits platform lifts to serve as part of an 
accessible means of egress in a limited number of places where 
platform lifts are allowed in new construction. The 1991 Standards, 
at 4.1.3(5) Exception 4(a) through (d), and the 2010 Standards, at 
sections 206.7.1 through 206.7.10, similarly limit the places where 
platform lifts are allowed in new construction.
    Commenters urged the Department to reconsider provisions that 
would require standby power to be provided for platform lifts. 
Concerns were raised that ensuring standby power would be too 
burdensome. The Department views this issue as a fundamental life 
safety issue. Lift users face the prospect of being trapped on the 
lift in the event of a power failure if standby power is not 
provided. The lack of standby power could be life-threatening in 
situations where the power failure is associated with a fire or 
other emergency. The use of a platform lift is generally only one of 
the options available to covered entities. Covered entities that are 
concerned about the costs associated with maintaining standby power 
for a lift may wish to explore design options that would incorporate 
the use of a ramp.

208 and 502 Parking Spaces

    General. Where parking spaces are provided, the 1991 Standards, 
at sections 4.1.2(5)(a) and (7) and 7(a), and the 2010 Standards, at 
section 208.1, require a specified number of the parking spaces to 
be accessible. The 2010 Standards, at section 208, include an 
exception that exempts parking spaces used exclusively for buses, 
trucks, delivery vehicles, law enforcement vehicles, or for purposes 
of vehicular impound, from the scoping requirement for parking 
spaces, provided that when these lots are accessed by the public the 
lot has an accessible passenger loading zone.

[[Page 56322]]

    The 2010 Standards require accessible parking spaces to be 
identified by signs that display the International Symbol of 
Accessibility. Section 216.5, Exceptions 1 and 2, of the 2010 
Standards exempt certain accessible parking spaces from this signage 
requirement. The first exception exempts sites that have four or 
fewer parking spaces from the signage requirement. Residential 
facilities where parking spaces are assigned to specific dwelling 
units are also exempted from the signage requirement.
    Commenters stated that the first exception, by allowing a small 
parking lot with four or fewer spaces not to post a sign at its one 
accessible space, is problematic because it could allow all drivers 
to park in accessible parking spaces. The Department believes that 
this exception provides necessary relief for small business entities 
that may otherwise face the prospect of having between twenty-five 
percent (25%) and one hundred percent (100%) of their limited 
parking area unavailable to their customers because they are 
reserved for the exclusive use of persons whose vehicles display 
accessible tags or parking placards. The 2010 Standards still 
require these businesses to ensure that at least one of their 
available parking spaces is designed to be accessible.
    A commenter stated that accessible parking spaces must be 
clearly marked. The Department notes that section 502.6 of the 2010 
Standards provides that accessible parking spaces must be identified 
by signs that include the International Symbol of Accessibility. 
Also, section 502.3.3 of the 2010 Standards requires that access 
aisles be marked so as to discourage parking in them.
    Access Aisle. Section 502.3 of the 2010 Standards requires that 
an accessible route adjoin each access aisle serving accessible 
parking spaces. The accessible route connects each access aisle to 
accessible entrances.
    Commenters questioned why the 2010 Standards would permit an 
accessible route used by individuals with disabilities to coincide 
with the path of moving vehicles. The Department believes that the 
2010 Standards appropriately recognize that not all parking 
facilities provide separate pedestrian routes. Section 502.3 of the 
2010 Standards provides the flexibility necessary to permit 
designers and others to determine the most appropriate location of 
the accessible route to the accessible entrances. If all pedestrians 
using the parking facility are expected to share the vehicular 
lanes, then the ADA permits covered entities to use the vehicular 
lanes as part of the accessible route. The advisory note in section 
502.3 of the 2010 Standards, however, calls attention to the fact 
that this practice, while permitted, is not ideal. Accessible 
parking spaces must be located on the shortest accessible route of 
travel to an accessible entrance. Accessible parking spaces and the 
required accessible route should be located where individuals with 
disabilities do not have to cross vehicular lanes or pass behind 
parked vehicles to have access to an accessible entrance. If it is 
necessary to cross a vehicular lane because, for example, local fire 
engine access requirements prohibit parking immediately adjacent to 
a building, then a marked crossing running perpendicular to the 
vehicular route should be included as part of the accessible route 
to an accessible entrance.
    Van Accessible Parking Spaces. The 1991 Standards, at sections 
4.1.2(5)(b), 4.6.3, 4.6.4, and 4.6.5, require one in every eight 
accessible parking spaces to be van accessible. Section 208.2.4 of 
the 2010 Standards requires one in every six accessible parking 
spaces to be van accessible.
    A commenter asked whether automobiles other than vans may park 
in van accessible parking spaces. The 2010 Standards do not prohibit 
automobiles other than vans from using van accessible parking 
spaces. The Department does not distinguish between vehicles that 
are actual ``vans'' versus other vehicles such as trucks, station 
wagons, sport utility vehicles, etc. since many vehicles other than 
vans may be used by individuals with disabilities to transport 
mobility devices.
    Commenters' opinions were divided on this point. Facility 
operators and others asked for a reduction in the number of required 
accessible parking spaces, especially the number of van accessible 
parking spaces, because they claimed these spaces often are not 
used. Individuals with disabilities, however, requested an increase 
in the scoping requirements for these parking spaces.
    The Department is aware that a strong difference of opinion 
exists between those who use such spaces and those who must provide 
or maintain them. Therefore, the Department did not increase the 
total number of accessible spaces required. The only change was to 
increase the proportion of spaces that must be accessible to vans 
and other vehicles equipped to transport mobility devices.
    Direct Access Entrances From Parking Structures. Where levels in 
a parking garage have direct connections for pedestrians to another 
facility, the 1991 Standards, at section 4.1.3(8)(b)(i), require at 
least one of the direct connections to be accessible. The 2010 
Standards, at section 206.4.2, require all of these direct 
connections to be accessible.

209 and 503 Passenger Loading Zones and Bus Stops

    Passenger Loading Zones at Medical Care and Long-Term Care 
Facilities. Sections 6.1 and 6.2 of the 1991 Standards and section 
209.3 of the 2010 Standards require medical care and long-term care 
facilities, where the period of stay exceeds 24 hours, to provide at 
least one accessible passenger loading zone at an accessible 
entrance. The 1991 Standards also require a canopy or roof overhang 
at this passenger loading zone. The 2010 Standards do not require a 
canopy or roof overhang.
    Commenters urged the Department to reinstate the requirement for 
a canopy or roof overhang at accessible passenger loading zones at 
medical care and long-term care facilities. While the Department 
recognizes that a canopy or roof overhang may afford useful 
protection from inclement weather conditions to everyone using a 
facility, it is not clear that the absence of such protection would 
impede access by individuals with disabilities. Therefore, the 
Department declined to reinstate that requirement.
    Passenger Loading Zones. Where passenger loading zones are 
provided, the 1991 Standards, at sections 4.1.2(5) and 4.6.6, 
require at least one passenger loading zone to be accessible. 
Sections 209.2.1 and 503 of the 2010 Standards, require facilities 
such as airport passenger terminals that have long, continuous 
passenger loading zones to provide one accessible passenger loading 
zone in every continuous 100 linear feet of loading zone space. The 
1991 Standards and the 2010 Standards both include technical 
requirements for the vehicle pull-up space (96 inches wide minimum 
and 20 feet long minimum). Accessible passenger loading zones must 
have an access aisle that is 60 inches wide minimum and extends the 
full length of the vehicle pull-up space. The 1991 Standards permit 
the access aisle to be on the same level as the vehicle pull-up 
space, or on the sidewalk. The 2010 Standards require the access 
aisle to be on the same level as the vehicle pull-up space and to be 
marked so as to discourage parking in the access aisle.
    Commenters expressed concern that certain covered entities, 
particularly airports, cannot accommodate the requirements of the 
2010 Standards to provide passenger loading zones, and urged a 
revision that would require one accessible passenger loading zone 
located in reasonable proximity to each building entrance served by 
the curb.
    Commenters raised a variety of issues about the requirements at 
section 503 of the 2010 Standards stating that the requirements for 
an access aisle, width, length, and marking of passenger loading 
zones are not clear, do not fully meet the needs of individuals with 
disabilities, may run afoul of state or local requirements, or may 
not be needed because many passenger loading zones are typically 
staffed by doormen or valet parkers. The wide range of opinions 
expressed in these comments indicates that this provision is 
controversial. However, none of these comments provided sufficient 
data to enable the Department to determine that the requirement is 
not appropriate.
    Valet Parking and Mechanical Access Parking Garages. The 1991 
Standards, at sections 4.1.2(5)(a) and (e), and sections 208.2, 
209.4, and 209.5 of the 2010 Standards require parking facilities 
that provide valet parking services to have an accessible passenger 
loading zone. The 2010 Standards extend this requirement to 
mechanical access parking garages. The 1991 Standards contained an 
exception that exempted valet parking facilities from providing 
accessible parking spaces. The 2010 Standards eliminate this 
exception. The reason for not retaining the provision is that valet 
parking is a service, not a facility type.
    Commenters questioned why the exception for valet parking 
facilities from providing accessible parking spaces was eliminated. 
The provision was eliminated because valet parkers may not have the 
skills necessary to drive a vehicle that is equipped to be 
accessible, including use of hand controls, or when a seat is not 
present to accommodate a driver using a wheelchair. In that case, 
permitting the individual with a disability to self-park may be a 
required reasonable modification of policy by a covered entity.

[[Page 56323]]

210 and 504 Stairways

    The 1991 Standards require stairs to be accessible only when 
they provide access to floor levels not otherwise connected by an 
accessible route (e.g., where the accessible route is provided by an 
elevator, lift, or ramp). The 2010 Standards, at sections 210.1 and 
504, require all newly constructed stairs that are part of a means 
of egress to comply with the requirements for accessible stairs, 
which include requirements for accessible treads, risers, and 
handrails. In existing facilities, where floor levels are connected 
by an accessible route, only the handrail requirement will apply 
when the stairs are altered. Exception 2 to section 210.1 of the 
2010 Standards permits altered stairs to not comply with the 
requirements for accessible treads and risers where there is an 
accessible route between floors served by the stairs.
    Most commenters were in favor of this requirement for handrails 
in alterations and stated that adding handrails to stairs during 
alterations would be feasible and not costly while providing 
important safety benefits. The Department believes that it strikes 
an appropriate balance by focusing the expanded requirements on new 
construction. The 2010 Standards apply to stairs which are part of a 
required means of egress. Few stairways are not part of a means of 
egress. The 2010 Standards are consistent with most building codes 
which do not exempt stairways when the route is also served by a 
ramp or elevator.

211 and 602 Drinking Fountains

    Sections 4.1.3(10) and 4.15 of the 1991 Standards and sections 
211 and 602 of the 2010 Standards require drinking fountains to be 
provided for persons who use wheelchairs and for others who stand. 
The 1991 Standards require wall and post-mounted cantilevered 
drinking fountains mounted at a height for wheelchair users to 
provide clear floor space for a forward approach with knee and toe 
clearance and free standing or built-in drinking fountains to 
provide clear floor space for a parallel approach. The 2010 
Standards require drinking fountains mounted at a height for 
wheelchair users to provide clear floor space for a forward approach 
with knee and toe clearance, and include an exception for a parallel 
approach for drinking fountains installed at a height to accommodate 
very small children. The 2010 Standards also include a technical 
requirement for drinking fountains for standing persons.

212 and 606 Kitchens, Kitchenettes, Lavatories, and Sinks

    The 1991 Standards, at sections 4.24, and 9.2.2(7), contain 
technical requirements for sinks and only have specific scoping 
requirements for sinks in transient lodging. Section 212.3 of the 
2010 Standards requires at least five percent (5%) of sinks in each 
accessible space to comply with the technical requirements for 
sinks. The technical requirements address clear floor space, height, 
faucets, and exposed pipes and surfaces. The 1991 Standards, at 
section 4.24, and the 2010 Standards, at section 606, both require 
the clear floor space at sinks to be positioned for a forward 
approach and knee and toe clearance to be provided under the sink. 
The 1991 Standards, at section 9.2.2(7), allow the clear floor space 
at kitchen sinks and wet bars in transient lodging guest rooms with 
mobility features to be positioned for either a forward approach 
with knee and toe clearance or for a parallel approach.
    The 2010 Standards include an exception that permits the clear 
floor space to be positioned for a parallel approach at kitchen 
sinks in any space where a cook top or conventional range is not 
provided, and at a wet bar.
    A commenter stated that it is unclear what the difference is 
between a sink and a lavatory, and that this is complicated by 
requirements that apply to sinks (five percent (5%) accessible) and 
lavatories (at least one accessible). The term ``lavatory'' 
generally refers to the specific type of plumbing fixture required 
for hand washing in toilet and bathing facilities. The more generic 
term ``sink'' applies to all other types of sinks located in covered 
facilities.
    A commenter recommended that the mounting height of sinks and 
lavatories should take into consideration the increased use of 
three-wheeled scooters and some larger wheelchairs. The Department 
is aware that the use of three-wheeled scooters and larger 
wheelchairs may be increasing and that some of these devices may 
require changes in space requirements in the future. The Access 
Board is funding research to obtain data that may be used to develop 
design guidelines that provide access to individuals using these 
mobility devices.

213, 603, 604, and 608 Toilet and Bathing Facilities, Rooms, and 
Compartments

    General. Where toilet facilities and bathing facilities are 
provided, they must comply with section 213 of the 2010 Standards.
    A commenter recommended that all accessible toilet facilities, 
toilet rooms, and compartments should be required to have signage 
indicating that such spaces are restricted solely for the use of 
individuals with disabilities. The Department believes that it is 
neither necessary nor appropriate to restrict the use of accessible 
toilet facilities. Like many other facilities designed to be 
accessible, accessible toilet facilities can and do serve a wide 
range of individuals with and without disabilities.
    A commenter recommended that more than one wheelchair accessible 
compartment be provided in toilet rooms serving airports and train 
stations because these compartments are likely to be occupied by 
individuals with luggage and persons with disabilities often take 
longer to use them. The Access Board is examining airport terminal 
accessibility as part of an ongoing effort to facilitate 
accessibility and promote effective design. As part of these 
efforts, the Access Board will examine requirements for accessible 
toilet compartments in larger airport restrooms. The Department 
declines to change the scoping for accessible toilet compartments at 
this time.
    Ambulatory Accessible Toilet Compartments. Section 213.3.1 of 
the 2010 Standards requires multi-user men's toilet rooms, where the 
total of toilet compartments and urinals is six or more, to contain 
at least one ambulatory accessible compartment. The 1991 Standards 
count only toilet stalls (compartments) for this purpose. The 2010 
Standards establish parity between multi-user women's toilet rooms 
and multi-user men's toilet rooms with respect to ambulatory 
accessible toilet compartments.
    Urinals. Men's toilet rooms with only one urinal will no longer 
be required to provide an accessible urinal under the 2010 
Standards. Such toilet rooms will still be required to provide an 
accessible toilet compartment.
    Commenters urged that the exception be eliminated. The 
Department believes that this change will provide flexibility to 
many small businesses and it does not alter the requirement that all 
common use restrooms must be accessible.
    Multiple Single-User Toilet Rooms. Where multiple single-user 
toilet rooms are clustered in a single location, fifty percent 
(50%), rather than the one hundred percent (100%) required by the 
1991 Standards, are required to be accessible by section 213.2, 
Exception 4 of the 2010 Standards. Section 216.8 of the 2010 
Standards requires that accessible single-user toilet rooms must be 
identified by the International Symbol of Accessibility where all 
single-user toilet rooms are not accessible.
    Hospital Patient Toilet Rooms. An exception was added in section 
223.1 of the 2010 Standards to allow toilet rooms that are part of 
critical or intensive care patient sleeping rooms to no longer be 
required to provide mobility features.
    Water Closet Location and Rear Grab Bar. Section 604.2 of the 
2010 Standards allows greater flexibility for the placement of the 
centerline of wheelchair accessible and ambulatory accessible water 
closets. Section 604.5.2, Exception 1 permits a shorter grab bar on 
the rear wall where there is not enough wall space due to special 
circumstances (e.g., when a lavatory or other recessed fixture is 
located next to the water closet and the wall behind the lavatory is 
recessed so that the lavatory does not overlap the required clear 
floor space at the water closet). The 1991 Standards contain no 
exception for grab bar length, and require the water closet 
centerline to be exactly 18 inches from the side wall, while the 
2010 Standards requirement allows the centerline to be between 16 
and 18 inches from the side wall in wheelchair accessible toilet 
compartments and 17 to 19 inches in ambulatory accessible toilet 
compartments.
    Water Closet Clearance. Section 604.3 of the 2010 Standards 
represents a change in the accessibility requirements where a 
lavatory is installed adjacent to the water closet. The 1991 
Standards allow the nearest side of a lavatory to be placed 18 
inches minimum from the water closet centerline and 36 inches 
minimum from the side wall adjacent to the water closet. However, 
locating the lavatory so close to the water closet prohibits many 
individuals with disabilities from using a side transfer. To allow 
greater transfer options, including side transfers, the 2010 
Standards prohibit lavatories from overlapping the clear floor space 
at water closets, except in covered residential dwelling units.
    A majority of commenters, including persons who use wheelchairs, 
strongly

