[Title 28 CFR 36]
[Code of Federal Regulations (annual edition) - July 1, 2002 Edition]
[Title 28 - JUDICIAL ADMINISTRATION]
[Chapter I - DEPARTMENT OF JUSTICE]
[Part 36 - NONDISCRIMINATION ON THE BASIS OF DISABILITY BY PUBLIC ACCOMMODATIONS AND IN COMMERCIAL FACILITIES]
[From the U.S. Government Printing Office]


28JUDICIAL ADMINISTRATION12002-07-012002-07-01falseNONDISCRIMINATION ON THE BASIS OF DISABILITY BY PUBLIC ACCOMMODATIONS AND IN COMMERCIAL FACILITIES36PART 36JUDICIAL ADMINISTRATIONDEPARTMENT OF JUSTICE
PART 36--NONDISCRIMINATION ON THE BASIS OF DISABILITY BY PUBLIC ACCOMMODATIONS AND IN COMMERCIAL FACILITIES--Table of Contents




                           Subpart A--General

Sec.
36.101  Purpose.
36.102  Application.
36.103  Relationship to other laws.
36.104  Definitions.
36.105-36.199  [Reserved]

                     Subpart B--General Requirements

36.201  General.
36.202  Activities.
36.203  Integrated settings.
36.204  Administrative methods.
36.205  Association.
36.206  Retaliation or coercion.
36.207  Places of public accommodations located in private residences.
36.208  Direct threat.
36.209  Illegal use of drugs.
36.210  Smoking.
36.211  Maintenance of accessible features.
36.212  Insurance.
36.213  Relationship of subpart B to subparts C and D of this part.
36.214-36.299  [Reserved]

                    Subpart C--Specific Requirements

36.301  Eligibility criteria.
36.302  Modifications in policies, practices, or procedures.

[[Page 545]]

36.303  Auxiliary aids and services.
36.304  Removal of barriers.
36.305  Alternatives to barrier removal.
36.306  Personal devices and services.
36.307  Accessible or special goods.
36.308  Seating in assembly areas.
36.309  Examinations and courses.
36.310  Transportation provided by public accommodations.
36.311-36.399  [Reserved]

               Subpart D--New Construction and Alterations

36.401  New construction.
36.402  Alterations.
36.403  Alterations: Path of travel.
36.404  Alterations: Elevator exemption.
36.405  Alterations: Historic preservation.
36.406  Standards for new construction and alterations.
36.407  Temporary suspension of certain detectable warning requirements.
36.408-36.499  [Reserved]

                         Subpart E--Enforcement

36.501  Private suits.
36.502  Investigations and compliance reviews.
36.503  Suit by the Attorney General.
36.504  Relief.
36.505  Attorneys fees.
36.506  Alternative means of dispute resolution.
36.507  Effect of unavailability of technical assistance.
36.508  Effective date.
36.509-36.599  [Reserved]

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

36.601  Definitions.
36.602  General rule.
36.603  Filing a request for certification.
36.604  Preliminary determination.
36.605  Procedure following preliminary determination of equivalency.
36.606  Procedure following preliminary denial of certification.
36.607  Effect of certification.
36.608  Guidance concerning model codes.

Appendix A to Part 36--Standards for Accessible Design
Appendix B to Part 36--Preamble to Regulation on Nondiscrimination on 
          the Basis of Disability by Public Accommodations and in 
          Commercial Facilities (Published July 26, 1991)

    Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12188(b); 
Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 104-134, 110 Stat. 
1321.

    Source: Order No. 1513-91, 56 FR 35592, July 26, 1991, unless 
otherwise noted.



                           Subpart A--General



Sec. 36.101  Purpose.

    The purpose of this part is to implement title III of the Americans 
with Disabilities Act of 1990 (42 U.S.C. 12181), which prohibits 
discrimination on the basis of disability by public accommodations and 
requires places of public accommodation and commercial facilities to be 
designed, constructed, and altered in compliance with the accessibility 
standards established by this part.



Sec. 36.102  Application.

    (a) General. This part applies to any--
    (1) Public accommodation;
    (2) Commercial facility; or
    (3) Private entity that offers examinations or courses related to 
applications, licensing, certification, or credentialing for secondary 
or postsecondary education, professional, or trade purposes.
    (b) Public accommodations. (1) The requirements of this part 
applicable to public accommodations are set forth in subparts B, C, and 
D of this part.
    (2) The requirements of subparts B and C of this part obligate a 
public accommodation only with respect to the operations of a place of 
public accommodation.
    (3) The requirements of subpart D of this part obligate a public 
accommodation only with respect to--
    (i) A facility used as, or designed or constructed for use as, a 
place of public accommodation; or
    (ii) A facility used as, or designed and constructed for use as, a 
commercial facility.
    (c) Commercial facilities. The requirements of this part applicable 
to commercial facilities are set forth in subpart D of this part.
    (d) Examinations and courses. The requirements of this part 
applicable to private entities that offer examinations or courses as 
specified in paragraph (a) of this section are set forth in Sec. 36.309.
    (e) Exemptions and exclusions. This part does not apply to any 
private club (except to the extent that the facilities of the private 
club are made available to customers or patrons of a place of

[[Page 546]]

public accommodation), or to any religious entity or public entity.



Sec. 36.103  Relationship to other laws.

    (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 laws, or 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.



Sec. 36.104  Definitions.

    For purposes of this part, the term--
    Act means the Americans with Disabilities Act of 1990 (Pub. L. 101-
336, 104 Stat. 327, 42 U.S.C. 12101-12213 and 47 U.S.C. 225 and 611).
    Commerce means travel, trade, traffic, commerce, transportation, or 
communication--
    (1) Among the several States;
    (2) Between any foreign country or any territory or possession and 
any State; or
    (3) Between points in the same State but through another State or 
foreign country.
    Commercial facilities means facilities--
    (1) Whose operations will affect commerce;
    (2) That are intended for nonresidential use by a private entity; 
and
    (3) That are not--
    (i) Facilities that are covered or expressly exempted from coverage 
under the Fair Housing Act of 1968, as amended (42 U.S.C. 3601-3631);
    (ii) Aircraft; or
    (iii) Railroad locomotives, railroad freight cars, railroad 
cabooses, commuter or intercity passenger rail cars (including coaches, 
dining cars, sleeping cars, lounge cars, and food service cars), any 
other railroad cars described in section 242 of the Act or covered under 
title II of the Act, or railroad rights-of-way. For purposes of this 
definition, ``rail'' and ``railroad'' have the meaning given the term 
``railroad'' in section 202(e) of the Federal Railroad Safety Act of 
1970 (45 U.S.C. 431(e)).
    Current illegal use of drugs means illegal use of drugs that 
occurred recently enough to justify a reasonable belief that a person's 
drug use is current or that continuing use is a real and ongoing 
problem.
    Disability means, with respect to an individual, a physical or 
mental impairment that substantially limits one or more of the major 
life activities of such individual; a record of such an impairment; or 
being regarded as having such an impairment.
    (1) The phrase physical or mental impairment means--
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
neurological; musculoskeletal; special sense organs; respiratory, 
including speech organs; cardiovascular; reproductive; digestive; 
genitourinary; hemic and lymphatic; skin; and endocrine;
    (ii) Any mental or psychological disorder such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities;
    (iii) The phrase physical or mental impairment includes, but is not 
limited to, such contagious and noncontagious diseases and conditions as 
orthopedic, visual, speech, and hearing impairments, cerebral palsy, 
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, 
diabetes, mental retardation, emotional illness, specific learning 
disabilities, HIV disease (whether symptomatic or asymptomatic), 
tuberculosis, drug addiction, and alcoholism;
    (iv) The phrase physical or mental impairment does not include 
homosexuality or bisexuality.
    (2) The phrase major life activities means functions such as caring 
for one's self, performing manual tasks,

[[Page 547]]

walking, seeing, hearing, speaking, breathing, learning, and working.
    (3) The phrase has a record of such an impairment means has a 
history of, or has been misclassified as having, a mental or physical 
impairment that substantially limits one or more major life activities.
    (4) The phrase is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but that is treated by a private entity as 
constituting such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this 
definition but is treated by a private entity as having such an 
impairment.
    (5) The term disability does not include--
    (i) Transvestism, transsexualism, pedophilia, exhibitionism, 
voyeurism, gender identity disorders not resulting from physical 
impairments, or other sexual behavior disorders;
    (ii) Compulsive gambling, kleptomania, or pyromania; or
    (iii) Psychoactive substance use disorders resulting from current 
illegal use of drugs.
    Drug means a controlled substance, as defined in schedules I through 
V of section 202 of the Controlled Substances Act (21 U.S.C. 812).
    Facility means all or any portion of buildings, structures, sites, 
complexes, equipment, rolling stock or other conveyances, roads, walks, 
passageways, parking lots, or other real or personal property, including 
the site where the building, property, structure, or equipment is 
located.
    Illegal use of drugs means the use of one or more drugs, the 
possession or distribution of which is unlawful under the Controlled 
Substances Act (21 U.S.C. 812). The term ``illegal use of drugs'' does 
not include the use of a drug taken under supervision by a licensed 
health care professional, or other uses authorized by the Controlled 
Substances Act or other provisions of Federal law.
    Individual with a disability means a person who has a disability. 
The term ``individual with a disability'' does not include an individual 
who is currently engaging in the illegal use of drugs, when the private 
entity acts on the basis of such use.
    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) An inn, hotel, motel, or other place of lodging, except for an 
establishment located within a building that contains not more than five 
rooms for rent or hire and that is actually occupied by the proprietor 
of the establishment as the residence of the proprietor;
    (2) A restaurant, bar, or other establishment serving food or drink;
    (3) A motion picture house, theater, concert hall, stadium, or other 
place of exhibition or entertainment;
    (4) An auditorium, convention center, lecture hall, or other place 
of public gathering;
    (5) A bakery, grocery store, clothing store, hardware store, 
shopping center, or other sales or rental establishment;
    (6) A laundromat, dry-cleaner, bank, barber shop, beauty shop, 
travel service, shoe repair service, funeral parlor, gas station, office 
of an accountant or lawyer, pharmacy, insurance office, professional 
office of a health care provider, hospital, or other service 
establishment;
    (7) A terminal, depot, or other station used for specified public 
transportation;
    (8) A museum, library, gallery, or other place of public display or 
collection;
    (9) A park, zoo, amusement park, or other place of recreation;
    (10) A nursery, elementary, secondary, undergraduate, or 
postgraduate private school, or other place of education;
    (11) A day care center, senior citizen center, homeless shelter, 
food bank, adoption agency, or other social service center 
establishment; and
    (12) A gymnasium, health spa, bowling alley, golf course, or other 
place of exercise or recreation.
    Private club means a private club or establishment exempted from 
coverage

[[Page 548]]

under title II of the Civil Rights Act of 1964 (42 U.S.C. 2000a(e)).
    Private entity means a person or entity other than a public entity.
    Public accommodation means a private entity that owns, leases (or 
leases to), or operates a place of public accommodation.
    Public entity means--
    (1) Any State or local government;
    (2) Any department, agency, special purpose district, or other 
instrumentality of a State or States or local government; and
    (3) The National Railroad Passenger Corporation, and any commuter 
authority (as defined in section 103(8) of the Rail Passenger Service 
Act). (45 U.S.C. 541)
    Qualified interpreter means an interpreter who is able to interpret 
effectively, accurately and impartially both receptively and 
expressively, using any necessary specialized vocabulary.
    Readily achievable means easily accomplishable and able to be 
carried out without much difficulty or expense. In determining whether 
an action is readily achievable factors to be considered include--
    (1) The nature and cost of the action needed under this part;
    (2) The overall financial resources of the site or sites involved in 
the action; the number of persons employed at the site; the effect on 
expenses and resources; legitimate safety requirements that are 
necessary for safe operation, including crime prevention measures; or 
the impact otherwise of the action upon the operation of the site;
    (3) The geographic separateness, and the administrative or fiscal 
relationship of the site or sites in question to any parent corporation 
or entity;
    (4) If applicable, the overall financial resources of any parent 
corporation or entity; the overall size of the parent corporation or 
entity with respect to the number of its employees; the number, type, 
and location of its facilities; and
    (5) If applicable, the type of operation or operations of any parent 
corporation or entity, including the composition, structure, and 
functions of the workforce of the parent corporation or entity.
    Religious entity means a religious organization, including a place 
of worship.
    Service animal means 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.
    Specified public transportation means transportation by bus, rail, 
or any other conveyance (other than by aircraft) that provides the 
general public with general or special service (including charter 
service) on a regular and continuing basis.
    State means each of the several States, the District of Columbia, 
the Commonwealth of Puerto Rico, Guam, American Samoa, the Virgin 
Islands, the Trust Territory of the Pacific Islands, and the 
Commonwealth of the Northern Mariana Islands.
    Undue burden means significant difficulty or expense. In determining 
whether an action would result in an undue burden, factors to be 
considered include--
    (1) The nature and cost of the action needed under this part;
    (2) The overall financial resources of the site or sites involved in 
the action; the number of persons employed at the site; the effect on 
expenses and resources; legitimate safety requirements that are 
necessary for safe operation, including crime prevention measures; or 
the impact otherwise of the action upon the operation of the site;
    (3) The geographic separateness, and the administrative or fiscal 
relationship of the site or sites in question to any parent corporation 
or entity;
    (4) If applicable, the overall financial resources of any parent 
corporation or entity; the overall size of the parent corporation or 
entity with respect to the number of its employees; the number, type, 
and location of its facilities; and

[[Page 549]]

    (5) If applicable, the type of operation or operations of any parent 
corporation or entity, including the composition, structure, and 
functions of the workforce of the parent corporation or entity.



Secs. 36.105-36.199  [Reserved]



                     Subpart B--General Requirements



Sec. 36.201  General.

    (a) Prohibition of discrimination. No individual shall be 
discriminated against on the basis of disability in the full and equal 
enjoyment of the goods, services, facilities, privileges, advantages, or 
accommodations of any place of public accommodation by any private 
entity who owns, leases (or leases to), or operates a place of public 
accommodation.
    (b) Landlord and tenant responsibilities. Both the landlord who owns 
the building that houses a place of public accommodation and the tenant 
who owns or operates the place of public accommodation are public 
accommodations subject to the requirements of this part. As between the 
parties, allocation of responsibility for complying with the obligations 
of this part may be determined by lease or other contract.



Sec. 36.202  Activities.

    (a) Denial of participation. A public accommodation shall not 
subject an individual or class of individuals on the basis of a 
disability or disabilities of such individual or class, directly, or 
through contractual, licensing, or other arrangements, to a denial of 
the opportunity of the individual or class to participate in or benefit 
from the goods, services, facilities, privileges, advantages, or 
accommodations of a place of public accommodation.
    (b) Participation in unequal benefit. A public accommodation shall 
not afford an individual or class of individuals, on the basis of a 
disability or disabilities of such individual or class, directly, or 
through contractual, licensing, or other arrangements, with the 
opportunity to participate in or benefit from a good, service, facility, 
privilege, advantage, or accommodation that is not equal to that 
afforded to other individuals.
    (c) Separate benefit. A public accommodation shall not provide an 
individual or class of individuals, on the basis of a disability or 
disabilities of such individual or class, directly, or through 
contractual, licensing, or other arrangements with a good, service, 
facility, privilege, advantage, or accommodation that is different or 
separate from that provided to other individuals, unless such action is 
necessary to provide the individual or class of individuals with a good, 
service, facility, privilege, advantage, or accommodation, or other 
opportunity that is as effective as that provided to others.
    (d) Individual or class of individuals. For purposes of paragraphs 
(a) through (c) of this section, the term ``individual or class of 
individuals'' refers to the clients or customers of the public 
accommodation that enters into the contractual, licensing, or other 
arrangement.



Sec. 36.203  Integrated settings.

    (a) General. A public accommodation shall afford goods, services, 
facilities, privileges, advantages, and accommodations to an individual 
with a disability in the most integrated setting appropriate to the 
needs of the individual.
    (b) Opportunity to participate. Notwithstanding the existence of 
separate or different programs or activities provided in accordance with 
this subpart, a public accommodation shall not deny an individual with a 
disability an opportunity to participate in such programs or activities 
that are not separate or different.
    (c) Accommodations and services. (1) Nothing in this part shall be 
construed to require an individual with a disability to accept an 
accommodation, aid, service, opportunity, or benefit available under 
this part that such individual chooses not to accept.
    (2) Nothing in the Act or this part authorizes the representative or 
guardian of an individual with a disability to decline food, water, 
medical treatment, or medical services for that individual.



Sec. 36.204  Administrative methods.

    A public accommodation shall not, directly or through contractual or

[[Page 550]]

other arrangements, utilize standards or criteria or methods of 
administration that have the effect of discriminating on the basis of 
disability, or that perpetuate the discrimination of others who are 
subject to common administrative control.



Sec. 36.205  Association.

    A public accommodation shall not exclude or otherwise deny equal 
goods, services, facilities, privileges, advantages, accommodations, or 
other opportunities to an individual or entity because of the known 
disability of an individual with whom the individual or entity is known 
to have a relationship or association.



Sec. 36.206  Retaliation or coercion.

    (a) No private or public entity shall discriminate against any 
individual because that individual has opposed any act or practice made 
unlawful by this part, or because that individual made a charge, 
testified, assisted, or participated in any manner in an investigation, 
proceeding, or hearing under the Act or this part.
    (b) No private or public entity shall coerce, intimidate, threaten, 
or interfere with any individual in the exercise or enjoyment of, or on 
account of his or her having exercised or enjoyed, or on account of his 
or her having aided or encouraged any other individual in the exercise 
or enjoyment of, any right granted or protected by the Act or this part.
    (c) Illustrations of conduct prohibited by this section include, but 
are not limited to:
    (1) Coercing an individual to deny or limit the benefits, services, 
or advantages to which he or she is entitled under the Act or this part;
    (2) Threatening, intimidating, or interfering with an individual 
with a disability who is seeking to obtain or use the goods, services, 
facilities, privileges, advantages, or accommodations of a public 
accommodation;
    (3) Intimidating or threatening any person because that person is 
assisting or encouraging an individual or group entitled to claim the 
rights granted or protected by the Act or this part to exercise those 
rights; or
    (4) Retaliating against any person because that person has 
participated in any investigation or action to enforce the Act or this 
part.



Sec. 36.207  Places of public accommodation located in private residences.

    (a) When a place of public accommodation is located in a private 
residence, the portion of the residence used exclusively as a residence 
is not covered by this part, but that portion used exclusively in the 
operation of the place of public accommodation or that portion used both 
for the place of public accommodation and for residential purposes is 
covered by this part.
    (b) The portion of the residence covered under paragraph (a) of this 
section extends to those elements used to enter the place of public 
accommodation, including the homeowner's front sidewalk, if any, the 
door or entryway, and hallways; and those portions of the residence, 
interior or exterior, available to or used by customers or clients, 
including restrooms.



Sec. 36.208  Direct threat.

    (a) This part does not require a public accommodation to permit an 
individual to participate in or benefit from the goods, services, 
facilities, privileges, advantages and accommodations of that public 
accommodation when that individual poses a direct threat to the health 
or safety of others.
    (b) 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.
    (c) 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 will 
mitigate the risk.

[[Page 551]]



Sec. 36.209  Illegal use of drugs.

    (a) General. (1) Except as provided in paragraph (b) of this 
section, this part does not prohibit discrimination against an 
individual based on that individual's current illegal use of drugs.
    (2) A public accommodation shall not discriminate on the basis of 
illegal use of drugs against an individual who is not engaging in 
current illegal use of drugs and who--
    (i) Has successfully completed a supervised drug rehabilitation 
program or has otherwise been rehabilitated successfully;
    (ii) Is participating in a supervised rehabilitation program; or
    (iii) Is erroneously regarded as engaging in such use.
    (b) Health and drug rehabilitation services. (1) A public 
accommodation shall not deny health services, or services provided in 
connection with drug rehabilitation, to an individual on the basis of 
that individual's current illegal use of drugs, if the individual is 
otherwise entitled to such services.
    (2) A drug rehabilitation or treatment program may deny 
participation to individuals who engage in illegal use of drugs while 
they are in the program.
    (c) Drug testing. (1) This part does not prohibit a public 
accommodation from adopting or administering reasonable policies or 
procedures, including but not limited to drug testing, designed to 
ensure that an individual who formerly engaged in the illegal use of 
drugs is not now engaging in current illegal use of drugs.
    (2) Nothing in this paragraph (c) shall be construed to encourage, 
prohibit, restrict, or authorize the conducting of testing for the 
illegal use of drugs.



Sec. 36.210  Smoking.

    This part does not preclude the prohibition of, or the imposition of 
restrictions on, smoking in places of public accommodation.



Sec. 36.211  Maintenance of accessible features.

    (a) A public accommodation shall maintain in operable working 
condition those features of facilities and equipment that are required 
to be readily accessible to and usable by persons with disabilities by 
the Act or this part.
    (b) This section does not prohibit isolated or temporary 
interruptions in service or access due to maintenance or repairs.



Sec. 36.212  Insurance.

    (a) This part shall not be construed to prohibit or restrict--
    (1) An insurer, hospital or medical service company, health 
maintenance organization, or any agent, or entity that administers 
benefit plans, or similar organizations from underwriting risks, 
classifying risks, or administering such risks that are based on or not 
inconsistent with State law; or
    (2) A person or organization covered by this part from establishing, 
sponsoring, observing or administering the terms of a bona fide benefit 
plan that are based on underwriting risks, classifying risks, or 
administering such risks that are based on or not inconsistent with 
State law; or
    (3) A person or organization covered by this part from establishing, 
sponsoring, observing or administering the terms of a bona fide benefit 
plan that is not subject to State laws that regulate insurance.
    (b) Paragraphs (a) (1), (2), and (3) of this section shall not be 
used as a subterfuge to evade the purposes of the Act or this part.
    (c) A public accommodation shall not refuse to serve an individual 
with a disability because its insurance company conditions coverage or 
rates on the absence of individuals with disabilities.



Sec. 36.213  Relationship of subpart B to subparts C and D of this part.

    Subpart B of this part sets forth the general principles of 
nondiscrimination applicable to all entities subject to this part. 
Subparts C and D of this part provide guidance on the application of the 
statute to specific situations. The specific provisions, including the 
limitations on those provisions, control over the general provisions in 
circumstances where both specific and general provisions apply.

[[Page 552]]



Secs. 36.214-36.299  [Reserved]



                    Subpart C--Specific Requirements



Sec. 36.301  Eligibility criteria.

    (a) General. A public accommodation shall not impose or apply 
eligibility criteria that screen out or tend to screen out an individual 
with a disability or any class of individuals with disabilities from 
fully and equally enjoying any goods, services, facilities, privileges, 
advantages, or accommodations, unless such criteria can be shown to be 
necessary for the provision of the goods, services, facilities, 
privileges, advantages, or accommodations being offered.
    (b) Safety. A public accommodation may impose legitimate safety 
requirements that are necessary for safe operation. Safety requirements 
must be based on actual risks and not on mere speculation, stereotypes, 
or generalizations about individuals with disabilities.
    (c) Charges. A public accommodation may not impose a surcharge on a 
particular individual with a disability or any group of individuals with 
disabilities to cover the costs of measures, such as the provision of 
auxiliary aids, barrier removal, alternatives to barrier removal, and 
reasonable modifications in policies, practices, or procedures, that are 
required to provide that individual or group with the nondiscriminatory 
treatment required by the Act or this part.



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

    (a) General. A public accommodation shall make reasonable 
modifications in policies, practices, or procedures, when the 
modifications are necessary to afford goods, services, facilities, 
privileges, advantages, or accommodations to individuals with 
disabilities, unless the public accommodation can demonstrate that 
making the modifications would fundamentally alter the nature of the 
goods, services, facilities, privileges, advantages, or accommodations.
    (b) Specialties--(1) General. A public accommodation may refer an 
individual with a disability to another public accommodation, if that 
individual is seeking, or requires, treatment or services outside of the 
referring public accommodation's area of specialization, and if, in the 
normal course of its operations, the referring public accommodation 
would make a similar referral for an individual without a disability who 
seeks or requires the same treatment or services.
    (2) Illustration--medical specialties. A health care provider may 
refer an individual with a disability to another provider, if that 
individual is seeking, or requires, treatment or services outside of the 
referring provider's area of specialization, and if the referring 
provider would make a similar referral for an individual without a 
disability who seeks or requires the same treatment or services. A 
physician who specializes in treating only a particular condition cannot 
refuse to treat an individual with a disability for that condition, but 
is not required to treat the individual for a different condition.
    (c) Service animals--(1) General. Generally, a public accommodation 
shall modify policies, practices, or procedures to permit the use of a 
service animal by an individual with a disability.
    (2) Care or supervision of service animals. Nothing in this part 
requires a public accommodation to supervise or care for a service 
animal.
    (d) Check-out aisles. A store with check-out aisles shall ensure 
that an adequate number of accessible check-out aisles are kept open 
during store hours, or shall otherwise modify its policies and 
practices, in order to ensure that an equivalent level of convenient 
service is provided to individuals with disabilities as is provided to 
others. If only one check-out aisle is accessible, and it is generally 
used for express service, one way of providing equivalent service is to 
allow persons with mobility impairments to make all their purchases at 
that aisle.



Sec. 36.303  Auxiliary aids and services.

    (a) General. A public accommodation shall take those steps that 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

[[Page 553]]

and services, unless the public accommodation can demonstrate that 
taking those steps would fundamentally alter the nature of the goods, 
services, facilities, privileges, advantages, or accommodations being 
offered or would result in an undue burden, i.e., significant difficulty 
or expense.
    (b) Examples. The term ``auxiliary aids and services'' includes--
    (1) Qualified interpreters, notetakers, computer-aided transcription 
services, written materials, telephone handset amplifiers, assistive 
listening devices, assistive listening systems, telephones compatible 
with hearing aids, closed caption decoders, open and closed captioning, 
telecommunications devices for deaf persons (TDD's), videotext displays, 
or other effective methods of making aurally delivered materials 
available to individuals with hearing impairments;
    (2) Qualified readers, taped texts, audio recordings, Brailled 
materials, large print materials, or other effective methods of making 
visually delivered materials available to individuals with visual 
impairments;
    (3) Acquisition or modification of equipment or devices; and
    (4) Other similar services and actions.
    (c) Effective communication. A public accommodation shall furnish 
appropriate auxiliary aids and services where necessary to ensure 
effective communication with individuals with disabilities.
    (d) Telecommunication devices for the deaf (TDD's). (1) A public 
accommodation that offers a customer, client, patient, or participant 
the opportunity to make outgoing telephone calls on more than an 
incidental convenience basis shall make available, upon request, a TDD 
for the use of an individual who has impaired hearing or a communication 
disorder.
    (2) This part does not require a public accommodation to use a TDD 
for receiving or making telephone calls incident to its operations.
    (e) Closed caption decoders. Places of lodging that provide 
televisions in five or more guest rooms and hospitals that provide 
televisions for patient use shall provide, upon request, a means for 
decoding captions for use by an individual with impaired hearing.
    (f) Alternatives. If provision of a particular auxiliary aid or 
service by a public accommodation would result in a fundamental 
alteration in the nature of the goods, services, facilities, privileges, 
advantages, or accommodations being offered or in an undue burden, i.e., 
significant difficulty or expense, the public accommodation shall 
provide an alternative auxiliary aid or service, if one exists, that 
would not result in an alteration or such burden but would nevertheless 
ensure that, to the maximum extent possible, individuals with 
disabilities receive the goods, services, facilities, privileges, 
advantages, or accommodations offered by the public accommodation.



Sec. 36.304  Removal of barriers.

    (a) General. A public accommodation shall remove architectural 
barriers in existing facilities, including communication barriers that 
are structural in nature, where such removal is readily achievable, 
i.e., easily accomplishable and able to be carried out without much 
difficulty or expense.
    (b) Examples. Examples of steps to remove barriers include, but are 
not limited to, the following actions--
    (1) Installing ramps;
    (2) Making curb cuts in sidewalks and entrances;
    (3) Repositioning shelves;
    (4) Rearranging tables, chairs, vending machines, display racks, and 
other furniture;
    (5) Repositioning telephones;
    (6) Adding raised markings on elevator control buttons;
    (7) Installing flashing alarm lights;
    (8) Widening doors;
    (9) Installing offset hinges to widen doorways;
    (10) Eliminating a turnstile or providing an alternative accessible 
path;
    (11) Installing accessible door hardware;
    (12) Installing grab bars in toilet stalls;
    (13) Rearranging toilet partitions to increase maneuvering space;
    (14) Insulating lavatory pipes under sinks to prevent burns;
    (15) Installing a raised toilet seat;

[[Page 554]]

    (16) Installing a full-length bathroom mirror;
    (17) Repositioning the paper towel dispenser in a bathroom;
    (18) Creating designated accessible parking spaces;
    (19) Installing an accessible paper cup dispenser at an existing 
inaccessible water fountain;
    (20) Removing high pile, low density carpeting; or
    (21) Installing vehicle hand controls.
    (c) Priorities. A public accommodation is urged to take measures to 
comply with the barrier removal requirements of this section in 
accordance with the following order of priorities.
    (1) First, a public accommodation should take measures to provide 
access to a place of public accommodation from public sidewalks, 
parking, or public transportation. These measures include, for example, 
installing an entrance ramp, widening entrances, and providing 
accessible parking spaces.
    (2) Second, a public accommodation should take measures to provide 
access to those areas of a place of public accommodation where goods and 
services are made available to the public. These measures include, for 
example, adjusting the layout of display racks, rearranging tables, 
providing Brailled and raised character signage, widening doors, 
providing visual alarms, and installing ramps.
    (3) Third, a public accommodation should take measures to provide 
access to restroom facilities. These measures include, for example, 
removal of obstructing furniture or vending machines, widening of doors, 
installation of ramps, providing accessible signage, widening of toilet 
stalls, and installation of grab bars.
    (4) Fourth, a public accommodation should take any other measures 
necessary to provide access to the goods, services, facilities, 
privileges, advantages, or accommodations of a place of public 
accommodation.
    (d) Relationship to alterations requirements of subpart D of this 
part. (1) Except as provided in paragraph (d)(2) 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 Secs. 36.404-36.406 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.
    (2) If, as a result of compliance with the alterations requirements 
specified in paragraph (d)(1) of this section, the measures required to 
remove a barrier would not be readily achievable, a public accommodation 
may take other readily achievable measures to remove the barrier that do 
not fully comply with the specified requirements. Such measures include, 
for example, providing a ramp with a steeper slope or widening a doorway 
to a narrower width than that mandated by the alterations requirements. 
No measure shall be taken, however, that poses a significant risk to the 
health or safety of individuals with disabilities or others.
    (e) Portable ramps. Portable ramps should be used to comply with 
this section only when installation of a permanent ramp is not readily 
achievable. In order to avoid any significant risk to the health or 
safety of individuals with disabilities or others in using portable 
ramps, due consideration shall be given to safety features such as 
nonslip surfaces, railings, anchoring, and strength of materials.
    (f) Selling or serving space. The rearrangement of temporary or 
movable structures, such as furniture, equipment, and display racks is 
not readily achievable to the extent that it results in a significant 
loss of selling or serving space.
    (g) Limitation on barrier removal obligations. (1) The requirements 
for barrier removal under Sec. 36.304 shall not be interpreted to exceed 
the standards for alterations in subpart D of this part.
    (2) To the extent that relevant standards for alterations are not 
provided in subpart D of this part, then the requirements of Sec. 36.304 
shall not be interpreted to exceed the standards for new construction in 
subpart D of this part.
    (3) This section does not apply to rolling stock and other 
conveyances to the extent that Sec. 36.310 applies to rolling stock and 
other conveyances.

[[Page 555]]



Sec. 36.305  Alternatives to barrier removal.

    (a) General. Where a public accommodation can demonstrate that 
barrier removal is not readily achievable, the public accommodation 
shall not fail to make its goods, services, facilities, privileges, 
advantages, or accommodations available through alternative methods, if 
those methods are readily achievable.
    (b) Examples. Examples of alternatives to barrier removal include, 
but are not limited to, the following actions--
    (1) Providing curb service or home delivery;
    (2) Retrieving merchandise from inaccessible shelves or racks;
    (3) Relocating activities to accessible locations;
    (c) Multiscreen cinemas. If it is not readily achievable to remove 
barriers to provide access by persons with mobility impairments to all 
of the theaters of a multiscreen cinema, the cinema shall establish a 
film rotation schedule that provides reasonable access for individuals 
who use wheelchairs to all films. Reasonable notice shall be provided to 
the public as to the location and time of accessible showings.



Sec. 36.306  Personal devices and services.

    This part does not require a public accommodation to provide its 
customers, clients, or participants with personal devices, such as 
wheelchairs; individually prescribed devices, such as prescription 
eyeglasses or hearing aids; or services of a personal nature including 
assistance in eating, toileting, or dressing.



Sec. 36.307  Accessible or special goods.

    (a) This part does not require a public accommodation to alter its 
inventory to include accessible or special goods that are designed for, 
or facilitate use by, individuals with disabilities.
    (b) A public accommodation shall order accessible or special goods 
at the request of an individual with disabilities, if, in the normal 
course of its operation, it makes special orders on request for 
unstocked goods, and if the accessible or special goods can be obtained 
from a supplier with whom the public accommodation customarily does 
business.
    (c) Examples of accessible or special goods include items such as 
Brailled versions of books, books on audio cassettes, closed-captioned 
video tapes, special sizes or lines of clothing, and special foods to 
meet particular dietary needs.



Sec. 36.308  Seating in assembly areas.

    (a) Existing facilities. (1) To the extent that it is readily 
achievable, a public accommodation in assembly areas shall--
    (i) Provide a reasonable number of wheelchair seating spaces and 
seats with removable aisle-side arm rests; and
    (ii) Locate the wheelchair seating spaces so that they--
    (A) Are dispersed throughout the seating area;
    (B) Provide lines of sight and choice of admission prices comparable 
to those for members of the general public;
    (C) Adjoin an accessible route that also serves as a means of egress 
in case of emergency; and
    (D) Permit individuals who use wheelchairs to sit with family 
members or other companions.
    (2) If removal of seats is not readily achievable, a public 
accommodation shall provide, to the extent that it is readily achievable 
to do so, a portable chair or other means to permit a family member or 
other companion to sit with an individual who uses a wheelchair.
    (3) The requirements of paragraph (a) of this section shall not be 
interpreted to exceed the standards for alterations in subpart D of this 
part.
    (b) New construction and alterations. The provision and location of 
wheelchair seating spaces in newly constructed or altered assembly areas 
shall be governed by the standards for new construction and alterations 
in subpart D of this part.



Sec. 36.309  Examinations and courses.

    (a) General. Any private entity that offers examinations or courses 
related to applications, licensing, certification, or credentialing for 
secondary

[[Page 556]]

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.
    (b) Examinations. (1) Any private entity offering an examination 
covered by this section must assure that--
    (i) The examination is selected and administered so as to best 
ensure that, when the examination is administered to an individual with 
a disability that impairs sensory, manual, or speaking skills, the 
examination results accurately reflect the individual's aptitude or 
achievement level or whatever other factor the examination purports to 
measure, rather than reflecting the individual's impaired sensory, 
manual, or speaking skills (except where those skills are the factors 
that the examination purports to measure);
    (ii) An examination that is designed for individuals with impaired 
sensory, manual, or speaking skills is offered at equally convenient 
locations, as often, and in as timely a manner as are other 
examinations; and
    (iii) The examination is administered in facilities that are 
accessible to individuals with disabilities or alternative accessible 
arrangements are made.
    (2) Required modifications to an examination may include changes in 
the length of time permitted for completion of the examination and 
adaptation of the manner in which the examination is given.
    (3) A private entity offering an examination covered by this section 
shall provide appropriate auxiliary aids for persons with impaired 
sensory, manual, or speaking skills, unless that private entity can 
demonstrate that offering a particular auxiliary aid would fundamentally 
alter the measurement of the skills or knowledge the examination is 
intended to test or would result in an undue burden. Auxiliary aids and 
services required by this section may include taped examinations, 
interpreters or other effective methods of making orally delivered 
materials available to individuals with hearing impairments, Brailled or 
large print examinations and answer sheets or qualified readers for 
individuals with visual impairments or learning disabilities, 
transcribers for individuals with manual impairments, and other similar 
services and actions.
    (4) Alternative accessible arrangements may include, for example, 
provision of an examination at an individual's home with a proctor if 
accessible facilities or equipment are unavailable. Alternative 
arrangements must provide comparable conditions to those provided for 
nondisabled individuals.
    (c) Courses. (1) Any private entity that offers a course covered by 
this section must make such modifications to that course as are 
necessary to ensure that the place and manner in which the course is 
given are accessible to individuals with disabilities.
    (2) Required modifications may include changes in the length of time 
permitted for the completion of the course, substitution of specific 
requirements, or adaptation of the manner in which the course is 
conducted or course materials are distributed.
    (3) A private entity that offers a course covered by this section 
shall provide appropriate auxiliary aids and services for persons with 
impaired sensory, manual, or speaking skills, unless the private entity 
can demonstrate that offering a particular auxiliary aid or service 
would fundamentally alter the course or would result in an undue burden. 
Auxiliary aids and services required by this section may include taped 
texts, interpreters or other effective methods of making orally 
delivered materials available to individuals with hearing impairments, 
Brailled or large print texts or qualified readers for individuals with 
visual impairments and learning disabilities, classroom equipment 
adapted for use by individuals with manual impairments, and other 
similar services and actions.
    (4) Courses must be administered in facilities that are accessible 
to individuals with disabilities or alternative accessible arrangements 
must be made.
    (5) Alternative accessible arrangements may include, for example, 
provision of the course through videotape, cassettes, or prepared notes. 
Alternative arrangements must provide comparable conditions to those 
provided for nondisabled individuals.

[[Page 557]]



Sec. 36.310  Transportation provided by public accommodations.

    (a) General. (1) A public accommodation that provides transportation 
services, but that is not primarily engaged in the business of 
transporting people, is subject to the general and specific provisions 
in subparts B, C, and D of this part for its transportation operations, 
except as provided in this section.
    (2) Examples. Transportation services subject to this section 
include, but are not limited to, shuttle services operated between 
transportation terminals and places of public accommodation, customer 
shuttle bus services operated by private companies and shopping centers, 
student transportation systems, and transportation provided within 
recreational facilities such as stadiums, zoos, amusement parks, and ski 
resorts.
    (b) Barrier removal. A public accommodation subject to this section 
shall remove transportation barriers in existing vehicles and rail 
passenger cars used for transporting individuals (not including barriers 
that can only be removed through the retrofitting of vehicles or rail 
passenger cars by the installation of a hydraulic or other lift) where 
such removal is readily achievable.
    (c) Requirements for vehicles and systems. A public accommodation 
subject to this section shall comply with the requirements pertaining to 
vehicles and transportation systems in the regulations issued by the 
Secretary of Transportation pursuant to section 306 of the Act.



Secs. 36.311--36.399  [Reserved]



               Subpart D--New Construction and Alterations



Sec. 36.401  New construction.

    (a) General. (1) Except as provided in paragraphs (b) and (c) of 
this section, discrimination for purposes of this part includes a 
failure to design and construct facilities for first occupancy after 
January 26, 1993, that are readily accessible to and usable by 
individuals with disabilities.
    (2) For purposes of this section, a facility is designed and 
constructed for first occupancy after January 26, 1993, only--
    (i) If the last application for a building permit or permit 
extension for the facility is certified to be complete, by a State, 
County, or local government after January 26, 1992 (or, in those 
jurisdictions where the government does not certify completion of 
applications, if the last application for a building permit or permit 
extension for the facility is received by the State, County, or local 
government after January 26, 1992); and
    (ii) If the first certificate of occupancy for the facility is 
issued after January 26, 1993.
    (b) Commercial facilities located in private residences. (1) When a 
commercial facility is located in a private residence, the portion of 
the residence used exclusively as a residence is not covered by this 
subpart, but that portion used exclusively in the operation of the 
commercial facility or that portion used both for the commercial 
facility and for residential purposes is covered by the new construction 
and alterations requirements of this subpart.
    (2) The portion of the residence covered under paragraph (b)(1) of 
this section extends to those elements used to enter the commercial 
facility, including the homeowner's front sidewalk, if any, the door or 
entryway, and hallways; and those portions of the residence, interior or 
exterior, available to or used by employees or visitors of the 
commercial facility, including restrooms.
    (c) Exception for structural impracticability. (1) Full compliance 
with the requirements of this section is not required where an entity 
can demonstrate that it is structurally impracticable to meet the 
requirements. Full compliance will be considered structurally 
impracticable only in those rare circumstances when the unique 
characteristics of terrain prevent the incorporation of accessibility 
features.
    (2) If full compliance with this section would be structurally 
impracticable, compliance with this section is required to the extent 
that it is not structurally impracticable. In that case, any portion of 
the facility that can be made accessible shall be made

[[Page 558]]

accessible to the extent that it is not structurally impracticable.
    (3) If providing accessibility in conformance with this section to 
individuals with certain disabilities (e.g., those who use wheelchairs) 
would be structurally impracticable, accessibility shall nonetheless be 
ensured to persons with other types of disabilities (e.g., those who use 
crutches or who have sight, hearing, or mental impairments) in 
accordance with this section.
    (d) Elevator exemption. (1) For purposes of this paragraph (d)--
    (i) Professional office of a health care provider means a location 
where a person or entity regulated by a State to provide professional 
services related to the physical or mental health of an individual makes 
such services available to the public. The facility housing the 
``professional office of a health care provider'' only includes floor 
levels housing at least one health care provider, or any floor level 
designed or intended for use by at least one health care provider.
    (ii) Shopping center or shopping mall means--
    (A) A building housing five or more sales or rental establishments; 
or
    (B) A series of buildings on a common site, either under common 
ownership or common control or developed either as one project or as a 
series of related projects, housing five or more sales or rental 
establishments. For purposes of this section, places of public 
accommodation of the types listed in paragraph (5) of the definition of 
``place of public accommodation'' in section Sec. 36.104 are considered 
sales or rental establishments. The facility housing a ``shopping center 
or shopping mall'' only includes floor levels housing at least one sales 
or rental establishment, or any floor level designed or intended for use 
by at least one sales or rental establishment.
    (2) This section does not require the installation of an elevator in 
a facility that is less than three stories or has less than 3000 square 
feet per story, except with respect to any facility that houses one or 
more of the following:
    (i) A shopping center or shopping mall, or a professional office of 
a health care provider.
    (ii) A terminal, depot, or other station used for specified public 
transportation, or an airport passenger terminal. In such a facility, 
any area housing passenger services, including boarding and debarking, 
loading and unloading, baggage claim, dining facilities, and other 
common areas open to the public, must be on an accessible route from an 
accessible entrance.
    (3) The elevator exemption set forth in this paragraph (d) does not 
obviate or limit, in any way the obligation to comply with the other 
accessibility requirements established in paragraph (a) of this section. 
For example, in a facility that houses a shopping center or shopping 
mall, or a professional office of a health care provider, the floors 
that are above or below an accessible ground floor and that do not house 
sales or rental establishments or a professional office of a health care 
provider, must meet the requirements of this section but for the 
elevator.



Sec. 36.402  Alterations.

    (a) General. (1) Any alteration to a place of public accommodation 
or a commercial facility, after January 26, 1992, shall be made so as to 
ensure that, to the maximum extent feasible, the altered portions of the 
facility are readily accessible to and usable by individuals with 
disabilities, including individuals who use wheelchairs.
    (2) An alteration is deemed to be undertaken after January 26, 1992, 
if the physical alteration of the property begins after that date.
    (b) Alteration. For the purposes of this part, an alteration is a 
change to a place of public accommodation or a commercial facility that 
affects or could affect the usability of the building or facility or any 
part thereof.
    (1) Alterations include, but are not limited to, remodeling, 
renovation, rehabilitation, reconstruction, historic restoration, 
changes or rearrangement in structural parts or elements, and changes or 
rearrangement in the plan configuration of walls and full-height 
partitions. Normal maintenance, reroofing, painting or wallpapering, 
asbestos removal, or changes to mechanical and electrical systems are 
not alterations unless they affect the usability of the building or 
facility.

[[Page 559]]

    (2) If existing elements, spaces, or common areas are altered, then 
each such altered element, space, or area shall comply with the 
applicable provisions of appendix A to this part.
    (c) To the maximum extent feasible. The phrase ``to the maximum 
extent feasible,'' as used in this section, applies to the occasional 
case where the nature of an existing facility makes it virtually 
impossible to comply fully with applicable accessibility standards 
through a planned alteration. In these circumstances, the alteration 
shall provide the maximum physical accessibility feasible. Any altered 
features of the facility that can be made accessible shall be made 
accessible. If providing accessibility in conformance with this section 
to individuals with certain disabilities (e.g., those who use 
wheelchairs) would not be feasible, the facility shall be made 
accessible to persons with other types of disabilities (e.g., those who 
use crutches, those who have impaired vision or hearing, or those who 
have other impairments).



Sec. 36.403  Alterations: Path of travel.

    (a) General. An alteration that affects or could affect the 
usability of or access to an area of a facility that contains a primary 
function shall be made so as to ensure that, to the maximum extent 
feasible, the path of travel to the altered area and the restrooms, 
telephones, and drinking fountains serving the altered area, are readily 
accessible to and usable by individuals with disabilities, including 
individuals who use wheelchairs, unless the cost and scope of such 
alterations is disproportionate to the cost of the overall alteration.
    (b) Primary function. A ``primary function'' is a major activity for 
which the facility is intended. Areas that contain a primary function 
include, but are not limited to, the customer services lobby of a bank, 
the dining area of a cafeteria, the meeting rooms in a conference 
center, as well as offices and other work areas in which the activities 
of the public accommodation or other private entity using the facility 
are carried out. Mechanical rooms, boiler rooms, supply storage rooms, 
employee lounges or locker rooms, janitorial closets, entrances, 
corridors, and restrooms are not areas containing a primary function.
    (c) Alterations to an area containing a primary function. (1) 
Alterations that affect the usability of or access to an area containing 
a primary function include, but are not limited to--
    (i) Remodeling merchandise display areas or employee work areas in a 
department store;
    (ii) Replacing an inaccessible floor surface in the customer service 
or employee work areas of a bank;
    (iii) Redesigning the assembly line area of a factory; or
    (iv) Installing a computer center in an accounting firm.
    (2) For the purposes of this section, alterations to windows, 
hardware, controls, electrical outlets, and signage shall not be deemed 
to be alterations that affect the usability of or access to an area 
containing a primary function.
    (d) Landlord/tenant: If a tenant is making alterations as defined in 
Sec. 36.402 that would trigger the requirements of this section, those 
alterations by the tenant in areas that only the tenant occupies do not 
trigger a path of travel obligation upon the landlord with respect to 
areas of the facility under the landlord's authority, if those areas are 
not otherwise being altered.
    (e) Path of travel. (1) A ``path of travel'' includes a continuous, 
unobstructed way of pedestrian passage by means of which the altered 
area may be approached, entered, and exited, and which connects the 
altered area with an exterior approach (including sidewalks, streets, 
and parking areas), an entrance to the facility, and other parts of the 
facility.
    (2) An accessible path of travel may consist of walks and sidewalks, 
curb ramps and other interior or exterior pedestrian ramps; clear floor 
paths through lobbies, corridors, rooms, and other improved areas; 
parking access aisles; elevators and lifts; or a combination of these 
elements.
    (3) For the purposes of this part, the term ``path of travel'' also 
includes the restrooms, telephones, and drinking fountains serving the 
altered area.
    (f) Disproportionality. (1) Alterations made to provide an 
accessible path of travel to the altered area will be deemed 
disproportionate to the overall

[[Page 560]]

alteration when the cost exceeds 20% of the cost of the alteration to 
the primary function area.
    (2) Costs that may be counted as expenditures required to provide an 
accessible path of travel may include:
    (i) Costs associated with providing an accessible entrance and an 
accessible route to the altered area, for example, the cost of widening 
doorways or installing ramps;
    (ii) Costs associated with making restrooms accessible, such as 
installing grab bars, enlarging toilet stalls, insulating pipes, or 
installing accessible faucet controls;
    (iii) Costs associated with providing accessible telephones, such as 
relocating the telephone to an accessible height, installing 
amplification devices, or installing a telecommunications device for 
deaf persons (TDD);
    (iv) Costs associated with relocating an inaccessible drinking 
fountain.
    (g) Duty to provide accessible features in the event of 
disproportionality. (1) When the cost of alterations necessary to make 
the path of travel to the altered area fully accessible is 
disproportionate to the cost of the overall alteration, the path of 
travel shall be made accessible to the extent that it can be made 
accessible without incurring disproportionate costs.
    (2) In choosing which accessible elements to provide, priority 
should be given to those elements that will provide the greatest access, 
in the following order:
    (i) An accessible entrance;
    (ii) An accessible route to the altered area;
    (iii) At least one accessible restroom for each sex or a single 
unisex restroom;
    (iv) Accessible telephones;
    (v) Accessible drinking fountains; and
    (vi) When possible, additional accessible elements such as parking, 
storage, and alarms.
    (h) Series of smaller alterations. (1) The obligation to provide an 
accessible path of travel may not be evaded by performing a series of 
small alterations to the area served by a single path of travel if those 
alterations could have been performed as a single undertaking.
    (2)(i) If an area containing a primary function has been altered 
without providing an accessible path of travel to that area, and 
subsequent alterations of that area, or a different area on the same 
path of travel, are undertaken within three years of the original 
alteration, the total cost of alterations to the primary function areas 
on that path of travel during the preceding three year period shall be 
considered in determining whether the cost of making that path of travel 
accessible is disproportionate.
    (ii) Only alterations undertaken after January 26, 1992, shall be 
considered in determining if the cost of providing an accessible path of 
travel is disproportionate to the overall cost of the alterations.



Sec. 36.404  Alterations: Elevator exemption.

    (a) This section does not require the installation of an elevator in 
an altered facility that is less than three stories or has less than 
3,000 square feet per story, except with respect to any facility that 
houses a shopping center, a shopping mall, the professional office of a 
health care provider, a terminal, depot, or other station used for 
specified public transportation, or an airport passenger terminal.
    (1) For the purposes of this section, professional office of a 
health care provider means a location where a person or entity regulated 
by a State to provide professional services related to the physical or 
mental health of an individual makes such services available to the 
public. The facility that houses a professional office of a health care 
provider only includes floor levels housing by at least one health care 
provider, or any floor level designed or intended for use by at least 
one health care provider.
    (2) For the purposes of this section, shopping center or shopping 
mall means--
    (i) A building housing five or more sales or rental establishments; 
or
    (ii) A series of buildings on a common site, connected by a common 
pedestrian access route above or below the ground floor, that is either 
under common ownership or common control or developed either as one 
project or as a

[[Page 561]]

series of related projects, housing five or more sales or rental 
establishments. For purposes of this section, places of public 
accommodation of the types listed in paragraph (5) of the definition of 
place of public accommodation in Sec. 36.104 are considered sales or 
rental establishments. The facility housing a shopping center or 
shopping mall only includes floor levels housing at least one sales or 
rental establishment, or any floor level designed or intended for use by 
at least one sales or rental establishment.
    (b) The exemption provided in paragraph (a) of this section does not 
obviate or limit in any way the obligation to comply with the other 
accessibility requirements established in this subpart. For example, 
alterations to floors above or below the accessible ground floor must be 
accessible regardless of whether the altered facility has an elevator.



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 section 4.1.7 of appendix A to this part.
    (b) If it is determined under the procedures set out in section 
4.1.7 of appendix A 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 facility, alternative methods of access shall be 
provided pursuant to the requirements of subpart C of this part.



Sec. 36.406  Standards for new construction and alterations.

    (a) New construction and alterations subject to this part shall 
comply with the standards for accessible design published as appendix A 
to this part (ADAAG).
    (b) The chart in the appendix to this section provides guidance to 
the user in reading appendix A to this part (ADAAG) together with 
subparts A through D of this part, when determining requirements for a 
particular facility.

                         Appendix to Sec. 36.406

    This chart has no effect for purposes of compliance or enforcement. 
It does not necessarily provide complete or mandatory information.

------------------------------------------------------------------------
                                     Subparts A-D            ADAAG
------------------------------------------------------------------------
Application, General............  36.102(b)(3):       1, 2, 3, 4.1.1.
                                   public
                                   accommodations.
                                  36.102(c):
                                   commercial
                                   facilities.
                                  36.102(e): public
                                   entities.
                                  36.103 (other
                                   laws).
                                  36.401 (``for
                                   first
                                   occupancy'').
                                  36.402(a)
                                   (alterations).
Definitions.....................  36.104: commercial  3.5 Definitions,
                                   facilities,         including:
                                   facility, place     addition,
                                   of public           alteration,
                                   accommodation,      building,
                                   private club,       element,
                                   public              facility, space,
                                   accommodation,      story.
                                   public entity,
                                   religious entity.
                                  36.401(d)(1)(ii),   4.1.6(j),
                                   36.404(a)(2):       technical
                                   shopping center     infeasibility.
                                   or shopping mall.
                                  36.401(d)(1)(i),
                                   36.404(a)(1):
                                   professional
                                   office of a
                                   health care
                                   provider.
                                  36.402:
                                   alteration;
                                   usability.
                                  36.402(c): to the
                                   maximum extent
                                   feasible.
New Construction:...............  36.401(a) General.  4.1.2.
General.........................  36.401(b)           4.1.3.
                                   Commercial
                                   facilities in
                                   private
                                   residences.
                                  36.207 Places of
                                   public
                                   accommodation in
                                   private
                                   residences.
Work Areas......................  ..................  4.1.1(3).
Structural Impracticability.....  36.401(c).........  4.1.1(5)(a).
Elevator Exemption..............  36.401(d).........  4.1.3(5).
                                  36.404............
Other Exceptions................  ..................  4.1.1(5), 4.1.3(5)
                                                       and throughout.
Alterations: General............  36.401(b):
                                   commercial
                                   facilities in
                                   private
                                   residences.
                                  36.402............  4.1.6(1).
Alterations Affecting an Area     36.403............  4.1.6(2).
 Containing A Primary Function;
 Path of Travel;
 Disproportionality.

[[Page 562]]

 
Alterations: Special Technical    ..................  4.1.6(3).
 Provisions.
Additions.......................  36.401-36.405.....  4.1.5.
Historic Preservation...........  36.405............  4.1.7.
Technical Provisions............  ..................  4.2 through 4.35.
Restaurants and Cafeterias......  ..................  5.
Medical Care Facilities.........  ..................  6.
Business and Mercantile.........  ..................  7.
Libraries.......................  ..................  8.
Transient Lodging (Hotels,        ..................  9.
 Homeless Shelters, Etc.).
Transportation Facilities.......  ..................  10.
------------------------------------------------------------------------


[Order No. 1513-91, 56 FR 35592, July 26, 1991, as amended by Order No. 
1836-94, 59 FR 2675, Jan. 18, 1994]



Sec. 36.407  Temporary suspension of certain detectable warning requirements.

    The detectable warning requirements contained in sections 4.7.7, 
4.29.5, and 4.29.6 of appendix A to this part are suspended temporarily 
until July 26, 2001.

[Order No. 2191-98, 63 FR 64837, 64838, Nov. 23, 1998]



Secs. 36.408-36.499  [Reserved]



                         Subpart E--Enforcement



Sec. 36.501  Private suits.

    (a) General. Any person who is being subjected to discrimination on 
the basis of disability in violation of the Act or this part or who has 
reasonable grounds for believing that such person is about to be 
subjected to discrimination in violation of section 303 of the Act or 
subpart D of this part may institute a civil action for preventive 
relief, including an application for a permanent or temporary 
injunction, restraining order, or other order. Upon timely application, 
the court may, in its discretion, permit the Attorney General to 
intervene in the civil action if the Attorney General or his or her 
designee certifies that the case is of general public importance. Upon 
application by the complainant and in such circumstances as the court 
may deem just, the court may appoint an attorney for such complainant 
and may authorize the commencement of the civil action without the 
payment of fees, costs, or security. Nothing in this section shall 
require a person with a disability to engage in a futile gesture if the 
person has actual notice that a person or organization covered by title 
III of the Act or this part does not intend to comply with its 
provisions.
    (b) Injunctive relief. In the case of violations of Sec. 36.304, 
Secs. 36.308, 36.310(b), 36.401, 36.402, 36.403, and 36.405 of this 
part, injunctive relief shall include an order to alter facilities to 
make such facilities readily accessible to and usable by individuals 
with disabilities to the extent required by the Act or this part. Where 
appropriate, injunctive relief shall also include requiring the 
provision of an auxiliary aid or service, modification of a policy, or 
provision of alternative methods, to the extent required by the Act or 
this part.



Sec. 36.502  Investigations and compliance reviews.

    (a) The Attorney General shall investigate alleged violations of the 
Act or this part.
    (b) Any individual who believes that he or she or a specific class 
of persons has been subjected to discrimination prohibited by the Act or 
this part may request the Department to institute an investigation.
    (c) Where the Attorney General has reason to believe that there may 
be a violation of this part, he or she may initiate a compliance review.



Sec. 36.503  Suit by the Attorney General.

    Following a compliance review or investigation under Sec. 36.502, or 
at any other time in his or her discretion, the Attorney General may 
commence a civil action in any appropriate United States district court 
if the Attorney General has reasonable cause to believe that--
    (a) Any person or group of persons is engaged in a pattern or 
practice of discrimination in violation of the Act or this part; or

[[Page 563]]

    (b) Any person or group of persons has been discriminated against in 
violation of the Act or this part and the discrimination raises an issue 
of general public importance.



Sec. 36.504  Relief.

    (a) Authority of court. In a civil action under Sec. 36.503, the 
court--
    (1) May grant any equitable relief that such court considers to be 
appropriate, including, to the extent required by the Act or this part--
    (i) Granting temporary, preliminary, or permanent relief;
    (ii) Providing an auxiliary aid or service, modification of policy, 
practice, or procedure, or alternative method; and
    (iii) Making facilities readily accessible to and usable by 
individuals with disabilities;
    (2) May award other relief as the court considers to be appropriate, 
including monetary damages to persons aggrieved when requested by the 
Attorney General; and
    (3) May, to vindicate the public interest, assess a civil penalty 
against the entity in an amount
    (i) Not exceeding $50,000 for a first violation occurring before 
September 29, 1999, and not exceeding $55,000 for a first violation 
occurring on or after September 29, 1999; and
    (ii) Not exceeding $100,000 for any subsequent violation occurring 
before September 29, 1999, and not exceeding $110,000 for any subsequent 
violation occurring on or after September 29, 1999.
    (b) Single violation. For purposes of paragraph (a) (3) of this 
section, in determining whether a first or subsequent violation has 
occurred, a determination in a single action, by judgment or settlement, 
that the covered entity has engaged in more than one discriminatory act 
shall be counted as a single violation.
    (c) Punitive damages. For purposes of paragraph (a)(2) of this 
section, the terms ``monetary damages'' and ``such other relief'' do not 
include punitive damages.
    (d) Judicial consideration. In a civil action under Sec. 36.503, the 
court, when considering what amount of civil penalty, if any, is 
appropriate, shall give consideration to any good faith effort or 
attempt to comply with this part by the entity. In evaluating good 
faith, the court shall consider, among other factors it deems relevant, 
whether the entity could have reasonably anticipated the need for an 
appropriate type of auxiliary aid needed to accommodate the unique needs 
of a particular individual with a disability.

[Order No. 1513-91, 56 FR 35592, July 26, 1991, as amended by Order No. 
2249-99, 64 FR 47103, Aug. 30, 1999]



Sec. 36.505  Attorneys fees.

    In any action or administrative proceeding commenced pursuant to the 
Act or this part, the court or agency, in its discretion, may allow the 
prevailing party, other than the United States, a reasonable attorney's 
fee, including litigation expenses, and costs, and the United States 
shall be liable for the foregoing the same as a private individual.



Sec. 36.506  Alternative means of dispute resolution.

    Where appropriate and to the extent authorized by law, the use of 
alternative means of dispute resolution, including settlement 
negotiations, conciliation, facilitation, mediation, factfinding, 
minitrials, and arbitration, is encouraged to resolve disputes arising 
under the Act and this part.



Sec. 36.507  Effect of unavailability of technical assistance.

    A public accommodation or other private entity shall not be excused 
from compliance with the requirements of this part because of any 
failure to receive technical assistance, including any failure in the 
development or dissemination of any technical assistance manual 
authorized by the Act.



Sec. 36.508  Effective date.