[[Page 56324]]

agreed with the requirement to provide enough space for a side 
transfer. These commenters believed that the requirement will 
increase the usability of accessible single-user toilet rooms by 
making side transfers possible for many individuals who use 
wheelchairs and would have been unable to transfer to a water closet 
using a side transfer even if the water closet complied with the 
1991 Standards. In addition, many commenters noted that the 
additional clear floor space at the side of the water closet is also 
critical for those providing assistance with transfers and personal 
care for persons with disabilities. Numerous comments noted that 
this requirement is already included in other model accessibility 
standards and many state and local building codes and its adoption 
in the 2010 Standards is a important part of harmonization efforts. 
The Department agrees that the provision of enough clear floor space 
to permit side transfers at water closets is an important feature 
that must be provided to ensure access for persons with disabilities 
in toilet and bathing facilities. Furthermore, the adoption of this 
requirement closely harmonizes with the model codes and many state 
and local building codes.
    Other commenters urged the Department not to adopt section 604.3 
of the 2010 Standards claiming that it will require single-user 
toilet rooms to be two feet wider than the 1991 Standards require, 
and this additional requirement will be difficult to meet. Multiple 
commentators also expressed concern that the size of single-user 
toilet rooms would be increased but they did not specify how much 
larger such toilet rooms would have to be in their estimation. In 
response to these concerns, the Department developed a series of 
single-user toilet room floor plans demonstrating that the total 
square footage between representative layouts complying with the 
1991 Standards and the 2010 Standards are comparable. The Department 
believes the floor plan comparisons clearly show that size 
differences between the two Standards are not substantial and 
several of the 2010 Standards-compliant plans do not require 
additional square footage compared to the 1991 Standards plans. 
These single-user toilet room floor plans are shown below.
    Several commenters concluded that alterations of single-user 
toilet rooms should be exempt from the requirements of section 604.3 
of the 2010 Standards because of the significant reconfiguration and 
reconstruction that would be required, such as moving plumbing 
fixtures, walls, and/or doors at significant additional expense. The 
Department disagrees with this conclusion since it fails to take 
into account several key points. The 2010 Standards contain 
provisions for in-swinging doors, 603.2.3, Exception 2, and recessed 
fixtures adjacent to water closets, 604.5.2, Exception 1. These 
provisions give flexibility to create more compact room designs and 
maintain required clearances around fixtures. As with the 1991 
Standards, any alterations must comply to the extent that it is 
technically feasible to do so.
    The requirements at section 604.3.2 of the 2010 Standards 
specify how required clearance around the water closet can overlap 
with specific elements and spaces. An exception that applies only to 
covered residential dwelling units permits a lavatory to be located 
no closer than 18 inches from the centerline of the water closet. 
The requirements at section 604.3.2 of the 2010 Standards increase 
accessibility for individuals with disabilities. One commenter 
expressed concern about other items that might overlap the clear 
floor space, such as dispensers, shelves, and coat hooks on the side 
of the water closet where a wheelchair would be positioned for a 
transfer. Section 604.3.2 of the 2010 Standards allows items such as 
associated grab bars, dispensers, sanitary napkin disposal units, 
coat hooks, and shelves to overlap the clear floor space. These are 
items that typically do not affect the usability of the clear floor 
space.
    Toilet Room Doors. Sections 4.22.2 and 4.22.3 of the 1991 
Standards and Section 603.2.3 of the 2010 Standards permit the doors 
of all toilet or bathing rooms with in-swinging doors to swing into 
the required turning space, but not into the clear floor space 
required at any fixture. In single-user toilet rooms or bathing 
rooms, Section 603.2.3 Exception 2 of the 2010 Standards permits the 
door to swing into the clear floor space of an accessible fixture if 
a clear floor space that measures at least 30 inches by 48 inches is 
provided outside of the door swing.
    Several commenters expressed reservations about Exception 2 of 
Section 603.2.3. Concerns were raised that permitting doors of 
single-user toilet or bathing rooms with in-swinging doors to swing 
into the clearance around any fixture will result in inaccessibility 
to individuals using larger wheelchairs and scooters. Additionally, 
a commenter stated that the exception would require an unacceptable 
amount of precision maneuvering by individuals who use standard size 
wheelchairs. The Department believes that this provision achieves 
necessary flexibility while providing a minimum standard for 
maneuvering space. The standard does permit additional maneuvering 
space to be provided, if needed.
    In the NPRM, the Department provided a series of plan drawings 
illustrating comparisons of the minimum size single-user toilet 
rooms. These floor plans showed typical examples that met the 
minimum requirements of the proposed ADA Standards. A commenter was 
of the opinion that the single-user toilet plans shown in the NPRM 
demonstrated that the new requirements will not result in a 
substantial increase in room size. Several other commenters 
representing industry offered criticisms of the single-user toilet 
floor plans to support their assertion that a 2010 Standards-
compliant single-user toilet room will never be smaller and will 
likely be larger than such a toilet room required under the 1991 
Standards. Commenters also asserted that the floor plans prepared by 
the Department were of a very basic design which could be 
accommodated in a minimal sized space whereas the types of 
facilities their customers demand would require additional space to 
be added to the rooms shown in the floor plans. The Department 
recognizes that there are many design choices that can affect the 
size of a room or space. Choices to install additional features may 
result in more space being needed to provide sufficient clear floor 
space for that additional feature to comply. However, many 
facilities that have these extra features also tend to have ample 
space to meet accessibility requirements. Other commenters asserted 
that public single-user toilet rooms always include a closer and a 
latch on the entry door, requiring a larger clear floor space than 
shown on the push side of the door shown in Plan 1B. The Department 
acknowledges that in instances where a latch is provided and a 
closer is required by other regulations or codes, the minimum size 
of a room with an out-swinging door may be slightly larger than as 
shown in Plan 1C.
    Additional floor plans of single-user toilet rooms are now 
included in further response to the commentary received.
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BILLING CODE 4410-13-C
    Toilet Paper Dispensers. The provisions for toilet paper 
dispensers at section 604.7 of the 2010 Standards require the 
dispenser to be located seven inches minimum and nine inches maximum 
in front of the water closet measured to the centerline of the 
dispenser. The paper outlet of the dispenser must be located 15 
inches minimum and 48 inches maximum above the finish floor. In the 
1991 Standards the location of the toilet paper dispenser is 
determined by the centerline and forward edge of the dispenser. In 
the 2010 Standards the mounting location of the toilet paper 
dispenser is determined by the centerline of the dispenser and the 
location of the outlet for the toilet paper.

[[Page 56332]]

    One commenter discussed the difficulty of using large roll 
toilet paper dispensers and dispensers with two standard size rolls 
stacked on top of each other. The size of the large dispensers can 
block access to the grab bar and the outlet for the toilet paper can 
be too low or too high to be usable. Some dispensers also control 
the delivery of the toilet paper which can make it impossible to get 
the toilet paper. Toilet paper dispensers that control delivery or 
do not allow continuous paper flow are not permitted by the 1991 
Standards or the 2010 Standards. Also, many of the large roll toilet 
paper dispensers do not comply with the 2010 Standards since their 
large size does not allow them to be mounted 12 inches above or 1\1/
2\ inches below the side grab bar as required by section 609.3.
    Shower Spray Controls. In accessible bathtubs and shower 
compartments, sections 607.6 and 608.6 of the 2010 Standards require 
shower spray controls to have an on/off control and to deliver water 
that is 120 [deg]F (49 [deg]C) maximum. Neither feature was required 
by the 1991 Standards, but may be required by plumbing codes. 
Delivering water that is no hotter than 120 [deg]F (49 [deg]C) will 
require controlling the maximum temperature at each accessible 
shower spray unit.
    Shower Compartments. The 1991 Standards at sections 4.21 and 
9.1.2 and the 2010 Standards at section 608 contain technical 
requirements for transfer-type and roll-in shower compartments. The 
2010 Standards provide more flexibility than the 1991 Standards as 
follows:
    <bullet> Transfer-type showers are exactly 36 inches wide by 36 
inches long.
    <bullet> The 1991 Standards and the 2010 Standards permit a \1/
2\-inch maximum curb in transfer-type showers. The 2010 Standards 
add a new exception that permits a 2-inch maximum curb in transfer-
type showers in alterations to existing facilities, where recessing 
the compartment to achieve a \1/2\-inch curb will disturb the 
structural reinforcement of the floor slab.
    <bullet> Roll-in showers are 30 inches wide minimum by 60 inches 
long minimum. Alternate roll-in showers are 36 inches wide by 60 
inches long minimum, and have a 36-inch minimum wide opening on the 
long side of the compartment. The 1991 Standards require alternate 
roll-in showers in a portion of accessible transient lodging guest 
rooms, but provision of this shower type in other facilities is 
generally permitted as an equivalent facilitation. The 1991 
Standards require a seat to be provided adjacent to the opening; and 
require the controls to be located on the side adjacent to the seat. 
The 2010 Standards permit alternate roll-in showers to be used in 
any facility, only require a seat in transient lodging guest rooms, 
and allow location of controls on the back wall opposite the seat as 
an alternative.
    Commenters raised concerns that adding a new exception that 
permits a 2-inch maximum curb in transfer-type showers in 
alterations to existing facilities, where recessing the compartment 
to achieve a \1/2\-inch curb will disturb the structural 
reinforcement of the floor slab, will impair the ability of 
individuals with disabilities to use transfer-type showers.
    The exception in section 608.7 of the 2010 Standards permitting 
a 2-inch maximum curb in transfer-type showers is allowed only in 
existing facilities where provision of a \1/2\-inch high threshold 
would disturb the structural reinforcement of the floor slab. 
Whenever this exception is used the least high threshold that can be 
used should be provided, up to a maximum height of 2 inches. This 
exception is intended to provide some flexibility where the existing 
structure precludes full compliance.
    Toilet and Bathing Rooms. Section 213 of the 2010 Standards sets 
out the scoping requirements for toilet and bathing rooms.
    Commenters recommended that section 213, Toilet Facilities and 
Bathing Facilities, of the 2010 Standards include requirements that 
unisex toilet and bathing rooms be provided in certain facilities. 
These commenters suggested that unisex toilet and bathing rooms are 
most useful as companion care facilities.
    Model plumbing and building codes require single-user (unisex or 
family) toilet facilities in certain occupancies, primarily assembly 
facilities, covered malls, and transportation facilities. These 
types of toilet rooms provide flexibility for persons needing 
privacy so that they can obtain assistance from family members or 
persons of the opposite sex. When these facilities are provided, 
both the 1991 Standards and 2010 Standards require that they be 
accessible. The 2010 Standards do not scope unisex toilet facilities 
because plumbing codes generally determine the number and type of 
plumbing fixtures to be provided in a particular occupancy and often 
determine whether an occupancy must provide separate sex facilities 
in addition to single-user facilities. However, the scoping at 
section 213.2.1 of the 2010 Standards coordinates with model 
plumbing and building code requirements which will permit a small 
toilet room with two water closets or one water closet and one 
urinal to be considered a single-user toilet room provided that the 
room has a privacy latch. In this way, a person needing assistance 
from a person of the opposite sex can lock the door to use the 
facility while temporarily inconveniencing only one other potential 
user. These provisions strike a reasonable balance and impose less 
impact on covered entities.
    A commenter recommended that in shower compartments rectangular 
seats as provided in section 610.3.1 of the 2010 Standards should 
not be permitted as a substitute for L-shaped seats as provided in 
610.3.2.
    The 2010 Standards do not indicate a preference for either 
rectangular or L-shaped seats in shower compartments. L-shaped seats 
in transfer and certain roll-in showers have been used for many 
years to provide users with poor balance additional support because 
they can position themselves in the corner while showering.

214 and 611 Washing Machines and Clothes Dryers

    Sections 214.2 (washing machines) and 214.3 (clothes dryers) of 
the 2010 Standards specify the number of each type of these machines 
required to be accessible (one to two depending upon the total 
number of machines provided) and section 611 specifies the technical 
requirements. An exception will permit the maximum height for the 
tops of these machines to be 2 inches higher than the general 
requirement for maximum high reach over an obstruction.
    A commenter objected to the scoping provision for accessible 
washing machines and clothes dryers stating that the probability is 
low that more than one accessible machine would be needed at the 
same time in the laundry facility of a place of transient lodging.
    The scoping in this provision is based on the relative size of 
the facility. The Department assumes that the size of the facility 
(and, therefore, the number of accessible machines provided) will be 
determined by the covered entity's assessment of the demand for 
laundry facilities. The Department declines to assume that persons 
with disabilities will have less use for accessible facilities in 
transient lodging than in other public accommodations.

216 and 703 Signs

    The following types of signs, though they are not specifically 
subject to the 1991 Standards requirement for signs, will now be 
explicitly exempted by sections 216 and 703 of the 2010 Standards. 
These types of signs include: seat and row designations in assembly 
areas; occupant names, building addresses; company names and logos; 
signs in parking facilities (except those identifying accessible 
parking spaces and means of egress); and exterior signs identifying 
permanent rooms and spaces that are not located at the door to the 
space they serve. This requirement also clarifies that the exception 
for temporary signs applies to signs used for seven days or less.
    The 2010 Standards retain the option to provide one sign where 
both visual and tactile characters are provided or two signs, one 
with visual, and one with tactile characters.

217 and 704 Telephones

    Drive-up Public Telephones. Where public telephones are 
provided, the 1991 Standards, at section 4.1.3(17)(a), and section 
217.2 of the 2010 Standards, require a certain number of telephones 
to be wheelchair accessible. The 2010 Standards add a new exception 
that exempts drive-up public telephones.
    Text Telephones (TTY). Section 4.1.3(17) of the 1991 Standards 
requires a public TTY to be provided if there are four or more 
public pay telephones at a site and at least one is in an interior 
location. Section 217.4.2 of the 2010 Standards requires that a 
building or facility provide a public TTY on each floor that has 
four or more public telephones, and in each telephone bank that has 
four or more telephones. Additionally, section 217.4.4 of the 2010 
Standards requires that at least one public TTY be installed where 
four or more public pay telephones are provided on an exterior site. 
Section 217.4.5 of the 2010 Standards also requires that a public 
TTY be provided where at least one public pay telephone is provided 
at a public rest stop, emergency roadside stop, or service plaza. 
Section 217.4.6 of the 2010 Standards also requires that a public 
TTY be provided at each location where at least one public pay

[[Page 56333]]

telephone is provided serving a hospital emergency room, a hospital 
recovery room, or a hospital waiting room. Section 217.4.7 of the 
2010 Standards also requires that, in addition to the requirements 
for a public TTY to be provided at each location where at least four 
or more public pay telephones are provided at a bank of pay 
telephones and where at least one public pay telephone is provided 
on a floor or in a public building, where at least one public pay 
telephone serves a particular entrance to a bus or rail facility at 
least one public TTY must serve that entrance. In airports, in 
addition to the requirements for the provision of a public TTY at 
phone banks, on floors, and in public buildings with pay phones, 
where four or more public pay phones are located in a terminal 
outside the security areas, in a concourse within the security 
areas, or a baggage claim area in a terminal at least one public TTY 
must be provided. Section 217.4.8 of the 2010 Standards also 
requires that a TTY be provided in at least one secured area where 
at least one pay telephone is provided in a secured area used only 
by detainees or inmates and security personnel in detention and 
correctional facilities.

Wheelchair Accessible Telephones

    Section 217.2 of the 2010 Standards requires that where public 
telephones are provided wheelchair accessible telephones complying 
with section 704.2 must be provided in accordance with Table 217.2.
    A commenter stated that requiring installation of telephones 
within the proposed reach range requirements would adversely impact 
public and telephone owners and operators. According to the 
commenter, individuals without disabilities will not use telephones 
that are installed within the reach range requirements because they 
may be inconvenienced by having to stoop to operate these 
telephones, and, therefore, owners and operators will lose revenue 
due to less use of public telephones.
    This comment misunderstands the scoping requirements for 
wheelchair accessible telephones. Section 217.2 of the 2010 
Standards provides that where one or more single units are provided, 
only one unit per floor, level, or exterior site is required to be 
wheelchair accessible. However, where banks of telephones are 
provided, only one telephone in each bank is required to be 
wheelchair accessible. The Department believes these scoping 
requirements for wheelchair accessible telephones are reasonable and 
will not result in burdensome obligations or lost revenue for owners 
and operators.

218 and 810 Transportation Facilities

    Detectable Warnings. Detectable warnings provide a distinctively 
textured surface of truncated domes. The 1991 Standards at sections 
4.1.3(15), 4.7.7, 4.29.2, 4.29.5, 4.29.6, and 10.3.1(8) require 
detectable warnings at curb ramps, hazardous vehicular areas, 
reflecting pools, and transit platform edges. The 2010 Standards at 
sections 218, 810.5, 705.1, and 705.2 only require detectable 
warnings at transit platform edges. The technical specifications for 
the diameter and spacing of the truncated domes have also been 
changed. The 2010 Standards also delete the requirement for the 
material used to contrast in resiliency or sound-on-cane contact 
from adjoining walking surfaces at interior locations.
    The 2010 Standards apply to detectable warnings on developed 
sites. They do not apply to the public right-of-way. Scoping for 
detectable warnings at all locations other than transit platform 
edges has been eliminated from the 2010 Standards. However, because 
detectable warnings have been shown to significantly benefit 
individuals with disabilities at transit platform edges, the 2010 
Standards provide scoping and technical requirements for detectable 
warnings at transit platform edges.