    (a) General. Except as otherwise provided in this section and in 
this part, this part shall become effective on January 26, 1992.
    (b) Civil actions. Except for any civil action brought for a 
violation of section 303 of the Act, no civil action shall be brought 
for any act or omission described in section 302 of the Act that occurs-
-

[[Page 564]]

    (1) Before July 26, 1992, against businesses with 25 or fewer 
employees and gross receipts of $1,000,000 or less.
    (2) Before January 26, 1993, against businesses with 10 or fewer 
employees and gross receipts of $500,000 or less.
    (c) Transportation services provided by public accommodations. Newly 
purchased or leased vehicles required to be accessible by Sec. 36.310 
must be readily accessible to and usable by individuals with 
disabilities, including individuals who use wheelchairs, if the 
solicitation for the vehicle is made after August 25, 1990.



Secs. 36.509-36.599  [Reserved]



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



Sec. 36.601  Definitions.

    Assistant Attorney General means the Assistant Attorney General for 
Civil Rights or his or her designee.
    Certification of equivalency means a final certification that a code 
meets or exceeds the minimum requirements of title III of the Act for 
accessibility and usability of facilities covered by that title.
    Code means a State law or local building code or similar ordinance, 
or part thereof, that establishes accessibility requirements.
    Model code means a nationally recognized document developed by a 
private entity for use by State or local jurisdictions in developing 
codes as defined in this section. A model code is intended for 
incorporation by reference or adoption in whole or in part, with or 
without amendment, by State or local jurisdictions.
    Preliminary determination of equivalency means a preliminary 
determination that a code appears to meet or exceed the minimum 
requirements of title III of the Act for accessibility and usability of 
facilities covered by that title.
    Submitting official means the State or local official who--
    (1) Has principal responsibility for administration of a code, or is 
authorized to submit a code on behalf of a jurisdiction; and
    (2) Files a request for certification under this subpart.



Sec. 36.602  General rule.

    On the application of a State or local government, the Assistant 
Attorney General may certify that a code meets or exceeds the minimum 
requirements of the Act for the accessibility and usability of places of 
public accommodation and commercial facilities under this part by 
issuing a certification of equivalency. At any enforcement proceeding 
under title III of the Act, such certification shall be rebuttable 
evidence that such State law or local ordinance does meet or exceed the 
minimum requirements of title III.



Sec. 36.603  Filing a request for certification.

    (a) A submitting official may file a request for certification of a 
code under this subpart.
    (b) Before filing a request for certification of a code, the 
submitting official shall ensure that--
    (1) Adequate public notice of intention to file a request for 
certification, notice of a hearing, and notice of the location at which 
the request and materials can be inspected is published within the 
relevant jurisdiction;
    (2) Copies of the proposed request and supporting materials are made 
available for public examination and copying at the office of the State 
or local agency charged with administration and enforcement of the code; 
and
    (3) The local or State jurisdiction holds a public hearing on the 
record, in the State or locality, at which the public is invited to 
comment on the proposed request for certification.
    (c) The submitting official shall include the following materials 
and information in support of the request:
    (1) The text of the jurisdiction's code; any standard, regulation, 
code, or other relevant document incorporated by reference or otherwise 
referenced in the code; the law creating and empowering the agency; any 
relevant manuals, guides, or any other interpretive information issued 
that pertain to the code; and any formal opinions of the State Attorney 
General or the chief legal officer of the jurisdiction that pertain to 
the code;
    (2) Any model code or statute on which the pertinent code is based, 
and

[[Page 565]]

an explanation of any differences between the model and the pertinent 
code;
    (3) A transcript of the public hearing required by paragraph (b)(3) 
of this section; and
    (4) Any additional information that the submitting official may wish 
to be considered.
    (d) The submitting official shall file the original and one copy of 
the request and of supporting materials with the Assistant Attorney 
General. The submitting official shall clearly label the request as a 
``request for certification'' of a code. A copy of the request and 
supporting materials will be available for public examination and 
copying at the offices of the Assistant Attorney General in Washington, 
DC. The submitting official shall ensure that copies of the request and 
supporting materials are available for public examination and copying at 
the office of the State or local agency charged with administration and 
enforcement of the code. The submitting official shall ensure that 
adequate public notice of the request for certification and of the 
location at which the request and materials can be inspected is 
published within the relevant jurisdiction.
    (e) Upon receipt of a request for certification, the Assistant 
Attorney General may request further information that he or she 
considers relevant to the determinations required to be made under this 
subpart.

(Approved by the Office of Management and Budget under control number 
1190-0005)

[56 FR 35592, July 26, 1991, as amended by Order No. 1679-93, 58 FR 
17522, Apr. 5, 1993]



Sec. 36.604  Preliminary determination.

    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.



Sec. 36.605  Procedure following preliminary determination of equivalency.

    (a) If the Assistant Attorney General makes a preliminary 
determination of equivalency under Sec. 36.604, he or she shall inform 
the submitting official, in writing, of that preliminary determination. 
The Assistant Attorney General shall also--
    (1) Publish a notice in the Federal Register that advises the public 
of the preliminary determination of equivalency with respect to the 
particular code, and invite interested persons and organizations, 
including individuals with disabilities, during a period of at least 60 
days following publication of the notice, to file written comments 
relevant to whether a final certification of equivalency should be 
issued;
    (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 
Washington, DC at which interested persons, 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 and Sec. 36.603, shall issue either a certification of 
equivalency or a final determination to deny the request for 
certification. He or she shall publish notice of the certification of 
equivalency or denial of certification in the Federal Register.



Sec. 36.606  Procedure following preliminary denial of certification.

    (a) If the Assistant Attorney General makes a Preliminary 
determination to deny certification of a code under Sec. 36.604, he or 
she shall notify the submitting official of the determination. The 
notification may include specification of the manner in which the code 
could be amended in order to qualify for certification.
    (b) The Assistant Attorney General shall allow the submitting 
official not less than 15 days to submit data, views, and arguments in 
opposition to the preliminary determination to deny certification. If 
the submitting official does not submit materials, the Assistant 
Attorney General shall not be required to take any further action. If

[[Page 566]]

the submitting official submits materials, the Assistant Attorney 
General shall evaluate those materials and any other relevant 
information. After evaluation of any newly submitted materials, the 
Assistant Attorney General shall make either a final denial of 
certification or a preliminary determination of equivalency.



Sec. 36.607  Effect of certification.

    (a)(1) A certification shall be considered a certification of 
equivalency only with respect to those features or elements that are 
both covered by the certified code and addressed by the standards 
against which equivalency is measured.
    (2) For example, if certain equipment is not covered by the code, 
the determination of equivalency cannot be used as evidence with respect 
to the question of whether equipment in a building built according to 
the code satisfies the Act's requirements with respect to such 
equipment. By the same token, certification would not be relevant to 
construction of a facility for children, if the regulations against 
which equivalency is measured do not address children's facilities.
    (b) A certification of equivalency is effective only with respect to 
the particular edition of the code for which certification is granted. 
Any amendments or other changes to the code after the date of the 
certified edition are not considered part of the certification.
    (c) A submitting official may reapply for certification of 
amendments or other changes to a code that has already received 
certification.



Sec. 36.608  Guidance concerning model codes.

    Upon application by an authorized representative of a private entity 
responsible for developing a model code, the Assistant Attorney General 
may review the relevant model code and issue guidance concerning whether 
and in what respects the model code is consistent with the minimum 
requirements of the Act for the accessibility and usability of places of 
public accommodation and commercial facilities under this part.

[[Page 567]]

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[56 FR 35592, July 26, 1991, as amended by Order No. 1679-93, 58 FR 
17522, Apr. 5, 1993; Order No. 1836-94, 59 FR 2675, Jan. 18, 1994]

[[Page 658]]

 Appendix B to Part 36--Preamble to Regulation on Nondiscrimination on 
   the Basis of Disability by Public Accommodations and in Commercial 
                  Facilities (Published July 26, 1991)

    Note: For the convenience of the reader, this appendix contains the 
text of the preamble to the final regulation on nondiscrimination on the 
basis of disability by public accommodations and in commercial 
facilities beginning at the heading ``Section-by-Section Analysis and 
Response to Comments'' and ending before ``List of Subjects in 28 CFR 
part 36'' (56 FR 35546, July 26, 1991).

          Section-By-Section Analysis and Response to Comments

                           Subpart A--General

                         Section 36.101  Purpose

    Section 36.101 states the purpose of the rule, which is to 
effectuate title III of the Americans with Disabilities Act of 1990. 
This title prohibits discrimination on the basis of disability by public 
accommodations, requires places of public accommodation and commercial 
facilities to be designed, constructed, and altered in compliance with 
the accessibility standards established by this part, and requires that 
examinations or courses related to licensing or certification for 
professional or trade purposes be accessible to persons with 
disabilities.

                       Section 36.102  Application

    Section 36.102 specifies the range of entities and facilities that 
have obligations under the final rule. The rule applies to any public 
accommodation or commercial facility as those terms are defined in 
Sec. 36.104. It also applies, in accordance with section 309 of the ADA, 
to private entities that offer examinations or courses related to 
applications, licensing, certification, or credentialing for secondary 
or postsecondary education, professional, or trade purposes. Except as 
provided in Sec. 36.206, ``Retaliation or coercion,'' this part does not 
apply to individuals other than public accommodations or to public 
entities. Coverage of private individuals and public entities is 
discussed in the preamble to Sec. 36.206.
    As defined in Sec. 36.104, a public accommodation is a private 
entity that owns, leases or leases to, or operates a place of public 
accommodation. Section 36.102(b)(2) emphasizes that the general and 
specific public accommodations requirements of subparts B and C obligate 
a public accommodation only with respect to the operations of a place of 
public accommodation. This distinction is drawn in recognition of the 
fact that a private entity that meets the regulatory definition of 
public accommodation could also own, lease or lease to, or operate 
facilities that are not places of public accommodation. The rule would 
exceed the reach of the ADA if it were to apply the public 
accommodations requirements of subparts B and C to the operations of a 
private entity that do not involve a place of public accommodation. 
Similarly, Sec. 36.102(b)(3) provides that the new construction and 
alterations requirements of subpart D obligate a public accommodation 
only with respect to facilities used as, or designed or constructed for 
use as, places of public accommodation or commercial facilities.
    On the other hand, as mandated by the ADA and reflected in 
Sec. 36.102(c), the new construction and alterations requirements of 
subpart D apply to a commercial facility whether or not the facility is 
a place of public accommodation, or is owned, leased, leased to, or 
operated by a public accommodation.
    Section 36.102(e) states that the rule does not apply to any private 
club, religious entity, or public entity. Each of these terms is defined 
in Sec. 36.104. The exclusion of private clubs and religious entities is 
derived from section 307 of the ADA; and the exclusion of public 
entities is based on the statutory definition of public accommodation in 
section 301(7) of the ADA, which excludes entities other than private 
entities from coverage under title III of the ADA.

               Section 36.103  Relationship to Other Laws

    Section 36.103 is derived from sections 501 (a) and (b) of the ADA. 
Paragraph (a) provides that, except as otherwise specifically provided 
by this part, the ADA is not intended to apply lesser standards than are 
required under title V of the Rehabilitation Act of 1973, as amended (29 
U.S.C. 790-794), or the regulations implementing that title. The 
standards of title V of the Rehabilitation Act apply for purposes of the 
ADA to the extent that the ADA has not explicitly adopted a different 
standard from title V. Where the ADA explicitly provides a different 
standard from section 504, the ADA standard applies to the ADA, but not 
to section 504. For example, section 504 requires that all federally 
assisted programs and activities be readily accessible to and usable by 
individuals with handicaps, even if major structural alterations are 
necessary to make a program accessible. Title III of the ADA, in 
contrast, only requires alterations to existing facilities if the 
modifications are ``readily achievable,'' that is, able to be 
accomplished easily and without much difficulty or expense. A public 
accommodation that is covered under both section 504 and the ADA is 
still required to meet the ``program accessibility'' standard in order 
to comply with section 504, but would not be in violation of the ADA 
unless

[[Page 659]]

it failed to make ``readily achievable'' modifications. On the other 
hand, an entity covered by the ADA is required to make ``readily 
achievable'' modifications, even if the program can be made accessible 
without any architectural modifications. Thus, an entity covered by both 
section 504 and title III of the ADA must meet both the ``program 
accessibility'' requirement and the ``readily achievable'' requirement.
    Paragraph (b) makes explicit that the rule does not affect the 
obligation of recipients of Federal financial assistance to comply with 
the requirements imposed under section 504 of the Rehabilitation Act of 
1973.
    Paragraph (c) makes clear that Congress did not intend to displace 
any of the rights or remedies provided by other Federal laws or other 
State or local laws (including State common law) that provide greater or 
equal protection to individuals with disabilities. A plaintiff may 
choose to pursue claims under a State law that does not confer greater 
substantive rights, or even confers fewer substantive rights, if the 
alleged violation is protected under the alternative law and the 
remedies are greater. For example, assume that a person with a physical 
disability seeks damages under a State law that allows compensatory and 
punitive damages for discrimination on the basis of physical disability, 
but does not allow them on the basis of mental disability. In that 
situation, the State law would provide narrower coverage, by excluding 
mental disabilities, but broader remedies, and an individual covered by 
both laws could choose to bring an action under both laws. Moreover, 
State tort claims confer greater remedies and are not preempted by the 
ADA. A plaintiff may join a State tort claim to a case brought under the 
ADA. In such a case, the plaintiff must, of course, prove all the 
elements of the State tort claim in order to prevail under that cause of 
action.
    A commenter had concerns about privacy requirements for banking 
transactions using telephone relay services. Title IV of the Act 
provides adequate protections for ensuring the confidentiality of 
communications using the relay services. This issue is more 
appropriately addressed by the Federal Communications Commission in its 
regulation implementing title IV of the Act.

                       Section 36.104  Definitions

    ``Act.'' The word ``Act'' is used in the regulation to refer to the 
Americans with Disabilities Act of 1990, Pub. L. 101-336, which is also 
referred to as the ``ADA.''
    ``Commerce.'' The definition of ``commerce'' is identical to the 
statutory definition provided in section 301(l) of the ADA. It means 
travel, trade, traffic, commerce, transportation, or communication among 
the several States, between any foreign country or any territory or 
possession and any State, or between points in the same State but 
through another State or foreign country. Commerce is defined in the 
same manner as in title II of the Civil Rights Act of 1964, which 
prohibits racial discrimination in public accommodations.
    The term ``commerce'' is used in the definition of ``place of public 
accommodation.'' According to that definition, one of the criteria that 
an entity must meet before it can be considered a place of public 
accommodation is that its operations affect commerce. The term 
``commerce'' is similarly used in the definition of ``commercial 
facility.''
    The use of the phrase ``operations affect commerce'' applies the 
full scope of coverage of the Commerce Clause of the Constitution in 
enforcing the ADA. The Constitution gives Congress broad authority to 
regulate interstate commerce, including the activities of local business 
enterprises (e.g., a physician's office, a neighborhood restaurant, a 
laundromat, or a bakery) that affect interstate commerce through the 
purchase or sale of products manufactured in other States, or by 
providing services to individuals from other States. Because of the 
integrated nature of the national economy, the ADA and this final rule 
will have extremely broad application.
    ``Commercial facilities'' are those facilities that are intended for 
nonresidential use by a private entity and whose operations affect 
commerce. As explained under Sec. 36.401, ``New construction,'' the new 
construction and alteration requirements of subpart D of the rule apply 
to all commercial facilities, whether or not they are places of public 
accommodation. Those commercial facilities that are not places of public 
accommodation are not subject to the requirements of subparts B and C 
(e.g., those requirements concerning auxiliary aids and general 
nondiscrimination provisions).
    Congress recognized that the employees within commercial facilities 
would generally be protected under title I (employment) of the Act. 
However, as the House Committee on Education and Labor pointed out, 
``[t]o the extent that new facilities are built in a manner that make[s] 
them accessible to all individuals, including potential employees, there 
will be less of a need for individual employers to engage in reasonable 
accommodations for particular employees.'' H.R. Rep. No. 485, 101st 
Cong., 2d Sess., pt. 2, at 117 (1990) [hereinafter ``Education and Labor 
report'']. While employers of fewer than 15 employees are not covered by 
title I's employment discrimination provisions, there is no such 
limitation with respect to new construction covered under title III. 
Congress chose not to so limit the new construction provisions because 
of its desire for a uniform requirement of accessibility in new 
construction, because accessibility can be accomplished easily in the 
design and construction

[[Page 660]]

stage, and because future expansion of a business or sale or lease of 
the property to a larger employer or to a business that is a place of 
public accommodation is always a possibility.
    The term ``commercial facilities'' is not intended to be defined by 
dictionary or common industry definitions. Included in this category are 
factories, warehouses, office buildings, and other buildings in which 
employment may occur. The phrase, ``whose operations affect commerce,'' 
is to be read broadly, to include all types of activities reached under 
the commerce clause of the Constitution.
    Privately operated airports are also included in the category of 
commercial facilities. They are not, however, places of public 
accommodation because they are not terminals used for ``specified public 
transportation.'' (Transportation by aircraft is specifically excluded 
from the statutory definition of ``specified public transportation.'') 
Thus, privately operated airports are subject to the new construction 
and alteration requirements of this rule (subpart D) but not to subparts 
B and C. (Airports operated by public entities are covered by title II 
of the Act.) Places of public accommodation located within airports, 
such as restaurants, shops, lounges, or conference centers, however, are 
covered by subparts B and C of this part.
    The statute's definition of ``commercial facilities'' specifically 
includes only facilities ``that are intended for nonresidential use'' 
and specifically exempts those facilities that are covered or expressly 
exempted from coverage under the Fair Housing Act of 1968, as amended 
(42 U.S.C. 3601-3631). The interplay between the Fair Housing Act and 
the ADA with respect to those facilities that are ``places of public 
accommodation'' was the subject of many comments and is addressed in the 
preamble discussion of the definition of ``place of public 
accommodation.''
    ``Current illegal use of drugs.'' The phrase ``current illegal use 
of drugs'' is used in Sec. 36.209. Its meaning is discussed in the 
preamble for that section.
    ``Disability.'' The definition of the term ``disability'' is 
comparable to the definition of the term ``individual with handicaps'' 
in section 7(8)(B) of the Rehabilitation Act and section 802(h) of the 
Fair Housing Act. The Education and Labor Committee report makes clear 
that the analysis of the term ``individual with handicaps'' by the 
Department of Health, Education, and Welfare in its regulations 
implementing section 504 (42 FR 22685 (May 4, 1977)) and the analysis by 
the Department of Housing and Urban Development in its regulation 
implementing the Fair Housing Amendments Act of 1988 (54 FR 3232 (Jan. 
23, 1989)) should also apply fully to the term ``disability'' (Education 
and Labor report at 50).
    The use of the term ``disability'' instead of ``handicap'' and the 
term ``individual with a disability'' instead of ``individual with 
handicaps'' represents an effort by the Congress to make use of up-to-
date, currently accepted terminology. The terminology applied to 
individuals with disabilities is a very significant and sensitive issue. 
As with racial and ethnic terms, the choice of words to describe a 
person with a disability is overlaid with stereotypes, patronizing 
attitudes, and other emotional connotations. Many individuals with 
disabilities, and organizations representing such individuals, object to 
the use of such terms as ``handicapped person'' or ``the handicapped.'' 
In other recent legislation, Congress also recognized this shift in 
terminology, e.g., by changing the name of the National Council on the 
Handicapped to the National Council on Disability (Pub. L. 100-630).
    In enacting the Americans with Disabilities Act, Congress concluded 
that it was important for the current legislation to use terminology 
most in line with the sensibilities of most Americans with disabilities. 
No change in definition or substance is intended nor should be 
attributed to this change in phraseology.
    The term ``disability'' means, with respect to an individual--
    (A) A physical or mental impairment that substantially limits one or 
more of the major life activities of such individual;
    (B) A record of such an impairment; or
    (C) Being regarded as having such an impairment.
    If an individual meets any one of these three tests, he or she is 
considered to be an individual with a disability for purposes of 
coverage under the Americans with Disabilities Act.
    Congress adopted this same basic definition of ``disability,'' first 
used in the Rehabilitation Act of 1973 and in the Fair Housing 
Amendments Act of 1988, for a number of reasons. It has worked well 
since it was adopted in 1974. There is a substantial body of 
administrative interpretation and judicial precedent on this definition. 
Finally, it would not be possible to guarantee comprehensiveness by 
providing a list of specific disabilities, especially because new 
disorders may be recognized in the future, as they have since the 
definition was first established in 1974.

Test A--A Physical or Mental Impairment That Substantially Limits One or 
          More of the Major Life Activities of Such Individual

    Physical or mental impairment. Under the first test, an individual 
must have a physical or mental impairment. As explained in paragraph (1) 
(i) of the definition, ``impairment'' means any physiological disorder 
or condition, cosmetic disfigurement, or anatomical

[[Page 661]]

loss affecting one or more of the following body systems: Neurological; 
musculoskeletal; special sense organs (including speech organs that are 
not respiratory, such as vocal cords, soft palate, and tongue); 
respiratory, including speech organs; cardiovascular; reproductive; 
digestive; genitourinary; hemic and lymphatic; skin; and endocrine. It 
also means any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities. This list closely tracks the one used in 
the regulations for section 504 of the Rehabilitation Act of 1973 (see, 
e.g., 45 CFR 84.3(j)(2)(i)).
    Many commenters asked that ``traumatic brain injury'' be added to 
the list in paragraph (1)(i). Traumatic brain injury is already included 
because it is a physiological condition affecting one of the listed body 
systems, i.e., ``neurological.'' Therefore, it was unnecessary for the 
Department to add the term to the regulation.
    It is not possible to include a list of all the specific conditions, 
contagious and noncontagious diseases, or infections that would 
constitute physical or mental impairments because of the difficulty of 
ensuring the comprehensiveness of such a list, particularly in light of 
the fact that other conditions or disorders may be identified in the 
future. However, the list of examples in paragraph (1)(iii) of the 
definition includes: Orthopedic, visual, speech and hearing impairments; 
cerebral palsy; epilepsy, muscular dystrophy, multiple sclerosis, 
cancer, heart disease, diabetes, mental retardation, emotional illness, 
specific learning disabilities, HIV disease (symptomatic or 
asymptomatic), tuberculosis, drug addiction, and alcoholism.
    The examples of ``physical or mental impairments'' in paragraph 
(1)(iii) are the same as those contained in many section 504 
regulations, except for the addition of the phrase ``contagious and 
noncontagious'' to describe the types of diseases and conditions 
included, and the addition of ``HIV disease (symptomatic or 
asymptomatic)'' and ``tuberculosis'' to the list of examples. These 
additions are based on the ADA committee reports, caselaw, and official 
legal opinions interpreting section 504. In School Board of Nassau 
County v. Arline, 480 U.S. 273 (1987), a case involving an individual 
with tuberculosis, the Supreme Court held that people with contagious 
diseases are entitled to the protections afforded by section 504. 
Following the Arline decision, this Department's Office of Legal Counsel 
issued a legal opinion that concluded that symptomatic HIV disease is an 
impairment that substantially limits a major life activity; therefore it 
has been included in the definition of disability under this part. The 
opinion also concluded that asymptomatic HIV disease is an impairment 
that substantially limits a major life activity, either because of its 
actual effect on the individual with HIV disease or because the 
reactions of other people to individuals with HIV disease cause such 
individuals to be treated as though they are disabled. See Memorandum 
from Douglas W. Kmiec, Acting Assistant Attorney General, Office of 
Legal Counsel, Department of Justice, to Arthur B. Culvahouse, Jr., 
Counsel to the President (Sept. 27, 1988), reprinted in Hearings on S. 
933, the Americans with Disabilities Act, Before the Subcomm. on the 
Handicapped of the Senate Comm. on Labor and Human Resources, 101st 
Cong., 1st Sess. 346 (1989). The phrase ``symptomatic or asymptomatic'' 
was inserted in the final rule after ``HIV disease'' in response to 
commenters who suggested that the clarification was necessary to give 
full meaning to the Department's opinion.
    Paragraph (1)(iv) of the definition states that the phrase 
``physical or mental impairment'' does not include homosexuality or 
bisexuality. These conditions were never considered impairments under 
other Federal disability laws. Section 511(a) of the statute makes clear 
that they are likewise not to be considered impairments under the 
Americans with Disabilities Act.
    Physical or mental impairment does not include simple physical 
characteristics, such as blue eyes or black hair. Nor does it include 
environmental, cultural, economic, or other disadvantages, such as 
having a prison record, or being poor. Nor is age a disability. 
Similarly, the definition does not include common personality traits 
such as poor judgment or a quick temper where these are not symptoms of 
a mental or psychological disorder. However, a person who has these 
characteristics and also has a physical or mental impairment may be 
considered as having a disability for purposes of the Americans with 
Disabilities Act based on the impairment.
    Substantial limitation of a major life activity. Under Test A, the 
impairment must be one that ``substantially limits a major life 
activity.'' Major life activities include such things as caring for 
one's self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working. For example, a person who is 
paraplegic is substantially limited in the major life activity of 
walking, a person who is blind is substantially limited in the major 
life activity of seeing, and a person who is mentally retarded is 
substantially limited in the major life activity of learning. A person 
with traumatic brain injury is substantially limited in the major life 
activities of caring for one's self, learning, and working because of 
memory deficit, confusion, contextual difficulties, and inability to 
reason appropriately.
    A person is considered an individual with a disability for purposes 
of Test A, the first prong of the definition, when the individual's

[[Page 662]]

important life activities are restricted as to the conditions, manner, 
or duration under which they can be performed in comparison to most 
people. A person with a minor, trivial impairment, such as a simple 
infected finger, is not impaired in a major life activity. A person who 
can walk for 10 miles continuously is not substantially limited in 
walking merely because, on the eleventh mile, he or she begins to 
experience pain, because most people would not be able to walk eleven 
miles without experiencing some discomfort.
    The Department received many comments on the proposed rule's 
inclusion of the word ``temporary'' in the definition of ``disability.'' 
The preamble indicated that impairments are not necessarily excluded 
from the definition of ``disability'' simply because they are temporary, 
but that the duration, or expected duration, of an impairment is one 
factor that may properly be considered in determining whether the 
impairment substantially limits a major life activity. The preamble 
recognized, however, that temporary impairments, such as a broken leg, 
are not commonly regarded as disabilities, and only in rare 
circumstances would the degree of the limitation and its expected 
duration be substantial: Nevertheless, many commenters objected to 
inclusion of the word ``temporary'' both because it is not in the 
statute and because it is not contained in the definition of 
``disability'' set forth in the title I regulations of the Equal 
Employment Opportunity Commission (EEOC). The word ``temporary'' has 
been deleted from the final rule to conform with the statutory language. 
The question of whether a temporary impairment is a disability must be 
resolved on a case-by-case basis, taking into consideration both the 
duration (or expected duration) of the impairment and the extent to 
which it actually limits a major life activity of the affected 
individual.
    The question of whether a person has a disability should be assessed 
without regard to the availability of mitigating measures, such as 
reasonable modifications or auxiliary aids and services. For example, a 
person with hearing loss is substantially limited in the major life 
activity of hearing, even though the loss may be improved through the 
use of a hearing aid. Likewise, persons with impairments, such as 
epilepsy or diabetes, that substantially limit a major life activity, 
are covered under the first prong of the definition of disability, even 
if the effects of the impairment are controlled by medication.
    Many commenters asked that environmental illness (also known as 
multiple chemical sensitivity) as well as allergy to cigarette smoke be 
recognized as disabilities. The Department, however, declines to state 
categorically that these types of allergies or sensitivities are 
disabilities, because the determination as to whether an impairment is a 
disability depends on whether, given the particular circumstances at 
issue, the impairment substantially limits one or more major life 
activities (or has a history of, or is regarded as having such an 
effect).
    Sometimes respiratory or neurological functioning is so severely 
affected that an individual will satisfy the requirements to be 
considered disabled under the regulation. Such an individual would be 
entitled to all of the protections afforded by the Act and this part. In 
other cases, individuals may be sensitive to environmental elements or 
to smoke but their sensitivity will not rise to the level needed to 
constitute a disability. For example, their major life activity of 
breathing may be somewhat, but not substantially, impaired. In such 
circumstances, the individuals are not disabled and are not entitled to 
the protections of the statute despite their sensitivity to 
environmental agents.
    In sum, the determination as to whether allergies to cigarette 
smoke, or allergies or sensitivities characterized by the commenters as 
environmental illness are disabilities covered by the regulation must be 
made using the same case-by-case analysis that is applied to all other 
physical or mental impairments. Moreover, the addition of specific 
regulatory provisions relating to environmental illness in the final 
rule would be inappropriate at this time pending future consideration of 
the issue by the Architectural and Transportation Barriers Compliance 
Board, the Environmental Protection Agency, and the Occupational Safety 
and Health Administration of the Department of Labor.

                 Test B--A Record of Such an Impairment

    This test is intended to cover those who have a record of an 
impairment. As explained in paragraph (3) of the rule's definition of 
disability, this includes a person who has a history of an impairment 
that substantially limited a major life activity, such as someone who 
has recovered from an impairment. It also includes persons who have been 
misclassified as having an impairment.
    This provision is included in the definition in part to protect 
individuals who have recovered from a physical or mental impairment that 
previously substantially limited them in a major life activity. 
Discrimination on the basis of such a past impairment is prohibited. 
Frequently occurring examples of the first group (those who have a 
history of an impairment) are persons with histories of mental or 
emotional illness, heart disease, or cancer; examples of the second 
group (those who have been misclassified as having an impairment) are 
persons who have been misclassified as having mental retardation or 
mental illness.

[[Page 663]]

           Test C--Being Regarded as Having Such an Impairment

    This test, as contained in paragraph (4) of the definition, is 
intended to cover persons who are treated by a private entity or public 
accommodation as having a physical or mental impairment that 
substantially limits a major life activity. It applies when a person is 
treated as if he or she has an impairment that substantially limits a 
major life activity, regardless of whether that person has an 
impairment.
    The Americans with Disabilities Act uses the same ``regarded as'' 
test set forth in the regulations implementing section 504 of the 
Rehabilitation Act. See, e.g., 28 CFR 42.540(k)(2)(iv), which provides:
    (iv) ``Is regarded as having an impairment'' means (A) Has a 
physical or mental impairment that does not substantially limit major 
life activities but that is treated by a recipient as constituting such 
a limitation; (B) Has a physical or mental impairment that substantially 
limits major life activities only as a result of the attitudes of others 
toward such impairment; or (C) Has none of the impairments defined in 
paragraph (k)(2)(i) of this section but is treated by a recipient as 
having such an impairment.
    The perception of the private entity or public accommodation is a 
key element of this test. A person who perceives himself or herself to 
have an impairment, but does not have an impairment, and is not treated 
as if he or she has an impairment, is not protected under this test. A 
person would be covered under this test if a restaurant refused to serve 
that person because of a fear of ``negative reactions'' of others to 
that person. A person would also be covered if a public accommodation 
refused to serve a patron because it perceived that the patron had an 
impairment that limited his or her enjoyment of the goods or services 
being offered.
    For example, persons with severe burns often encounter 
discrimination in community activities, resulting in substantial 
limitation of major life activities. These persons would be covered 
under this test based on the attitudes of others towards the impairment, 
even if they did not view themselves as ``impaired.''
    The rationale for this third test, as used in the Rehabilitation Act 
of 1973, was articulated by the Supreme Court in Arline, 480 U.S. 273 
(1987). The Court noted that, although an individual may have an 
impairment that does not in fact substantially limit a major life 
activity, the reaction of others may prove just as disabling. ``Such an 
impairment might not diminish a person's physical or mental 
capabilities, but could nevertheless substantially limit that person's 
ability to work as a result of the negative reactions of others to the 
impairment.'' Id. at 283. The Court concluded that, by including this 
test in the Rehabilitation Act's definition, ``Congress acknowledged 
that society's accumulated myths and fears about disability and disease 
are as handicapping as are the physical limitations that flow from 
actual impairment.'' Id. at 284.
    Thus, a person who is not allowed into a public accommodation 
because of the myths, fears, and stereotypes associated with 
disabilities would be covered under this third test whether or not the 
person's physical or mental condition would be considered a disability 
under the first or second test in the definition.
    If a person is refused admittance on the basis of an actual or 
perceived physical or mental condition, and the public accommodation can 
articulate no legitimate reason for the refusal (such as failure to meet 
eligibility criteria), a perceived concern about admitting persons with 
disabilities could be inferred and the individual would qualify for 
coverage under the ``regarded as'' test. A person who is covered because 
of being regarded as having an impairment is not required to show that 
the public accommodation's perception is inaccurate (e.g., that he will 
be accepted by others, or that insurance rates will not increase) in 
order to be admitted to the public accommodation.
    Paragraph (5) of the definition lists certain conditions that are 
not included within the definition of ``disability.'' The excluded 
conditions are: transvestism, transsexualism, pedophilia, exhibitionism, 
voyeurism, gender identity disorders not resulting from physical 
impairments, other sexual behavior disorders, compulsive gambling, 
kleptomania, pyromania, and psychoactive substance use disorders 
resulting from current illegal use of drugs. Unlike homosexuality and 
bisexuality, which are not considered impairments under either the 
Americans with Disabilities Act (see the definition of ``disability,'' 
paragraph (1)(iv)) or section 504, the conditions listed in paragraph 
(5), except for transvestism, are not necessarily excluded as 
impairments under section 504. (Transvestism was excluded from the 
definition of disability for section 504 by the Fair Housing Amendments 
Act of 1988, Pub. L. 100-430, Sec. 6(b).) The phrase ``current illegal 
use of drugs'' used in this definition is explained in the preamble to 
Sec. 36.209.
    ``Drug.'' The definition of the term ``drug'' is taken from section 
510(d)(2) of the ADA.
    ``Facility.'' ``Facility'' means all or any portion of buildings, 
structures, sites, complexes, equipment, rolling stock or other 
conveyances, roads, walks, passageways, parking lots, or other real or 
personal property, including the site where the building, property, 
structure, or equipment is located. Committee reports made clear that 
the definition of facility was drawn from the definition of facility in 
current Federal regulations (see, e.g., Education and Labor report

[[Page 664]]

at 114). It includes both indoor and outdoor areas where human-
constructed improvements, structures, equipment, or property have been 
added to the natural environment.
    The term ``rolling stock or other conveyances'' was not included in 
the definition of facility in the proposed rule. However, commenters 
raised questions about the applicability of this part to places of 
public accommodation operated in mobile facilities (such as cruise 
ships, floating restaurants, or mobile health units). Those places of 
public accommodation are covered under this part, and would be included 
in the definition of ``facility.'' Thus the requirements of subparts B 
and C would apply to those places of public accommodation. For example, 
a covered entity could not discriminate on the basis of disability in 
the full and equal enjoyment of the facilities (Sec. 36.201). Similarly, 
a cruise line could not apply eligibility criteria to potential 
passengers in a manner that would screen out individuals with 
disabilities, unless the criteria are ``necessary,'' as provided in 
Sec. 36.301.
    However, standards for new construction and alterations of such 
facilities are not yet included in the Americans with Disabilities Act 
Accessibility Guidelines for Buildings and Facilities (ADAAG) adopted by 
Sec. 36.406 and incorporated in appendix A. The Department therefore 
will not interpret the new construction and alterations provisions of 
subpart D to apply to the types of facilities discussed here, pending 
further development of specific requirements.
    Requirements pertaining to accessible transportation services 
provided by public accommodations are included in Sec. 36.310 of this 
part; standards pertaining to accessible vehicles will be issued by the 
Secretary of Transportation pursuant to section 306 of the Act, and will 
be codified at 49 CFR part 37.
    A public accommodation has obligations under this rule with respect 
to a cruise ship to the extent that its operations are subject to the 
laws of the United States.
    The definition of ``facility'' only includes the site over which the 
private entity may exercise control or on which a place of public 
accommodation or a commercial facility is located. It does not include, 
for example, adjacent roads or walks controlled by a public entity that 
is not subject to this part. Public entities are subject to the 
requirements of title II of the Act. The Department's regulation 
implementing title II, which will be codified at 28 CFR part 35, 
addresses the obligations of public entities to ensure accessibility by 
providing curb ramps at pedestrian walkways.
    ``Illegal use of drugs.'' The definition of ``illegal use of drugs'' 
is taken from section 510(d)(1) of the Act and clarifies that the term 
includes the illegal use of one or more drugs.
    ``Individual with a disability'' means a person who has a disability 
but does not include an individual who is currently illegally using 
drugs, when the public accommodation acts on the basis of such use. The 
phrase ``current illegal use of drugs'' is explained in the preamble to 
Sec. 36.209.
    ``Place of public accommodation.'' The term ``place of public 
accommodation'' is an adaptation of the statutory definition of ``public 
accommodation'' in section 301(7) of the ADA and appears as an element 
of the regulatory definition of public accommodation. The final rule 
defines ``place of public accommodation'' as a facility, operated by a 
private entity, whose operations affect commerce and fall within at 
least one of 12 specified categories. The term ``public accommodation,'' 
on the other hand, is reserved by the final rule for the private entity 
that owns, leases (or leases to), or operates a place of public 
accommodation. It is the public accommodation, and not the place of 
public accommodation, that is subject to the regulation's 
nondiscrimination requirements. Placing the obligation not to 
discriminate on the public accommodation, as defined in the rule, is 
consistent with section 302(a) of the ADA, which places the obligation 
not to discriminate on any person who owns, leases (or leases to), or 
operates a place of public accommodation.
    Facilities operated by government agencies or other public entities 
as defined in this section do not qualify as places of public 
accommodation. The actions of public entities are governed by title II 
of the ADA and will be subject to regulations issued by the Department 
of Justice under that title. The receipt of government assistance by a 
private entity does not by itself preclude a facility from being 
considered as a place of public accommodation.
    The definition of place of public accommodation incorporates the 12 
categories of facilities represented in the statutory definition of 
public accommodation in section 301(7) of the ADA:
    1. Places of lodging.
    2. Establishments serving food or drink.
    3. Places of exhibition or entertainment.
    4. Places of public gathering.
    5. Sales or rental establishments.
    6. Service establishments.
    7. Stations used for specified public transportation.
    8. Places of public display or collection.
    9. Places of recreation.
    10. Places of education.
    11. Social service center establishments.
    12. Places of exercise or recreation.
    In order to be a place of public accommodation, a facility must be 
operated by a private entity, its operations must affect commerce, and 
it must fall within one of these 12

[[Page 665]]

categories. While the list of categories is exhaustive, the 
representative examples of facilities within each category are not. 
Within each category only a few examples are given. The category of 
social service center establishments would include not only the types of 
establishments listed, day care centers, senior citizen centers, 
homeless shelters, food banks, adoption agencies, but also 
establishments such as substance abuse treatment centers, rape crisis 
centers, and halfway houses. As another example, the category of sales 
or rental establishments would include an innumerable array of 
facilities that would sweep far beyond the few examples given in the 
regulation. For example, other retail or wholesale establishments 
selling or renting items, such as bookstores, videotape rental stores, 
car rental establishment, pet stores, and jewelry stores would also be 
covered under this category, even though they are not specifically 
listed.
    Several commenters requested clarification as to the coverage of 
wholesale establishments under the category of ``sales or rental 
establishments.'' The Department intends for wholesale establishments to 
be covered under this category as places of public accommodation except 
in cases where they sell exclusively to other businesses and not to 
individuals. For example, a company that grows food produce and supplies 
its crops exclusively to food processing corporations on a wholesale 
basis does not become a public accommodation because of these 
transactions. If this company operates a road side stand where its crops 
are sold to the public, the road side stand would be a sales 
establishment covered by the ADA. Conversely, a sales establishment that 
markets its goods as ``wholesale to the public'' and sells to 
individuals would not be exempt from ADA coverage despite its use of the 
word ``wholesale'' as a marketing technique.
    Of course, a company that operates a place of public accommodation 
is subject to this part only in the operation of that place of public 
accommodation. In the example given above, the wholesale produce company 
that operates a road side stand would be a public accommodation only for 
the purposes of the operation of that stand. The company would be 
prohibited from discriminating on the basis of disability in the 
operation of the road side stand, and it would be required to remove 
barriers to physical access to the extent that it is readily achievable 
to do so (see Sec. 36.304); however, in the event that it is not readily 
achievable to remove barriers, for example, by replacing a gravel 
surface or regrading the area around the stand to permit access by 
persons with mobility impairments, the company could meet its 
obligations through alternative methods of making its goods available, 
such as delivering produce to a customer in his or her car (see 
Sec. 36.305). The concepts of readily achievable barrier removal and 
alternatives to barrier removal are discussed further in the preamble 
discussion of Secs. 36.304 and 36.305.
    Even if a facility does not fall within one of the 12 categories, 
and therefore does not qualify as a place of public accommodation, it 
still may be a commercial facility as defined in Sec. 36.104 and be 
subject to the new construction and alterations requirements of subpart 
D.
    A number of commenters questioned the treatment of residential 
hotels and other residential facilities in the Department's proposed 
rule. These commenters were essentially seeking resolution of the 
relationship between the Fair Housing Act and the ADA concerning 
facilities that are both residential in nature and engage in activities 
that would cause them to be classified as ``places of public 
accommodation'' under the ADA. The ADA's express exemption relating to 
the Fair Housing Act applies only to ``commercial facilities'' and not 
to ``places of public accommodation.''
    A facility whose operations affect interstate commerce is a place of 
public accommodation for purposes of the ADA to the extent that its 
operations include those types of activities engaged in or services 
provided by the facilities contained on the list of 12 categories in 
section 301(7) of the ADA. Thus, a facility that provides social 
services would be considered a ``social service center establishment.'' 
Similarly, the category ``places of lodging'' would exclude solely 
residential facilities because the nature of a place of lodging 
contemplates the use of the facility for short-term stays.
    Many facilities, however, are mixed use facilities. For example, in 
a large hotel that has a separate residential apartment wing, the 
residential wing would not be covered by the ADA because of the nature 
of the occupancy of that part of the facility. This residential wing 
would, however, be covered by the Fair Housing Act. The separate 
nonresidential accommodations in the rest of the hotel would be a place 
of lodging, and thus a public accommodation subject to the requirements 
of this final rule. If a hotel allows both residential and short-term 
stays, but does not allocate space for these different uses in separate, 
discrete units, both the ADA and the Fair Housing Act may apply to the 
facility. Such determinations will need to be made on a case-by-case 
basis. Any place of lodging of the type described in paragraph (1) of 
the definition of place of public accommodation and that is an 
establishment located within a building that contains not more than five 
rooms for rent or hire and is actually occupied by the proprietor of the 
establishment as his or her residence is not covered by the ADA. (This 
exclusion from coverage does not apply to other categories of public 
accommodations, for example, professional offices or homeless

[[Page 666]]

shelters, that are located in a building that is also occupied as a 
private residence.)
    A number of commenters noted that the term ``residential hotel'' may 
also apply to a type of hotel commonly known as a ``single room 
occupancy hotel.'' Although such hotels or portions of such hotels may 
fall under the Fair Housing Act when operated or used as long-term 
residences, they are also considered ``places of lodging'' under the ADA 
when guests of such hotels are free to use them on a short-term basis. 
In addition, ``single room occupancy hotels'' may provide social 
services to their guests, often through the operation of Federal or 
State grant programs. In such a situation, the facility would be 
considered a ``social service center establishment'' and thus covered by 
the ADA as a place of public accommodation, regardless of the length of 
stay of the occupants.
    A similar analysis would also be applied to other residential 
facilities that provide social services, including homeless shelters, 
shelters for people seeking refuge from domestic violence, nursing 
homes, residential care facilities, and other facilities where persons 
may reside for varying lengths of time. Such facilities should be 
analyzed under the Fair Housing Act to determine the application of that 
statute. The ADA, however, requires a separate and independent analysis. 
For example, if the facility, or a portion of the facility, is intended 
for or permits short-term stays, or if it can appropriately be 
categorized as a service establishment or as a social service 
establishment, then the facility or that portion of the facility used 
for the covered purpose is a place of public accommodation under the 
ADA. For example, a homeless shelter that is intended and used only for 
long-term residential stays and that does not provide social services to 
its residents would not be covered as a place of public accommodation. 
However, if this facility permitted short-term stays or provided social 
services to its residents, it would be covered under the ADA either as a 
``place of lodging'' or as a ``social service center establishment,'' or 
as both.
    A private home, by itself, does not fall within any of the 12 
categories. However, it can be covered as a place of public 
accommodation to the extent that it is used as a facility that would 
fall within one of the 12 categories. For example, if a professional 
office of a dentist, doctor, or psychologist is located in a private 
home, the portion of the home dedicated to office use (including areas 
used both for the residence and the office, e.g., the entrance to the 
home that is also used as the entrance to the professional office) would 
be considered a place of public accommodation. Places of public 
accommodation located in residential facilities are specifically 
addressed in Sec. 36.207.
    If a tour of a commercial facility that is not otherwise a place of 
public accommodation, such as, for example, a factory or a movie studio 
production set, is open to the general public, the route followed by the 
tour is a place of public accommodation and the tour must be operated in 
accordance with the rule's requirements for public accommodations. The 
place of public accommodation defined by the tour does not include those 
portions of the commercial facility that are merely viewed from the tour 
route. Hence, the barrier removal requirements of Sec. 36.304 only apply 
to the physical route followed by the tour participants and not to work 
stations or other areas that are merely adjacent to, or within view of, 
the tour route. If the tour is not open to the general public, but 
rather is conducted, for example, for selected business colleagues, 
partners, customers, or consultants, the tour route is not a place of 
public accommodation and the tour is not subject to the requirements for 
public accommodations.
    Public accommodations that receive Federal financial assistance are 
subject to the requirements of section 504 of the Rehabilitation Act as 
well as the requirements of the ADA.
    Private schools, including elementary and secondary schools, are 
covered by the rule as places of public accommodation. The rule itself, 
however, does not require a private school to provide a free appropriate 
education or develop an individualized education program in accordance 
with regulations of the Department of Education implementing section 504 
of the Rehabilitation Act of 1973, as amended (34 CFR part 104), and 
regulations implementing the Individuals with Disabilities Education Act 
(34 CFR part 300). The receipt of Federal assistance by a private 
school, however, would trigger application of the Department of 
Education's regulations to the extent mandated by the particular type of 
assistance received.
    ``Private club.'' The term ``private club'' is defined in accordance 
with section 307 of the ADA as a private club or establishment exempted 
from coverage under title II of the Civil Rights Act of 1964. Title II 
of the 1964 Act exempts any ``private club or other establishment not in 
fact open to the public, except to the extent that the facilities of 
such establishment are made available to the customers or patrons of [a 
place of public accommodation as defined in title II].'' The rule, 
therefore, as reflected in Sec. 36.102(e) of the application section, 
limits the coverage of private clubs accordingly. The obligations of a 
private club that rents space to any other private entity for the 
operation of a place of public accommodation are discussed further in 
connection with Sec. 36.201.
    In determining whether a private entity qualifies as a private club 
under title II, courts have considered such factors as the degree of 
member control of club operations, the selectivity of the membership 
selection

[[Page 667]]

process, whether substantial membership fees are charged, whether the 
entity is operated on a nonprofit basis, the extent to which the 
facilities are open to the public, the degree of public funding, and 
whether the club was created specifically to avoid compliance with the 
Civil Rights Act. See e.g., Tillman v. Wheaton-Haven Recreation Ass'n, 
410 U.S. 431 (1973); Daniel v. Paul, 395 U.S. 298 (1969); Olzman v. Lake 
Hills Swim Club, Inc., 495 F.2d 1333 (2d Cir. 1974); Anderson v. Pass 
Christian Isles Golf Club, Inc., 488 F.2d 855 (5th Cir. 1974); Smith v. 
YMCA, 462 F.2d 634 (5th Cir. 1972); Stout v. YMCA, 404 F.2d 687 (5th 
Cir. 1968); United States v. Richberg, 398 F.2d 523 (5th Cir. 1968); 
Nesmith v. YMCA, 397 F.2d 96 (4th Cir. 1968); United States v. Lansdowne 
Swim Club, 713 F. Supp. 785 (E.D. Pa. 1989); Durham v. Red Lake Fishing 
and Hunting Club, Inc., 666 F. Supp. 954 (W.D. Tex. 1987); New York v. 
Ocean Club, Inc., 602 F. Supp. 489 (E.D.N.Y. 1984); Brown v. Loudoun 
Golf and Country Club, Inc., 573 F. Supp. 399 (E.D. Va. 1983); United 
States v. Trustees of Fraternal Order of Eagles, 472 F. Supp. 1174 (E.D. 
Wis. 1979); Cornelius v. Benevolent Protective Order of Elks, 382 F. 
Supp. 1182 (D. Conn. 1974).
    ``Private entity.'' The term ``private entity'' is defined as any 
individual or entity other than a public entity. It is used as part of 
the definition of ``public accommodation'' in this section.
    The definition adds ``individual'' to the statutory definition of 
private entity (see section 301(6) of the ADA). This addition clarifies 
that an individual may be a private entity and, therefore, may be 
considered a public accommodation if he or she owns, leases (or leases 
to), or operates a place of public accommodation. The explicit inclusion 
of individuals under the definition of private entity is consistent with 
section 302(a) of the ADA, which broadly prohibits discrimination on the 
basis of disability by any person who owns, leases (or leases to), or 
operates a place of public accommodation.
    ``Public accommodation.'' The term ``public accommodation'' means a 
private entity that owns, leases (or leases to), or operates a place of 
public accommodation. The regulatory term, ``public accommodation,'' 
corresponds to the statutory term, ``person,'' in section 302(a) of the 
ADA. The ADA prohibits discrimination ``by any person who owns, leases 
(or leases to), or operates a place of public accommodation.'' The text 
of the regulation consequently places the ADA's nondiscrimination 
obligations on ``public accommodations'' rather than on ``persons'' or 
on ``places of public accommodation.''
    As stated in Sec. 36.102(b)(2), the requirements of subparts B and C 
obligate a public accommodation only with respect to the operations of a 
place of public accommodation. A public accommodation must also meet the 
requirements of subpart D with respect to facilities used as, or 
designed or constructed for use as, places of public accommodation or 
commercial facilities.
    ``Public entity.'' The term ``public entity'' is defined in 
accordance with section 201(1) of the ADA as any State or local 
government; any department, agency, special purpose district, or other 
instrumentality of a State or States or local government; and the 
National Railroad Passenger Corporation, and any commuter authority (as 
defined in section 103(8) of the Rail Passenger Service Act). It is used 
in the definition of ``private entity'' in Sec. 36.104. Public entities 
are excluded from the definition of private entity and therefore cannot 
qualify as public accommodations under this regulation. However, the 
actions of public entities are covered by title II of the ADA and by the 
Department's title II regulations codified at 28 CFR part 35.
    ``Qualified interpreter.'' The Department received substantial 
comment regarding the lack of a definition of ``qualified interpreter.'' 
The proposed rule defined auxiliary aids and services to include the 
statutory term, ``qualified interpreters'' (Sec. 36.303(b)), but did not 
define that term. Section 36.303 requires the use of a qualified 
interpreter where necessary to achieve effective communication, unless 
an undue burden or fundamental alteration would result. Commenters 
stated that a lack of guidance on what the term means would create 
confusion among those trying to secure interpreting services and often 
result in less than effective communication.
    Many commenters were concerned that, without clear guidance on the 
issue of ``qualified'' interpreter, the rule would be interpreted to 
mean ``available, rather than qualified'' interpreters. Some claimed 
that few public accommodations would understand the difference between a 
qualified interpreter and a person who simply knows a few signs or how 
to fingerspell.
    In order to clarify what is meant by ``qualified interpreter'' the 
Department has added a definition of the term to the final rule. A 
qualified interpreter means an interpreter who is able to interpret 
effectively, accurately, and impartially both receptively and 
expressively, using any necessary specialized vocabulary. This 
definition focuses on the actual ability of the interpreter in a 
particular interpreting context to facilitate effective communication 
between the public accommodation and the individual with disabilities.
    Public comment also revealed that public accommodations have at 
times asked persons who are deaf to provide family members or friends to 
interpret. In certain circumstances, notwithstanding that the family 
member or friend is able to interpret or is a certified interpreter, the 
family member or friend may not be qualified to render the necessary 
interpretation because of factors such as emotional or personal 
involvement

[[Page 668]]

or considerations of confidentiality that may adversely affect the 
ability to interpret ``effectively, accurately, and impartially.''
    ``Readily achievable.'' The definition of ``readily achievable'' 
follows the statutory definition of that term in section 301(9) of the 
ADA. Readily achievable means easily accomplishable and able to be 
carried out without much difficulty or expense. The term is used as a 
limitation on the obligation to remove barriers under Secs. 36.304(a), 
36.305(a), 36.308(a), and 36.310(b). Further discussion of the meaning 
and application of the term ``readily achievable'' may be found in the 
preamble section for Sec. 36.304.
    The definition lists factors to be considered in determining whether 
barrier removal is readily achievable in any particular circumstance. A 
significant number of commenters objected to Sec. 36.306 of the proposed 
rule, which listed identical factors to be considered for determining 
``readily achievable'' and ``undue burden'' together in one section. 
They asserted that providing a consolidated section blurred the 
distinction between the level of effort required by a public 
accommodation under the two standards. The readily achievable standard 
is a ``lower'' standard than the ``undue burden'' standard in terms of 
the level of effort required, but the factors used in determining 
whether an action is readily achievable or would result in an undue 
burden are identical (See Education and Labor report at 109). Although 
the preamble to the proposed rule clearly delineated the relationship 
between the two standards, to eliminate any confusion the Department has 
deleted Sec. 36.306 of the proposed rule. That section, in any event, as 
other commenters noted, had merely repeated the lists of factors 
contained in the definitions of readily achievable and undue burden.
    The list of factors included in the definition is derived from 
section 301(9) of the ADA. It reflects the congressional intention that 
a wide range of factors be considered in determining whether an action 
is readily achievable. It also takes into account that many local 
facilities are owned or operated by parent corporations or entities that 
conduct operations at many different sites. This section makes clear 
that, in some instances, resources beyond those of the local facility 
where the barrier must be removed may be relevant in determining whether 
an action is readily achievable. One must also evaluate the degree to 
which any parent entity has resources that may be allocated to the local 
facility.
    The statutory list of factors in section 301(9) of the Act uses the 
term ``covered entity'' to refer to the larger entity of which a 
particular facility may be a part. ``Covered entity'' is not a defined 
term in the ADA and is not used consistently throughout the Act. The 
definition, therefore, substitutes the term ``parent entity'' in place 
of ``covered entity'' in paragraphs (3), (4), and (5) when referring to 
the larger private entity whose overall resources may be taken into 
account. This usage is consistent with the House Judiciary Committee's 
use of the term ``parent company'' to describe the larger entity of 
which the local facility is a part (H.R. Rep. No. 485, 101st Cong., 2d 
Sess., pt. 3, at 40-41, 54-55 (1990) (hereinafter ``Judiciary 
report'')).
    A number of commenters asked for more specific guidance as to when 
and how the resources of a parent corporation or entity are to be taken 
into account in determining what is readily achievable. The Department 
believes that this complex issue is most appropriately resolved on a 
case-by-case basis. As the comments reflect, there is a wide variety of 
possible relationships between the site in question and any parent 
corporation or other entity. It would be unwise to posit legal 
ramifications under the ADA of even generic relationships (e.g., banks 
involved in foreclosures or insurance companies operating as trustees or 
in other similar fiduciary relationships), because any analysis will 
depend so completely on the detailed fact situations and the exact 
nature of the legal relationships involved. The final rule does, 
however, reorder the factors to be considered. This shift and the 
addition of the phrase ``if applicable'' make clear that the line of 
inquiry concerning factors will start at the site involved in the action 
itself. This change emphasizes that the overall resources, size, and 
operations of the parent corporation or entity should be considered to 
the extent appropriate in light of ``the geographic separateness, and 
the administrative or fiscal relationship of the site or sites in 
question to any parent corporation or entity.''
    Although some commenters sought more specific numerical guidance on 
the definition of readily achievable, the Department has declined to 
establish in the final rule any kind of numerical formula for 
determining whether an action is readily achievable. It would be 
difficult to devise a specific ceiling on compliance costs that would 
take into account the vast diversity of enterprises covered by the ADA's 
public accommodations requirements and the economic situation that any 
particular entity would find itself in at any moment. The final rule, 
therefore, implements the flexible case-by-case approach chosen by 
Congress.
    A number of commenters requested that security considerations be 
explicitly recognized as a factor in determining whether a barrier 
removal action is readily achievable. The Department believes that 
legitimate safety requirements, including crime prevention measures, may 
be taken into account so long as they are based on actual risks and are 
necessary for safe operation of the public accommodation. This point has 
been included in the definition.

[[Page 669]]

    Some commenters urged the Department not to consider acts of barrier 
removal in complete isolation from each other in determining whether 
they are readily achievable. The Department believes that it is 
appropriate to consider the cost of other barrier removal actions as one 
factor in determining whether a measure is readily achievable.
    ``Religious entity.'' The term ``religious entity'' is defined in 
accordance with section 307 of the ADA as a religious organization or 
entity controlled by a religious organization, including a place of 
worship. Section 36.102(e) of the rule states that the rule does not 
apply to any religious entity.
    The ADA's exemption of religious organizations and religious 
entities controlled by religious organizations is very broad, 
encompassing a wide variety of situations. Religious organizations and 
entities controlled by religious organizations have no obligations under 
the ADA. Even when a religious organization carries out activities that 
would othervise make it a public accommodation, the religious 
organization is exempt from ADA coverage. Thus, if a church itself 
operates a day care center, a nursing home, a private school, or a 
diocesan school system, the operations of the center, home, school, or 
schools would not be subject to the requirements of the ADA or this 
part. The religious entity would not lose its exemption merely because 
the services provided were open to the general public. The test is 
whether the church or other religious organization operates the public 
accommodation, not which individuals receive the public accommodation's 
services.
    Religious entities that are controlled by religious organizations 
are also exempt from the ADA's requirements. Many religious 
organizations in the United States use lay boards and other secular or 
corporate mechanisms to operate schools and an array of social services. 
The use of a lay board or other mechanism does not itself remove the 
ADA's religious exemption. Thus, a parochial school, having religious 
doctrine in its curriculum and sponsored by a religious order, could be 
exempt either as a religious organization or as an entity controlled by 
a religious organization, even if it has a lay board. The test remains a 
factual one--whether the church or other religious organization controls 
the operations of the school or of the service or whether the school or 
service is itself a religious organization.
    Although a religious organization or a religious entity that is 
controlled by a religious organization has no obligations under the 
rule, a public accommodation that is not itself a religious 
organization, but that operates a place of public accommodation in 
leased space on the property of a religious entity, which is not a place 
of worship, is subject to the rule's requirements if it is not under 
control of a religious organization. When a church rents meeting space, 
which is not a place of worship, to a local community group or to a 
private, independent day care center, the ADA applies to the activities 
of the local community group and day care center if a lease exists and 
consideration is paid.
    ``Service animal.'' The term ``service animal'' encompasses any 
guide dog, signal dog, or other animal individually trained to provide 
assistance to an individual with a disability. The term is used in 
Sec. 36.302(c), which requires public accommodations generally to modify 
policies, practices, and procedures to accommodate the use of service 
animals in places of public accommodation.
    ``Specified public transportation.'' The definition of ``specified 
public transportation'' is identical to the statutory definition in 
section 301(10) of the ADA. The term means transportation by bus, rail, 
or any other conveyance (other than by aircraft) that provides the 
general public with general or special service (including charter 
service) on a regular and continuing basis. It is used in category (7) 
of the definition of ``place of public accommodation,'' which includes 
stations used for specified public transportation.
    The effect of this definition, which excludes transportation by 
aircraft, is that it excludes privately operated airports from coverage 
as places of public accommodation. However, places of public 
accommodation located within airports would be covered by this part. 
Airports that are operated by public entities are covered by title II of 
the ADA and, if they are operated as part of a program receiving Federal 
financial assistance, by section 504 of the Rehabilitation Act. 
Privately operated airports are similarly covered by section 504 if they 
are operated as part of a program receiving Federal financial 
assistance. The operations of any portion of any airport that are under 
the control of an air carrier are covered by the Air Carrier Access Act. 
In addition, airports are covered as commercial facilities under this 
rule.
    ``State.'' The definition of ``State'' is identical to the statutory 
definition in section 3(3) of the ADA. The term is used in the 
definitions of ``commerce'' and ``public entity'' in Sec. 36.104.
    ``Undue burden.'' The definition of ``undue burden'' is analogous to 
the statutory definition of ``undue hardship'' in employment under 
section 101(10) of the ADA. The term undue burden means ``significant 
difficulty or expense'' and serves as a limitation on the obligation to 
provide auxiliary aids and services under Sec. 36.303 and Secs. 36.309 
(b)(3) and (c)(3). Further discussion of the meaning and application of 
the term undue burden may be found in the preamble discussion of 
Sec. 36.303.
    The definition lists factors considered in determining whether 
provision of an auxiliary aid or service in any particular circumstance 
would result in an undue burden.