219 and 706 Assistive Listening Systems

    Signs. Section 216.10 of the 2010 Standards requires each 
covered assembly area to provide signs at each auditorium to inform 
patrons that assistive listening systems are available. However, an 
exception to this requirement permits assembly areas that have 
ticket offices or ticket windows to display the required signs at 
the ticket window.
    A commenter recommended eliminating the exception at 216.10 
because, for example, people who buy tickets through the mail, by 
subscription, or on-line may not need to stop at a ticket office or 
window upon arrival at the assembly area. The Department believes 
that an individual's decision to purchase tickets before arriving at 
a performance does not limit the discretion of the assembly operator 
to use the ticket window to provide other services to its patrons. 
The Department retained the exception at 216.10 to permit the venue 
operator some flexibility in determining how to meet the needs of 
its patrons.
    Audible Communication. The 1991 Standards, at section 
4.1.3(19)(b), require assembly areas, where audible communication is 
integral to the use of the space, to provide an assistive listening 
system if they have an audio amplification system or an occupant 
load of 50 or more people and have fixed seating. The 2010 Standards 
at section 219 require assistive listening systems in spaces where 
communication is integral to the space and audio amplification is 
provided and in courtrooms.
    The 1991 Standards require receivers to be provided for at least 
four percent (4%) of the total number of fixed seats. The 2010 
Standards, at section 219.3, revise the percentage of receivers 
required according to a table that correlates the required number of 
receivers to the seating capacity of the facility. Small facilities 
will continue to provide receivers for four percent (4%) of the 
seats. The required percentage declines as the size of the facility 
increases. The changes also require at least twenty-five percent 
(25%), but no fewer than two, of the receivers to be hearing-aid 
compatible. Assembly areas served by an induction loop assistive 
listening system will not have to provide hearing-aid compatible 
receivers.
    Commenters were divided in their opinion of this change. The 
Department believes that the reduction in the required number of 
assistive listening systems for larger assembly areas will meet the 
needs of individuals with disabilities. The new requirement to 
provide hearing-aid compatible receivers should make assistive 
listening systems more usable for people who have been underserved 
until now.
    Concerns were raised that the requirement to provide assistive 
listening systems may have an adverse impact on restaurants. This 
comment misunderstands the scope of coverage. The 2010 Standards 
define the term ``assembly area'' to include facilities used for 
entertainment, educational, or civic gatherings. A restaurant would 
fall within this category only if it is presenting programs to 
educate or entertain diners, and it provides an audio amplification 
system.
    Same Management or Building. The 2010 Standards add a new 
exception that allows multiple assembly areas that are in the same 
building and under the same management, such as theaters in a 
multiplex cinema and lecture halls in a college building, to 
calculate the number of receivers required based on the total number 
of seats in all the assembly areas, instead of each assembly area 
separately, where the receivers are compatible with the assistive 
listening systems used in each of the assembly areas.
    Mono Jacks, Sound Pressure, Etc. Section 4.33.7 of the 1991 
Standards does not contain specific technical requirements for 
assistive listening systems. The 2010 Standards at section 706 
require assistive listening systems to have standard mono jacks and 
will require hearing-aid compatible receivers to have neck loops to 
interface with telecoils in hearing aids. The 2010 Standards also 
specify sound pressure level, signal-to-noise ratio, and peak 
clipping level. Currently available assistive listening systems 
typically meet these technical requirements.

220 and 707 Automatic Teller Machines and Fare Machines

    Section 707 of the 2010 Standards adds specific technical 
requirements for speech output, privacy, tactilely-discernible input 
controls, display screens, and Braille instructions to the general 
accessibility requirements set out in the 1991 Standards. Machines 
shall be speech enabled and exceptions are provided that cover when 
audible tones are permitted, when advertisements or similar 
information are provided, and where speech synthesis cannot be 
supported. The 1991 Standards require these machines to be 
accessible to and independently usable by persons with visual 
impairments, but do not contain any technical specifications.

221 Assembly Areas

    Wheelchair Spaces/Companion Seats. Owners of large assembly 
areas have historically complained to the Department that the 
requirement for one percent (1%) of seating to be wheelchair seating 
is excessive and that wheelchair seats are not being sold. At the 
same time, advocates have traditionally argued that persons who use 
wheelchairs will increasingly participate in activities at assembly 
areas once they become accessible and that at least one percent (1%) 
of seats should be accessible.
    The 1991 Standards, at sections 4.1.3(19)(a) and 4.33.3, require 
assembly areas to provide

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wheelchair and companion seats. In assembly areas with a capacity of 
more than five hundred seats, accessible seating at a ratio of one 
percent (1%) (plus one seat) of the number of traditional fixed 
seats must be provided. The 2010 Standards, at section 221.2, 
require assembly areas with 501 to 5000 seats to provide at least 
six wheelchair spaces and companion seats plus one additional 
wheelchair space for each additional 150 seats (or fraction thereof) 
between 501 through 5000. In assembly areas with more than 5000 
seats at least 36 wheelchair spaces and companion seats plus one 
additional wheelchair space for each 200 seats (or fraction thereof) 
more than 5000 are required. See sections 221.1 and 221.2 of the 
2010 Standards.
    Commenters questioned why scoping requirements for large 
assembly areas are being reduced. During the development of the 2004 
ADAAG, industry providers, particularly those representing larger 
stadium-style assembly areas, supplied data to the Access Board 
demonstrating the current scoping requirements for large assembly 
areas often exceed the demand. Based on the data provided to the 
Access Board, the Department believes the reduced scoping 
requirements will adequately meet the needs of individuals with 
disabilities, while balancing concerns of the industry.
    Commenters representing assembly areas supported the reduced 
scoping. One commenter asked that scoping requirements for larger 
assembly areas be reduced even further. Although the commenter 
referenced data demonstrating that wheelchair spaces in larger 
facilities with seating capacities of 70,000 or more may not be used 
by individuals with disabilities, the data was not based on actual 
results, but was calculated at least in part based on probability 
assumptions. The Department is not convinced that further reductions 
should be made based upon those projections and that further 
reductions would not substantially limit accessibility at assembly 
areas for persons who use wheelchairs.
    Section 221.2.1.3 of the 2010 Standards clarifies that the 
scoping requirements for wheelchair spaces and companion seats are 
to be applied separately to general seating areas and to each luxury 
box, club box, and suite in arenas, stadiums, and grandstands. In 
assembly areas other than arenas, stadiums, and grandstands, the 
scoping requirements will not be applied separately. Thus, in 
performing arts facilities with tiered boxes designed for spatial 
and acoustical purposes, the scoping requirement is to be applied to 
the seats in the tiered boxes. The requisite number of wheelchair 
spaces and companion seats required in the tiered boxes are to be 
dispersed among at least twenty percent (20%) of the tiered boxes. 
For example, if a performing arts facility has 20 tiered boxes with 
10 fixed seats in each box, for a total of 200 seats, at least five 
wheelchair spaces and companion seats must be provided in the boxes, 
and they must be dispersed among at least four of the 20 boxes.
    Commenters raised concerns that the 2010 Standards should 
clarify requirements for scoping of seating areas and that requiring 
accessible seating in each luxury box, club box, and suite in 
arenas, stadiums and grandstands could result in no wheelchair and 
companion spaces available for individuals with disabilities in the 
general seating area(s). These comments appear to misunderstand the 
requirements. The 2010 Standards require each luxury box, club box, 
and suite in an arena, stadium or grandstand to be accessible and to 
contain wheelchair spaces and companion seats as required by 
sections 221.2.1.1, 221.2.1.2 and 221.3. In addition, the remaining 
seating areas not located in boxes must also contain the number of 
wheelchair and companion seating locations specified in the 2010 
Standards based on the total number of seats in the entire facility 
excluding luxury boxes, club boxes and suites.
    Wheelchair Space Overlap in Assembly Areas. Section 4.33.3 of 
the 1991 Standards and the 2010 Standards, at sections 402, 403.5.1, 
802.1.4, and 802.1.5, require walkways that are part of an 
accessible route to have a 36-inch minimum clear width. Section 
802.1.5 of the 2010 Standards specifically prohibits accessible 
routes from overlapping wheelchair spaces. This change is consistent 
with the technical requirements for accessible routes, since the 
clear width of accessible routes cannot be obstructed by any object. 
The 2010 Standards also specifically prohibit wheelchair spaces from 
overlapping circulation paths. An advisory note clarifies that this 
prohibition applies only to the circulation path width required by 
applicable building codes and fire and life safety codes since the 
codes prohibit obstructions in the required width of assembly 
aisles.
    Section 802.1.5 of the 2010 Standards provides that where a main 
circulation path is located in front of a row of seats that contains 
a wheelchair space and the circulation path is wider than required 
by applicable building codes and fire and life safety codes, the 
wheelchair space may overlap the ``extra'' circulation path width. 
Where a main circulation path is located behind a row of seats that 
contains a wheelchair space and the wheelchair space is entered from 
the rear, the aisle in front of the row may need to be wider in 
order not to block the required circulation path to the other seats 
in the row, or a mid-row opening may need to be provided to access 
the required circulation path to the other seats.
    Line of Sight and Dispersion of Wheelchair Spaces in Assembly 
Areas. Section 4.33.3 of the 1991 Standards requires wheelchair 
spaces and companion seats to be an integral part of any fixed 
seating plan in assembly areas and to provide individuals with 
disabilities a choice of admission prices and lines of sight 
comparable to those available to other spectators. Section 4.33.3 
also requires wheelchair spaces and companion seats to be dispersed 
in assembly areas with more than 300 seats. Under the 1991 
Standards, sports facilities typically located some wheelchair 
spaces and companion seats on each accessible level of the facility. 
In 1994, the Department issued official guidance interpreting the 
requirement for comparable lines of sight in the 1991 Standards to 
mean wheelchair spaces and companion seats in sports stadia and 
arenas must provide patrons with disabilities and their companions 
with lines of sight over standing spectators to the playing field or 
performance area, where spectators were expected to stand during 
events. See ``Accessible Stadiums,'' www.ada.gov/stadium.pdf. The 
Department also interpreted the section 4.33.3 comparable lines of 
sight requirement to mean that wheelchair spaces and companion seats 
in stadium-style movie theaters must provide patrons with 
disabilities and their companions with viewing angles comparable to 
those provided to other spectators.
    Sections 221.2.3 and 802.2 of the 2010 Standards add specific 
technical requirements for providing lines of sight over seated and 
standing spectators and also require wheelchair spaces and companion 
seats (per section 221.3) to provide individuals with disabilities 
choices of seating locations and viewing angles that are 
substantially equivalent to, or better than, the choices of seating 
locations and viewing angles available to other spectators. This 
applies to all types of assembly areas, including stadium-style 
movie theaters, sports arenas, and concert halls. These rules are 
expected to have minimal impact since they are consistent with the 
Department's longstanding interpretation of the 1991 Standards and 
technical assistance.
    Commenters stated that the qualitative viewing angle language 
contained in section 221.2.3 is not appropriate for an enforceable 
regulatory standard unless the terms of such language are defined. 
Other commenters requested definitions for viewing angles, an 
explanation for precisely how viewing angles are measured, and an 
explanation for precisely how to evaluate whether one viewing angle 
is better than another viewing angle. The Department is convinced 
that the regulatory language in the 2010 Standards is sufficient to 
provide a performance-based standard for designers, architects, and 
other professionals to design facilities that provide comparable 
lines of sight for wheelchair seating in assembly areas, including 
viewing angles. The Department believes that as a general rule, the 
vast variety of sizes and configurations in assembly areas requires 
it to establish a performance standard for designers to adapt to the 
specific circumstances of the venue that is being designed. The 
Department has implemented more explicit requirements for stadium-
style movie theaters in 28 CFR 36.406(f) and 35.151(g) of the final 
regulations based on experience and expertise gained after several 
major enforcement actions.
    Another commenter inquired as to what determines whether a 
choice of seating locations or viewing angles is better than that 
available to all other spectators. The answer to this question 
varies according to each assembly area that is being designed, but 
designers and venue operators understand which seats are better and 
that understanding routinely drives design choices made to maximize 
profit and successful operation of the facility, among other things. 
For example, an ``equivalent or better'' line of sight in a major 
league football stadium would be different than for a 350-seat 
lecture hall. This performance standard is based upon the underlying 
principle of equal opportunity for

[[Page 56335]]

a good viewing experience for everyone, including persons with 
disabilities. The Department believes that for each specific 
facility that is designed, the owner, operator, and design 
professionals will be able to distinguish easily between seating 
locations and the quality of the associated lines of sight from 
those seating locations in order to decide which ones are better 
than others. The wheelchair locations do not have to be exclusively 
among the seats with the very best lines of sight nor may they be 
exclusively among the seats with the worst lines of sight. Rather, 
wheelchair seating locations should offer a choice of viewing 
experiences and be located among the seats where most of the 
audience chooses to sit.
    Section 4.33.3 of the 1991 Standards requires wheelchair spaces 
and companion seating to be offered at a choice of admission prices, 
but section 221.2.3.2 of the 2010 Standards no longer requires 
wheelchair spaces and companion seats to be dispersed based on 
admission prices. Venue owners and operators commented during the 
2004 ADAAG rulemaking process that pricing is not always established 
at the design phase and may vary from event to event within the same 
facility, making it difficult to determine where to place wheelchair 
seats during the design and construction phase. Their concern was 
that a failure by the venue owner or operator to provide a choice of 
ticket prices for wheelchair seating as required by the 1991 
Standards governing new construction could somehow unfairly subject 
parties involved in the design and construction to liability 
unknowingly.
    Sections 221.2.3.2 and 221.3 of the 2010 Standards require 
wheelchair spaces and companion seats to be vertically dispersed at 
varying distances from the screen, performance area, or playing 
field. The 2010 Standards, at section 221.2.3.2, also require 
wheelchair spaces and companion seats to be located in each balcony 
or mezzanine served by an accessible route. The final regulations at 
28 CFR 35.151(g)(1) and 36.406(f)(1) also require assembly areas to 
locate wheelchair spaces and companion seats at all levels of the 
facility that include seating and that are served by an accessible 
route. The Department interprets that requirement to mean that 
wheelchair and companion seating must be provided in a particular 
area even if the accessible route may not be the same route that 
other individuals use to reach their seats. For example, if other 
patrons reach their seats on the field by an inaccessible route 
(e.g., by stairs), but there is an accessible route that complies 
with section 206.3 that could be connected to seats on the field, 
accessible seats must be placed on the field even if that route is 
not generally available to the public. The 2010 Standards, at 
section 221.2.3.2, provide an exception for vertical dispersion in 
assembly areas with 300 or fewer seats if the wheelchair spaces and 
companion seats provide viewing angles that are equivalent to, or 
better than, the average viewing angle provided in the facility.
    Section 221.3 of the 2010 Standards requires wheelchair spaces 
and companion seats to be dispersed horizontally. In addition, 28 
CFR 35.151(g)(2) and 36.406(f)(2) require assembly areas that have 
seating around the field of play or performance area to place 
wheelchair spaces and companion seating all around that field of 
play or performance area.