[[Page 670]]

The factors to be considered in determining whether an action would 
result in an undue burden are identical to those to be considered in 
determining whether an action is readily achievable. However, ``readily 
achievable'' is a lower standard than ``undue burden'' in that it 
requires a lower level of effort on the part of the public accommodation 
(see Education and Labor report at 109).
    Further analysis of the factors to be considered in determining 
undue burden may be found in the preamble discussion of the definition 
of the term ``readily achievable.''

                     Subpart B--General Requirements

    Subpart B includes general prohibitions restricting a public 
accommodation from discriminating against people with disabilities by 
denying them the opportunity to benefit from goods or services, by 
giving them unequal goods or services, or by giving them different or 
separate goods or services. These general prohibitions are patterned 
after the basic, general prohibitions that exist in other civil rights 
laws that prohibit discrimination on the basis of race, sex, color, 
religion, or national origin.

                         Section 36.201  General

    Section 36.201(a) contains the general rule that prohibits 
discrimination on the basis of disability in the full and equal 
enjoyment of goods, services, facilities, privileges, advantages, and 
accommodations of any place of public accommodation.
    Full and equal enjoyment means the right to participate and to have 
an equal opportunity to obtain the same results as others to the extent 
possible with such accommodations as may be required by the Act and 
these regulations. It does not mean that an individual with a disability 
must achieve an identical result or level of achievement as persons 
without a disability. For example, an exercise class cannot exclude a 
person who uses a wheelchair because he or she cannot do all of the 
exercises and derive the same result from the class as persons without a 
disability.
    Section 302(a) of the ADA states that the prohibition against 
discrimination applies to ``any person who owns, leases (or leases to), 
or operates a place of public accommodation,'' and this language is 
reflected in Sec. 36.201(a). The coverage is quite extensive and would 
include sublessees, management companies, and any other entity that 
owns, leases, leases to, or operates a place of public accommodation, 
even if the operation is only for a short time.
    The first sentence of paragraph (b) of Sec. 36.201 reiterates the 
general principle that both the landlord that owns the building that 
houses the place of public accommodation, as well as the tenant that 
owns or operates the place of public accommodation, are public 
accommodations subject to the requirements of this part. Although the 
statutory language could be interpreted as placing equal responsibility 
on all private entities, whether lessor, lessee, or operator of a public 
accommodation, the committee reports suggest that liability may be 
allocated. Section 36.201(b) of that section of the proposed rule 
attempted to allocate liability in the regulation itself. Paragraph 
(b)(2) of that section made a specific allocation of liability for the 
obligation to take readily achievable measures to remove barriers, and 
paragraph (b)(3) made a specific allocation for the obligation to 
provide auxiliary aids.
    Numerous commenters pointed out that these allocations would not 
apply in all situations. Some asserted that paragraph (b)(2) of the 
proposed rule only addressed the situation when a lease gave the tenant 
the right to make alterations with permission of the landlord, but 
failed to address other types of leases, e.g., those that are silent on 
the right to make alterations, or those in which the landlord is not 
permitted to enter a tenant's premises to make alterations. Several 
commenters noted that many leases contain other clauses more relevant to 
the ADA than the alterations clause. For example, many leases contain a 
``compliance clause,'' a clause which allocates responsibility to a 
particular party for compliance with all relevant Federal, State, and 
local laws. Many commenters pointed out various types of relationships 
that were left unaddressed by the regulation, e.g., sale and leaseback 
arrangements where the landlord is a financial institution with no 
control or responsibility for the building; franchises; subleases; and 
management companies which, at least in the hotel industry, often have 
control over operations but are unable to make modifications to the 
premises.
    Some commenters raised specific questions as to how the barrier 
removal allocation would work as a practical matter. Paragraph (b)(2) of 
the proposed rule provided that the burden of making readily achievable 
modifications within the tenant's place of public accommodation would 
shift to the landlord when the modifications were not readily achievable 
for the tenant or when the landlord denied a tenant's request for 
permission to make such modifications. Commenters noted that the rule 
did not specify exactly when the burden would actually shift from tenant 
to landlord and whether the landlord would have to accept a tenant's 
word that a particular action is not readily achievable. Others 
questioned if the tenant should be obligated to use alternative methods 
of barrier removal before the burden shifts. In light of the fact that 
readily achievable removal of barriers can include such actions as 
moving of racks and displays, some commenters doubted the 
appropriateness of requiring a

[[Page 671]]

landlord to become involved in day-to-day operations of its tenants' 
businesses.
    The Department received widely differing comments in response to the 
preamble question asking whether landlord and tenant obligations should 
vary depending on the length of time remaining on an existing lease. 
Many suggested that tenants should have no responsibilities in ``shorter 
leases,'' which commenters defined as ranging anywhere from 90 days to 
three years. Other commenters pointed out that the time remaining on the 
lease should not be a factor in the rule's allocation of 
responsibilities, but is relevant in determining what is readily 
achievable for the tenant. The Department agrees with this latter 
approach and will interpret the rule in that manner.
    In recognition of the somewhat limited applicability of the 
allocation scheme contained in the proposed rule, paragraphs (b)(2) and 
(b)(3) have been deleted from the final rule. The Department has 
substituted instead a statement that allocation of responsibility as 
between the parties for taking readily achievable measures to remove 
barriers and to provide auxiliary aids and services both in common areas 
and within places of public accommodation may be determined by the lease 
or other contractual relationships between the parties. The ADA was not 
intended to change existing landlord/tenant responsibilities as set 
forth in the lease. By deleting specific provisions from the rule, the 
Department gives full recognition to this principle. As between the 
landlord and tenant, the extent of responsibility for particular 
obligations may be, and in many cases probably will be, determined by 
contract.
    The suggested allocation of responsibilities contained in the 
proposed rule may be used if appropriate in a particular situation. 
Thus, the landlord would generally be held responsible for making 
readily achievable changes and providing auxiliary aids and services in 
common areas and for modifying policies, practices, or procedures 
applicable to all tenants, and the tenant would generally be responsible 
for readily achievable changes, provision of auxiliary aids, and 
modification of policies within its own place of public accommodation.
    Many commenters objected to the proposed rule's allocation of 
responsibility for providing auxiliary aids and services solely to the 
tenant, pointing out that this exclusive allocation may not be 
appropriate in the case of larger public accommodations that operate 
their businesses by renting space out to smaller public accommodations. 
For example, large theaters often rent to smaller traveling companies 
and hospitals often rely on independent contractors to provide 
childbirth classes. Groups representing persons with disabilities 
objected to the proposed rule because, in their view, it permitted the 
large theater or hospital to evade ADA responsibilities by leasing to 
independent smaller entities. They suggested that these types of public 
accommodations are not really landlords because they are in the business 
of providing a service, rather than renting space, as in the case of a 
shopping center or office building landlord. These commenters believed 
that responsibility for providing auxiliary aids should shift to the 
landlord, if the landlord relies on a smaller public accommodation or 
independent contractor to provide services closely related to those of 
the larger public accommodation, and if the needed auxiliary aids prove 
to be an undue burden for the smaller public accommodation. The final 
rule no longer lists specific allocations to specific parties but, 
rather, leaves allocation of responsibilities to the lease negotiations. 
Parties are, therefore, free to allocate the responsibility for 
auxiliary aids.
    Section 36.201(b)(4) of the proposed rule, which provided that 
alterations by a tenant on its own premises do not trigger a path of 
travel obligation on the landlord, has been moved to Sec. 36.403(d) of 
the final rule.
    An entity that is not in and of itself a public accommodation, such 
as a trade association or performing artist, may become a public 
accommodation when it leases space for a conference or performance at a 
hotel, convention center, or stadium. For an entity to become a public 
accommodation when it is the lessee of space, however, the Department 
believes that consideration in some form must be given. Thus, a Boy 
Scout troop that accepts donated space does not become a public 
accommodation because the troop has not ``leased'' space, as required by 
the ADA.
    As a public accommodation, the trade association or performing 
artist will be responsible for compliance with this part. Specific 
responsibilities should be allocated by contract, but, generally, the 
lessee should be responsible for providing auxiliary aids and services 
(which could include interpreters, Braille programs, etc.) for the 
participants in its conference or performance as well as for assuring 
that displays are accessible to individuals with disabilities.
    Some commenters suggested that the rule should allocate 
responsibilities for areas other than removal of barriers and auxiliary 
aids. The final rule leaves allocation of all areas to the lease 
negotiations. However, in general landlords should not be given 
responsibility for policies a tenant applies in operating its business, 
if such policies are solely those of the tenant. Thus, if a restaurant 
tenant discriminates by refusing to seat a patron, it would be the 
tenant, and not the landlord, who would be responsible, because the 
discriminatory policy is imposed solely by the tenant and not by the 
landlord. If, however, a tenant refuses to modify a ``no

[[Page 672]]

pets'' rule to allow service animals in its restaurant because the 
landlord mandates such a rule, then both the landlord and the tenant 
would be liable for violation of the ADA when a person with a service 
dog is refused entrance. The Department wishes to emphasize, however, 
that the parties are free to allocate responsibilities in any way they 
choose.
    Private clubs are also exempt from the ADA. However, consistent with 
title II of the Civil Rights Act (42 U.S.C. 2000a(e), a private club is 
considered a public accommodation to the extent that ``the facilities of 
such establishment are made available to the customers or patrons'' of a 
place of public accommodation. Thus, if a private club runs a day care 
center that is open exclusively to its own members, the club, like the 
church in the example above, would have no responsibility for compliance 
with the ADA. Nor would the day care center have any responsibilities 
because it is part of the private club exempt from the ADA.
    On the other hand, if the private club rents to a day care center 
that is open to the public, then the private club would have the same 
obligations as any other public accommodation that functions as a 
landlord with respect to compliance with title III within the day care 
center. In such a situation, both the private club that ``leases to'' a 
public accommodation and the public accommodation lessee (the day care 
center) would be subject to the ADA. This same principle would apply if 
the private club were to rent to, for example, a bar association, which 
is not generally a public accommodation but which, as explained above, 
becomes a public accommodation when it leases space for a conference.

                       Section 36.202  Activities

    Section 36.202 sets out the general forms of discrimination 
prohibited by title III of the ADA. These general prohibitions are 
further refined by the specific prohibitions in subpart C. Section 
36.213 makes clear that the limitations on the ADA's requirements 
contained in subpart C, such as ``necessity'' (Sec. 36.301(a)) and 
``safety'' (Sec. 36.301(b)), are applicable to the prohibitions in 
Sec. 36.202. Thus, it is unnecessary to add these limitations to 
Sec. 36.202 as has been requested by some commenters. In addition, the 
language of Sec. 36.202 very closely tracks the language of section 
302(b)(1)(A) of the Act, and that statutory provision does not expressly 
contain these limitations.
    Deny participation--Section 36.202(a) provides that it is 
discriminatory to deny a person with a disability the right to 
participate in or benefit from the goods, services, facilities, 
privileges, advantages, or accommodations of a place of public 
accommodation.
    A public accommodation may not exclude persons with disabilities on 
the basis of disability for reasons other than those specifically set 
forth in this part. For example, a public accommodation cannot refuse to 
serve a person with a disability because its insurance company 
conditions coverage or rates on the absence of persons with 
disabilities. This is a frequent basis of exclusion from a variety of 
community activities and is prohibited by this part.
    Unequal benefit--Section 36.202(b) prohibits services or 
accommodations that are not equal to those provided others. For example, 
persons with disabilities must not be limited to certain performances at 
a theater.
    Separate benefit--Section 36.202(c) permits different or separate 
benefits or services only when necessary to provide persons with 
disabilities opportunities as effective as those provided others. This 
paragraph permitting separate benefits ``when necessary'' should be read 
together with Sec. 36.203(a), which requires integration in ``the most 
integrated setting appropriate to the needs of the individual.'' The 
preamble to that section provides further guidance on separate programs. 
Thus, this section would not prohibit the designation of parking spaces 
for persons with disabilities.
    Each of the three paragraphs (a)-(c) prohibits discrimination 
against an individual or class of individuals ``either directly or 
through contractual, licensing, or other arrangements.'' The intent of 
the contractual prohibitions of these paragraphs is to prohibit a public 
accommodation from doing indirectly, through a contractual relationship, 
what it may not do directly. Thus, the ``individual or class of 
individuals'' referenced in the three paragraphs is intended to refer to 
the clients and customers of the public accommodation that entered into 
a contractual arrangement. It is not intended to encompass the clients 
or customers of other entities. A public accommodation, therefore, is 
not liable under this provision for discrimination that may be practiced 
by those with whom it has a contractual relationship, when that 
discrimination is not directed against its own clients or customers. For 
example, if an amusement park contracts with a food service company to 
operate its restaurants at the park, the amusement park is not 
responsible for other operations of the food service company that do not 
involve clients or customers of the amusement park. Section 36.202(d) 
makes this clear by providing that the term ``individual or class of 
individuals'' refers to the clients or customers of the public 
accommodation that enters into the contractual, licensing, or other 
arrangement.

                   Section 36.203  Integrated Settings

    Section 36.203 addresses the integration of persons with 
disabilities. The ADA recognizes that the provision of goods and 
services in an integrated manner is a fundamental tenet of 
nondiscrimination on the basis of

[[Page 673]]

disability. Providing segregated accommodations and services relegates 
persons with disabilities to the status of second-class citizens. For 
example, it would be a violation of this provision to require persons 
with mental disabilities to eat in the back room of a restaurant or to 
refuse to allow a person with a disability the full use of a health spa 
because of stereotypes about the person's ability to participate. 
Section 36.203(a) states that a public accommodation shall afford goods, 
services, facilities, privileges, advantages, and accommodations to an 
individual with a disability in the most integrated setting appropriate 
to the needs of the individual. Section 36.203(b) specifies that, 
notwithstanding the existence of separate or different programs or 
activities provided in accordance with this section, an individual with 
a disability shall not be denied the opportunity to participate in such 
programs or activities that are not separate or different. Section 
306.203(c), which is derived from section 501(d) of the Americans with 
Disabilities Act, states that nothing in this part shall be construed to 
require an individual with a disability to accept an accommodation, aid, 
service, opportunity, or benefit that he or she chooses not to accept.
    Taken together, these provisions are intended to prohibit exclusion 
and segregation of individuals with disabilities and the denial of equal 
opportunities enjoyed by others, based on, among other things, 
presumptions, patronizing attitudes, fears, and stereotypes about 
individuals with disabilities. Consistent with these standards, public 
accommodations are required to make decisions based on facts applicable 
to individuals and not on the basis of presumptions as to what a class 
of individuals with disabilities can or cannot do.
    Sections 36.203 (b) and (c) make clear that individuals with 
disabilities cannot be denied the opportunity to participate in programs 
that are not separate or different. This is an important and overarching 
principle of the Americans with Disabilities Act. Separate, special, or 
different programs that are designed to provide a benefit to persons 
with disabilities cannot be used to restrict the participation of 
persons with disabilities in general, integrated activities.
    For example, a person who is blind may wish to decline participating 
in a special museum tour that allows persons to touch sculptures in an 
exhibit and instead tour the exhibit at his or her own pace with the 
museum's recorded tour. It is not the intent of this section to require 
the person who is blind to avail himself or herself of the special tour. 
Modified participation for persons with disabilities must be a choice, 
not a requirement.
    Further, it would not be a violation of this section for an 
establishment to offer recreational programs specially designed for 
children with mobility impairments in those limited circumstances. 
However, it would be a violation of this section if the entity then 
excluded these children from other recreational services made available 
to nondisabled children, or required children with disabilities to 
attend only designated programs.
    Many commenters asked that the Department clarify a public 
accommodation's obligations within the integrated program when it offers 
a separate program, but an individual with a disability chooses not to 
participate in the separate program. It is impossible to make a blanket 
statement as to what level of auxiliary aids or modifications are 
required in the integrated program. Rather, each situation must be 
assessed individually. Assuming the integrated program would be 
appropriate for a particular individual, the extent to which that 
individual must be provided with modifications will depend not only on 
what the individual needs but also on the limitations set forth in 
subpart C. For example, it may constitute an undue burden for a 
particular public accommodation, which provides a full-time interpreter 
in its special guided tour for individuals with hearing impairments, to 
hire an additional interpreter for those individuals who choose to 
attend the integrated program. The Department cannot identify 
categorically the level of assistance or aid required in the integrated 
program.
    The preamble to the proposed rule contained a statement that some 
interpreted as encouraging the continuation of separate schools, 
sheltered workshops, special recreational programs, and other similar 
programs. It is important to emphasize that Sec. 36.202(c) only calls 
for separate programs when such programs are ``necessary'' to provide as 
effective an opportunity to individuals with disabilities as to other 
individuals. Likewise, Sec. 36.203(a) only permits separate programs 
when a more integrated setting would not be ``appropriate.'' Separate 
programs are permitted, then, in only limited circumstances. The 
sentence at issue has been deleted from the preamble because it was too 
broadly stated and had been erroneously interpreted as Departmental 
encouragement of separate programs without qualification.
    The proposed rule's reference in Sec. 36.203(b) to separate programs 
or activities provided in accordance with ``this section'' has been 
changed to ``this subpart'' in recognition of the fact that separate 
programs or activities may, in some limited circumstances, be permitted 
not only by Sec. 36.203(a) but also by Sec. 36.202(c).
    In addition, some commenters suggested that the individual with the 
disability is the only one who can decide whether a setting is 
``appropriate'' and what the ``needs'' are.

[[Page 674]]

Others suggested that only the public accommodation can make these 
determinations. The regulation does not give exclusive responsibility to 
either party. Rather, the determinations are to be made based on an 
objective view, presumably one which would take into account views of 
both parties.
    Some commenters expressed concern that Sec. 36.203(c), which states 
that nothing in the rule requires an individual with a disability to 
accept special accommodations and services provided under the ADA, could 
be interpreted to allow guardians of infants or older people with 
disabilities to refuse medical treatment for their wards. Section 
36.203(c) has been revised to make it clear that paragraph (c) is 
inapplicable to the concern of the commenters. A new paragraph (c)(2) 
has been added stating that nothing in the regulation authorizes the 
representative or guardian of an individual with a disability to decline 
food, water, medical treatment, or medical services for that individual. 
New paragraph (c) clarifies that neither the ADA nor the regulation 
alters current Federal law ensuring the rights of incompetent 
individuals with disabilities to receive food, water, and medical 
treatment. See, e.g., Child Abuse Amendments of 1984 (42 U.S.C. 
5106a(b)(10), 5106g(10)); Rehabilitation Act of 1973, as amended (29 
U.S.C 794); Developmentally Disabled Assistance and Bill of Rights Act 
(42 U.S.C. 6042).
    Sections 36.203(c) (1) and (2) are based on section 501(d) of the 
ADA. Section Sec. 501(d) was designed to clarify that nothing in the ADA 
requires individuals with disabilities to accept special accommodations 
and services for individuals with disabilities that may segregate them:
    The Committee added this section (501(d)) to clarify that nothing in 
the ADA is intended to permit discriminatory treatment on the basis of 
disability, even when such treatment is rendered under the guise of 
providing an accommodation, service, aid or benefit to the individual 
with disability. For example, a blind individual may choose not to avail 
himself or herself of the right to go to the front of a line, even if a 
particular public accommodation has chosen to offer such a modification 
of a policy for blind individuals. Or, a blind individual may choose to 
decline to participate in a special museum tour that allows persons to 
touch sculptures in an exhibit and instead tour the exhibits at his or 
her own pace with the museum's recorded tour.

(Judiciary report at 71-72.) The Act is not to be construed to mean that 
an individual with disabilities must accept special accommodations and 
services for individuals with disabilities when that individual chooses 
to participate in the regular services already offered. Because medical 
treatment, including treatment for particular conditions, is not a 
special accommodation or service for individuals with disabilities under 
section 501(d), neither the Act nor this part provides affirmative 
authority to suspend such treatment. Section 501(d) is intended to 
clarify that the Act is not designed to foster discrimination through 
mandatory acceptance of special services when other alternatives are 
provided; this concern does not reach to the provision of medical 
treatment for the disabling condition itself.
    Section 36.213 makes clear that the limitations contained in subpart 
C are to be read into subpart B. Thus, the integration requirement is 
subject to the various defenses contained in subpart C, such as safety, 
if eligibility criteria are at issue (Sec. 36.301(b)), or fundamental 
alteration and undue burden, if the concern is provision of auxiliary 
aids (Sec. 36.303(a)).

                 Section 36.204  Administrative Methods

    Section 36.204 specifies that an individual or entity shall not, 
directly, or through contractual or other arrangements, utilize 
standards or criteria or methods of administration that have the effect 
of discriminating on the basis of disability or that perpetuate the 
discrimination of others who are subject to common administrative 
control. The preamble discussion of Sec. 36.301 addresses eligibility 
criteria in detail.
    Section 36.204 is derived from section 302(b)(1)(D) of the Americans 
with Disabilities Act, and it uses the same language used in the 
employment section of the ADA (section 102(b)(3)). Both sections 
incorporate a disparate impact standard to ensure the effectiveness of 
the legislative mandate to end discrimination. This standard is 
consistent with the interpretation of section 504 by the U.S. Supreme 
Court in Alexander v. Choate, 469 U.S. 287 (1985). The Court in Choate 
explained that members of Congress made numerous statements during 
passage of section 504 regarding eliminating architectural barriers, 
providing access to transportation, and eliminating discriminatory 
effects of job qualification procedures. The Court then noted: ``These 
statements would ring hollow if the resulting legislation could not 
rectify the harms resulting from action that discriminated by effect as 
well as by design.'' Id at 297 (footnote omitted).
    Of course, Sec. 36.204 is subject to the various limitations 
contained in subpart C including, for example, necessity 
(Sec. 36.301(a)), safety (Sec. 36.301(b)), fundamental alteration 
(Sec. 36.302(a)), readily achievable (Sec. 36.304(a)), and undue burden 
(Sec. 36.303(a)).

                       Section 36.205  Association

    Section 36.205 implements section 302(b)(1)(E) of the Act, which 
provides that a public accommodation shall not exclude or

[[Page 675]]

otherwise deny equal goods, services, facilities, privileges, 
advantages, accommodations, or other opportunities to an individual or 
entity because of the known disability of an individual with whom the 
individual or entity is known to have a relationship or association. 
This section is unchanged from the proposed rule.
    The individuals covered under this section include any individuals 
who are discriminated against because of their known association with an 
individual with a disability. For example, it would be a violation of 
this part for a day care center to refuse admission to a child because 
his or her brother has HIV disease.
    This protection is not limited to those who have a familial 
relationship with the individual who has a disability. If a place of 
public accommodation refuses admission to a person with cerebral palsy 
and his or her companions, the companions have an independent right of 
action under the ADA and this section.
    During the legislative process, the term ``entity'' was added to 
section 302(b)(1)(E) to clarify that the scope of the provision is 
intended to encompass not only persons who have a known association with 
a person with a disability, but also entities that provide services to 
or are otherwise associated with such individuals. This provision was 
intended to ensure that entities such as health care providers, 
employees of social service agencies, and others who provide 
professional services to persons with disabilities are not subjected to 
discrimination because of their professional association with persons 
with disabilities. For example, it would be a violation of this section 
to terminate the lease of a entity operating an independent living 
center for persons with disabilities, or to seek to evict a health care 
provider because that individual or entity provides services to persons 
with mental impairments.

                 Section 36.206  Retaliation or Coercion

    Section 36.206 implements section 503 of the ADA, which prohibits 
retaliation against any individual who exercises his or her rights under 
the Act. This section is unchanged from the proposed rule. Paragraph (a) 
of Sec. 36.206 provides that no private entity or public entity shall 
discriminate against any individual because that individual has 
exercised his or her right to oppose any act or practice made unlawful 
by this part, or because that individual made a charge, testified, 
assisted, or participated in any manner in an investigation, proceeding, 
or hearing under the Act or this part.
    Paragraph (b) provides that no private entity or public entity shall 
coerce, intimidate, threaten, or interfere with any individual in the 
exercise of his or her rights under this part or because that individual 
aided or encouraged any other individual in the exercise or enjoyment of 
any right granted or protected by the Act or this part.
    Illustrations of practices prohibited by this section are contained 
in paragraph (c), which is modeled on a similar provision in the 
regulations issued by the Department of Housing and Urban Development to 
implement the Fair Housing Act (see 24 CFR 100.400(c)(l)). Prohibited 
actions may include:
    (1) Coercing an individual to deny or limit the benefits, services, 
or advantages to which he or she is entitled under the Act or this part;
    (2) Threatening, intimidating, or interfering with an individual who 
is seeking to obtain or use the goods, services, facilities, privileges, 
advantages, or accommodations of a public accommodation;
    (3) Intimidating or threatening any person because that person is 
assisting or encouraging an individual or group entitled to claim the 
rights granted or protected by the Act or this part to exercise those 
rights; or
    (4) Retaliating against any person because that person has 
participated in any investigation or action to enforce the Act or this 
part.
    This section protects not only individuals who allege a violation of 
the Act or this part, but also any individuals who support or assist 
them. This section applies to all investigations or proceedings 
initiated under the Act or this part without regard to the ultimate 
resolution of the underlying allegations. Because this section prohibits 
any act of retaliation or coercion in response to an individual's effort 
to exercise rights established by the Act and this part (or to support 
the efforts of another individual), the section applies not only to 
public accommodations that are otherwise subject to this part, but also 
to individuals other than public accommodations or to public entities. 
For example, it would be a violation of the Act and this part for a 
private individual, e.g., a restaurant customer, to harass or intimidate 
an individual with a disability in an effort to prevent that individual 
from patronizing the restaurant. It would, likewise, be a violation of 
the Act and this part for a public entity to take adverse action against 
an employee who appeared as a witness on behalf of an individual who 
sought to enforce the Act.

   Section 36.207  Places of Public Accommodation Located in Private 
                               Residences

    A private home used exclusively as a residence is not covered by 
title III because it is neither a ``commercial facility'' nor a ``place 
of public accommodation.'' In some situations, however, a private home 
is not used exclusively as a residence, but houses a place of public 
accommodation in all or part of a home (e.g., an accountant who meets 
with his or her clients at his or her residence). Section 36.207(a) 
provides that those portions of the private residence used in the 
operation

[[Page 676]]

of the place of public accommodation are covered by this part.
    For instance, a home or a portion of a home may be used as a day 
care center during the day and a residence at night. If all parts of the 
house are used for the day care center, then the entire residence is a 
place of public accommodation because no part of the house is used 
exclusively as a residence. If an accountant uses one room in the house 
solely as his or her professional office, then a portion of the house is 
used exclusively as a place of public accommodation and a portion is 
used exclusively as a residence. Section 36.207 provides that when a 
portion of a residence is used exclusively as a residence, that portion 
is not covered by this part. Thus, the portions of the accountant's 
house, other than the professional office and areas and spaces leading 
to it, are not covered by this part. All of the requirements of this 
rule apply to the covered portions, including requirements to make 
reasonable modifications in policies, eliminate discriminatory 
eligibility criteria, take readily achievable measures to remove 
barriers or provide readily achievable alternatives (e.g., making house 
calls), provide auxiliary aids and services and undertake only 
accessible new construction and alterations.
    Paragraph (b) was added in response to comments that sought 
clarification on the extent of coverage of the private residence used as 
the place of public accommodation. The final rule makes clear that the 
place of accommodation extends to all areas of the home used by clients 
and customers of the place of public accommodation. Thus, the ADA would 
apply to any door or entry way, hallways, a restroom, if used by 
customers and clients; and any other portion of the residence, interior 
or exterior, used by customers or clients of the public accommodation. 
This interpretation is simply an application of the general rule for all 
public accommodations, which extends statutory requirements to all 
portions of the facility used by customers and clients, including, if 
applicable, restrooms, hallways, and approaches to the public 
accommodation. As with other public accommodations, barriers at the 
entrance and on the sidewalk leading up to the public accommodation, if 
the sidewalk is under the control of the public accommodation, must be 
removed if doing so is readily achievable.
    The Department recognizes that many businesses that operate out of 
personal residences are quite small, often employing only the homeowner 
and having limited total revenues. In these circumstances the effect of 
ADA coverage would likely be quite minimal. For example, because the 
obligation to remove existing architectural barriers is limited to those 
that are easily accomplishable without much difficulty or expense (see 
Sec. 36.304), the range of required actions would be quite modest. It 
might not be readily achievable for such a place of public accommodation 
to remove any existing barriers. If it is not readily achievable to 
remove existing architectural barriers, a public accommodation located 
in a private residence may meet its obligations under the Act and this 
part by providing its goods or services to clients or customers with 
disabilities through the use of alternative measures, including delivery 
of goods or services in the home of the customer or client, to the 
extent that such alternative measures are readily achievable (See 
Sec. 36.305).
    Some commenters asked for clarification as to how the new 
construction and alteration standards of subpart D will apply to 
residences. The new construction standards only apply to the extent that 
the residence or portion of the residence was designed or intended for 
use as a public accommodation. Thus, for example, if a portion of a home 
is designed or constructed for use exclusively as a lawyer's office or 
for use both as a lawyer's office and for residential purposes, then it 
must be designed in accordance with the new construction standards in 
the appendix. Likewise, if a homeowner is undertaking alterations to 
convert all or part of his residence to a place of public accommodation, 
that work must be done in compliance with the alterations standards in 
the appendix.
    The preamble to the proposed rule addressed the applicable 
requirements when a commercial facility is located in a private 
residence. That situation is now addressed in Sec. 36.401(b) of subpart 
D.

                      Section 36.208  Direct Threat

    Section 36.208(a) implements section 302(b)(3) of the Act by 
providing that this part does not require a public accommodation to 
permit an individual to participate in or benefit from the goods, 
services, facilities, privileges, advantages and accommodations of the 
public accommodation, if that individual poses a direct threat to the 
health or safety of others. This section is unchanged from the proposed 
rule.
    The Department received a significant number of comments on this 
section. Commenters representing individuals with disabilities generally 
supported this provision, but suggested revisions to further limit its 
application. Commenters representing public accommodations generally 
endorsed modifications that would permit a public accommodation to 
exercise its own judgment in determining whether an individual poses a 
direct threat.
    The inclusion of this provision is not intended to imply that 
persons with disabilities pose risks to others. It is intended to 
address concerns that may arise in this area. It establishes a strict 
standard that must be met before denying service to an individual

[[Page 677]]

with a disability or excluding that individual from participation.
    Paragraph (b) of this section explains that a ``direct threat'' is 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 and services. This paragraph codifies 
the standard first applied by the Supreme Court in School Board of 
Nassau County v. Arline, 480 U.S. 273 (1987), in which the Court held 
that an individual with a contagious disease may be an ``individual with 
handicaps'' under section 504 of the Rehabilitation Act. In Arline, the 
Supreme Court recognized that there is a need to balance the interests 
of people with disabilities against legitimate concerns for public 
safety. Although persons with disabilities are generally entitled to the 
protection of this part, a person who poses a significant risk to others 
may be excluded if reasonable modifications to the public 
accommodation's policies, practices, or procedures will not eliminate 
that risk. The determination that a person poses a direct threat to the 
health or safety of others may not be based on generalizations or 
stereotypes about the effects of a particular disability; it must be 
based on an individual assessment that conforms to the requirements of 
paragraph (c) of this section.
    Paragraph (c) establishes the test to use in determining whether an 
individual poses a direct threat to the health or safety of others. A 
public accommodation is required to make an individualized assessment, 
based on reasonable judgment that relies on current medical evidence or 
on the best available objective evidence, to determine: 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 will mitigate the risk. This is the 
test established by the Supreme Court in Arline. Such an inquiry is 
essential if the law is to achieve its goal of protecting disabled 
individuals from discrimination based on prejudice, stereotypes, or 
unfounded fear, while giving appropriate weight to legitimate concerns, 
such as the need to avoid exposing others to significant health and 
safety risks. Making this assessment will not usually require the 
services of a physician. Sources for medical knowledge include guidance 
from public health authorities, such as the U.S. Public Health Service, 
the Centers for Disease Control, and the National Institutes of Health, 
including the National Institute of Mental Health.
    Many of the commenters sought clarification of the inquiry 
requirement. Some suggested that public accommodations should be 
prohibited from making any inquiries to determine if an individual with 
a disability would pose a direct threat to other persons. The Department 
believes that to preclude all such inquiries would be inappropriate. 
Under Sec. 36.301 of this part, a public accommodation is permitted to 
establish eligibility criteria necessary for the safe operation of the 
place of public accommodation. Implicit in that right is the right to 
ask if an individual meets the criteria. However, any eligibility or 
safety standard established by a public accommodation must be based on 
actual risk, not on speculation or stereotypes; it must be applied to 
all clients or customers of the place of public accommodation; and 
inquiries must be limited to matters necessary to the application of the 
standard.
    Some commenters suggested that the test established in the Arline 
decision, which was developed in the context of an employment case, is 
too stringent to apply in a public accommodations context where 
interaction between the public accommodation and its client or customer 
is often very brief. One suggested alternative was to permit public 
accommodations to exercise ``good faith'' judgment in determining 
whether an individual poses a direct threat, particularly when a public 
accommodation is dealing with a client or customer engaged in disorderly 
or disruptive behavior.
    The Department believes that the ADA clearly requires that any 
determination to exclude an individual from participation must be based 
on an objective standard. A public accommodation may establish neutral 
eligibility criteria as a condition of receiving its goods or services. 
As long as these criteria are necessary for the safe provision of the 
public accommodation's goods and services and applied neutrally to all 
clients or customers, regardless of whether they are individuals with 
disabilities, a person who is unable to meet the criteria may be 
excluded from participation without inquiry into the underlying reason 
for the inability to comply. In places of public accommodation such as 
restaurants, theaters, or hotels, where the contact between the public 
accommodation and its clients is transitory, the uniform application of 
an eligibility standard precluding violent or disruptive behavior by any 
client or customer should be sufficient to enable a public accommodation 
to conduct its business in an orderly manner.
    Some other commenters asked for clarification of the application of 
this provision to persons, particularly children, who have short-term, 
contagious illnesses, such as fevers, influenza, or the common cold. It 
is common practice in schools and day care settings to exclude persons 
with such illnesses until the symptoms subside. The Department believes 
that these commenters misunderstand the scope of this rule. The ADA only 
prohibits discrimination against an individual with a disability. Under 
the ADA and

[[Page 678]]

this part, a ``disability'' is defined as a physical or mental 
impairment that substantially limits one or more major life activities. 
Common, short-term illnesses that predictably resolve themselves within 
a matter of days do not ``substantially limit'' a major life activity; 
therefore, it is not a violation of this part to exclude an individual 
from receiving the services of a public accommodation because of such 
transitory illness. However, this part does apply to persons who have 
long-term illnesses. Any determination with respect to a person who has 
a chronic or long-term illness must be made in compliance with the 
requirements of this section.

                  Section 36.209  Illegal Use of Drugs

    Section 36.209 effectuates section 510 of the ADA, which clarifies 
the Act's application to people who use drugs illegally. Paragraph (a) 
provides that this part does not prohibit discrimination based on an 
individual's current illegal use of drugs.
    The Act and the regulation distinguish between illegal use of drugs 
and the legal use of substances, whether or not those substances are 
``controlled substances,'' as defined in the Controlled Substances Act 
(21 U.S.C. 812). Some controlled substances are prescription drugs that 
have legitimate medical uses. Section 36.209 does not affect use of 
controlled substances pursuant to a valid prescription, under 
supervision by a licensed health care professional, or other use that is 
authorized by the Controlled Substances Act or any other provision of 
Federal law. It does apply to illegal use of those substances, as well 
as to illegal use of controlled substances that are not prescription 
drugs. The key question is whether the individual's use of the substance 
is illegal, not whether the substance has recognized legal uses. Alcohol 
is not a controlled substance, so use of alcohol is not addressed by 
Sec. 36.209. Alcoholics are individuals with disabilities, subject to 
the protections of the statute.
    A distinction is also made between the use of a substance and the 
status of being addicted to that substance. Addiction is a disability, 
and addicts are individuals with disabilities protected by the Act. The 
protection, however, does not extend to actions based on the illegal use 
of the substance. In other words, an addict cannot use the fact of his 
or her addiction as a defense to an action based on illegal use of 
drugs. This distinction is not artificial. Congress intended to deny 
protection to people who engage in the illegal use of drugs, whether or 
not they are addicted, but to provide protection to addicts so long as 
they are not currently using drugs.
    A third distinction is the difficult one between current use and 
former use. The definition of ``current illegal use of drugs'' in 
Sec. 36.104, which is based on the report of the Conference Committee, 
H.R. Conf. Rep. No. 596, 101st Cong., 2d Sess. 64 (1990), is ``illegal 
use of drugs that occurred recently enough to justify a reasonable 
belief that a person's drug use is current or that continuing use is a 
real and ongoing problem.''
    Paragraph (a)(2)(i) specifies that an individual who has 
successfully completed a supervised drug rehabilitation program or has 
otherwise been rehabilitated successfully and who is not engaging in 
current illegal use of drugs is protected. Paragraph (a)(2)(ii) 
clarifies that an individual who is currently participating in a 
supervised rehabilitation program and is not engaging in current illegal 
use of drugs is protected. Paragraph (a)(2)(iii) provides that a person 
who is erroneously regarded as engaging in current illegal use of drugs, 
but who is not engaging in such use, is protected.
    Paragraph (b) provides a limited exception to the exclusion of 
current illegal users of drugs from the protections of the Act. It 
prohibits denial of health services, or services provided in connection 
with drug rehabilitation, to an individual on the basis of current 
illegal use of drugs, if the individual is otherwise entitled to such 
services. As explained further in the discussion of Sec. 36.302, a 
health care facility that specializes in a particular type of treatment, 
such as care of burn victims, is not required to provide drug 
rehabilitation services, but it cannot refuse to treat an individual's 
burns on the grounds that the individual is illegally using drugs.
    A commenter argued that health care providers should be permitted to 
use their medical judgment to postpone discretionary medical treatment 
of individuals under the influence of alcohol or drugs. The regulation 
permits a medical practitioner to take into account an individual's use 
of drugs in determining appropriate medical treatment. Section 36.209 
provides that the prohibitions on discrimination in this part do not 
apply when the public accommodation acts on the basis of current illegal 
use of drugs. Although those prohibitions do apply under paragraph (b), 
the limitations established under this part also apply. Thus, under 
Sec. 36.208, a health care provider or other public accommodation 
covered under Sec. 36.209(b) may exclude an individual whose current 
illegal use of drugs poses a direct threat to the health or safety of 
others, and, under Sec. 36.301, a public accommodation may impose or 
apply eligibility criteria that are necessary for the provision of the 
services being offered, and may impose legitimate safety requirements 
that are necessary for safe operation. These same limitations also apply 
to individuals with disabilities who use alcohol or prescription drugs. 
The Department believes that these provisions address this commenter's 
concerns.
    Other commenters pointed out that abstention from the use of drugs 
is an essential

[[Page 679]]

condition for participation in some drug rehabilitation programs, and 
may be a necessary requirement in inpatient or residential settings. The 
Department believes that this comment is well-founded. Congress clearly 
did not intend to exclude from drug treatment programs the very 
individuals who need such programs because of their use of drugs. In 
such a situation, however, once an individual has been admitted to a 
program, abstention may be a necessary and appropriate condition to 
continued participation. The final rule therefore provides that a drug 
rehabilitation or treatment program may deny participation to 
individuals who use drugs while they are in the program.
    Paragraph (c) expresses Congress' intention that the Act be neutral 
with respect to testing for illegal use of drugs. This paragraph 
implements the provision in section 510(b) of the Act that allows 
entities ``to adopt or administer reasonable policies or procedures, 
including but not limited to drug testing,'' that ensure an individual 
who is participating in a supervised rehabilitation program, or who has 
completed such a program or otherwise been rehabilitated successfully, 
is no longer engaging in the illegal use of drugs. Paragraph (c) is not 
to be construed to encourage, prohibit, restrict, or authorize the 
conducting of testing for the illegal use of drugs.
    Paragraph (c) of Sec. 36.209 clarifies that it is not a violation of 
this part to adopt or administer reasonable policies or procedures to 
ensure that an individual who formerly engaged in the illegal use of 
drugs is not currently engaging in illegal use of drugs. Any such 
policies or procedures must, of course, be reasonable, and must be 
designed to identify accurately the illegal use of drugs. This paragraph 
does not authorize inquiries, tests, or other procedures that would 
disclose use of substances that are not controlled substances or are 
taken under supervision by a licensed health care professional, or other 
uses authorized by the Controlled Substances Act or other provisions of 
Federal law, because such uses are not included in the definition of 
``illegal use of drugs.''
    One commenter argued that the rule should permit testing for lawful 
use of prescription drugs, but most favored the explanation that tests 
must be limited to unlawful use in order to avoid revealing the use of 
prescription medicine used to treat disabilities. Tests revealing legal 
use of prescription drugs might violate the prohibition in Sec. 36.301 
of attempts to unnecessarily identify the existence of a disability.

                         Section 36.210  Smoking

    Section 36.210 restates the clarification in section 501(b) of the 
Act that the Act does not preclude the prohibition of, or imposition of 
restrictions on, smoking. Some commenters argued that Sec. 36.210 does 
not go far enough, and that the regulation should prohibit smoking in 
all places of public accommodation. The reference to smoking in section 
501 merely clarifies that the Act does not require public accommodations 
to accommodate smokers by permitting them to smoke in places of public 
accommodations.

           Section 36.211  Maintenance of Accessible Features

    Section 36.211 provides that a public accommodation shall maintain 
in operable working condition those features of facilities and equipment 
that are required to be readily accessible to and usable by persons with 
disabilities by the Act or this part. The Act requires that, to the 
maximum extent feasible, facilities must be accessible to, and usable 
by, individuals with disabilities. This section recognizes that it is 
not sufficient to provide features such as accessible routes, elevators, 
or ramps, if those features are not maintained in a manner that enables 
individuals with disabilities to use them. Inoperable elevators, locked 
accessible doors, or ``accessible'' routes that are obstructed by 
furniture, filing cabinets, or potted plants are neither ``accessible 
to'' nor ``usable by'' individuals with disabilities.
    Some commenters objected that this section appeared to establish an 
absolute requirement and suggested that language from the preamble be 
included in the text of the regulation. It is, of course, impossible to 
guarantee that mechanical devices will never fail to operate. Paragraph 
(b) of the final regulation provides that this section does not prohibit 
isolated or temporary interruptions in service or access due to 
maintenance or repairs. This paragraph is intended to clarify that 
temporary obstructions or isolated instances of mechanical failure would 
not be considered violations of the Act or this part. However, allowing 
obstructions or ``out of service'' equipment to persist beyond a 
reasonable period of time would violate this part, as would repeated 
mechanical failures due to improper or inadequate maintenance. Failure 
of the public accommodation to ensure that accessible routes are 
properly maintained and free of obstructions, or failure to arrange 
prompt repair of inoperable elevators or other equipment intended to 
provide access, would also violate this part.
    Other commenters requested that this section be expanded to include 
specific requirements for inspection and maintenance of equipment, for 
training staff in the proper operation of equipment, and for maintenance 
of specific items. The Department believes that this section properly 
establishes the general requirement for maintaining access and that 
further, more detailed requirements are not necessary.

[[Page 680]]

                        Section 36.212  Insurance

    The Department received numerous comments on proposed Sec. 36.212. 
Most supported the proposed regulation but felt that it did not go far 
enough in protecting individuals with disabilities and persons 
associated with them from discrimination. Many commenters argued that 
language from the preamble to the proposed regulation should be included 
in the text of the final regulation. Other commenters argued that even 
that language was not strong enough, and that more stringent standards 
should be established. Only a few commenters argued that the Act does 
not apply to insurance underwriting practices or the terms of insurance 
contracts. These commenters cited language from the Senate committee 
report (S. Rep. No. 116, 101st Cong., 1st Sess., at 84-86 (1989) 
(hereinafter ``Senate report'')), indicating that Congress did not 
intend to affect existing insurance practices.
    The Department has decided to adopt the language of the proposed 
rule without change. Sections 36.212 (a) and (b) restate section 501(c) 
of the Act, which provides that the Act shall not be construed to 
restrict certain insurance practices on the part of insurance companies 
and employers, as long as such practices are not used to evade the 
purposes of the Act. Section 36.212(c) is a specific application of 
Sec. 36.202(a), which prohibits denial of participation on the basis of 
disability. It provides that a public accommodation may not refuse to 
serve an individual with a disability because of limitations on coverage 
or rates in its insurance policies (see Judiciary report at 56).
    Many commenters supported the requirements of Sec. 36.212(c) in the 
proposed rule because it addressed an important reason for denial of 
services by public accommodations. One commenter argued that services 
could be denied if the insurance coverage required exclusion of people 
whose disabilities were reasonably related to the risks involved in that 
particular place of public accommodation. Sections 36.208 and 36.301 
establish criteria for denial of participation on the basis of 
legitimate safety concerns. This paragraph does not prohibit 
consideration of such concerns in insurance policies, but provides that 
any exclusion on the basis of disability must be based on the 
permissible criteria, rather than on the terms of the insurance 
contract.
    Language in the committee reports indicates that Congress intended 
to reach insurance practices by prohibiting differential treatment of 
individuals with disabilities in insurance offered by public 
accommodations unless the differences are justified. ``Under the ADA, a 
person with a disability cannot be denied insurance or be subject to 
different terms or conditions of insurance based on disability alone, if 
the disability does not pose increased risks'' (Senate report at 84; 
Education and Labor report at 136). Section 501(c) (1) of the Act was 
intended to emphasize that ``insurers may continue to sell to and 
underwrite individuals applying for life, health, or other insurance on 
an individually underwritten basis, or to service such insurance 
products, so long as the standards used are based on sound actuarial 
data and not on speculation'' (Judiciary report at 70 (emphasis added); 
see also Senate report at 85; Education and Labor report at 137).
    The committee reports indicate that underwriting and classification 
of risks must be ``based on sound actuarial principles or be related to 
actual or reasonably anticipated experience'' (see, e.g., Judiciary 
report at 71). Moreover, ``while a plan which limits certain kinds of 
coverage based on classification of risk would be allowed * * *, the 
plan may not refuse to insure, or refuse to continue to insure, or limit 
the amount, extent, or kind of coverage available to an individual, or 
charge a different rate for the same coverage solely because of a 
physical or mental impairment, except where the refusal, limitation, or 
rate differential is based on sound actuarial principles or is related 
to actual or reasonably anticipated experience'' (Senate report at 85; 
Education and Labor report at 136-37; Judiciary report at 71). The ADA, 
therefore, does not prohibit use of legitimate actuarial considerations 
to justify differential treatment of individuals with disabilities in 
insurance.
    The committee reports provide some guidance on how nondiscrimination 
principles in the disability rights area relate to insurance practices. 
For example, a person who is blind may not be denied coverage based on 
blindness independent of actuarial risk classification. With respect to 
group health insurance coverage, an individual with a pre-existing 
condition may be denied coverage for that condition for the period 
specified in the policy, but cannot be denied coverage for illness or 
injuries unrelated to the pre-existing condition. Also, a public 
accommodation may offer insurance policies that limit coverage for 
certain procedures or treatments, but may not entirely deny coverage to 
a person with a disability.
    The Department requested comment on the extent to which data that 
would establish statistically sound correlations are available. Numerous 
commenters cited pervasive problems in the availability and cost of 
insurance for individuals with disabilities and parents of children with 
disabilities. No commenters cited specific data, or sources of data, to 
support specific exclusionary practices. Several commenters reported 
that, even when statistics are available, they are often outdated and do 
not reflect current medical technology and treatment methods. Concern 
was expressed that adequate efforts are not made to distinguish those 
individuals

[[Page 681]]

who are high users of health care from individuals in the same 
diagnostic groups who may be low users of health care. One insurer 
reported that ``hard data and actuarial statistics are not available to 
provide precise numerical justifications for every underwriting 
determination,'' but argued that decisions may be based on ``logical 
principles generally accepted by actuarial science and fully consistent 
with state insurance laws.'' The commenter urged that the Department 
recognize the validity of information other than statistical data as a 
basis for insurance determinations.
    The most frequent comment was a recommendation that the final 
regulation should require the insurance company to provide a copy of the 
actuarial data on which its actions are based when requested by the 
applicant. Such a requirement would be beyond anything contemplated by 
the Act or by Congress and has therefore not been included in the 
Department's final rule. Because the legislative history of the ADA 
clarifies that different treatment of individuals with disabilities in 
insurance may be justified by sound actuarial data, such actuarial data 
will be critical to any potential litigation on this issue. This 
information would presumably be obtainable in a court proceeding where 
the insurer's actuarial data was the basis for different treatment of 
persons with disabilities. In addition, under some State regulatory 
schemes, insurers may have to file such actuarial information with the 
State regulatory agency and this information may be obtainable at the 
State level.
    A few commenters representing the insurance industry conceded that 
underwriting practices in life and health insurance are clearly covered, 
but argued that property and casualty insurance are not covered. The 
Department sees no reason for this distinction. Although life and health 
insurance are the areas where the regulation will have its greatest 
application, the Act applies equally to unjustified discrimination in 
all types of insurance provided by public accommodations. A number of 
commenters, for example, reported difficulties in obtaining automobile 
insurance because of their disabilities, despite their having good 
driving records.

      Section 36.213  Relationship of Subpart 8 to Subparts C and D

    This section explains that subpart B sets forth the general 
principles of nondiscrimination applicable to all entities subject to 
this regulation, while subparts C and D provide guidance on the 
application of this part to specific situations. The specific provisions 
in subparts C and D, including the limitations on those provisions, 
control over the general provisions in circumstances where both specific 
and general provisions apply. Resort to the general provisions of 
subpart B is only appropriate where there are no applicable specific 
rules of guidance in subparts C or D. This interaction between the 
specific requirements and the general requirements operates with regard 
to contractual obligations as well.
    One illustration of this principle is its application to the 
obligation of a public accommodation to provide access to services by 
removal of architectural barriers or by alternatives to barrier removal. 
The general requirement, established in subpart B by Sec. 36.203, is 
that a public accommodation must provide its services to individuals 
with disabilities in the most integrated setting appropriate. This 
general requirement would appear to categorically prohibit 
``segregated'' seating for persons in wheelchairs. Section 36.304, 
however, only requires removal of architectural barriers to the extent 
that removal is ``readily achievable.'' If providing access to all areas 
of a restaurant, for example, would not be ``readily achievable,'' a 
public accommodation may provide access to selected areas only. Also, 
Sec. 36.305 provides that, where barrier removal is not readily 
achievable, a public accommodation may use alternative, readily 
achievable methods of making services available, such as curbside 
service or home delivery. Thus, in this manner, the specific 
requirements of Secs. 36.304 and 36.305 control over the general 
requirement of Sec. 36.203.

                    Subpart C--Specific Requirements

    In general, subpart C implements the ``specific prohibitions'' that 
comprise section 302(b)(2) of the ADA. It also addresses the 
requirements of section 309 of the ADA regarding examinations and 
courses.

                  Section 36.301  Eligibility Criteria

    Section 36.301 of the rule prohibits the imposition or application 
of eligibility criteria that screen out or tend to screen out an 
individual with a disability or any class of individuals with 
disabilities from fully and equally enjoying any goods, services, 
facilities, privileges, advantages, and accommodations, unless such 
criteria can be shown to be necessary for the provision of the goods, 
services, facilities, privileges, advantages, or accommodations being 
offered. This prohibition is based on section 302(b)(2)(A)(i) of the 
ADA.
    It would violate this section to establish exclusive or segregative 
eligibility criteria that would bar, for example, all persons who are 
deaf from playing on a golf course or all individuals with cerebral 
palsy from attending a movie theater, or limit the seating of 
individuals with Down's syndrome to only particular areas of a 
restaurant. The wishes, tastes, or preferences of other customers may 
not be asserted to justify criteria that

[[Page 682]]

would exclude or segregate individuals with disabilities.
    Section 36.301 also prohibits attempts by a public accommodation to 
unnecessarily identify the existence of a disability; for example, it 
would be a violation of this section for a retail store to require an 
individual to state on a credit application whether the applicant has 
epilepsy, mental illness, or any other disability, or to inquire 
unnecessarily whether an individual has HIV disease.
    Section 36.301 also prohibits policies that unnecessarily impose 
requirements or burdens on individuals with disabilities that are not 
placed on others. For example, public accommodations may not require 
that an individual with a disability be accompanied by an attendant. As 
provided by Sec. 36.306, however, a public accommodation is not required 
to provide services of a personal nature including assistance in 
toileting, eating, or dressing.
    Paragraph (c) of Sec. 36.301 provides that public accommodations may 
not place a surcharge on a particular individual with a disability or 
any group of individuals with disabilities to cover the costs of 
measures, such as the provision of auxiliary aids and services, barrier 
removal, alternatives to barrier removal, and reasonable modifications 
in policies, practices, and procedures, that are required to provide 
that individual or group with the nondiscriminatory treatment required 
by the Act or this part.
    A number of commenters inquired as to whether deposits required for 
the use of auxiliary aids, such as assistive listening devices, are 
prohibited surcharges. It is the Department's view that reasonable, 
completely refundable, deposits are not to be considered surcharges 
prohibited by this section. Requiring deposits is an important means of 
ensuring the availability of equipment necessary to ensure compliance 
with the ADA.
    Other commenters sought clarification as to whether Sec. 36.301(c) 
prohibits professionals from charging for the additional time that it 
may take in certain cases to provide services to an individual with 
disabilities. The Department does not intend Sec. 36.301(c) to prohibit 
professionals who bill on the basis of time from charging individuals 
with disabilities on that basis. However, fees may not be charged for 
the provision of auxiliary aids and services, barrier removal, 
alternatives to barrier removal, reasonable modifications in policies, 
practices, and procedures, or any other measures necessary to ensure 
compliance with the ADA.
    Other commenters inquired as to whether day care centers may charge 
for extra services provided to individuals with disabilities. As stated 
above, Sec. 36.302(c) is intended only to prohibit charges for measures 
necessary to achieve compliance with the ADA.
    Another commenter asserted that charges may be assessed for home 
delivery provided as an alternative to barrier removal under 
Sec. 36.305, when home delivery is provided to all customers for a fee. 
Charges for home delivery are permissible if home delivery is not 
considered an alternative to barrier removal. If the public 
accommodation offers an alternative, such as curb, carry-out, or 
sidewalk service for which no surcharge is assessed, then it may charge 
for home delivery in accordance with its standard pricing for home 
delivery.
    In addition, Sec. 36.301 prohibits the imposition of criteria that 
``tend to'' screen out an individual with a disability. This concept, 
which is derived from current regulations under section 504 (see, e.g., 
45 CFR 84.13), makes it discriminatory to impose policies or criteria 
that, while not creating a direct bar to individuals with disabilities, 
indirectly prevent or limit their ability to participate. For example, 
requiring presentation of a driver's license as the sole means of 
identification for purposes of paying by check would violate this 
section in situations where, for example, individuals with severe vision 
impairments or developmental disabilities or epilepsy are ineligible to 
receive a driver's license and the use of an alternative means of 
identification, such as another photo I.D. or credit card, is feasible.
    A public accommodation may, however, impose neutral rules and 
criteria that screen out, or tend to screen out, individuals with 
disabilities, if the criteria are necessary for the safe operation of 
the public accommodation. Examples of safety qualifications that would 
be justifiable in appropriate circumstances would include height 
requirements for certain amusement park rides or a requirement that all 
participants in a recreational rafting expedition be able to meet a 
necessary level of swimming proficiency. Safety requirements must be 
based on actual risks and not on speculation, stereotypes, or 
generalizations about individuals with disabilities.

   Section 36.302  Modifications in Policies, Practices, or Procedures

    Section 36.302 of the rule prohibits the failure to make reasonable 
modifications in policies, practices, and procedures when such 
modifications may be necessary to afford 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. This prohibition is based on section 302(b)(2)(A)(ii) 
of the ADA.
    For example, a parking facility would be required to modify a rule 
barring all vans or all vans with raised roofs, if an individual who 
uses a wheelchair-accessible van wishes to park in that facility, and if 
overhead structures are high enough to accommodate

[[Page 683]]

the height of the van. A department store may need to modify a policy of 
only permitting one person at a time in a dressing room, if an 
individual with mental retardation needs and requests assistance in 
dressing from a companion. Public accommodations may need to revise 
operational policies to ensure that services are available to 
individuals with disabilities. For instance, a hotel may need to adopt a 
policy of keeping an accessible room unoccupied until an individual with 
a disability arrives at the hotel, assuming the individual has properly 
reserved the room.
    One example of application of this principle is specifically 
included in a new Sec. 36.302(d) on check-out aisles. That paragraph 
provides that a store with check-out aisles must ensure that an adequate 
number of accessible check-out aisles is kept open during store hours, 
or must otherwise modify its policies and practices, in order to ensure 
that an equivalent level of convenient service is provided to 
individuals with disabilities as is provided to others. For example, if 
only one check-out aisle is accessible, and it is generally used for 
express service, one way of providing equivalent service is to allow 
persons with mobility impairments to make all of their purchases at that 
aisle. This principle also applies with respect to other accessible 
elements and services. For example, a particular bank may be in 
compliance with the accessibility guidelines for new construction 
incorporated in appendix A with respect to automated teller machines 
(ATM) at a new branch office by providing one accessible walk-up machine 
at that location, even though an adjacent walk-up ATM is not accessible 
and the drive-up ATM is not accessible. However, the bank would be in 
violation of this section if the accessible ATM was located in a lobby 
that was locked during evening hours while the drive-up ATM was 
available to customers without disabilities during those same hours. The 
bank would need to ensure that the accessible ATM was available to 
customers during the hours that any of the other ATM's was available.
    A number of commenters inquired as to the relationship between this 
section and Sec. 36.307, ``Accessible or special goods.'' Under 
Sec. 36.307, a public accommodation is not required to alter its 
inventory to include accessible or special goods that are designed for, 
or facilitate use by, individuals with disabilities. The rule enunciated 
in Sec. 36.307 is consistent with the ``fundamental alteration'' defense 
to the reasonable modifications requirement of Sec. 36.302. Therefore, 
Sec. 36.302 would not require the inventory of goods provided by a 
public accommodation to be altered to include goods with accessibility 
features. For example, Sec. 36.302 would not require a bookstore to 
stock Brailled books or order Brailled books, if it does not do so in 
the normal course of its business.
    The rule does not require modifications to the legitimate areas of 
specialization of service providers. Section 36.302(b) provides that a 
public accommodation may refer an individual with a disability to 
another public accommodation, if that individual is seeking, or 
requires, treatment or services outside of the referring public 
accommodation's area of specialization, and if, in the normal course of 
its operations, the referring public accommodation would make a similar 
referral for an individual without a disability who seeks or requires 
the same treatment or services.
    For example, it would not be discriminatory for a physician who 
specializes only in burn treatment to refer an individual who is deaf to 
another physician for treatment of an injury other than a burn injury. 
To require a physician to accept patients outside of his or her 
specialty would fundamentally alter the nature of the medical practice 
and, therefore, not be required by this section.
    A clinic specializing exclusively in drug rehabilitation could 
similarly refuse to treat a person who is not a drug addict, but could 
not refuse to treat a person who is a drug addict simply because the 
patient tests positive for HIV. Conversely, a clinic that specializes in 
the treatment of individuals with HIV could refuse to treat an 
individual that does not have HIV, but could not refuse to treat a 
person for HIV infection simply because that person is also a drug 
addict.
    Some commenters requested clarification as to how this provision 
would apply to situations where manifestations of the disability in 
question, itself, would raise complications requiring the expertise of a 
different practitioner. It is not the Department's intention in 
Sec. 36.302(b) to prohibit a physician from referring an individual with 
a disability to another physician, if the disability itself creates 
specialized complications for the patient's health that the physician 
lacks the experience or knowledge to address (see Education and Labor 
report at 106).
    Section 36.302(c)(1) requires that a public accommodation modify its 
policies, practices, or procedures to permit the use of a service animal 
by an individual with a disability in any area open to the general 
public. The term ``service animal'' is defined in Sec. 36.104 to include 
guide dogs, signal dogs, or any other animal individually trained to 
provide assistance to an individual with a disability.
    A number of commenters pointed to the difficulty of making the 
distinction required by the proposed rule between areas open to the 
general public and those that are not. The ambiguity and uncertainty 
surrounding these provisions has led the Department to adopt a single 
standard for all public accommodations.