Stadium-Style Movie Theaters

    Pursuant to 28 CFR 35.151(g) and 36.406(f), in addition to other 
obligations, stadium-style movie theaters must meet horizontal and 
vertical dispersion requirements set forth in sections 221.2.3.1 and 
221.2.3.2 of the 2010 Standards; placement of wheelchair and 
companion seating must be on a riser or cross-aisle in the stadium 
section of the theater; and placement of such seating must satisfy 
at least one of the following criteria: (i) It is located within the 
rear sixty percent (60%) of the seats provided in the auditorium; or 
(ii) it is located within the area of the auditorium where the 
vertical viewing angles are between the 40th and 100th percentile of 
vertical viewing angles for all seats in that theater as ranked from 
the first row (1st percentile) to the back row (100th percentile). 
The line-of-sight requirements recognize the importance to the 
movie-going experience of viewing angles, and the final regulations 
ensure that movie patrons with disabilities are provided views of 
the movie screen comparable to other theater patrons. Some 
commenters supported regulatory language that would require stadium-
style theaters to meet standards of accessibility equal to those of 
non-stadium-style theaters, with larger theaters being required to 
provide accessible seating locations and viewing angles equal to 
those offered to individuals without disabilities.
    One commenter noted that stadium-style movie theaters, sports 
arenas, music venues, theaters, and concert halls each pose unique 
conditions that require separate and specific standards to 
accommodate patrons with disabilities, and recommended that the 
Department provide more specific requirements for sports arenas, 
music venues, theaters, and concert halls. The Department has 
concluded that the 2010 Standards will provide sufficient 
flexibility to adapt to the wide variety of assembly venues covered.
    Companion Seats. Section 4.33.3 of the 1991 Standards required 
at least one fixed companion seat to be provided next to each 
wheelchair space. The 2010 Standards at sections 221.3 and 802.3 
permit companion seats to be movable. Several commenters urged the 
Department to ensure that companion seats are positioned in a manner 
that places the user at the same shoulder height as their companions 
using mobility devices. The Department recognizes that some 
facilities have created problems by locating the wheelchair space 
and companion seat on different floor elevations (often a difference 
of one riser height). Section 802.3.1 of the 2010 Standards 
addresses this problem by requiring the wheelchair space and the 
companion seat to be on the same floor elevation. This solution 
should prevent any vertical discrepancies that are not the direct 
result of differences in the sizes and configurations of 
wheelchairs.
    Designated Aisle Seats. Section 4.1.3(19)(a) of the 1991 
Standards requires one percent (1%) of fixed seats in assembly areas 
to be designated aisle seats with either no armrests or folding or 
retractable armrests on the aisle side of the seat. The 2010 
Standards, at sections 221.4 and 802.4, base the number of required 
designated aisle seats on the total number of aisle seats, instead 
of on all of the seats in an assembly area as the 1991 Standards 
require. At least five percent (5%) of the aisle seats are required 
to be designated aisle seats and to be located closest to accessible 
routes. This option will almost always result in fewer aisle seats 
being designated aisle seats compared to the 1991 Standards. The 
Department is aware that sports facilities typically locate 
designated aisle seats on, or as near to, accessible routes as 
permitted by the configuration of the facility.
    One commenter recommended that section 221.4, Designated Aisle 
Seats, be changed to require that aisle seats be on an accessible 
route, and be integrated and dispersed throughout an assembly area. 
Aisle seats, by their nature, typically are located within the 
general seating area, and integration occurs almost automatically. 
The issue of dispersing aisle seats or locating them on accessible 
routes is much more challenging. During the separate rulemaking on 
the 2004 ADAAG the Access Board specifically requested public 
comment on the question of whether aisle seats should be required to 
be located on accessible routes. After reviewing the comments 
submitted during the 2004 Access Board rulemaking, the Access Board 
concluded that this could not be done without making significant and 
costly changes in the design of most assembly areas. However, 
section 221.4 of the 2004 ADAAG required that designated aisle seats 
be the aisle seats closest to accessible routes. The Department 
proposed the same provision and concurs in the Access Board's 
conclusion and declines to implement further changes.
    Team or Player Seating Areas. Section 221.2.1.4 of the 2010 
Standards requires that at least one wheelchair space compliant with 
section 802.1 be provided in each team or player seating area 
serving areas of sport activity. For bowling lanes, the requirement 
for a wheelchair space in player seating areas is limited to lanes 
required to be accessible.
    Lawn Seating. The 1991 Standards, at section 4.1.1(1), require 
all areas of newly constructed facilities to be accessible, but do 
not contain a specific scoping requirement for lawn seating in 
assembly areas. The 2010 Standards, at section 221.5, specifically 
require lawn seating areas and exterior overflow seating areas 
without fixed seats to connect to an accessible route.
    Aisle Stairs and Ramps in Assembly Areas. Sections 4.1.3 and 
4.1.3(4) of the 1991 Standards require that interior and exterior 
stairs connecting levels that are not connected by an elevator, 
ramp, or other accessible means of vertical access must comply with 
the technical requirements for stairs set out in section 4.9 of the 
1991 Standards. Section 210.1 of the 2010 Standards requires that 
stairs that are part of a means of egress shall comply with section 
504's technical requirements for stairs. The 1991 Standards do not 
contain any exceptions for aisle stairs in assembly areas. Section 
210.1, Exception 3 of the 2010 Standards adds a new exception that 
exempts

[[Page 56336]]

aisle stairs in assembly areas from section 504's technical 
requirements for stairs, including section 505's technical 
requirements for handrails.
    Section 4.8.5 of the 1991 Standards exempts aisle ramps that are 
part of an accessible route from providing handrails on the side 
adjacent to seating. The 2010 Standards, at section 405.1, exempt 
aisle ramps adjacent to seating in assembly areas and not serving 
elements required to be on an accessible route, from complying with 
all of section 405's technical requirements for ramps. Where aisle 
ramps in assembly areas serve elements required to be on an 
accessible route, the 2010 Standards require that the aisle ramps 
comply with section 405's technical requirements for ramps. Sections 
505.2 and 505.3 of the 2010 Standards provide exceptions for aisle 
ramp handrails. Section 505.2 states that in assembly areas, a 
handrail may be provided at either side or within the aisle width 
when handrails are not provided on both sides of aisle ramps. 
Section 505.3 states that, in assembly areas, handrails need not be 
continuous in aisles serving seating.

222 and 803 Dressing, Fitting, and Locker Rooms

    Dressing rooms, fitting rooms, and locker rooms are required to 
comply with the accessibility requirements of sections 222 and 803 
of the 2010 Standards. Where these types of rooms are provided in 
clusters, five percent (5%) but at least one room in each cluster 
must comply. Some commenters stated that clothing and retail stores 
would have to expand and reconfigure accessible dressing, fitting 
and locker rooms to meet the changed provision for clear floor space 
alongside the end of the bench. Commenters explained that meeting 
the new requirement would result in a loss of sales and inventory 
space. Other commenters also expressed opposition to the changed 
requirement in locker rooms for similar reasons.
    The Department reminds the commenters that the requirements in 
the 2010 Standards for the clear floor space to be beside the short 
axis of the bench in an accessible dressing, fitting, or locker room 
apply only to new construction and alterations. The requirements for 
alterations in the 2010 Standards at section 202.3 do not include 
the requirement from the 1991 Standards at section 4.1.6(1)(c) that 
if alterations to single elements, when considered together, amount 
to an alteration of a room or space in a building or facility, the 
entire space shall be made accessible. Therefore, under the 2010 
Standards, the alteration requirements only apply to specific 
elements or spaces that are being altered. So providing the clear 
floor space at the end of the bench as required by the 2010 
Standards instead of in front of the bench as is allowed by the 1991 
Standards would only be required when the bench in the accessible 
dressing room is altered or when the entire dressing room area is 
altered.

224 and 806 Transient Lodging Guest Rooms

    Scoping. The minimum number of guest rooms required to be 
accessible in transient lodging facilities is covered by section 224 
of the 2010 Standards. Scoping requirements for guest rooms with 
mobility features and guest rooms with communication features are 
addressed at section 224.2 and section 224.4, respectively. Under 
the 1991 Standards all newly constructed guest rooms with mobility 
features must provide communication features. Under the 2010 
Standards, in section 224.5, at least one guest room with mobility 
features must also provide communication features. Additionally, not 
more than ten percent (10%) of the guest rooms required to provide 
mobility features and also equipped with communication features can 
be used to satisfy the minimum number of guest rooms required to 
provide communication features.
    Some commenters opposed requirements for guest rooms accessible 
to individuals with mobility disabilities stating that statistics 
provided by the industry demonstrate that all types of accessible 
guest rooms are unused. They further claimed that the requirements 
of the 2010 Standards are too burdensome to meet in new 
construction, and that the requirements will result in a loss of 
living space in places of transient lodging. Other commenters urged 
the Department to increase the number of guest rooms required to be 
accessible. The number of guest rooms accessible to individuals with 
mobility disabilities and the number accessible to persons who are 
deaf or who are hard of hearing in the 2010 Standards are consistent 
with the 1991 Standards and with the IBC. The Department continues 
to receive complaints about the lack of accessible guest rooms 
throughout the country. Accessible guest rooms are used not only by 
individuals using mobility devices such as wheelchairs and scooters, 
but also by individuals with other mobility disabilities including 
persons who use walkers, crutches, or canes.
    Data provided by the Disability Statistics Center at the 
University of California, San Francisco demonstrated that the number 
of adults who use wheelchairs has been increasing at the rate of six 
percent (6%) per year from 1969 to 1999; and by 2010, it was 
projected that two percent (2%) of the adult population would use 
wheelchairs. In addition to persons who use wheelchairs, three 
percent (3%) of adults used crutches, canes, walkers, and other 
mobility devices in 1999; and the number was projected to increase 
to four percent (4%) by 2010. Thus, in 2010, up to six percent (6%) 
of the population may need accessible guest rooms.
    Dispersion. The 2010 Standards, in section 224.5, set scoping 
requirements for dispersion in facilities covered by the transient 
lodging provisions. This section covers guest rooms with mobility 
features and guest rooms with communication features and applies in 
new construction and alterations. The primary requirement is to 
provide choices of types of guest rooms, number of beds, and other 
amenities comparable to the choices provided to other guests. An 
advisory in section 224.5 provides guidance that ``factors to be 
considered in providing an equivalent range of options may include, 
but are not limited to, room size, bed size, cost, view, bathroom 
fixtures such as hot tubs and spas, smoking and nonsmoking, and the 
number of rooms provided.''
    Commenters asked the Department to clarify what is meant by 
various terms used in section 224.5 such as ``classes,'' ``types,'' 
``options,'' and ``amenities.'' Other commenters asked the 
Department to clarify and simplify the dispersion requirements set 
forth in section 224.5 of the 2010 Standards, in particular the 
scope of the term ``amenities.'' One commenter expressed concern 
that views, if considered an amenity, would further complicate room 
categories and force owners and operators to make an educated guess. 
Other commenters stated that views should only be a dispersion 
criteria if view is a factor for pricing room rates.
    These terms are not to be considered terms of art, but should be 
used as in their normal course. For example, ``class'' is defined by 
Webster's Dictionary as ``a division by quality.'' ``Type'' is 
defined as ``a group of * * * things that share common traits or 
characteristics distinguishing them as an identifiable group or 
class.'' Accordingly, these terms are not intended to convey 
different concepts, but are used as synonyms. In the 2010 Standards, 
section 224.5 and its advisory require dispersion in such a varied 
range of hotels and lodging facilities that the Department believes 
that the chosen terms are appropriate to convey what is intended. 
Dispersion required by this section is not ``one size fits all'' and 
it is imperative that each covered entity consider its individual 
circumstance as it applies this requirement. For example, a facility 
would consider view as an amenity if some rooms faced mountains, a 
beach, a lake, or other scenery that was considered to be a premium. 
A facility where view was not marketed or requested by guests would 
not factor the view as an amenity for purposes of meeting the 
dispersion requirement.
    Section 224.5 of the 2010 Standards requires that guest rooms 
with mobility features and guest rooms with communication features 
``shall be dispersed among the various classes of guest rooms, and 
shall provide choices of types of guest rooms, number of beds, and 
other amenities comparable to the choices provided to other guests. 
When the minimum number of guest rooms required is not sufficient to 
allow for complete dispersion, guest rooms shall be dispersed in the 
following priority: guest room type, number of beds and amenities.''
    This general dispersion requirement is intended to effectuate 
Congress' directive that a percentage of each class of hotel rooms 
is to be fully accessible to persons with disabilities. See H.R. 
Rep. No. 101-485 (II) at 391. Accordingly, the promise of the ADA in 
this instance is that persons with disabilities will have an equal 
opportunity to benefit from the various options available to hotel 
guests without disabilities, from single occupancy guest rooms with 
limited features (and accompanying limited price tags) to luxury 
suites with lavish features and choices. The inclusion of section 
224.5 of the 2010 Standards is not new. Substantially similar 
language is contained in section 9.1.4 of the 1991 Standards.
    Commenters raised concerns that the factors included in the 
advisory to section 224.5 of the 2010 Standards have been expanded. 
The advisory provides: ``[f]actors to be considered in providing an 
equivalent

[[Page 56337]]

range of options may include, but are not limited to, room size, bed 
size, cost, view, bathroom fixtures such as hot tubs and spas, 
smoking and nonsmoking, and the number of rooms provided.''
    As previously discussed, the advisory materials provided in the 
2010 Standards are meant to be illustrative and do not set out 
specific requirements. In this particular instance, the advisory 
materials for section 224.5 set out some of the common types of 
amenities found at transient lodging facilities, and include common 
sense concepts such as view, bathroom fixtures, and smoking status. 
The intention of these factors is to indicate to the hospitality 
industry the sorts of considerations that the Department, in its 
enforcement efforts since the enactment of the ADA, has considered 
as amenities that should be made available to persons with 
disabilities, just as they are made available to guests without 
disabilities.
    Commenters offered several suggestions for addressing 
dispersion. One option included the flexibility to use an equivalent 
facilitation option similar to that provided in section 9.1.4(2) of 
the 1991 Standards.
    The 2010 Standards eliminated all specific references to 
equivalent facilitation. Since Congress made it clear that each 
class of hotel room is to be available to individuals with 
disabilities, the Department declines to adopt such a specific 
limitation in favor of the specific requirement for new construction 
and alterations found in section 224.5 of the 2010 Standards.
    In considering the comments of the hospitality industry from the 
ANPRM and the Department's enforcement efforts in this area, the 
Department sought comment in the NPRM on whether the dispersion 
requirements should be applied proportionally, or whether the 
requirements of section 224.5 of the 2010 Standards would be 
complied with if access to at least one guest room of each type were 
to be provided.
    One commenter expressed concern about requiring different guest 
room types to be proportionally represented in the accessible guest 
room pool as opposed to just having each type represented. Some 
commenters also expressed concern about accessible guest rooms 
created in pre-1993 facilities and they requested that such 
accessible guest rooms be safe harbored just as they are safe 
harbored under the 1991 Standards. In addition, one commenter 
requested that the proposed dispersion requirements in section 224.5 
of the 2010 Standards not be applied to pre-1993 facilities even 
when they are altered. Some commenters also offered a suggestion for 
limitations to the dispersion requirements as an alternative to safe 
harboring pre-1993 facilities. The suggestion included: (1) Guest 
rooms' interior or exterior footprints may remain unchanged in order 
to meet the dispersion requirements; (2) Dispersion should only be 
required among the types of rooms affected by an alteration; and (3) 
Subject to (1) and (2) above and technical feasibility, a facility 
would need to provide only one guest room in each guest room type 
such as single, double and suites. One commenter requested an 
exception to the dispersion criteria that applies to both existing 
and new multi-story timeshare facilities. This requested exception 
waives dispersion based on views to the extent that up to eight 
units may be vertically stacked in a single location.
    Section 224.1.1 of the 2010 Standards sets scoping requirements 
for alterations to transient lodging guest rooms. The advisory to 
section 224.1.1 further explains that compliance with 224.5 is more 
likely to be achieved if all of the accessible guest rooms are not 
provided in the same area of the facility, when accessible guest 
rooms are added as a result of subsequent alterations.
    Some commenters requested a specific exemption for small hotels 
of 300 or fewer guest rooms from dispersion regarding smoking rooms. 
The ADA requires that individuals with disabilities be provided with 
the same range of options as persons without disabilities, and, 
therefore, the Department declines to add such an exemption. It is 
noted, however, that the existence of this language in the advisory 
does not require a place of transient lodging that does not offer 
smoking guest rooms at its facility to do so only for individuals 
with disabilities.
    Guest Rooms with Mobility Features. Scoping provisions for guest 
rooms with mobility features are provided in section 224.2 of the 
2010 Standards. Scoping requirements for alterations are included in 
224.1.1. These scoping requirements in the 2010 Standards are 
consistent with the 1991 Standards.
    One commenter expressed opposition to the new scoping provisions 
for altered guest rooms, which, according to the commenter, require 
greater numbers of accessible guest rooms with mobility features.
    Section 224.1.1 of the 2010 Standards provides scoping 
requirements for alterations to guest rooms in existing facilities. 
Section 224.1.1 modifies the scoping requirements for new 
construction in section 224 by limiting the application of section 
224 requirements only to those guest rooms being altered or added 
until the number of such accessible guest rooms complies with the 
minimum number required for new construction in section 224.2 of the 
2010 Standards. The minimum required number of accessible guest 
rooms is based on the total number of guest rooms altered or added 
instead of the total number of guest rooms provided. These 
requirements are consistent with the requirements in the 1991 
Standards. Language in the 2010 Standards clarifies the provision of 
section 104.2 of the 2010 Standards which requires rounding up 
values to the next whole number for calculations of percentages in 
scoping.
    Guest Rooms with Communication Features. The revisions at 
section 224.4 of the 2010 Standards effect no substantive change 
from the 1991 Standards with respect to the number of guest rooms 
required to provide communication features. The scoping requirement 
is consolidated into a single table, instead of appearing in three 
sections as in the 1991 Standards. The revised provisions also limit 
the overlap between guest rooms required to provide mobility 
features and guest rooms required to provide communication features. 
Section 224.5 of the 2010 Standards requires that at least one guest 
room providing mobility features must also provide communications 
features. At least one, but not more than ten percent (10%), of the 
guest rooms required to provide mobility features can also satisfy 
the minimum number of guest rooms required to provide communication 
features.
    Commenters suggested that the requirements for scoping and 
dispersion of guest rooms for persons with mobility impairments and 
guest rooms with communication features are too complex for the 
industry to effectively implement.
    The Department believes the requirements for guest rooms with 
communications features in the 2010 Standards clarify the 
requirements necessary to provide equal opportunity for travelers 
with disabilities. Additional technical assistance will be made 
available to address questions before the rule goes into effect.
    Visible Alarms in Guest Rooms with Communication Features. The 
1991 Standards at sections 9.3.1 and 4.28.4 require transient 
lodging guest rooms with communication features to provide either 
permanently installed visible alarms that are connected to the 
building fire alarm system or portable visible alarms that are 
connected to a standard 110-volt electrical outlet and are both 
activated by the building fire alarm system and provide a visible 
alarm when the single station smoke detector is activated. Section 
215.4 of the 2010 Standards no longer includes the portable visible 
alarm option and instead requires that transient lodging guest rooms 
with communication features be equipped with a fire alarm system 
which includes permanently installed audible and visible alarms in 
accordance with NFPA 72 National Fire Alarm Code (1999 or 2002 
edition). Such guest rooms with communication features are also 
required by section 806.3.2 of the 2010 Standards to be equipped 
with visible notification devices that alert room occupants of 
incoming telephone calls and a door knock or bell.
    The 2010 Standards add a new exception for alterations to 
existing facilities that exempts existing fire alarm systems from 
providing visible alarms, unless the fire alarm system itself is 
upgraded or replaced, or a new fire alarm system is installed. 
Transient lodging facilities that alter guest rooms are not required 
to provide permanently installed visible alarms complying with the 
NFPA 72 if the existing fire alarm system has not been upgraded or 
replaced, or a new fire alarm system has not been installed.
    Commenters representing small providers of transient lodging 
raised concerns about the proposed changes to prohibit the use of 
portable visible alarms used in transient lodging guest rooms. These 
commenters recommended retaining requirements that allow the use of 
portable visible alarms.
    Persons who are deaf or hard of hearing have reported that 
portable visible alarms used in transient lodging guest rooms are 
deficient because the alarms are not activated by the building fire 
alarm system, and the alarms do not work when the building power 
source goes out in emergencies. The 2010 Standards are consistent 
with the model