[[Page 684]]

    Section 36.302(c)(1) of the final rule now provides that 
``[g]enerally, a public accommodation shall modify policies, practices, 
and procedures to permit the use of a service animal by an individual 
with a disability.'' This formulation reflects the general intent of 
Congress that public accommodations take the necessary steps to 
accommodate service animals and to ensure that individuals with 
disabilities are not separated from their service animals. It is 
intended that the broadest feasible access be provided to service 
animals in all places of public accommodation, including movie theaters, 
restaurants, hotels, retail stores, hospitals, and nursing homes (see 
Education and Labor report at 106; Judiciary report at 59). The section 
also acknowledges, however, that, in rare circumstances, accommodation 
of service animals may not be required because a fundamental alteration 
would result in the nature of the goods, services, facilities, 
privileges, or accommodations offered or provided, or the safe operation 
of the public accommodation would be jeopardized.
    As specified in Sec. 36.302(c)(2), the rule does not require a 
public accommodation to supervise or care for any service animal. If a 
service animal must be separated from an individual with a disability in 
order to avoid a fundamental alteration or a threat to safety, it is the 
responsibility of the individual with the disability to arrange for the 
care and supervision of the animal during the period of separation.
    A museum would not be required by Sec. 36.302 to modify a policy 
barring the touching of delicate works of art in order to enhance the 
participation of individuals who are blind, if the touching threatened 
the integrity of the work. Damage to a museum piece would clearly be a 
fundamental alteration that is not required by this section.

              Section 36.303  Auxiliary Aids and Services.

    Section 36.303 of the final rule 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. This requirement is based on section 
302(b)(2)(A)(iii) of the ADA.
    Implicit in this duty to provide auxiliary aids and services is the 
underlying obligation of a public accommodation to communicate 
effectively with its customers, clients, patients, or participants who 
have disabilities affecting hearing, vision, or speech. To give emphasis 
to this underlying obligation, Sec. 36.303(c) of the rule incorporates 
language derived from section 504 regulations for federally conducted 
programs (see e.g., 28 CFR 39.160(a)) that requires that appropriate 
auxiliary aids and services be furnished to ensure that communication 
with persons with disabilities is as effective as communication with 
others.
    Auxiliary aids and services include a wide range of services and 
devices for ensuring effective communication. Use of the most advanced 
technology is not required so long as effective communication is 
ensured. The Department's proposed Sec. 36.303(b) provided a list of 
examples of auxiliary aids and services that was taken from the 
definition of auxiliary aids and services in section 3(1) of the ADA and 
was supplemented by examples from regulations implementing section 504 
in federally conducted programs (see e.g., 28 CFR 39.103). A substantial 
number of commenters suggested that additional examples be added to this 
list. The Department has added several items to this list but wishes to 
clarify that the list is not an all-inclusive or exhaustive catalogue of 
possible or available auxiliary aids or services. It is not possible to 
provide an exhaustive list, and such an attempt would omit new devices 
that will become available with emerging technology.
    The Department has added videotext displays, computer-aided 
transcription services, and open and closed captioning to the list of 
examples. Videotext displays have become an important means of accessing 
auditory communications through a public address system. Transcription 
services are used to relay aurally delivered material almost 
simultaneously in written form to persons who are deaf or hard of 
hearing. This technology is often used at conferences, conventions, and 
hearings. While the proposed rule expressly included television decoder 
equipment as an auxiliary aid or service, it did not mention captioning 
itself. The final rule rectifies this omission by mentioning both closed 
and open captioning.
    In this section, the Department has changed the proposed rule's 
phrase, ``orally delivered materials,'' to the phrase, ``aurally 
delivered materials.'' This new phrase tracks the language in the 
definition of ``auxiliary aids and services'' in section 3 of the ADA 
and is meant to include nonverbal sounds and alarms and computer-
generated speech.
    Several persons and organizations requested that the Department 
replace the term ``telecommunications devices for deaf persons'' or 
``TDD's'' with the term ``text telephone.'' The Department has declined 
to do so. The Department is aware that the Architectural and 
Transportation Barriers Compliance Board has used the phrase ``text 
telephone'' in lieu of the statutory term ``TDD'' in its final 
accessibility guidelines. Title IV of the ADA, however, uses the term 
``Telecommunications Device for the Deaf,''

[[Page 685]]

and the Department believes it would be inappropriate to abandon this 
statutory term at this time.
    Paragraph (b)(2) lists examples of aids and services for making 
visually delivered materials accessible to persons with visual 
impairments. Many commenters proposed additional examples such as 
signage or mapping, audio description services, secondary auditory 
programs (SAP), telebraillers, and reading machines. While the 
Department declines to add these items to the list in the regulation, 
they may be considered appropriate auxiliary aids and services.
    Paragraph (b)(3) refers to the acquisition or modification of 
equipment or devices. For example, tape players used for an audio-guided 
tour of a museum exhibit may require the addition of Brailled adhesive 
labels to the buttons on a reasonable number of the tape players to 
facilitate their use by individuals who are blind. Similarly, permanent 
or portable assistive listening systems for persons with hearing 
impairments may be required at a hotel conference center.
    Several commenters suggested the addition of current technological 
innovations in microelectronics and computerized control systems (e.g., 
voice recognition systems, automatic dialing telephones, and infrared 
elevator and light control systems) to the list of auxiliary aids and 
services. The Department interprets auxiliary aids and services as those 
aids and services designed to provide effective communications, i. e., 
making aurally and visually delivered information available to persons 
with hearing, speech, and vision impairments. Methods of making 
services, programs, or activities accessible to, or usable by, 
individuals with mobility or manual dexterity impairments are addressed 
by other sections of this part, including the requirements for 
modifications in policies, practices, or procedures (Sec. 36.302), the 
elimination of existing architectural barriers (Sec. 36.304), and the 
provision of alternatives to barriers removal (Sec. 36.305).
    Paragraph (b)(4) refers to other similar services and actions. 
Several commenters asked for clarification that ``similar services and 
actions'' include retrieving items from shelves, assistance in reaching 
a marginally accessible seat, pushing a barrier aside in order to 
provide an accessible route, or assistance in removing a sweater or 
coat. While retrieving an item from a shelf might be an ``auxiliary aid 
or service'' for a blind person who could not locate the item without 
assistance, it might be a readily achievable alternative to barrier 
removal for a person using a wheelchair who could not reach the shelf, 
or a reasonable modification to a self-service policy for an individual 
who lacked the ability to grasp the item. (Of course, a store would not 
be required to provide a personal shopper.) As explained above, 
auxiliary aids and services are those aids and services required to 
provide effective communications. Other forms of assistance are more 
appropriately addressed by other provisions of the final rule.
    The auxiliary aid requirement is a flexible one. A public 
accommodation can choose among various alternatives as long as the 
result is effective communication. For example, a restaurant would not 
be required to provide menus in Braille for patrons who are blind, if 
the waiters in the restaurant are made available to read the menu. 
Similarly, a clothing boutique would not be required to have Brailled 
price tags if sales personnel provide price information orally upon 
request; and a bookstore would not be required to make available a sign 
language interpreter, because effective communication can be conducted 
by notepad.
    A critical determination is what constitutes an effective auxiliary 
aid or service. The Department's proposed rule recommended that, in 
determining what auxiliary aid to use, the public accommodation consult 
with an individual before providing him or her with a particular 
auxiliary aid or service. This suggestion sparked a significant volume 
of public comment. Many persons with disabilities, particularly persons 
who are deaf or hard of hearing, recommended that the rule should 
require that public accommodations give ``primary consideration'' to the 
``expressed choice'' of an individual with a disability. These 
commenters asserted that the proposed rule was inconsistent with 
congressional intent of the ADA, with the Department's proposed rule 
implementing title II of the ADA, and with longstanding interpretations 
of section 504 of the Rehabilitation Act.
    Based upon a careful review of the ADA legislative history, 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. To the 
contrary, the legislative history demonstrates congressional intent to 
strongly encourage consulting with persons with disabilities. In its 
analysis of the ADA's auxiliary aids requirement for public 
accommodations, 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). Some commenters also 
cited a different committee statement that used mandatory language as 
evidence of legislative intent to require primary consideration. 
However, this statement was made in the context of reasonable 
accommodations required by title I with respect to employment (Education 
and Labor report at 67). Thus, the Department finds that strongly 
encouraging consultation with

[[Page 686]]

persons with disabilities, in lieu of mandating primary consideration of 
their expressed choice, is consistent with congressional intent.
    The Department wishes to emphasize that public accommodations must 
take steps necessary to ensure that an individual with a disability will 
not be excluded, denied services, segregated or otherwise treated 
differently from other individuals because of the use of inappropriate 
or ineffective auxiliary aids. In those situations requiring an 
interpreter, the public accommodations must secure the services of a 
qualified interpreter, unless an undue burden would result.
    In the analysis of Sec. 36.303(c) in the proposed rule, the 
Department gave as an example the situation where a note pad and written 
materials were insufficient to permit effective communication in a 
doctor's office when the matter to be decided was whether major surgery 
was necessary. Many commenters objected to this statement, asserting 
that it gave the impression that only decisions about major surgery 
would merit the provision of a sign language interpreter. The statement 
would, as the commenters also claimed, convey the impression to other 
public accommodations that written communications would meet the 
regulatory requirements in all but the most extreme situations. The 
Department, when using the example of major surgery, did not intend to 
limit the provision of interpreter services to the most extreme 
situations.
    Other situations may also require the use of interpreters to ensure 
effective communication depending on the facts of the particular case. 
It is not difficult to imagine a wide range of communications involving 
areas such as health, legal matters, and finances that would be 
sufficiently lengthy or complex to require an interpreter for effective 
communication. In some situations, an effective alternative to use of a 
notepad or an interpreter may be the use of a computer terminal upon 
which the representative of the public accommodation and the customer or 
client can exchange typewritten messages.
    Section 36.303(d) specifically addresses requirements for TDD's. 
Partly because of the availability of telecommunications relay services 
to be established under title IV of the ADA, Sec. 36.303(d)(2) provides 
that a public accommodation is not required to use a telecommunication 
device for the deaf (TDD) in receiving or making telephone calls 
incident to its operations. Several commenters were concerned that relay 
services would not be sufficient to provide effective access in a number 
of situations. Commenters argued that relay systems (1) do not provide 
effective access to the automated systems that require the caller to 
respond by pushing a button on a touch tone phone, (2) cannot operate 
fast enough to convey messages on answering machines, or to permit a TDD 
user to leave a recorded message, and (3) are not appropriate for 
calling crisis lines relating to such matters as rape, domestic 
violence, child abuse, and drugs where confidentiality is a concern. The 
Department believes that it is more appropriate for the Federal 
Communications Commission to address these issues in its rulemaking 
under title IV.
    A public accommodation is, however, required to make a TDD available 
to an individual with impaired hearing or speech, if it customarily 
offers telephone service to its customers, clients, patients, or 
participants on more than an incidental convenience basis. Where entry 
to a place of public accommodation requires use of a security entrance 
telephone, a TDD or other effective means of communication must be 
provided for use by an individual with impaired hearing or speech.
    In other words, individual retail stores, doctors' offices, 
restaurants, or similar establishments are not required by this section 
to have TDD's, because TDD users will be able to make inquiries, 
appointments, or reservations with such establishments through the relay 
system established under title IV of the ADA. The public accommodation 
will likewise be able to contact TDD users through the relay system. On 
the other hand, hotels, hospitals, and other similar establishments that 
offer nondisabled individuals the opportunity to make outgoing telephone 
calls on more than an incidental convenience basis must provide a TDD on 
request.
    Section 36.303(e) requires places of lodging that provide 
televisions in five or more guest rooms and hospitals to provide, upon 
request, a means for decoding closed captions for use by an individual 
with impaired hearing. Hotels should also provide a TDD or similar 
device at the front desk in order to take calls from guests who use 
TDD's in their rooms. In this way guests with hearing impairments can 
avail themselves of such hotel services as making inquiries of the front 
desk and ordering room service. The term ``hospital'' is used in its 
general sense and should be interpreted broadly.
    Movie theaters are not required by Sec. 36.303 to present open-
captioned films. However, other public accommodations that impart verbal 
information through soundtracks on films, video tapes, or slide shows 
are required to make such information accessible to persons with hearing 
impairments. Captioning is one means to make the information accessible 
to individuals with disabilities.
    The rule specifies that auxiliary aids and services include the 
acquisition or modification of equipment or devices. For example, tape 
players used for an audio-guided tour of a museum exhibit may require 
the addition of Brailled adhesive labels to the buttons on a reasonable 
number of the tape players to

[[Page 687]]

facilitate their use by individuals who are blind. Similarly, a hotel 
conference center may need to provide permanent or portable assistive 
listening systems for persons with hearing impairments.
    As provided in Sec. 36.303(f), a public accommodation is not 
required to provide any particular aid or service that would result 
either in a fundamental alteration in the nature of the goods, services, 
facilities, privileges, advantages, or accommodations offered or in an 
undue burden. Both of these statutory limitations are derived from 
existing regulations and caselaw under section 504 and are to be applied 
on a case-by-case basis (see, e.g., 28 CFR 39.160(d) and Southeastern 
Community College v. Davis, 442 U.S. 397 (1979)). Congress intended that 
``undue burden'' under Sec. 36.303 and ``undue hardship,'' which is used 
in the employment provisions of title I of the ADA, should be determined 
on a case-by-case basis under the same standards and in light of the 
same factors (Judiciary report at 59). The rule, therefore, in 
accordance with the definition of undue hardship in section 101(10) of 
the ADA, defines undue burden as ``significant difficulty or expense'' 
(see Secs. 36.104 and 36.303(a)) and requires that undue burden be 
determined in light of the factors listed in the definition in 36.104.
    Consistent with regulations implementing section 504 in federally 
conducted programs (see, e.g., 28 CFR 39.160(d)), Sec. 36.303(f) 
provides that the fact that the provision of a particular auxiliary aid 
or service would result in an undue burden does not relieve a public 
accommodation from the duty to furnish an alternative auxiliary aid or 
service, if available, that would not result in such a burden.
    Section 36.303(g) of the proposed rule has been deleted from this 
section and included in a new Sec. 36.306. That new section continues to 
make clear that the auxiliary aids requirement does not mandate the 
provision of individually prescribed devices, such as prescription 
eyeglasses or hearing aids.
    The costs of compliance with the requirements of this section may 
not be financed by surcharges limited to particular individuals with 
disabilities or any group of individuals with disabilities 
(Sec. 36.301(c)).

                   Section 36.304  Removal of Barriers

    Section 36.304 requires the removal of architectural barriers and 
communication barriers that are structural in nature in existing 
facilities, where such removal is readily achievable, i.e., easily 
accomplishable and able to be carried out without much difficulty or 
expense. This requirement is based on section 302(b)(2)(A)(iv) of the 
ADA.
    A number of commenters interpreted the phrase ``communication 
barriers that are structural in nature'' broadly to encompass the 
provision of communications devices such as TDD's, telephone handset 
amplifiers, assistive listening devices, and digital check-out displays. 
The statute, however, as read by the Department, limits the application 
of the phrase ``communications barriers that are structural in nature'' 
to those barriers that are an integral part of the physical structure of 
a facility. In addition to the communications barriers posed by 
permanent signage and alarm systems noted by Congress (see Education and 
Labor report at 110), the Department would also include among the 
communications barriers covered by Sec. 36.304 the failure to provide 
adequate sound buffers, and the presence of physical partitions that 
hamper the passage of sound waves between employees and customers. Given 
that Sec. 36.304's proper focus is on the removal of physical barriers, 
the Department believes that the obligation to provide communications 
equipment and devices such as TDD's, telephone handset amplifiers, 
assistive listening devices, and digital check-out displays is more 
appropriately determined by the requirements for auxiliary aids and 
services under Sec. 36.303 (see Education and Labor report at 107-108). 
The obligation to remove communications barriers that are structural in 
nature under Sec. 36.304, of course, is independent of any obligation to 
provide auxiliary aids and services under Sec. 36.303.
    The statutory provision also requires the readily achievable removal 
of certain barriers in existing vehicles and rail passenger cars. This 
transportation requirement is not included in Sec. 36.304, but rather in 
Sec. 36.310(b) of the rule.
    In striking a balance between guaranteeing access to individuals 
with disabilities and recognizing the legitimate cost concerns of 
businesses and other private entities, the ADA establishes different 
standards for existing facilities and new construction. In existing 
facilities, which are the subject of Sec. 36.304, where retrofitting may 
prove costly, a less rigorous degree of accessibility is required than 
in the case of new construction and alterations (see Secs. 36.401-
36.406) where accessibility can be more conveniently and economically 
incorporated in the initial stages of design and construction.
    For example, a bank with existing automatic teller machines (ATM's) 
would have to remove barriers to the use of the ATM's, if it is readily 
achievable to do so. Whether or not it is necessary to take actions such 
as ramping a few steps or raising or lowering an ATM would be determined 
by whether the actions can be accomplished easily and without much 
difficulty or expense.
    On the other hand, a newly constructed bank with ATM's would be 
required by Sec. 36.401 to have an ATM that is ``readily accessible to 
and usable by'' persons with disabilities in accordance with 
accessibility guidelines incorporated under Sec. 36.406.
    The requirement to remove architectural barriers includes the 
removal of physical

[[Page 688]]

barriers of any kind. For example, Sec. 36.304 requires the removal, 
when readily achievable, of barriers caused by the location of temporary 
or movable structures, such as furniture, equipment, and display racks. 
In order to provide access to individuals who use wheelchairs, for 
example, restaurants may need to rearrange tables and chairs, and 
department stores may need to reconfigure display racks and shelves. As 
stated in Sec. 36.304(f), such actions are not readily achievable to the 
extent that they would result in a significant loss of selling or 
serving space. If the widening of all aisles in selling or serving areas 
is not readily achievable, then selected widening should be undertaken 
to maximize the amount of merchandise or the number of tables accessible 
to individuals who use wheelchairs. Access to goods and services 
provided in any remaining inaccessible areas must be made available 
through alternative methods to barrier removal, as required by 
Sec. 36.305.
    Because the purpose of title III of the ADA is to ensure that public 
accommodations are accessible to their customers, clients, or patrons 
(as opposed to their employees, who are the focus of title I), the 
obligation to remove barriers under Sec. 36.304 does not extend to areas 
of a facility that are used exclusively as employee work areas.
    Section 36.304(b) provides a wide-ranging list of the types of 
modest measures that may be taken to remove barriers and that are likely 
to be readily achievable. The list includes examples of measures, such 
as adding raised letter markings on elevator control buttons and 
installing flashing alarm lights, that would be used to remove 
communications barriers that are structural in nature. It is not an 
exhaustive list, but merely an illustrative one. Moreover, the inclusion 
of a measure on this list does not mean that it is readily achievable in 
all cases. Whether or not any of these measures is readily achievable is 
to be determined on a case-by-case basis in light of the particular 
circumstances presented and the factors listed in the definition of 
readily achievable (Sec. 36.104).
    A public accommodation generally would not be required to remove a 
barrier to physical access posed by a flight of steps, if removal would 
require extensive ramping or an elevator. Ramping a single step, 
however, will likely be readily achievable, and ramping several steps 
will in many circumstances also be readily achievable. The readily 
achievable standard does not require barrier removal that requires 
extensive restructuring or burdensome expense. Thus, where it is not 
readily achievable to do, the ADA would not require a restaurant to 
provide access to a restroom reachable only by a flight of stairs.
    Like Sec. 36.405, this section permits deference to the national 
interest in preserving significant historic structures. Barrier removal 
would not be considered ``readily achievable'' if it would threaten or 
destroy the historic significance of a building or facility that is 
eligible for listing in the National Register of Historic Places under 
the National Historic Preservation Act (16 U.S.C. 470, et seq.), or is 
designated as historic under State or local law.
    The readily achievable defense requires a less demanding level of 
exertion by a public accommodation than does the undue burden defense to 
the auxiliary aids requirements of Sec. 36.303. In that sense, it can be 
characterized as a ``lower'' standard than the undue burden standard. 
The readily achievable defense is also less demanding than the undue 
hardship defense in section 102(b)(5) of the ADA, which limits the 
obligation to make reasonable accommodation in employment. Barrier 
removal measures that are not easily accomplishable and are not able to 
be carried out without much difficulty or expense are not required under 
the readily achievable standard, even if they do not impose an undue 
burden or an undue hardship.
    Section 36.304(f)(1) of the proposed rule, which stated that 
``barrier removal is not readily achievable if it would result in 
significant loss of profit or significant loss of efficiency of 
operation,'' has been deleted from the final rule. Many commenters 
objected to this provision because it impermissibly introduced the 
notion of profit into a statutory standard that did not include it. 
Concern was expressed that, in order for an action not to be considered 
readily achievable, a public accommodation would inappropriately have to 
show, for example, not only that the action could not be done without 
``much difficulty or expense'', but that a significant loss of profit 
would result as well. In addition, some commenters asserted use of the 
word ``significant,'' which is used in the definition of undue hardship 
under title I (the standard for interpreting the meaning of undue burden 
as a defense to title III's auxiliary aids requirements) (see 
Secs. 36.104, 36.303(f)), blurs the fact that the readily achievable 
standard requires a lower level of effort on the part of a public 
accommodation than does the undue burden standard.
    The obligation to engage in readily achievable barrier removal is a 
continuing one. Over time, barrier removal that initially was not 
readily achievable may later be required because of changed 
circumstances. Many commenters expressed support for the Department's 
position that the obligation to comply with Sec. 36.304 is continuing in 
nature. Some urged that the rule require public accommodations to assess 
their compliance on at least an annual basis in light of changes in 
resources and other factors that would be relevant to determining what 
barrier removal measures would be readily achievable.

[[Page 689]]

    Although the obligation to engage in readily achievable barrier 
removal is clearly a continuing duty, the Department has declined to 
establish any independent requirement for an annual assessment or self-
evaluation. It is best left to the public accommodations subject to 
Sec. 36.304 to establish policies to assess compliance that are 
appropriate to the particular circumstances faced by the wide range of 
public accommodations covered by the ADA. However, even in the absence 
of an explicit regulatory requirement for periodic self-evaluations, the 
Department still urges public accommodations to establish procedures for 
an ongoing assessment of their compliance with the ADA's barrier removal 
requirements. The Department recommends that this process include 
appropriate consultation with individuals with disabilities or 
organizations representing them. A serious effort at self-assessment and 
consultation can diminish the threat of litigation and save resources by 
identifying the most efficient means of providing required access.
    The Department has been asked for guidance on the best means for 
public accommodations to comply voluntarily with this section. Such 
information is more appropriately part of the Department's technical 
assistance effort and will be forthcoming over the next several months. 
The Department recommends, however, the development of an implementation 
plan designed to achieve compliance with the ADA's barrier removal 
requirements before they become effective on January 26, 1992. Such a 
plan, if appropriately designed and diligently executed, could serve as 
evidence of a good faith effort to comply with the requirements of 
Sec. 36.104. In developing an implementation plan for readily achievable 
barrier removal, a public accommodation should consult with local 
organizations representing persons with disabilities and solicit their 
suggestions for cost-effective means of making individual places of 
public accommodation accessible. Such organizations may also be helpful 
in allocating scarce resources and establishing priorities. Local 
associations of businesses may want to encourage this process and serve 
as the forum for discussions on the local level between disability 
rights organizations and local businesses.
    Section 36.304(c) recommends priorities for public accommodations in 
removing barriers in existing facilities. Because the resources 
available for barrier removal may not be adequate to remove all existing 
barriers at any given time, Sec. 36.304(c) suggests priorities for 
determining which types of barriers should be mitigated or eliminated 
first. The purpose of these priorities is to facilitate long-term 
business planning and to maximize, in light of limited resources, the 
degree of effective access that will result from any given level of 
expenditure.
    Although many commenters expressed support for the concept of 
establishing priorities, a significant number objected to their 
mandatory nature in the proposed rule. The Department shares the concern 
of these commenters that mandatory priorities would increase the 
likelihood of litigation and inappropriately reduce the discretion of 
public accommodations to determine the most effective mix of barrier 
removal measures to undertake in particular circumstances. Therefore, in 
the final rule the priorities are no longer mandatory.
    In response to comments that the priorities failed to address 
communications issues, the Department wishes to emphasize that the 
priorities encompass the removal of communications barriers that are 
structural in nature. It would be counter to the ADA's carefully wrought 
statutory scheme to include in this provision the wide range of 
communication devices that are required by the ADA's provisions on 
auxiliary aids and services. The final rule explicitly includes Brailled 
and raised letter signage and visual alarms among the examples of steps 
to remove barriers provided in Sec. 36.304(c)(2).
    Section 36.304(c)(1) places the highest priority on measures that 
will enable individuals with disabilities to physically enter a place of 
public accommodation. This priority on ``getting through the door'' 
recognizes that providing actual physical access to a facility from 
public sidewalks, public transportation, or parking is generally 
preferable to any alternative arrangements in terms of both business 
efficiency and the dignity of individuals with disabilities.
    The next priority, which is established in Sec. 36.304(c)(2), is for 
measures that provide access to those areas of a place of public 
accommodation where goods and services are made available to the public. 
For example, in a hardware store, to the extent that it is readily 
achievable to do so, individuals with disabilities should be given 
access not only to assistance at the front desk, but also access, like 
that available to other customers, to the retail display areas of the 
store.
    The Department agrees with those commenters who argued that access 
to the areas where goods and services are provided is generally more 
important than the provision of restrooms. Therefore, the final rule 
reverses priorities two and three of the proposed rule in order to give 
lower priority to accessible restrooms. Consequently, the third priority 
in the final rule (Sec. 36.304(c)(3)) is for measures to provide access 
to restroom facilities and the last priority is placed on any remaining 
measures required to remove barriers.
    Section 36.304(d) requires that measures taken to remove barriers 
under Sec. 36.304 be subject to subpart D's requirements for alterations 
(except for the path of travel requirements in Sec. 36.403). It only 
permits deviations from the subpart D requirements

[[Page 690]]

when compliance with those requirements is not readily achievable. In 
such cases, Sec. 36.304(d) permits measures to be taken that do not 
fully comply with the subpart D requirements, so long as the measures do 
not pose a significant risk to the health or safety of individuals with 
disabilities or others.
    This approach represents a change from the proposed rule which 
stated that ``readily achievable'' measures taken solely to remove 
barriers under Sec. 36.304 are exempt from the alterations requirements 
of subpart D. The intent of the proposed rule was to maximize the 
flexibility of public accommodations in undertaking barrier removal by 
allowing deviations from the technical standards of subpart D. It was 
thought that allowing slight deviations would provide access and release 
additional resources for expanding the amount of barrier removal that 
could be obtained under the readily achievable standard.
    Many commenters, however, representing both businesses and 
individuals with disabilities, questioned this approach because of the 
likelihood that unsafe or ineffective measures would be taken in the 
absence of the subpart D standards for alterations as a reference point. 
Some advocated a rule requiring strict compliance with the subpart D 
standard.
    The Department in the final rule has adopted the view of many 
commenters that (1) public accommodations should in the first instance 
be required to comply with the subpart D standards for alterations where 
it is readily achievable to do so and (2) safe, readily achievable 
measures must be taken when compliance with the subpart D standards is 
not readily achievable. Reference to the subpart D standards in this 
manner will promote certainty and good design at the same time that 
permitting slight deviations will expand the amount of barrier removal 
that may be achieved under Sec. 36.304.
    Because of the inconvenience to individuals with disabilities and 
the safety problems involved in the use of portable ramps, 
Sec. 36.304(e) permits the use of a portable ramp to comply with 
Sec. 36.304(a) only when installation of a permanent ramp is not readily 
achievable. In order to promote safety, Sec. 36.304(e) requires that due 
consideration be given to the incorporation of features such as nonslip 
surfaces, railings, anchoring, and strength of materials in any portable 
ramp that is used.
    Temporary facilities brought in for use at the site of a natural 
disaster are subject to the barrier removal requirements of Sec. 36.304.
    A number of commenters requested clarification regarding how to 
determine when a public accommodation has discharged its obligation to 
remove barriers in existing facilities. For example, is a hotel required 
by Sec. 36.304 to remove barriers in all of its guest rooms? Or is some 
lesser percentage adequate? A new paragraph (g) has been added to 
Sec. 36.304 to address this issue. The Department believes that the 
degree of barrier removal required under Sec. 36.304 may be less, but 
certainly would not be required to exceed, the standards for alterations 
under the ADA Accessibility Guidelines incorporated by subpart D of this 
part (ADAAG). The ADA's requirements for readily achievable barrier 
removal in existing facilities are intended to be substantially less 
rigorous than those for new construction and alterations. It, therefore, 
would be obviously inappropriate to require actions under Sec. 36.304 
that would exceed the ADAAG requirements. Hotels, then, in order to 
satisfy the requirements of Sec. 36.304, would not be required to remove 
barriers in a higher percentage of rooms than required by ADAAG. If 
relevant standards for alterations are not provided in ADAAG, then 
reference should be made to the standards for new construction.

             Section 36.305  Alternatives to Barrier Removal

    Section 36.305 specifies that where a public accommodation can 
demonstrate that removal of a barrier is not readily achievable, the 
public accommodation must make its goods, services, facilities, 
privileges, advantages, or accommodations available through alternative 
methods, if such methods are readily achievable. This requirement is 
based on section 302(b)(2)(A)(v) of the ADA.
    For example, if it is not readily achievable for a retail store to 
raise, lower, or remove shelves or to rearrange display racks to provide 
accessible aisles, the store must, if readily achievable, provide a 
clerk or take other alternative measures to retrieve inaccessible 
merchandise. Similarly, if it is not readily achievable to ramp a long 
flight of stairs leading to the front door of a restaurant or a 
pharmacy, the restaurant or the pharmacy must take alternative measures, 
if readily achievable, such as providing curb service or home delivery. 
If, within a restaurant, it is not readily achievable to remove physical 
barriers to a certain section of a restaurant, the restaurant must, 
where it is readily achievable to do so, offer the same menu in an 
accessible area of the restaurant.
    Where alternative methods are used to provide access, a public 
accommodation may not charge an individual with a disability for the 
costs associated with the alternative method (see Sec. 36.301(c)). 
Further analysis of the issue of charging for alternative measures may 
be found in the preamble discussion of Sec. 36.301(c).
    In some circumstances, because of security considerations, some 
alternative methods may not be readily achievable. The rule does not 
require a cashier to leave his or her post to retrieve items for 
individuals with disabilities, if there are no other employees on duty.

[[Page 691]]

    Section 36.305(c) of the proposed rule has been deleted and the 
requirements have been included in a new Sec. 36.306. That section makes 
clear that the alternative methods requirement does not mandate the 
provision of personal devices, such as wheelchairs, or services of a 
personal nature.
    In the final rule, Sec. 36.305(c) provides specific requirements 
regarding alternatives to barrier removal in multiscreen cinemas. In 
some situations, it may not be readily achievable to remove enough 
barriers to provide access to all of the theaters of a multiscreen 
cinema. If that is the case, Sec. 36.305(c) requires the cinema to 
establish a film rotation schedule that provides reasonable access for 
individuals who use wheelchairs to films being presented by the cinema. 
It further requires that reasonable notice be provided to the public as 
to the location and time of accessible showings. Methods for providing 
notice include appropriate use of the international accessibility symbol 
in a cinema's print advertising and the addition of accessibility 
information to a cinema's recorded telephone information line.