[[Page 56338]]

building, fire, and life safety codes as applied to newly 
constructed transient lodging facilities. One commenter sought 
confirmation of its understanding of visible alarm requirements from 
the Department. This commenter interpreted the exception to section 
215.1 of the 2010 Standards and the Department's commentary to the 
NPRM to mean that if a transient lodging facility does not have 
permanently installed visible alarms in its communication accessible 
guest rooms, it will not be required to provide such alarms until 
such time that its fire alarm system is upgraded or replaced, or a 
new fire alarm system is installed. In addition, this commenter also 
understood that, if a hotel already has permanently installed 
visible alarms in all of its mobility accessible guest rooms, it 
would not have to relocate such visible alarms and other 
communication features in those rooms to other guest rooms to comply 
with the ten percent (10%) overlap requirement until the alarm 
system is upgraded or replaced.
    This commenter's interpretation and understanding are consistent 
with the Department's position in this matter. Section 215.4 of the 
2010 Standards requires that guest rooms required to have 
communication features be equipped with a fire alarm system 
complying with section 702. Communication accessible guest rooms are 
required to have all of the communication features described in 
section 806.3 of the 2010 Standards including a fire alarm system 
which provides both audible and visible alarms. The exception to 
section 215.1 of the 2010 Standards, which applies only to fire 
alarm requirements for guest rooms with communication features in 
existing facilities, exempts the visible alarm requirement until 
such time as the existing fire alarm system is upgraded or replaced, 
or a new fire alarm system is installed. If guest rooms in existing 
facilities are altered and they are required by section 224 of the 
2010 Standards to have communication features, such guest rooms are 
required by section 806.3 to have all other communication features 
including notification devices.
    Vanity Counter Space. Section 806.2.4.1 of the 2010 Standards 
requires that if vanity countertop space is provided in inaccessible 
transient lodging guest bathrooms, comparable vanity space must be 
provided in accessible transient lodging guest bathrooms.
    A commenter questioned whether in existing facilities vanity 
countertop space may be provided through the addition of a shelf. 
Another commenter found the term ``comparable'' vague and expressed 
concern about confusion the new requirement would cause. This 
commenter suggested that the phrase ``equal area in square inches'' 
be used instead of comparable vanity space.
    In some circumstances, the addition of a shelf in an existing 
facility may be a reasonable way to provide a space for travelers 
with disabilities to use their toiletries and other personal items. 
However, this is a determination that must be made on a case-by-case 
basis. Comparable vanity countertop space need not be one continuous 
surface and need not be exactly the same size as the countertops in 
comparable guest bathrooms. For example, accessible shelving within 
reach of the lavatory could be stacked to provide usable surfaces 
for toiletries and other personal items.
    Shower and Sauna Doors in Transient Lodging Facilities. Section 
9.4 of the 1991 Standards and section 206.5.3 of the 2010 Standards 
both require passage doors in transient lodging guest rooms that do 
not provide mobility features to provide at least 32 inches of clear 
width. Congress directed this requirement to be included so that 
individuals with disabilities could visit guests in other rooms. See 
H. Rept. 101-485, pt. 2, at 118 (1990); S. Rept. 101-116, at 70 
(1989). Section 224.1.2 of the 2010 Standards adds a new exception 
to clarify that shower and sauna doors in such inaccessible guest 
rooms are exempt from the requirement for passage doors to provide 
at least 32 inches of clear width. Two commenters requested that 
saunas and steam rooms in existing facilities be exempt from the 
section 224.1.2 requirement and that the requirement be made 
applicable to new construction only.
    The exemption to the section 224.1.2 requirement for a 32-inch 
wide clearance at doors to shower and saunas applies only to those 
showers and saunas in guest rooms which are not required to have 
mobility features. Showers and saunas in other locations, including 
those in common use areas and guest rooms with mobility features, 
are required to comply with the 32-inch clear width standard as well 
as other applicable accessibility standards. Saunas come in a 
variety of types: portable, pre-built, pre-cut, and custom-made. All 
saunas except for custom-made saunas are made to manufacturers' 
standard dimensions. The Department is aware that creating the 
required 32-inch clearance at existing narrower doorways may not 
always be technically feasible. However, the Department believes 
that owners and operators will have an opportunity to provide the 
required doorway clearance, unless doing so is technically 
infeasible, when an alteration to an existing sauna is undertaken. 
Therefore, the Department has retained these requirements.
    Platform Lifts in Transient Lodging Guest Rooms and Dwelling 
Units. The 1991 Standards, at section 4.1.3(5), exception 4, and the 
2010 Standards, at sections 206.7 and 206.7.6, both limit the 
locations where platform lifts are permitted to be used as part of 
an accessible route. The 2010 Standards add a new scoping 
requirement that permits platform lifts to be used to connect levels 
within transient lodging guest rooms and dwelling units with 
mobility features.

806 Transient Lodging Guest Rooms

    In the NPRM, the Department included floor plans showing 
examples of accessible guest rooms and bathrooms designs with 
mobility features to illustrate how compliance with the 2010 
Standards could be accomplished with little or no additional space 
compared to designs that comply with the 1991 Standards.
    Commenters noted that the Department's plans showing accessible 
transient lodging guest rooms compliant with the 2010 Standards were 
not common in the transient lodging industry and also noted that the 
plans omitted doors at sleeping room closets.
    The Department agrees that the configuration of the accessible 
bathrooms is somewhat different from past designs used by the 
industry, but this was done to meet the requirements of the 2010 
Standards. The plans were provided to show that, with some redesign, 
the 2010 Standards do not normally increase the square footage of an 
accessible sleeping room or bathroom with mobility features in new 
construction. The Department has also modified several accessible 
guest room plans to show that doors can be installed on closets and 
comply with the 2010 Standards.
    A commenter stated that the Department's drawings suggest that 
the fan coil units for heat and air conditioning are overhead, while 
the typical sleeping room usually has a vertical unit, or a packaged 
terminal air conditioning unit within the room. The Department's 
drawings are sample plans, showing the layout of the space, 
relationship of elements to each other, and required clear floor and 
turning spaces. It was not the intent of the Department to provide 
precise locations for all elements, including heating and air 
conditioning units.
    Commenters noted that in guest rooms with two beds, each bed was 
positioned close to a wall, reducing access on one side. Another 
commenter stated that additional housekeeping time is needed to 
clean the room when beds are placed closer to walls. The 2010 
Standards require that, when two beds are provided, there must be at 
least 36 inches of clear space between the beds. The plans provided 
in the NPRM showed two bed arrangements with adequate clear width 
complying with the 1991 Standards and the 2010 Standards. Additional 
space can be provided on the other side of the beds to facilitate 
housekeeping as long as the clear floor space between beds is at 
least 36 inches wide.
    Commenters stated that chases in sleeping room bathrooms that 
route plumbing and other utilities can present challenges when 
modifying existing facilities. In multi-story facilities, relocating 
or re-routing these elements may not be possible, limiting options 
for providing access. The Department recognizes that relocating 
mechanical chases in multi-story facilities may be difficult or 
impossible to accomplish. While these issues do not exist in new 
facilities, altered existing facilities must comply with the 2010 
Standards to the extent that it is technically feasible to do so. 
When an alteration cannot fully comply because it is technically 
infeasible to do so, the alteration must still be designed to comply 
to the greatest extent feasible.
    Commenters noted that on some of the Department's plans where a 
vanity is located adjacent to a bathtub, the vanity may require more 
maintenance due to exposure to water. The Department agrees that it 
would be advisable that items placed next to a bathtub or shower be 
made of materials that are not susceptible to water damage.
    Transient Lodging Guest Room Floor Plans and Related Text. The 
Department has included the following floor plans showing 
application of the requirements of the 2010 Standards without 
significant loss of guest

[[Page 56339]]

room living space in transient lodging compared to the 1991 
Standards.
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225 and 811 Storage

    Section 225 of the 2010 Standards provides that where storage is 
provided in accessible spaces, at least one of each type shall 
comply with the 2010 Standards. Self-service shelving is required to 
be on an accessible route, but is not required to comply with the 
reach range requirements. These requirements are consistent with the 
1991 Standards.
    Section 225.3 adds a new scoping requirement for self-storage 
facilities. Facilities with 200 or fewer storage spaces will be 
required to make at least five percent (5%) of the storage spaces 
accessible. Facilities with more than 200 storage spaces will be 
required to provide ten accessible storage spaces, plus two percent 
(2%) of the total storage spaces over 200.
    Sections 225.2.1 and 811 of the 2010 Standards require lockers 
to meet accessibility requirements. Where lockers are provided in 
clusters, five percent (5%) but at least one locker in each cluster 
will have to comply. Under the 1991 Standards, only one locker of 
each type provided must be accessible.
    Commenters recommended that the Department adopt language 
requiring public accommodations to provide access to all self-
service shelves and display areas available to customers. Other 
commenters opposed this requirement as too burdensome to retail and 
other entities and claimed that significant revenue would be lost if 
this requirement were to be implemented.
    Other commenters raised concerns that section 225.2.2 of the 
2010 Standards scopes only self-service shelving whereas section 
4.1.3(12)(b) of the 1991 Standards applies to both ``shelves or 
display units.''
    Although ``display units'' were not included in the 2010 
Standards under the belief that displays are not to be touched and

[[Page 56351]]

therefore by definition cannot be ``self-service,'' both the 2010 
Standards and the 1991 Standards should be read broadly to apply to 
all types of shelves, racks, hooks, and similar self-service 
merchandising fittings, including self-service display units. Such 
fixtures are permitted to be installed above or below the reach 
ranges possible for many persons with disabilities so that space 
available for merchandising is used as efficiently as possible.

226 and 902 Dining Surfaces and Work Surfaces

    Section 226.1 of the 2010 Standards require that where dining 
surfaces are provided for the consumption of food or drink, at least 
five percent (5%) of the seating spaces and standing spaces at the 
dining surfaces comply with section 902. Section 902.2 requires the 
provision of accessible knee and toe clearance.
    Commenters stated that basing accessible seating on seating 
spaces and standing spaces potentially represents a significant 
increase in scoping, particularly given the ambiguity in what 
represents a ``standing space'' and urged a return to the 1991 
Standard of requiring accessible seating based on fixed dining 
tables. The scoping change merely takes into account that tables may 
vary in size so that basing the calculation on the number of tables 
rather than on the number of individuals that may be accommodated by 
the tables could unnecessarily restrict opportunities for persons 
with disabilities. The revised scoping permits greater flexibility 
by allowing designers to disperse accessible seating and standing 
spaces throughout the dining area. Human factors data, which is 
readily available to designers, provides information about the 
amount of space required for both eating and drinking while seated 
or standing.

227 and 904 Sales and Service

    Check-Out Aisles and Sales and Service Counters. The 1991 
Standards, at section 7.2, and the 2010 Standards, at section 904.4, 
contain technical requirements for sales and service counters. The 
1991 Standards generally require sales and service counters to 
provide an accessible portion at least 36 inches long and no higher 
than 36 inches above the finish floor. The nondiscrimination 
requirements of the ADA regulations require the level of service 
provided at the accessible portion of any sales and service counter 
to be the same as the level of service provided at the inaccessible 
portions of the counter.
    The 2010 Standards specify different lengths for the accessible 
portion of sales and service counters based on the type of approach 
provided. Where a forward approach is provided, the accessible 
portion of the counter must be at least 30 inches long and no higher 
than 36 inches, and knee and toe space must be provided under the 
counter. The requirement that knee and toe space be provided where 
only clear floor space for a forward approach to a sales and service 
counter is provided is not a new requirement. It is a clarification 
of the ongoing requirement that part of the sales and service 
counter be accessible. This requirement applies to the entire 
accessible part of sales and service counters and requires that the 
accessible clear floor or ground space adjacent to those counters be 
kept clear of merchandise, equipment, and other items so that the 
accessible part of the counter is readily accessible to and usable 
by individuals with disabilities. The accessible part of the counter 
must also be staffed and provide an equivalent level of service as 
that provided to all customers.
    Where clear floor space for a parallel approach is provided, the 
accessible portion of the counter must be at least 36 inches long 
and no higher than 36 inches above the finish floor. A clear floor 
or ground space that is at least 48 inches long x 30 inches wide 
must be provided positioned for a parallel approach adjacent to the 
36-inch minimum length of counter.
    Section 904.4 of the 2010 Standards includes an exception for 
alterations to sales and service counters in existing facilities. It 
permits the accessible portion of the counter to be at least 24 
inches long, where providing a longer accessible counter will result 
in a reduction in the number of existing counters at work stations 
or existing mailboxes, provided that the required clear floor or 
ground space is centered on the accessible length of the counter.
    Section 904.4 of the 2010 Standards also clarifies that the 
accessible portion of the counter must extend the same depth as the 
sales or service counter top. Where the counter is a single-height 
counter, this requirement applies across the entire depth of the 
counter top. Where the counter is a split-height counter, this 
requirement applies only to the customer side of the counter top. 
The employee-side of the counter top may be higher or lower than the 
customer-side of the counter top.
    Commenters recommended that the Department consider a regulatory 
alternative exempting small retailers from the new knee and toe 
clearance requirement and retaining existing wheelchair 
accessibility standards for sales and service counters. These 
commenters believed that the knee and toe clearance requirements 
will cause a reduction in the sales and inventory space at check-out 
aisles and other sales and service counters.
    Both the 1991 and the 2010 Standards permit covered entities to 
determine whether they will provide a forward or a parallel approach 
to sales and service counters. So any facility that does not wish to 
provide the knee or toe clearance required for a front approach to 
such a counter may avoid that option. However, the Department 
believes that permitting a forward approach without requiring knee 
and toe clearance is not adequate to provide accessibility because 
the person using a wheelchair will be prevented from coming close 
enough to the counter to see the merchandise or to transact business 
with a degree of convenience that is comparable to that provided to 
other customers.
    A parallel approach to sales and service counters also can 
provide the accessibility required by the 2010 Standards. 
Individuals using wheelchairs can approach sales and service 
counters from the side, and, assuming the necessary elements, 
features, or merchandise necessary to complete a business 
transaction are within the reach range requirements for a side 
approach, the needs of individuals with disabilities can be met 
effectively.
    Section 227 of the 2010 Standards clarifies the requirements for 
food service lines. Queues and waiting lines serving counters or 
check-out aisles, including those for food service, must be 
accessible to individuals with disabilities.

229 Windows

    A new requirement at section 229.1 of the 2010 Standards 
provides that if operable windows are provided for building users, 
then at least one window in an accessible space must be equipped 
with controls that comply with section 309.
    Commenters generally supported this provision but some 
commenters asked whether the maximum five-pounds (5 lbs.) of force 
requirement of section 309 applies to the window latch itself or 
only to the force required to open the window. Section 309 applies 
to all controls and operating mechanisms, so the latch must comply 
with the requirement to operate with no more than five pounds of 
force (5 lbf).

230 and 708 Two-Way Communication Systems

    New provisions of the 2010 Standards at sections 230.1 and 708 
require two-way communications systems to be equipped with visible 
as well as audible signals.

231 and 808 Judicial Facilities and Courtrooms

    Section 231 of the 2010 Standards adds requirements for 
accessible courtrooms, holding cells, and visiting areas.
    Accessible Courtroom Stations. Sections 231.2, 808, 304, 305, 
and 902 of the 2010 Standards provide increased accessibility at 
courtroom stations. Clear floor space for a forward approach is 
required for all courtroom stations (judges' benches, clerks' 
stations, bailiffs' stations, deputy clerks' stations, court 
reporters' stations, and litigants' and counsel stations). Other 
applicable specifications include accessible work surface heights 
and toe and knee clearance.
    Accessible Jury Boxes, Attorney Areas, and Witness Stands. 
Section 206.2.4 of the 2010 Standards requires, in new construction 
and alterations, at least one accessible route to connect accessible 
building or facility entrances with all accessible spaces and 
elements within the building or facility that are connected by a 
circulation path unless they are exempted by Exceptions 1-7 of 
section 206.2.3. Advisory 206.2.4 Spaces and Elements Exception 1 
explains that the exception allowing raised courtroom stations to be 
used by court employees, such as judge's benches, to be adaptable 
does not apply to areas of the courtroom likely to be used by 
members of the public such as jury areas, attorney areas, or witness 
stands. These areas must be on an accessible route at the time of 
initial construction or alteration.
    Raised Courtroom Stations Not for Members of the Public. Section 
206.2.4, Exception 1 of the 2010 Standards provides that raised 
courtroom stations that are used

[[Page 56352]]

by judges, clerks, bailiffs, and court reporters will not have to 
provide full vertical access when first constructed or altered if 
they are constructed to be easily adaptable to provide vertical 
accessibility.
    One commenter suggested that a sufficient number of accessible 
benches for judges with disabilities, in addition to requiring 
accessible witness stands and attorney areas, be required. The 
Department believes that the requirements regarding raised benches 
for judges are easily adaptable to provide vertical access in the 
event a judge requires an accessible bench. Section 206.2.4 of the 
2010 Standards provides that raised courtroom stations used by 
judges and other judicial staff do not have to provide full vertical 
access when first constructed or altered as long as the required 
clear floor space, maneuvering space, and electrical service, where 
appropriate, is provided at the time of new construction or can be 
achieved without substantial reconstruction during alterations.
    A commenter asserted that there is nothing inherent in clerks' 
stations, jury boxes, and witness stands that require them to be 
raised. While it would, of course, be easiest to provide access by 
eliminating height differences among courtroom elements, the 
Department recognizes that accessibility is only one factor that 
must be considered in the design process of a functioning courtroom. 
The need to ensure the ability of the judge to maintain order, the 
need to ensure sight lines among the judge, the witness, the jury, 
and other participants, and the need to maintain the security of the 
participants all affect the design of the space. The Department 
believes that the 2010 Standards have been drafted in a way that 
will achieve accessibility without unduly constraining the ability 
of a designer to address the other considerations that are unique to 
courtrooms.
    Commenters argued that permitting courtroom stations to be 
adaptable rather than fully accessible at the time of new 
construction likely will lead to discrimination in hiring of clerks, 
court reporters, and other court staff. The Department believes that 
the provisions will facilitate, not hinder, the hiring of court 
personnel who have disabilities. All courtroom work stations will be 
on accessible routes and will be required to have all fixed elements 
designed in compliance with the 2010 Standards. Elevated work 
stations for court employees may be designed to add vertical access 
as needed. Since the original design must provide the proper space 
and electrical wiring to install vertical access, the change should 
be easily accomplished.

232 Detention Facilities and Correctional Facilities

    Section 232 of the 2010 Standards establishes requirements for 
the design and construction of cells, medical care facilities, and 
visiting areas in detention facilities and in correctional 
facilities. Section 35.151(k) of the Department's title II rule 
provides scoping for newly constructed general holding cells and 
general housing cells requiring mobility features compliant with 
section 807.2 of the 2010 Standards in a minimum of three percent 
(3%) of cells, but no fewer than one cell. Section 232.2 of the 2010 
Standards provides scoping for newly constructed cells with 
communications features requiring a minimum of two percent (2%) of 
cells, but at least one cell, to have communication features.
    The Department's title II rule at Sec.  35.151(k) also specifies 
scoping for alterations to detention and correctional facilities. 
Generally a minimum of three percent (3%), but no fewer than one, of 
the total number of altered cells must comply with section 807.2 of 
the 2010 Standards and be provided within each facility. Altered 
cells with mobility features must be provided in each classification 
level, including administrative and disciplinary segregation, each 
use and service area, and special program. The Department notes that 
the three percent (3%), but no fewer than one, requirement is a 
minimum. As corrections systems plan for new facilities or 
alterations, the Department urges planners to include in their 
population estimates a projection of the numbers of inmates with 
disabilities so as to have sufficient numbers of accessible cells to 
meet inmate needs.

233 Residential Facilities

    Homeless Shelters, Group Homes, and Similar Social Service 
Establishments. Section 233 of the 2010 Standards includes specific 
scoping and technical provisions that apply to new construction and 
alteration of residential facilities. In the 1991 Standards scoping 
and technical requirements for homeless shelters, group homes, and 
similar social service establishments were included in section 9 
Transient Lodging. These types of facilities will be covered by 
section 233 of the 2010 Standards and by 28 CFR 35.151(e) and 
36.406(d) and will be subject to requirements for residential 
facilities rather than the requirements for transient lodging. This 
approach will harmonize federal accessibility obligations under both 
the ADA and section 504 of the Rehabilitation Act of 1973, as 
amended. In sleeping rooms with more than 25 beds that are covered 
by Sec.  36.406(d) a minimum of five percent (5%) of the beds must 
have clear floor space compliant with section 806.2.3 of the 2010 
Standards. In large facilities with more than 50 beds, at least one 
roll-in shower compliant with section 608.2.2 or section 608.2.3 of 
the 2010 Standards must be provided. Where separate shower 
facilities are provided for men and for women, at least one roll-in 
shower must be provided for each gender.
    Housing Operated By or On Behalf of Places of Education. Housing 
at a place of education includes: Residence halls, dormitories, 
suites, apartments, or other places of residence operated by or on 
behalf of places of education. Residence halls or dormitories 
operated by or on behalf of places of education are covered by the 
provisions in sections 224 and 806 of the 2010 Standards. The 
Department has included in the title III rule at Sec.  36.406(e) 
requirements that apply to housing at places of education that 
clarify requirements for residence halls and dormitories and other 
types of student housing. Requirements for housing at a place of 
education covered by the title II rule are included at Sec.  
35.151(f).
    Kitchens and Kitchenettes. Section 4.34.2 of the UFAS requires a 
clear turning space at least 60 inches in diameter or an equivalent 
T-shaped turning space in kitchens. Section 4.34.6 requires a 
clearance between opposing base cabinets, counters, appliances, or 
walls of at least 40 inches except in a U-shaped kitchen where the 
minimum clearance is 60 inches.
    Section 804 of the 2010 Standards provides technical 
requirements for kitchens and kitchenettes. Section 804.2.1 requires 
that pass through kitchens, which have two entries and counters, 
appliances, or cabinets on two opposite sides or opposite a parallel 
wall, provide at least 40 inches minimum clearance. Section 804.2.2 
requires that U-shaped kitchens, which are enclosed on three 
continuous sides, provide at least 60 inches minimum clearance 
between all opposing base cabinets, countertops, appliances, or 
walls within kitchen work areas. Kitchens that do not have a cooktop 
or conventional range are exempt from the clearance requirements but 
still must provide an accessible route.
    If a kitchen does not have two entries, the 2010 Standards 
require the kitchen to have 60 inches minimum clearance between the 
opposing base cabinets, counters, appliances, or walls.
    One commenter supported the provisions of section 804 of the 
2010 Standards but sought clarification whether this section applies 
to residential units only, or to lodging and office buildings as 
well. Section 212 makes section 804 applicable to all kitchens and 
kitchenettes in covered buildings.
    Residential Facilities. Section 4.1.4(11) of the UFAS contains 
scoping requirements for the new construction of housing. Under the 
1991 title II regulation, state and local governments had the option 
of complying with the UFAS or the 1991 Standards. After the 
compliance date for the 2010 Standards, state and local governments 
will no longer have the option of complying with the UFAS, but will 
have to use the 2010 Standards for new construction and alterations.
    Sections 233.1, 233.2, 233.3, 233.3.1, and 233.3.2 of the 2010 
Standards differentiate between entities subject to the United 
States Department of Housing and Urban Development (HUD) regulations 
implementing section 504 of the Rehabilitation Act of 1973 and 
entities not subject to the HUD regulations. The HUD regulations 
apply to recipients of federal financial assistance through HUD, and 
require at least five percent (5%) of dwelling units in multi-family 
projects of five or more dwelling units to provide mobility features 
and at least two percent (2%) of the dwelling units to provide 
communication features. The HUD regulations define a project unique 
to its programs as ``one or more residential structures which are 
covered by a single contract for federal financial assistance or 
application for assistance, or are treated as a whole for processing 
purposes, whether or not located on a common site.'' To avoid any 
potential conflicts with the HUD regulations, the 2010 Standards 
require residential dwelling units subject to the HUD regulations to 
comply with the scoping requirements in the HUD regulations, instead 
of the scoping requirements in the 2010 Standards.
    For entities not subject to the HUD regulations, the 2010 
Standards require at

[[Page 56353]]

least five percent (5%) of the dwelling units in residential 
facilities to provide mobility features, and at least two percent 
(2%) of the dwelling units to provide communication features. The 
2010 Standards define facilities in terms of buildings located on a 
site. The 2010 Standards permit facilities that contain 15 or fewer 
dwelling units to apply the scoping requirements to all the dwelling 
units that are constructed under a single contract, or are developed 
as whole, whether or not located on a common site.
    Alterations to Residential Facilities. Section 4.1.6 of the UFAS 
requires federal, state, and local government housing to comply with 
the general requirements for alterations to facilities. Applying the 
general requirements for alterations to housing can result in 
partially accessible dwelling units where single elements or spaces 
in dwelling units are altered.
    The 2010 Standards, at sections 202.3 Exception 3, 202.4, and 
233.3, contain specific scoping requirements for alterations to 
dwelling units. Dwelling units that are not required to be 
accessible are exempt from the general requirements for alterations 
to elements and spaces and for alterations to primary function 
areas.
    The scoping requirements for alterations to dwelling units 
generally are based on the requirements in the UFAS:
    <bullet> Where a building is vacated for purposes of alterations 
and has more than 15 dwelling units, at least five percent (5%) of 
the altered dwelling units are required to provide mobility features 
and at least two percent (2%) of the dwelling units are required to 
provide communication features.
    <bullet> Where a bathroom or a kitchen is substantially altered 
in an individual dwelling unit and at least one other room is also 
altered, the dwelling unit is required to comply with the scoping 
requirements for new construction until the total number of dwelling 
units in the facility required to provide mobility features and 
communication features is met.
    As with new construction, the 2010 Standards permit facilities 
that contain 15 or fewer dwelling units to apply the scoping 
requirements to all the dwelling units that are altered under a 
single contract, or are developed as a whole, whether or not located 
on a common site. The 2010 Standards also permit a comparable 
dwelling unit to provide mobility features where it is not 
technically feasible for the altered dwelling unit to comply with 
the technical requirements.

234 and 1002 Amusement Rides

    New and Altered Permanently Installed Amusement Rides. Section 
234 of the 2010 Standards sets out scoping requirements and section 
1002 sets out the technical requirements for the accessibility of 
permanently installed amusement rides. These requirements apply to 
newly designed and constructed amusement rides and used rides when 
certain alterations are made.
    A commenter raised concerns that smaller amusement parks tend to 
purchase used rides more frequently than new rides, and that the 
conversion of a used ride to provide the required accessibility may 
be difficult to ensure because of the possible complications in 
modifying equipment to provide accessibility.
    The Department agrees with this commenter. The Department notes, 
however, that the 2010 Standards will require modifications to 
existing amusement rides when a ride's structural and operational 
characteristics are altered to the extent that the ride's 
performance differs from that specified by the manufacturer or the 
original design. Such an extensive alteration to an amusement ride 
may well require that new load and unload areas be designed and 
constructed. When load and unload areas serving existing amusement 
rides are newly designed and constructed they must be level, provide 
wheelchair turning space, and be on an accessible route compliant 
with Chapter 4 of the 2010 Standards except as modified by section 
1002.2 of the 2010 Standards.
    Mobile or Portable Amusement Rides. The exception in section 
234.1 of the 2010 Standards exempts mobile or portable amusement 
rides, such as those set up for short periods of time at carnivals, 
fairs or festivals, from having to comply with the 2010 Standards. 
However, even though the mobile/portable ride itself is not subject 
to the Standards, these facilities are still subject to the ADA's 
general requirement to ensure that individuals with disabilities 
have an equal opportunity to enjoy the services and amenities of 
these facilities.
    Subject to these general requirements, mobile or portable 
amusement rides should be located on an accessible route and the 
load and unload areas serving a ride should provide a level 
wheelchair turning space to provide equal opportunity for 
individuals with disabilities to be able to participate on the 
amusement ride to the extent feasible.
    One commenter noted that the exception in Section 234.1 of the 
2010 Standards for mobile or portable amusement rides limits the 
opportunities of persons with disabilities to participate on 
amusement rides because traveling or temporary amusement rides by 
their nature come to their customers' town or a nearby town rather 
than the customer having to go to them and so are less expensive 
than permanent amusement parks. While the Department understands the 
commenter's concerns, the Department notes that most amusement rides 
are too complex to be reasonably modified or re-engineered to 
accommodate the majority of individuals with disabilities and that 
additional complexities and safety concerns are added when the rides 
are mobile or portable.
    A commenter asked that section 234 of the 2010 Standards make 
clear that the requirements for accessible routes include the routes 
leading up to and including the loading and unloading areas of 
amusement rides. Sections 206.2.9 and 1002.2 of the 2010 Standards 
clarify that the requirements for accessible routes include the 
routes leading up to and including the loading and unloading areas 
of amusement rides.
    A commenter requested that the final rule specifically allow for 
wheelchair access through the exit or other routes, or alternate 
means of wheelchair access routes to amusement rides. The commenter 
stated that the concept of wheelchair access through the exit or 
alternate routes was a base assumption for the 2010 Standards. The 
commenter noted that the concept is apparent in the signage and 
load/unload area provisions in Section 216.12 (`` * * * where 
accessible unload areas also serve as accessible load areas, signs 
indicating the location of the accessible load and unload areas 
shall be provided at entries to queues and waiting lines''). The 
Department agrees with the commenter that accessible load and unload 
areas may be the same where signs that comply with section 216.12 
are provided.
    Wheelchair Space or Transfer Seat or Transfer Device. Sections 
234.3 and 1002.4-1002.6 of the 2010 Standards provide that each new 
and altered amusement ride, except for mobile/portable rides and a 
few additional excepted rides, will be required to provide at least 
one type of access by means of one wheelchair space or one transfer 
seat or one transfer device (the design of the transfer device is 
not specified).
    Commenters urged the Department to revise the requirements for 
wheelchair spaces and transfer seats and devices because most 
amusement rides are too complex to be reasonably modified or re-
engineered to accommodate the majority of individuals with 
disabilities. They argued that the experience of amusement rides 
will be significantly reduced if the proposed requirements are 
implemented.
    The 2004 ADAAG, which the Department adopted as part of the 2010 
Standards, was developed with the assistance of an advisory 
committee that included representation from the design staffs of 
major amusement venues and from persons with disabilities. The 
Department believes that the resulting 2004 ADAAG reflected 
sensitivity to the complex problems posed in adapting existing rides 
by focusing on new rides that can be designed from the outset to be 
accessible.
    To permit maximum design flexibility, the 2010 Standards permit 
designers to determine whether it is more appropriate to permit 
individuals who use wheelchairs to remain in their chairs on the 
ride, or to provide for transfer access.
    Maneuvering Space in Load and Unload Areas. Sections 234.2 and 
1002.3 of the 2010 Standards require that a level wheelchair turning 
space be provided at the load and unload areas of each amusement 
ride. The turning space must comply with sections 304.2 and 304.3.
    Signs Required at Waiting Lines to Amusement Rides. Section 
216.12 of the 2010 Standards requires signs at entries to queues and 
waiting lines identifying type and location of access for the 
amusement ride.

235 and 1003 Recreational Boating Facilities

    These sections require that accessible boat slips and boarding 
piers be provided. Most commenters approved of the requirements for 
recreational boating facility accessibility and urged the Department 
to keep regulatory language consistent with those provisions. They 
commented that the requirements appropriately reflect industry 
conditions. Individual commenters and disability organizations 
agreed that the 2010 Standards

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achieve acceptable goals for recreational boating facility access.
    Accessible Route. Sections 206.2.10 and 1003.2 of the 2010 
Standards require an accessible route to all accessible boating 
facilities, including boat slips and boarding piers at boat launch 
ramps. Section 1003.2.1 provides a list of exceptions applicable to 
structures such as gangways, transition plates, floating piers, and 
structures containing combinations of these elements that are 
affected by water level changes. The list of exceptions specifies 
alternate design requirements applicable to these structures which, 
because of water level variables, cannot comply with the slope, 
cross slope, and handrail requirements for fixed ramps contained in 
sections 403.3, 405.2, 405.3, 405.6, and 405.7 of the 2010 
Standards. Exceptions 3 and 4 in Section 1003.2.1, which permit a 
slope greater than that specified in Section 405.2, are available 
for structures that meet specified length requirements. Section 
206.7.10 permits the use of platform lifts as an alternative to 
gangways that are part of accessible routes.
    Commenters raised concerns that because of water level 
fluctuations it may be difficult to provide accessible routes to all 
accessible boating facilities, including boat slips and boarding 
piers at boat launch ramps. One of the specific concerns expressed 
by several commenters relates to the limits for running slope 
permitted on gangways that are part of an accessible route as 
gangways may periodically have a steeper slope than is permitted for 
a fixed ramp. The exceptions contained in section 1003.2 of the 2010 
Standards modify the requirements of Chapter 4. For example, where 
the total length of a gangway or series of gangways serving as an 
accessible route is 80 feet or more an exception permits the slope 
on gangways to exceed the maximum slope in section 405.2.
    Some commenters suggested that permissible slope variations 
could be reduced further by introducing a formula that ties required 
gangway length to anticipated water level fluctuations. Such a 
formula would incorporate predictions of tidal level changes such as 
those issued by the National Oceanographic and Atmospheric 
Administration (NOAA) and the United States Geologic Survey (USGS). 
This suggested approach would be an alternative to the gangway 
length exceptions and limits in section 1003.2.1 of the 2010 
Standards. These commenters noted that contemporary building 
materials and techniques make gangways of longer length and 
alternative configurations achievable. These commenters provided at 
least one example of a regional regulatory authority using this type 
of formula. While this approach may be successfully implemented and 
consistent with the goals of the ADA, the example provided was 
applied in a highly developed area containing larger facilities. The 
Department has considered that many facilities do not have 
sufficient resources available to take advantage of the latest 
construction materials and design innovations. Other commenters 
supported compliance exceptions for facilities that are subject to 
extreme tidal conditions. One commenter noted that if a facility is 
located in an area with limited space and extreme tidal variations, 
a disproportionately long gangway might intrude into water travel 
routes. The Department has considered a wide range of boating 
facility characteristics including size, water surface areas, tidal 
fluctuations, water conditions, variable resources, whether the 
facility is in a highly developed or remote location, and other 
factors. The Department has determined that the 2010 Standards 
provide sufficient flexibility for such broad application. 
Additionally, the length requirement for accessible routes in 
section 1003.2.1 provides an easily determinable compliance 
standard.
    Accessible Boarding Piers. Where boarding piers are provided at 
boat launch ramps, sections 235.3 and 1003.3.2 of the 2010 Standards 
require that at least five percent (5%) of boarding piers, but at 
least one, must be accessible.
    Accessible Boat Slips. Sections 235.2 and 1003.3.1 of the 2010 
Standards require that a specified number of boat slips in each 
recreational boating facility meet specified accessibility 
standards. The number of accessible boat slips required by the 2010 
Standards is set out in a chart in section 235.2. One accessible 
boat slip is required for facilities containing 25 or fewer total 
slips. The number of required accessible boat slips increases with 
the total number of slips at the facility. Facilities containing 
more than one thousand (1000) boat slips are required to provide 
twelve (12) accessible boat slips plus one for each additional one 
hundred slips at the facility.
    One commenter asserted the need for specificity in the 
requirement for dispersion of accessible slips. Section 235.2.1 of 
the 2010 Standards addresses dispersion and requires that boat slips 
``shall be dispersed throughout the various types of boat slips 
provided.'' The commenter was concerned that if a marina could not 
put accessible slips all on one pier, it would have to reconstruct 
the entire facility to accommodate accessible piers, gangways, docks 
and walkways. The provision permits required accessible boat slips 
to be grouped together. The Department recognizes that economical 
and structural feasibility may produce this result. The 2010 
Standards do not require the dispersion of the physical location of 
accessible boat slips. Rather, the dispersion must be among the 
various types of boat slips offered by the facility. Section 235.2.1 
of the 2010 Standards specifies that if the required number has been 
met, no further dispersion is required. For example, if a facility 
offers five different `types' of boat slips but is only required to 
provide three according to the table in Section 235.2, that facility 
is not required to provide more than three accessible boat slips, 
but the three must be varied among the five `types' of boat slips 
available at the facility.

236 and 1004 Exercise Machines and Equipment

    Accessible Route to Exercise Machines and Equipment. Section 
206.2.13 of the 2010 Standards requires an accessible route to serve 
accessible exercise machines and equipment.
    Commenters raised concerns that the requirement to provide 
accessible routes to serve accessible exercise machines and 
equipment will be difficult for some facilities to provide, 
especially some transient lodging facilities that typically locate 
exercise machines and equipment in a single room. The Department 
believes that this requirement is a reasonable one in new 
construction and alterations because accessible exercise machines 
and equipment can be located so that an accessible route can serve 
more than one piece of equipment.
    Exercise Machines and Equipment. Section 236 of the 2010 
Standards requires at least one of each type of exercise machine to 
meet clear floor space requirements of section 1004.1. Types of 
machines are generally defined according to the muscular groups 
exercised or the kind of cardiovascular exercise provided.
    Several commenters were concerned that existing facilities would 
have to reduce the number of available exercise equipment and 
machines in order to comply with the 2010 Standards. One commenter 
submitted prototype drawings showing equipment and machine layouts 
with and without the required clearance specified in the 2010 
Standards. The accessible alternatives all resulted in a loss of 
equipment and machines. However, because these prototype layouts 
included certain possibly erroneous assumptions about the 2010 
Standards, the Department wishes to clarify the requirements.
    Section 1004.1 of the 2010 Standards requires a clear floor 
space ``positioned for transfer or for use by an individual seated 
in a wheelchair'' to serve at least one of each type of exercise 
machine and equipment. This requirement provides the designer 
greater flexibility regarding the location of the clear floor space 
than was employed by the commenter who submitted prototype layouts. 
The 2010 Standards do not require changes to exercise machines or 
equipment in order to make them more accessible to persons with 
disabilities. Even where machines or equipment do not have seats and 
typically are used by individuals in a standing position, at least 
one of each type of machine or equipment must have a clear floor 
space. Therefore, it is reasonable to assume that persons with 
disabilities wishing to use this type of machine or equipment can 
stand or walk, even if they use wheelchairs much of the time. As 
indicated in Advisory 1004.1, ``the position of the clear floor 
space may vary greatly depending on the use of the equipment or 
machine.'' Where exercise equipment or machines require users to 
stand on them, the clear floor space need not be located parallel to 
the length of the machine or equipment in order to provide a lateral 
seat-to-platform transfer. It is permissible to locate the clear 
floor space for such machines or equipment in the aisle behind the 
device and to overlap the clear floor space and the accessible 
route.
    Commenters were divided in response to the requirement for 
accessible exercise machines and equipment. Some supported 
requirements for accessible machines and equipment; others urged the 
Department not to require accessible machines and

[[Page 56355]]

equipment because of the costs involved. The Department believes 
that the requirement strikes an appropriate balance in ensuring that 
persons with disabilities, particularly those who use wheelchairs, 
will have the opportunity to use the exercise equipment. Providing 
access to exercise machines and equipment recognizes the need and 
desires of individuals with disabilities to have the same 
opportunity as other patrons to enjoy the advantages of exercise and 
maintaining health.

237 and 1005 Fishing Piers and Platforms

    Accessible Route. Sections 206.2.14 and 1005.1 of the 2010 
Standards require an accessible route to each accessible fishing 
pier and platform. The exceptions described under Recreational 
Boating above also apply to gangways and floating piers. All 
commenters supported the requirements for accessible routes to 
fishing piers and platforms.
    Accessible Fishing Piers and Platforms. Sections 237 and 1005 of 
the 2010 Standards require at least twenty-five percent (25%) of 
railings, guards, or handrails (if provided) to be at a 34-inch 
maximum height (so that a person seated in a wheelchair can cast a 
fishing line over the railing) and to be located in a variety of 
locations on the fishing pier or platform to give people a variety 
of locations to fish. An exception allows a guard required to comply 
with the IBC to have a height greater than 34 inches. If railings, 
guards, or handrails are provided, accessible edge protection and 
clear floor or ground space at accessible railings are required. 
Additionally, at least one turning space complying with section 
304.3 of the 2010 Standards is required to be provided on fishing 
piers and platforms.
    Commenters expressed concerns about the provision for fishing 
piers and platforms at the exception in section 1005.2.1 of the 2010 
Standards that allows a maximum height of 42 inches for a guard when 
the pier or platform is covered by the IBC. Two commenters stated 
that allowing a 42-inch guard or railing height for facilities 
covered by another building code would be difficult to enforce. They 
also thought that this would hinder access for persons with 
disabilities because the railing height would be too high for a 
person seated in a wheelchair to reach over with their fishing pole 
in order to fish. The Department understands these concerns but 
believes that the railing height exception is necessary in order to 
avoid confusion resulting from conflicting accessibility 
requirements, and therefore has retained this exception.

238 and 1006 Golf Facilities

    Accessible Route. Sections 206.2.15, 1006.2, and 1006.3 of the 
2010 Standards require an accessible route to connect all accessible 
elements within the boundary of the golf course and, in addition, to 
connect golf car rental areas, bag drop areas, teeing grounds, 
putting greens, and weather shelters. An accessible route also is 
required to connect any practice putting greens, practice teeing 
grounds, and teeing stations at driving ranges that are required to 
be accessible. An exception permits the accessible route 
requirements to be met, within the boundaries of the golf course, by 
providing a ``golf car passage'' (the path typically used by golf 
cars) if specifications for width and curb cuts are met.
    Most commenters expressed the general viewpoint that nearly all 
golf courses provide golf cars and have either well-defined paths or 
permit the cars to drive on the course where paths are not present, 
and thus meet the accessible route requirement.
    The Department received many comments requesting clarification 
of the term ``golf car passage.'' Some commenters recommended 
additional regulatory language specifying that an exception from a 
pedestrian route requirement should be allowed only when a golf car 
passage provides unobstructed access onto the teeing ground, putting 
green, or other accessible element of the course so that an 
accessible golf car can have full access to those elements. These 
commenters cautioned that full and equal access would not be 
provided if a golfer were required to navigate a steep slope up or 
down a hill or a flight of stairs in order to get to the teeing 
ground, putting green, or other accessible element of the course.
    Conversely, another commenter requesting clarification of the 
term ``golf car passage'' argued that golf courses typically do not 
provide golf car paths or pedestrian paths up to actual tee grounds 
or greens, many of which are higher or lower than the car path. This 
commenter argued that if golf car passages were required to extend 
onto teeing grounds and greens in order to qualify for an exception, 
then some golf courses would have to substantially regrade teeing 
grounds and greens at a high cost.
    Some commenters argued that older golf courses, small nine-hole 
courses, and executive courses that do not have golf car paths would 
be unable to comply with the accessible route requirements because 
of the excessive cost involved. A commenter noted that, for those 
older courses that have not yet created an accessible pedestrian 
route or golf car passage, the costs and impacts to do so should be 
considered.
    A commenter argued that an accessible route should not be 
required where natural terrain makes it infeasible to create an 
accessible route. Some commenters cautioned that the 2010 Standards 
would jeopardize the integrity of golf course designs that utilize 
natural terrain elements and elevation changes to set up shots and 
create challenging golf holes.
    The Department has given careful consideration to the comments 
and has decided to adopt the 2010 Standards requiring that at least 
one accessible route connect accessible elements and spaces within 
the boundary of the golf course including teeing grounds, putting 
greens, and weather shelters, with an exception provided that golf 
car passages shall be permitted to be used for all or part of 
required accessible routes. In response to requests for 
clarification of the term ``golf car passage,'' the Department 
points out that golf car passage is merely a pathway on which a 
motorized golf car can operate and includes identified or paved 
paths, teeing grounds, fairways, putting greens, and other areas of 
the course. Golf cars cannot traverse steps and exceedingly steep 
slopes. A nine-hole golf course or an executive golf course that 
lacks an identified golf car path but provides golf car passage to 
teeing grounds, putting greens, and other elements throughout the 
course may utilize the exception for all or part of the accessible 
pedestrian route. The exception in section 206.2.15 of the 2010 
Standards does not exempt golf courses from their obligation to 
provide access to necessary elements of the golf course; rather, the 
exception allows a golf course to use a golf car passage for part or 
all of the accessible pedestrian route to ensure that persons with 
mobility disabilities can fully and equally participate in the 
recreational activity of playing golf.
    Accessible Teeing Grounds, Putting Greens, and Weather Shelters. 
Sections 238.2 and 1006.4 of the 2010 Standards require that golf 
cars be able to enter and exit each putting green and weather 
shelter. Where two teeing grounds are provided, the forward teeing 
ground is required to be accessible (golf car can enter and exit). 
Where three or more teeing grounds are provided, at least two, 
including the forward teeing ground, must be accessible.
    A commenter supported requirements for teeing grounds, 
particularly requirements for accessible teeing grounds, noting that 
accessible teeing grounds are essential to the full and equal 
enjoyment of the golfing experience.
    A commenter recommended that existing golf courses be required 
to provide access to only one teeing ground per hole. The majority 
of commenters reported that most public and private golf courses 
already provide golf car passage to teeing grounds and greens. The 
Department has decided that it is reasonable to maintain the 
requirement. The 2010 Standards provide an exception for existing 
golf courses with three or more teeing grounds not to provide golf 
car passage to the forward teeing ground where terrain makes such 
passage infeasible.
    Section 1006.3.2 of the 2010 Standards requires that where curbs 
or other constructed barriers prevent golf cars from entering a 
fairway, openings 60 inches wide minimum shall be provided at 
intervals not to exceed 75 yards.
    A commenter disagreed with the requirement that openings 60 
inches wide minimum be installed at least every 75 yards, arguing 
that a maximum spacing of 75 yards may not allow enough flexibility 
for terrain and hazard placements. To resolve this problem, the 
commenter recommended that the standards be modified to require that 
each golf car passage include one 60-inch wide opening for an 
accessible golf car to reach the tee, and that one opening be 
provided where necessary for an accessible golf car to reach a 
green. The requirement for openings where curbs or other constructed 
barriers may otherwise prevent golf cars from entering a fairway 
allows the distance between openings to be less than every 75 yards. 
Therefore, the Department believes that the language in section 
1006.3.2 of the 2010 Standards allows appropriate flexibility. Where 
a paved path with curbs or other constructed barrier exists, the 
Department believes that it is essential that

[[Page 56356]]

openings be provided to enable golf car passages to access teeing 
grounds, fairways and putting greens, and other required elements. 
Golf car passage is not restricted to a paved path with curbs. Golf 
car passage also includes fairways, teeing grounds, putting greens, 
and other areas on which golf cars operate.
    Accessible Practice Putting Greens, Practice Teeing Grounds, and 
Teeing Stations at Driving Ranges. Section 238.3 of the 2010 
Standards requires that five percent (5%) but at least one of each 
of practice putting greens, practice teeing grounds, and teeing 
stations at driving ranges must permit golf cars to enter and exit.

239 and 1007 Miniature Golf Facilities

    Accessible Route to Miniature Golf Course Holes. Sections 
206.2.16, 239.3, and 1007.2 of the 2010 Standards require an 
accessible route to connect accessible miniature golf course holes 
and the last accessible hole on the course directly to the course 
entrance or exit. Accessible holes are required to be consecutive 
with an exception permitting one break in the sequence of 
consecutive holes provided that the last hole on the miniature golf 
course is the last hole in the sequence.
    Many commenters supported expanding the exception from one to 
multiple breaks in the sequence of accessible holes. One commenter 
noted that permitting accessible holes with breaks in sequence would 
enable customers with disabilities to enjoy the landscaping, water 
and theme elements of the miniature golf course. Another commenter 
wrote in favor of allowing multiple breaks in accessible holes with 
a connecting accessible route.
    Other commenters objected to allowing multiple breaks in the 
sequence of miniature golf holes. Commenters opposed to this change 
argued that allowing any breaks in the sequence of accessible holes 
at a miniature golf course would disrupt the flow of play for 
persons with disabilities and create a less socially integrated 
experience. A commenter noted that multiple breaks in sequence would 
not necessarily guarantee the provision of access to holes that are 
most representative of those with landscaping, water elements, or a 
fantasy-like experience.
    The Department has decided to retain the exception without 
change. Comments did not provide a sufficient basis on which to 
conclude that allowing multiple breaks in the sequence of accessible 
holes would necessarily increase integration of accessible holes 
with unique features of miniature golf courses. Some designs of 
accessible holes with multiple breaks in the sequence might provide 
equivalent facilitation where persons with disabilities gain access 
to landscaping, water or theme elements not otherwise represented in 
a consecutive configuration of accessible holes. A factor that might 
contribute to equivalent facilitation would be an accessible route 
designed to bring persons with disabilities to a unique feature, 
such as a waterfall, that would otherwise not be served by an 
accessible route connecting consecutive accessible holes.
    Specified exceptions are permitted for accessible route 
requirements when located on the playing surfaces near holes.
    Accessible Miniature Golf Course Holes. Sections 239.2 and 
1007.3 of the 2010 Standards require at least fifty percent (50%) of 
golf holes on miniature golf courses to be accessible, including 
providing a clear floor or ground space that is 48 inches minimum by 
60 inches minimum with slopes not steeper than 1:48 at the start of 
play.

240 and 1008 Play Areas

    Section 240 of the 2010 Standards provides scoping for play 
areas and section 1008 provides technical requirements for play 
areas. Section 240.1 of the 2010 Standards sets requirements for 
play areas for children ages 2 and over and covers separate play 
areas within a site for specific age groups. Section 240.1 also 
provides four exceptions to the requirements that apply to family 
child care facilities, relocation of existing play components in 
existing play areas, amusement attractions, and alterations to play 
components where the ground surface is not altered.
    Ground Surfaces. Section 1008.2.6 of the 2010 Standards provides 
technical requirements for accessible ground surfaces for play areas 
on accessible routes, clear floor or ground spaces, and turning 
spaces. These ground surfaces must follow special rules, 
incorporated by reference from nationally recognized standards for 
accessibility and safety in play areas, including those issued by 
the American Society for Testing and Materials (ASTM).
    A commenter recommended that the Department closely examine the 
requirements for ground surfaces at play areas. The Department is 
aware that there is an ongoing controversy about play area ground 
surfaces arising from a concern that some surfaces that meet the 
ASTM requirements at the time of installation will become 
inaccessible if they do not receive constant maintenance. The Access 
Board is also aware of this issue and is working to develop a 
portable field test that will provide more relevant information on 
installed play surfaces. The Department would caution covered 
entities selecting among the ground surfacing materials that comply 
with the ASTM requirements that they must anticipate the maintenance 
costs that will be associated with some of the products. Permitting 
a surface to deteriorate so that it does not meet the 2010 Standards 
would be an independent violation of the Department's ADA 
regulations.
    Accessible Route to Play Components. Section 206.2.17 of the 
2010 Standards provides scoping requirements for accessible routes 
to ground level and elevated play components and to soft contained 
play structures. Sections 240.2 and 1008 of the 2010 Standards 
require that accessible routes be provided for play components. The 
accessible route must connect to at least one ground level play 
component of each different type provided (e.g., for different 
experiences such as rocking, swinging, climbing, spinning, and 
sliding). Table 240.2.1.2 sets requirements for the number and types 
of ground level play components required to be on accessible routes. 
When elevated play components are provided, an accessible route must 
connect at least fifty percent (50%) of the elevated play 
components. Section 240.2.1.2, provides an exception to the 
requirements for ground level play components if at least fifty 
percent (50%) of the elevated play components are connected by a 
ramp and at least three of the elevated play components connected by 
the ramp are different types of play components.
    The technical requirements at section 1008 include provisions 
where if three or fewer entry points are provided to a soft 
contained play structure, then at least one entry point must be on 
an accessible route. In addition, where four or more entry points 
are provided to a soft contained play structure, then at least two 
entry points must be served by an accessible route.
    If elevated play components are provided, fifty percent (50%) of 
the elevated components are required to be accessible. Where 20 or 
more elevated play components are provided, at least twenty five 
percent (25%) will have to be connected by a ramp. The remaining 
play components are permitted to be connected by a transfer system. 
Where less than 20 elevated play components are provided, a transfer 
system is permitted in lieu of a ramp.
    A commenter noted that the 2010 Standards allow for the 
provision of transfer steps to elevated play structures based on the 
number of elevated play activities, but asserted that transfer steps 
have not been documented as an effective means of access.
    The 2010 Standards recognize that play structures are designed 
to provide unique experiences and opportunities for children. The 
2010 Standards provide for play components that are accessible to 
children who cannot transfer from their wheelchair, but they also 
provide opportunities for children who are able to transfer. 
Children often interact with their environment in ways that would be 
considered inappropriate for adults. Crawling and climbing, for 
example, are integral parts of the play experience for young 
children. Permitting the use of transfer platforms in play 
structures provides some flexibility for creative playground design.
    Accessible Play Components. Accessible play components are 
required to be on accessible routes, including elevated play 
components that are required to be connected by ramps. These play 
components must also comply with other accessibility requirements, 
including specifications for clear floor space and seat heights 
(where provided).
    A commenter expressed concerns that the general requirements of 
section 240.2.1 of the 2010 Standards and the advisory accompanying 
section 240.2.1 conflict. The comment asserts that section 240.2.1 
of the 2010 Standards provides that the only requirement for 
integration of equipment is where there are two or more required 
ground level play components, while the advisory appears to suggest 
that all accessible components must be integrated.
    The commenter misinterprets the requirement. The ADA mandates 
that persons with disabilities be able to participate in programs or 
activities in the most integrated setting appropriate to their 
needs. Therefore, all accessible play components must be integrated 
into the general playground setting. Section 240.2.1 of

[[Page 56357]]

the 2010 Standards specifies that where there is more than one 
accessible ground level play component, the components must be both 
dispersed and integrated.

241 and 612 Saunas and Steam Rooms

    Section 241 of the 2010 Standards sets scoping for saunas and 
steam rooms and section 612 sets technical requirements including 
providing accessible turning space and an accessible bench. Doors 
are not permitted to swing into the clear floor or ground space for 
the accessible bench. The exception in section 612.2 of the 2010 
Standards permits a readily removable bench to obstruct the required 
wheelchair turning space and the required clear floor or ground 
space. Where they are provided in clusters, five percent (5%) but at 
least one sauna or steam room in each cluster must be accessible.
    Commenters raised concerns that the safety of individuals with 
disabilities outweighs the usefulness in providing accessible saunas 
and steam rooms. The Department believes that there is an element of 
risk in many activities available to the general public. One of the 
major tenets of the ADA is that individuals with disabilities should 
have the same opportunities as other persons to decide what risks to 
take. It is not appropriate for covered entities to prejudge the 
abilities of persons with disabilities.

242 and 1009 Swimming Pools, Wading Pools, and Spas

    Accessible Means of Entry to Pools. Section 242 of the 2010 
Standards requires at least two accessible means of entry for larger 
pools (300 or more linear feet) and at least one accessible entry 
for smaller pools. This section requires that at least one entry 
will have to be a sloped entry or a pool lift; the other could be a 
sloped entry, pool lift, a transfer wall, or a transfer system 
(technical specifications for each entry type are included at 
section 1009).
    Many commenters supported the scoping and technical requirements 
for swimming pools. Other commenters stated that the cost of 
requiring facilities to immediately purchase a pool lift for each 
indoor and outdoor swimming pool would be very significant 
especially considering the large number of swimming pools at lodging 
facilities. One commenter requested that the Department clarify what 
would be an ``alteration'' to a swimming pool that would trigger the 
obligation to comply with the accessible means of entry in the 2010 
Standards.
    Alterations are covered by section 202.3 of the 2010 Standards 
and the definition of ``alteration'' is provided at section 106.5. A 
physical change to a swimming pool which affects or could affect the 
usability of the pool is considered to be an alteration. Changes to 
the mechanical and electrical systems, such as filtration and 
chlorination systems, are not alterations. Exception 2 to section 
202.3 permits an altered swimming pool to comply with applicable 
requirements to the maximum extent feasible if full compliance is 
technically infeasible. ``Technically infeasible'' is also defined 
in section 106.5 of the 2010 Standards.
    The Department also received comments suggesting that it is not 
appropriate to require two accessible means of entry to wave pools, 
lazy rivers, sand bottom pools, and other water amusements where 
there is only one point of entry. Exception 2 of Section 242.2 of 
the 2010 Standards exempts pools of this type from having to provide 
more than one accessible means of entry provided that the one 
accessible means of entry is a swimming pool lift compliant with 
section 1009.2, a sloped entry compliant with section 1009.3, or a 
transfer system compliant with section 1009.5 of the 2010 Standards.
    Accessible Means of Entry to Wading Pools. Sections 242.3 and 
1009.3 of the 2010 Standards require that at least one sloped means 
of entry is required into the deepest part of each wading pool.
    Accessible Means of Entry to Spas. Sections 242.4 and 1009.2, 
1009.4, and 1009.5 of the 2010 Standards require spas to meet 
accessibility requirements, including an accessible means of entry. 
Where spas are provided in clusters, five percent (5%) but at least 
one spa in each cluster must be accessible. A pool lift, a transfer 
wall, or a transfer system will be permitted to provide the required 
accessible means of entry.

243 Shooting Facilities with Firing Positions

    Sections 243 and 1010 of the 2010 Standards require an 
accessible turning space for each different type of firing position 
at a shooting facility if designed and constructed on a site. Where 
firing positions are provided in clusters, five percent (5%), but at 
least one position of each type in each cluster must be accessible.

Additional Technical Requirements

302.1 Floor or Ground Surfaces

    Both section 4.5.1 of the 1991 Standards and section 302.2 of 
the 2010 Standards require that floor or ground surfaces along 
accessible routes and in accessible rooms and spaces be stable, 
firm, slip-resistant, and comply with either section 4.5 in the case 
of the 1991 Standards or section 302 in the case of the 2010 
Standards.
    Commenters recommended that the Department apply an ASTM 
Standard (with modifications) to assess whether a floor surface is 
``slip resistant'' as required by section 302.1 of the 2010 
Standards. The Department declines to accept this recommendation 
since, currently, there is no generally accepted test method for the 
slip-resistance of all walking surfaces under all conditions.

304 Turning Space

    Section 4.2.3 of the 1991 Standards and Section 304.3 of the 
2010 Standards allow turning space to be either a circular space or 
a T-shaped space. Section 304.3 permits turning space to include 
knee and toe clearance complying with section 306. Section 4.2.3 of 
the 1991 Standards did not specifically permit turning space to 
include knee and toe clearance. Commenters urged the Department to 
retain the turning space requirement, but exclude knee and toe 
clearance from being permitted as part of this space. They argued 
that wheelchairs and other mobility devices are becoming larger and 
that more individuals with disabilities are using electric three and 
four-wheeled scooters which cannot utilize knee clearance.
    The Department recognizes that the technical specifications for 
T-shaped and circular turning spaces in the 1991 and 2010 Standards, 
which are based on manual wheelchair dimensions, may not adequately 
meet the needs of individuals using larger electric scooters. 
However, there is no consensus about the appropriate dimension on 
which to base revised requirements. The Access Board is conducting 
research to study this issue in order to determine if new 
requirements are warranted. For more information, see the Access 
Board's Web site at http://www.access-board.gov/research/current-projects.htm#suny. The Department plans to wait for the results of 
this study and action by the Access Board before considering any 
changes to the Department's rules. Covered entities may wish to 
consider providing more than the minimum amount of turning space in 
confined spaces where a turn will be required. Appendix section 
A4.2.3 and Fig. A2 of the 1991 Standards provide guidance on 
additional space for making a smooth turn without bumping into 
surrounding objects.

404 Doors, Doorways, and Gates

    Automatic Door Break Out Openings. The 1991 Standards do not 
contain any technical requirement for automatic door break out 
openings. The 2010 Standards at sections 404.1, 404.3, 404.3.1, and 
404.3.6 require automatic doors that are part of a means of egress 
and that do not have standby power to have a 32-inch minimum clear 
break out opening when operated in emergency mode. The minimum clear 
opening width for automatic doors is measured with all leaves in the 
open position. Automatic bi-parting doors or pairs of swinging doors 
that provide a 32-inch minimum clear break out opening in emergency 
mode when both leaves are opened manually meet the technical 
requirement. Section 404.3.6 of the 2010 Standards includes an 
exception that exempts automatic doors from the technical 
requirement for break out openings when accessible manual swinging 
doors serve the same means of egress.
    Maneuvering Clearance or Standby Power for Automatic Doors. 
Section 4.13.6 of the 1991 Standards does not require maneuvering 
clearance at automatic doors. Section 404.3.2 of the 2010 Standards 
requires automatic doors that serve as an accessible means of egress 
to either provide maneuvering clearance or to have standby power to 
operate the door in emergencies. This provision has limited 
application and will affect, among others, in-swinging automatic 
doors that serve small spaces.
    Commenters urged the Department to reconsider provisions that 
would require maneuvering clearance or standby power for automatic 
doors. They assert that these requirements would impose unreasonable 
financial and administrative burdens on all covered entities, 
particularly smaller entities. The Department declines to change 
these provisions because they are fundamental life-safety issues. 
The requirement applies only to doors that are part of a means of 
egress that must be accessible in an emergency. If an emergency-
related power failure prevents the

[[Page 56358]]

operation of the automatic door, a person with a disability could be 
trapped unless there is either adequate maneuvering room to open the 
door manually or a back-up power source.
    Thresholds at Doorways. The 1991 Standards, at section 4.13.8, 
require the height of thresholds at doorways not to exceed \1/2\ 
inch and thresholds at exterior sliding doors not to exceed \3/4\ 
inch. Sections 404.1 and 404.2.5 of the 2010 Standards require the 
height of thresholds at all doorways that are part of an accessible 
route not to exceed \1/2\ inch. The 1991 Standards and the 2010 
Standards require raised thresholds that exceed \1/4\ inch in height 
to be beveled on each side with a slope not steeper than 1:2. The 
2010 Standards include an exception that exempts existing and 
altered thresholds that do not exceed \3/4\ inch in height and are 
beveled on each side from the requirement.

505 Handrails

    The 2010 Standards add a new technical requirement at section 
406.3 for handrails along walking surfaces.
    The 1991 Standards, at sections 4.8.5, 4.9.4, and 4.26, and the 
2010 Standards, at section 505, contain technical requirements for 
handrails. The 2010 Standards provide more flexibility than the 1991 
Standards as follows:
    <bullet> Section 4.26.4 of the 1991 Standards requires handrail 
gripping surfaces to have edges with a minimum radius of \1/8\ inch. 
Section 505.8 of the 2010 Standards requires handrail gripping 
surfaces to have rounded edges.
    <bullet> Section 4.26.2 of the 1991 Standards requires handrail 
gripping surfaces to have a diameter of 1\1/4\ inches to 1\1/2\ 
inches, or to provide an equivalent gripping surface. Section 505.7 
of the 2010 Standards requires handrail gripping surfaces with a 
circular cross section to have an outside diameter of 1\1/4\ inches 
to 2 inches. Handrail gripping surfaces with a non-circular cross 
section must have a perimeter dimension of 4 inches to 6\1/4\ 
inches, and a cross section dimension of 2\1/4\ inches maximum.
    <bullet> Sections 4.8.5 and 4.9.4 of the 1991 Standards require 
handrail gripping surfaces to be continuous, and to be uninterrupted 
by newel posts, other construction elements, or obstructions. 
Section 505.3 of the 2010 Standards sets technical requirements for 
continuity of gripping surfaces. Section 505.6 requires handrail 
gripping surfaces to be continuous along their length and not to be 
obstructed along their tops or sides. The bottoms of handrail 
gripping surfaces must not be obstructed for more than twenty 
percent (20%) of their length. Where provided, horizontal 
projections must occur at least 1\1/2\ inches below the bottom of 
the handrail gripping surface. An exception permits the distance 
between the horizontal projections and the bottom of the gripping 
surface to be reduced by \1/8\ inch for each \1/2\ inch of 
additional handrail perimeter dimension that exceeds 4 inches.
    <bullet> Section 4.9.4 of the 1991 Standards requires handrails 
at the bottom of stairs to continue to slope for a distance of the 
width of one tread beyond the bottom riser nosing and to further 
extend horizontally at least 12 inches. Section 505.10 of the 2010 
Standards requires handrails at the bottom of stairs to extend at 
the slope of the stair flight for a horizontal distance at least 
equal to one tread depth beyond the last riser nosing. Section 
4.1.6(3) of the 1991 Standards has a special technical provision for 
alterations to existing facilities that exempts handrails at the top 
and bottom of ramps and stairs from providing full extensions where 
it will be hazardous due to plan configuration. Section 505.10 of 
the 2010 Standards has a similar exception that applies in 
alterations.
    A commenter noted that handrail extensions are currently 
required at the top and bottom of stairs, but the proposed 
regulations do not include this requirement, and urged the 
Department to retain the current requirement. Other commenters 
questioned the need for the extension at the bottom of stairs.
    Sections 505.10.2 and 505.10.3 of the 2010 Standards require 
handrail extensions at both the top and bottom of a flight of 
stairs. The requirement in the 1991 Standards that handrails extend 
horizontally at least 12 inches beyond the width of one tread at the 
bottom of a stair was changed in the 2004 ADAAG by the Access Board 
in response to public comments. Existing horizontal handrail 
extensions that comply with 4.9.4(2) of the 1991 Standards should 
meet or exceed the requirements of the 2010 Standards.
    Commenters noted that the 2010 Standards will require handrail 
gripping surfaces with a circular cross section to have an outside 
diameter of 2 inches, and that this requirement would impose a 
physical barrier to individuals with disabilities who need the 
handrail for stability and support while accessing stairs.
    The requirement permits an outside diameter of 1\1/4\ inches to 
2 inches. This range allows flexibility in meeting the needs of 
individuals with disabilities and designers and architects. The 
Department is not aware of any data indicating that an outside 
diameter of 2 inches would pose any adverse impairment to use by 
individuals with disabilities.
    Handrails Along Walkways. The 1991 Standards do not contain any 
technical requirement for handrails provided along walkways that are 
not ramps. Section 403.6 of the 2010 Standards specifies that where 
handrails are provided along walkways that are not ramps, they shall 
comply with certain technical requirements. The change is expected 
to have minimal impact.


0
23. Revise the heading to Appendix C to read as follows:

Appendix C to Part 36--Guidance on ADA Regulation on Nondiscrimination 
on the Basis of Disability by Public Accommodations and in Commercial 
Facilities originally published on July 26, 1991.


0
24. Revise the heading to Appendix D to read as follows:

Appendix D to Part 36--1991 Standards for Accessible Design as 
Originally Published on July 26, 1991.

    Dated: July 23, 2010.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2010-21824 Filed 9-14-10; 8:45 am]
BILLING CODE 4410-13-P