              Section 36.306  Personal Devices and Services

    The final rule includes a new Sec. 36.306, entitled ``Personal 
devices and services.'' Section 36.306 of the proposed rule, ``Readily 
achievable and undue burden: Factors to be considered,'' was deleted for 
the reasons described in the preamble discussion of the definition of 
the term ``readily achievable'' in Sec. 36.104. In place of 
Secs. 36.303(g) and 36.305(c) of the proposed rule, which addressed the 
issue of personal devices and services in the contexts of auxiliary aids 
and alternatives to barrier removal, Sec. 36.306 provides a general 
statement that the regulation does not require the provision of personal 
devices and services. This section states that a public accommodation is 
not required to provide its customers, clients, or participants with 
personal devices, such as wheelchairs; individually prescribed devices, 
such as prescription eyeglasses or hearing aids; or services of a 
personal nature including assistance in eating, toileting, or dressing.
    This statement serves as a limitation on all the requirements of the 
regulation. The personal devices and services limitation was intended to 
have general application in the proposed rule in all contexts where it 
was relevant. The final rule, therefore, clarifies, this point by 
including a general provision that will explicitly apply not just to 
auxiliary aids and services and alternatives to barrier removal, but 
across-the-board to include such relevant areas as modifications in 
policies, practices, and procedures (Sec. 36.302) and examinations and 
courses (Sec. 36.309), as well.
    The Department wishes to clarify that measures taken as alternatives 
to barrier removal, such as retrieving items from shelves or providing 
curb service or home delivery, are not to be considered personal 
services. Similarly, minimal actions that may be required as 
modifications in policies, practices, or procedures under Sec. 36.302, 
such as a waiter's removing the cover from a customer's straw, a 
kitchen's cutting up food into smaller pieces, or a bank's filling out a 
deposit slip, are not services of a personal nature within the meaning 
of Sec. 36.306. (Of course, such modifications may be required under 
Sec. 36.302 only if they are ``reasonable.'') Similarly, this section 
does not preclude the short-term loan of personal receivers that are 
part of an assistive listening system.
    Of course, if personal services are customarily provided to the 
customers or clients of a public accommodation, e.g., in a hospital or 
senior citizen center, then these personal services should also be 
provided to persons with disabilities using the public accommodation.

              Section 36.307  Accessible or Special Goods.

    Section 36.307 establishes that the rule does not require a public 
accommodation to alter its inventory to include accessible or special 
goods with accessibility features that are designed for, or facilitate 
use by, individuals with disabilities. As specified in Sec. 36.307(c), 
accessible or special goods include such items as Brailled versions of 
books, books on audio-cassettes, closed captioned video tapes, special 
sizes or lines of clothing, and special foods to meet particular dietary 
needs.
    The purpose of the ADA's public accommodations requirements is to 
ensure accessibility to the goods offered by a public accommodation, not 
to alter the nature or mix of goods that the public accommodation has 
typically provided. In other words, a bookstore, for example, must make 
its facilities and sales operations accessible to individuals with 
disabilities, but is not required to stock Brailled or large print 
books. Similarly, a video store must make its facilities and rental 
operations accessible, but is not required to stock closed-captioned 
video tapes. The Department has been made aware, however, that the most 
recent titles in video-tape rental establishments are, in fact, closed 
captioned.
    Although a public accommodation is not required by Sec. 36.307(a) to 
modify its inventory, it is required by Sec. 36.307(b), at the request 
of an individual with disabilities, to order accessible or special goods 
that it does not customarily maintain in stock if, in the normal course 
of its operation, it makes special orders for unstocked goods, and if 
the accessible or special goods can be obtained from a supplier with 
whom the public accommodation customarily does business. For example, a 
clothing store would be required to order specially-sized clothing at 
the request

[[Page 692]]

of an individual with a disability, if it customarily makes special 
orders for clothing that it does not keep in stock, and if the clothing 
can be obtained from one of the store's customary suppliers.
    One commenter asserted that the proposed rule could be interpreted 
to require a store to special order accessible or special goods of all 
types, even if only one type is specially ordered in the normal course 
of its business. The Department, however, intends for Sec. 36.307(b) to 
require special orders only of those particular types of goods for which 
a public accommodation normally makes special orders. For example, a 
book and recording store would not have to specially order Brailled 
books if, in the normal course of its business, it only specially orders 
recordings and not books.

               Section 36.308  Seating in Assembly Areas.

    Section 36.308 establishes specific requirements for removing 
barriers to physical access in assembly areas, which include such 
facilities as theaters, concert halls, auditoriums, lecture halls, and 
conference rooms. This section does not address the provision of 
auxiliary aids or the removal of communications barriers that are 
structural in nature. These communications requirements are the focus of 
other provisions of the regulation (see Secs. 36.303-36.304).
    Individuals who use wheelchairs historically have been relegated to 
inferior seating in the back of assembly areas separate from 
accompanying family members and friends. The provisions of Sec. 36.308 
are intended to promote integration and equality in seating.
    In some instances it may not be readily achievable for auditoriums 
or theaters to remove seats to allow individuals with wheelchairs to sit 
next to accompanying family members or friends. In these situations, the 
final rule retains the requirement that the public accommodation provide 
portable chairs or other means to allow the accompanying individuals to 
sit with the persons in wheelchairs. Persons in wheelchairs should have 
the same opportunity to enjoy movies, plays, and similar events with 
their families and friends, just as other patrons do. The final rule 
specifies that portable chairs or other means to permit family members 
or companions to sit with individuals who use wheelchairs must be 
provided only when it is readily achievable to do so.
    In order to facilitate seating of wheelchair users who wish to 
transfer to existing seating, paragraph (a)(1) of the final rule adds a 
requirement that, to the extent readily achievable, a reasonable number 
of seats with removable aisle-side armrests must be provided. Many 
persons in wheelchairs are able to transfer to existing seating with 
this relatively minor modification. This solution avoids the potential 
safety hazard created by the use of portable chairs and fosters 
integration. The final ADA Accessibility Guidelines incorporated by 
subpart D (ADAAG) also add a requirement regarding aisle seating that 
was not in the proposed guidelines. In situations when a person in a 
wheelchair transfers to existing seating, the public accommodation shall 
provide assistance in handling the wheelchair of the patron with the 
disability.
    Likewise, consistent vith ADAAG, the final rule adds in 
Sec. 36.308(a)(1)(ii)(B) a requirement that, to the extent readily 
achievable, wheelchair seating provide lines of sight and choice of 
admission prices comparable to those for members of the general public.
    Finally, because Congress intended that the requirements for barrier 
removal in existing facilities be substantially less rigorous than those 
required for new construction and alterations, the final rule clarifies 
in Sec. 36.308(a)(3) that in no event can the requirements for existing 
facilities be interpreted to exceed the standards for alterations under 
ADAAG. For example, Sec. 4.33 of ADAAG only requires wheelchair spaces 
to be provided in more than one location when the seating capacity of 
the assembly area exceeds 300. Therefore, paragraph (a) of Sec. 36.308 
may not be interpreted to require readily achievable dispersal of 
wheelchair seating in assembly areas with 300 or fewer seats. Similarly, 
Sec. 4.1.3(19) of ADAAG requires six accessible wheelchair locations in 
an assembly area with 301 to 500 seats. The reasonable number of 
wheelchair locations required by paragraph (a), therefore, may be less 
than six, but may not be interpreted to exceed six.

      Proposed Section 36.309  Purchase of Furniture and Equipment

    Section 36.309 of the proposed rule would have required that newly 
purchased furniture or equipment made available for use at a place of 
public accommodation be accessible, to the extent such furniture or 
equipment is available, unless this requirement would fundamentally 
alter the goods, services, facilities, privileges, advantages, or 
accommodations offered, or would not be readily achievable. Proposed 
Sec. 36.309 has been omitted from the final rule because the Department 
has determined that its requirements are more properly addressed under 
other sections, and because there are currently no appropriate 
accessibility standards addressing many types of furniture and 
equipment.
    Some types of equipment will be required to meet the accessibility 
requirements of subpart D. For example, ADAAG establishes technical and 
scoping requirements in new construction and alterations for automated 
teller machines and telephones. Purchase or modification of equipment is 
required in certain instances by the provisions in Secs. 36.201 and 
36.202. For example, an arcade may need

[[Page 693]]

to provide accessible video machines in order to ensure full and equal 
enjoyment of the facilities and to provide an opportunity to participate 
in the services and facilities it provides. The barrier removal 
requirements of Sec. 36.304 will apply as well to furniture and 
equipment (lowering shelves, rearranging furniture, adding Braille 
labels to a vending machine).

                Section 36.309  Examinations and Courses

    Section 36.309(a) sets forth the general rule that any private 
entity that offers examinations or courses related 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.
    Paragraph (a) restates section 309 of the Americans with 
Disabilities Act. Section 309 is intended to fill the gap that is 
created when licensing, certification, and other testing authorities are 
not covered by section 504 of the Rehabilitation Act or title II of the 
ADA. Any such authority that is covered by section 504, because of the 
receipt of Federal money, or by title II, because it is a function of a 
State or local government, must make all of its programs accessible to 
persons with disabilities, which includes physical access as well as 
modifications in the way the test is administered, e.g., extended time, 
written instructions, or assistance of a reader.
    Many licensing, certification, and testing authorities are not 
covered by section 504, because no Federal money is received; nor are 
they covered by title II of the ADA because they are not State or local 
agencies. However, States often require the licenses provided by such 
authorities in order for an individual to practice a particular 
profession or trade. Thus, the provision was included in the ADA in 
order to assure that persons with disabilities are not foreclosed from 
educational, professional, or trade opportunities because an examination 
or course is conducted in an inaccessible site or without needed 
modifications.
    As indicated in the ``Application'' section of this part 
(Sec. 36.102), Sec. 36.309 applies to any private entity that offers the 
specified types of examinations or courses. This is consistent with 
section 309 of the Americans with Disabilities Act, which states that 
the requirements apply to ``any person'' offering examinations or 
courses.
    The Department received a large number of comments on this section, 
reflecting the importance of ensuring that the key gateways to education 
and employment are open to individuals with disabilities. The most 
frequent comments were objections to the fundamental alteration and 
undue burden provisions in Secs. 36.309 (b)(3) and (c)(3) and to 
allowing courses and examinations to be provided through alternative 
accessible arrangements, rather than in an integrated setting.
    Although section 309 of the Act does not refer to a fundamental 
alteration or undue burden limitation, those limitations do appear in 
section 302(b)(2)(A)(iii) of the Act, which establishes the obligation 
of public accommodations to provide auxiliary aids and services. The 
Department, therefore, included it in the paragraphs of Sec. 36.309 
requiring the provision of auxiliary aids. One commenter argued that 
similar limitations should apply to all of the requirements of 
Sec. 36.309, but the Department did not consider this extension 
appropriate.
    Commenters who objected to permitting ``alternative accessible 
arrangements'' argued that such arrangements allow segregation and 
should not be permitted, unless they are the least restrictive available 
alternative, for example, for someone who cannot leave home. Some 
commenters made a distinction between courses, where interaction is an 
important part of the educational experience, and examinations, where it 
may be less important. Because the statute specifically authorizes 
alternative accessible arrangements as a method of meeting the 
requirements of section 309, the Department has not adopted this 
suggestion. The Department notes, however, that, while examinations of 
the type covered by Sec. 36.309 may not be covered elsewhere in the 
regulation, courses will generally be offered in a ``place of 
education,'' which is included in the definition of ``place of public 
accommodation'' in Sec. 36.104, and, therefore, will be subject to the 
integrated setting requirement of Sec. 36.203.
    Section 36.309(b) sets forth specific requirements for examinations. 
Examinations covered by this section would include a bar exam or the 
Scholastic Aptitude Test prepared by the Educational Testing Service. 
Paragraph (b)(1) is adopted from the Department of Education's section 
504 regulation on admission tests to postsecondary educational programs 
(34 CFR 104.42(b)(3)). Paragraph (b)(1)(i) requires that a private 
entity offering an examination covered by the section must assure that 
the examination is selected and administered so as to best ensure that 
the examination accurately reflects an individual's aptitude or 
achievement level or other factor the examination purports to measure, 
rather than reflecting the individual's impaired sensory, manual, or 
speaking skills (except where those skills are the factors that the 
examination purports to measure).
    Paragraph (b)(1)(ii) requires that any examination specially 
designed for individuals with disabilities be offered as often and in as 
timely a manner as other examinations. Some commenters noted that 
persons with disabilities may be required to travel long

[[Page 694]]

distances when the locations for examinations for individuals with 
disabilities are limited, for example, to only one city in a State 
instead of a variety of cities. The Department has therefore revised 
this paragraph to add a requirement that such examinations be offered at 
locations that are as convenient as the location of other examinations.
    Commenters representing organizations that administer tests wanted 
to be able to require individuals with disabilities to provide advance 
notice and appropriate documentation, at the applicants' expense, of 
their disabilities and of any modifications or aids that would be 
required. The Department agrees that such requirements are permissible, 
provided that they are not unreasonable and that the deadline for such 
notice is no earlier than the deadline for others applying to take the 
examination. Requiring individuals with disabilities to file earlier 
applications would violate the requirement that examinations designed 
for individuals with disabilities be offered in as timely a manner as 
other examinations.
    Examiners may require evidence that an applicant is entitled to 
modifications or aids as required by this section, but requests for 
documentation must be reasonable and must be limited to the need for the 
modification or aid requested. Appropriate documentation might include a 
letter from a physician or other professional, or evidence of a prior 
diagnosis or accommodation, such as eligibility for a special education 
program. The applicant may be required to bear the cost of providing 
such documentation, but the entity administering the examination cannot 
charge the applicant for the cost of any modifications or auxiliary 
aids, such as interpreters, provided for the examination.
    Paragraph (b)(1)(iii) requires that examinations be administered in 
facilities that are accessible to individuals with disabilities or 
alternative accessible arrangements are made.
    Paragraph (b)(2) gives examples of modifications to examinations 
that may be necessary in order to comply with this section. These may 
include providing more time for completion of the examination or a 
change in the manner of giving the examination, e.g., reading the 
examination to the individual.
    Paragraph (b)(3) requires the provision of auxiliary aids and 
services, unless the private entity offering the examination can 
demonstrate that offering a particular auxiliary aid would fundamentally 
alter the examination or result in an undue burden. Examples of 
auxiliary aids include taped examinations, interpreters or other 
effective methods of making aurally delivered materials available to 
individuals with hearing impairments, readers for individuals with 
visual impairments or learning disabilities, and other similar services 
and actions. The suggestion that individuals with learning disabilities 
may need readers is included, although it does not appear in the 
Department of Education regulation, because, in fact, some individuals 
with learning disabilities have visual perception problems and would 
benefit from a reader.
    Many commenters pointed out the importance of ensuring that 
modifications provide the individual with a disability an equal 
opportunity to demonstrate his or her knowledge or ability. For example, 
a reader who is unskilled or lacks knowledge of specific terminology 
used in the examination may be unable to convey the information in the 
questions or to follow the applicant's instructions effectively. 
Commenters pointed out that, for persons with visual impairments who 
read Braille, Braille provides the closest functional equivalent to a 
printed test. The Department has, therefore, added Brailled examinations 
to the examples of auxiliary aids and services that may be required. For 
similar reasons, the Department also added to the list of examples of 
auxiliary aids and services large print examinations and answer sheets; 
``qualified'' readers; and transcribers to write answers.
    A commenter suggested that the phrase ``fundamentally alter the 
examination'' in this paragraph of the proposed rule be revised to more 
accurately reflect the function affected. In the final rule the 
Department has substituted the phrase ``fundamentally alter the 
measurement of the skills or knowledge the examination is intended to 
test.''
    Paragraph (b)(4) gives examples of alternative accessible 
arrangements. For instance, the private entity might be required to 
provide the examination at an individual's home with a proctor. 
Alternative arrangements must provide conditions for individuals with 
disabilities that are comparable to the conditions under which other 
individuals take the examinations. In other words, an examination cannot 
be offered to an individual with a disability in a cold, poorly lit 
basement, if other individuals are given the examination in a warm, well 
lit classroom.
    Some commenters who provide examinations for licensing or 
certification for particular occupations or professions urged that they 
be permitted to refuse to provide modifications or aids for persons 
seeking to take the examinations if those individuals, because of their 
disabilities, would be unable to perform the essential functions of the 
profession or occupation for which the examination is given, or unless 
the disability is reasonably determined in advance as not being an 
obstacle to certification. The Department has not changed its rule based 
on this comment. An examination is one stage of a licensing or 
certification process. An individual should not be barred from 
attempting

[[Page 695]]

to pass that stage of the process merely because he or she might be 
unable to meet other requirements of the process. If the examination is 
not the first stage of the qualification process, an applicant may be 
required to complete the earlier stages prior to being admitted to the 
examination. On the other hand, the applicant may not be denied 
admission to the examination on the basis of doubts about his or her 
abilities to meet requirements that the examination is not designed to 
test.
    Paragraph (c) sets forth specific requirements for courses. 
Paragraph (c)(1) contains the general rule that any course covered by 
this section must be modified to ensure that the place and manner in 
which the course is given is accessible. Paragraph (c)(2) gives examples 
of possible modifications that might be required, including extending 
the time permitted for completion of the course, permitting oral rather 
than written delivery of an assignment by a person with a visual 
impairment, or adapting the manner in which the course is conducted 
(i.e., providing cassettes of class handouts to an individual with a 
visual impairment). In response to comments, the Department has added to 
the examples in paragraph (c)(2) specific reference to distribution of 
course materials. If course materials are published and available from 
other sources, the entity offering the course may give advance notice of 
what materials will be used so as to allow an individual to obtain them 
in Braille or on tape but materials provided by the course offerer must 
be made available in alternative formats for individuals with 
disabilities.
    In language similar to that of paragraph (b), paragraph (c)(3) 
requires auxiliary aids and services, unless a fundamental alteration or 
undue burden would result, and paragraph (c)(4) requires that courses be 
administered in accessible facilities. Paragraph (c)(5) gives examples 
of alternative accessible arrangements. These may include provision of 
the course through videotape, cassettes, or prepared notes. Alternative 
arrangements must provide comparable conditions to those provided to 
others, including similar lighting, room temperature, and the like. An 
entity offering a variety of courses, to fulfill continuing education 
requirements for a profession, for example, may not limit the selection 
or choice of courses available to individuals with disabilities.

    Section 36.310  Transportation Provided by Public Accommodations

    Section 36.310 contains specific provisions relating to public 
accommodations that provide transportation to their clients or 
customers. This section has been substantially revised in order to 
coordinate the requirements of this section with the requirements 
applicable to these transportation systems that will be contained in the 
regulations issued by the Secretary of Transportation pursuant to 
section 306 of the ADA, to be codified at 49 CFR part 37. The Department 
notes that, although the responsibility for issuing regulations 
applicable to transportation systems operated by public accommodations 
is divided between this Department and the Department of -
Transportation, enforcement authority is assigned only to the Department 
of Justice.
    The Department received relatively few comments on this section of 
the proposed rule. Most of the comments addressed issues that are not 
specifically addressed in this part, such as the standards for 
accessible vehicles and the procedure for determining whether equivalent 
service is provided. Those standards will be contained in the regulation 
issued by the Department of Transportation. Other commenters raised 
questions about the types of transportation that will be subject to this 
section. In response to these inquiries, the Department has revised the 
list of examples contained in the regulation.
    Paragraph (a)(1) states the general rule that covered public 
accommodations are subject to all of the specific provisions of subparts 
B, C, and D, except as provided in Sec. 36.310. Examples of operations 
covered by the requirements are listed in paragraph (a)(2). The stated 
examples include hotel and motel airport shuttle services, customer 
shuttle bus services operated by private companies and shopping centers, 
student transportation, and shuttle operations of recreational 
facilities such as stadiums, zoos, amusement parks, and ski resorts. 
This brief list is not exhaustive. The section applies to any fixed 
route or demand responsive transportation system operated by a public 
accommodation for the benefit of its clients or customers. The section 
does not apply to transportation services provided only to employees. 
Employee transportation will be subject to the regulations issued by the 
Equal Employment Opportunity Commission to implement title I of the Act. 
However, if employees and customers or clients are served by the same 
transportation system, the provisions of this section will apply.
    Paragraph (b) specifically provides that a public accommodation 
shall remove transportation barriers in existing vehicles to the extent 
that it is readily achievable to do so, but that the installation of 
hydraulic or other lifts is not required.
    Paragraph (c) provides that public accommodations subject to this 
section shall comply with the requirements for transportation vehicles 
and systems contained in the regulations issued by the Secretary of 
Transportation.

[[Page 696]]

               Subpart D--New Construction and Alterations

    Subpart D implements section 303 of the Act, which requires that 
newly constructed or altered places of public accommodation or 
commercial facilities be readily accessible to and usable by individuals 
with disabilities. This requirement contemplates a high degree of 
convenient access. It is intended to ensure that patrons and employees 
of places of public accommodation and employees of commercial facilities 
are able to get to, enter, and use the facility.
    Potential patrons of places of public accommodation, such as retail 
establishments, should be able to get to a store, get into the store, 
and get to the areas where goods are being provided. Employees should 
have the same types of access, although those individuals require access 
to and around the employment area as well as to the area in which goods 
and services are provided.
    The ADA is geared to the future--its goal being that, over time, 
access will be the rule, rather than the exception. Thus, the Act only 
requires modest expenditures, of the type addressed in Sec. 36.304 of 
this part, to provide access to existing facilities not otherwise being 
altered, but requires all new construction and alterations to be 
accessible.
    The Act does not require new construction or alterations; it simply 
requires that, when a public accommodation or other private entity 
undertakes the construction or alteration of a facility subject to the 
Act, the newly constructed or altered facility must be made accessible. 
This subpart establishes the requirements for new construction and 
alterations.
    As explained under the discussion of the definition of ``facility,'' 
Sec. 36.104, pending development of specific requirements, the 
Department will not apply this subpart to places of public accommodation 
located in mobile units, boats, or other conveyances.

                    Section 36.401  New Construction

                                 General

    Section 36.401 implements the new construction requirements of the 
ADA. Section 303 (a)(1) of the Act provides that discrimination for 
purposes of section 302(a) of the Act includes a failure to design and 
construct facilities for first occupancy later than 30 months after the 
date of enactment (i.e., after January 26, 1993) that are readily 
accessible to and usable by individuals with disabilities.
    Paragraph 36.401(a)(1) restates the general requirement for 
accessible new construction. The proposed rule stated that ``any public 
accommodation or other private entity responsible for design and 
construction'' must ensure that facilities conform to this requirement. 
Various commenters suggested that the proposed language was not 
consistent with the statute because it substituted ``private entity 
responsible for design and construction'' for the statutory language; 
because it did not address liability on the part of architects, 
contractors, developers, tenants, owners, and other entities; and 
because it limited the liability of entities responsible for commercial 
facilities. In response, the Department has revised this paragraph to 
repeat the language of section 303(a) of the ADA. The Department will 
interpret this section in a manner consistent with the intent of the 
statute and with the nature of the responsibilities of the various 
entities for design, for construction, or for both.

              Designed and Constructed for First Occupancy

    According to paragraph (a)(2), a facility is subject to the new 
construction requirements only if a completed application for a building 
permit or permit extension is filed after January 26, 1992, and the 
facility is occupied after January 26, 1993.
    The proposed rule set forth for comment two alternative ways by 
which to determine what facilities are subject to the Act and what 
standards apply. Paragraph (a)(2) of the final rule is a slight 
variation on Option One in the proposed rule. The reasons for the 
Department's choice of Option One are discussed later in this section.
    Paragraph (a)(2) acknowledges that Congress did not contemplate 
having actual occupancy be the sole trigger for the accessibility 
requirements, because the statute prohibits a failure to ``design and 
construct for first occupancy,'' rather than requiring accessibility in 
facilities actually occupied after a particular date.
    The commenters overwhelmingly agreed with the Department's proposal 
to use a date certain; many cited the reasons given in the preamble to 
the proposed rule. First, it is helpful for designers and builders to 
have a fixed date for accessible design, so that they can determine 
accessibility requirements early in the planning and design stage. It is 
difficult to determine accessibility requirements in anticipation of the 
actual date of first occupancy because of unpredictable and 
uncontrollable events (e.g., strikes affecting suppliers or labor, or 
natural disasters) that may delay occupancy. To redesign or reconstruct 
portions of a facility if it begins to appear that occupancy will be 
later than anticipated would be quite costly. A fixed date also assists 
those responsible for enforcing, or monitoring compliance with, the 
statute, and those protected by it.
    The Department considered using as a trigger date for application of 
the accessibility standards the date on which a permit is granted. The 
Department chose instead the date on which a complete permit application 
is certified as received by the appropriate

[[Page 697]]

government entity. Almost all commenters agreed with this choice of a 
trigger date. This decision is based partly on information that several 
months or even years can pass between application for a permit and 
receipt of a permit. Design is virtually complete at the time an 
application is complete (i.e., certified to contain all the information 
required by the State, county, or local government). After an 
application is filed, delays may occur before the permit is granted due 
to numerous factors (not necessarily relating to accessibility): for 
example, hazardous waste discovered on the property, flood plain 
requirements, zoning disputes, or opposition to the project from various 
groups. These factors should not require redesign for accessibility if 
the application was completed before January 26, 1992. However, if the 
facility must be redesigned for other reasons, such as a change in 
density or environmental preservation, and the final permit is based on 
a new application, the rule would require accessibility if that 
application was certified complete after January 26, 1992.
    The certification of receipt of a complete application for a 
building permit is an appropriate point in the process because 
certifications are issued in writing by governmental authorities. In 
addition, this approach presents a clear and objective standard.
    However, a few commenters pointed out that in some jurisdictions it 
is not possible to receive a ``certification'' that an application is 
complete, and suggested that in those cases the fixed date should be the 
date on which an application for a permit is received by the government 
agency. The Department has included such a provision in 
Sec. 36.401(a)(2)(i).
    The date of January 26, 1992, is relevant only with respect to the 
last application for a permit or permit extension for a facility. Thus, 
if an entity has applied for only a ``foundation'' permit, the date of 
that permit application has no effect, because the entity must also 
apply for and receive a permit at a later date for the actual 
superstructure. In this case, it is the date of the later application 
that would control, unless construction is not completed within the time 
allowed by the permit, in which case a third permit would be issued and 
the date of the application for that permit would be determinative for 
purposes of the rule.

 Choice of Option One for Defining ``Designed and Constructed for First 
                               Occupancy''

    Under the option the Department has chosen for determining 
applicability of the new construction standards, a building would be 
considered to be ``for first occupancy'' after January 26, 1993, only 
(1) if the last application for a building permit or permit extension 
for the facility is certified to be complete (or, in some jurisdictions, 
received) by a State, county, or local government after January 26, 
1992, and (2) if the first certificate of occupancy is issued after 
January 26, 1993. The Department also asked for comment on an Option 
Two, which would have imposed new construction requirements if a 
completed application for a building permit or permit extension was 
filed after the enactment of the ADA (July 26, 1990), and the facility 
was occupied after January 26, 1993.
    The request for comment on this issue drew a large number of 
comments expressing a wide range of views. Most business groups and some 
disability rights groups favored Option One, and some business groups 
and most disability rights groups favored Option Two. Individuals and 
government entities were equally divided; several commenters proposed 
other options.
    Those favoring Option One pointed out that it is more reasonable in 
that it allows time for those subject to the new construction 
requirements to anticipate those requirements and to receive technical 
assistance pursuant to the Act. Numerous commenters said that time 
frames for designing and constructing some types of facilities (for 
example, health care facilities) can range from two to four years or 
more. They expressed concerns that Option Two, which would apply to some 
facilities already under design or construction as of the date the Act 
was signed, and to some on which construction began shortly after 
enactment, could result in costly redesign or reconstruction of those 
facilities. In the same vein, some Option One supporters found Option 
Two objectionable on due process grounds. In their view, Option Two 
would mean that in July 1991 (upon issuance of the final DOJ rule) the 
responsible entities would learn that ADA standards had been in effect 
since July 26, 1990, and this would amount to retroactive application of 
standards. Numerous commenters characterized Option Two as having no 
support in the statute and Option One as being more consistent with 
congressional intent.
    Those who favored Option Two pointed out that it would include more 
facilities within the coverage of the new construction standards. They 
argued that because similar accessibility requirements are in effect 
under State laws, no hardship would be imposed by this option. Numerous 
commenters said that hardship would also be eliminated in light of their 
view that the ADA requires compliance with the Uniform Federal 
Accessibility Standards (UFAS) until issuance of DOJ standards. Those 
supporting Option Two claimed that it was more consistent with the 
statute and its legislative history.
    The Department has chosen Option One rather than Option Two, 
primarily on the

[[Page 698]]

basis of the language of three relevant sections of the statute. First, 
section 303(a) requires compliance with accessibility standards set 
forth, or incorporated by reference in, regulations to be issued by the 
Department of Justice. Standing alone, this section cannot be read to 
require compliance with the Department's standards before those 
standards are issued (through this rulemaking). Second, according to 
section 310 of the statute, section 303 becomes effective on January 26, 
1992. Thus, section 303 cannot impose requirements on the design of 
buildings before that date. Third, while section 306(d) of the Act 
requires compliance with UFAS if final regulations have not been issued, 
that provision cannot reasonably be read to take effect until July 26, 
1991, the date by which the Department of Justice must issue final 
regulations under title III.
    Option Two was based on the premise that the interim standards in 
section 306(d) take effect as of the ADA's enactment (July 26, 1990), 
rather than on the date by which the Department of Justice regulations 
are due to be issued (July 26, 1991). The initial clause of section 
306(d)(1) itself is silent on this question:
    If final regulations have not been issued pursuant to this section, 
for new construction for which a * * * building permit is obtained prior 
to the issuance of final regulations * * * (interim standards apply).
    The approach in Option Two relies partly on the language of section 
310 of the Act, which provides that section 306, the interim standards 
provision, takes effect on the date of enactment. Under this 
interpretation the interim standards provision would prevail over the 
operative provision, section 303, which requires that new construction 
be accessible and which becomes effective January 26, 1992. This 
approach would also require construing the language of section 306(d)(1) 
to take effect before the Department's standards are due to be issued. 
The preferred reading of section 306 is that it would require that, if 
the Department's final standards had not been issued by July 26, 1991, 
UFAS would apply to certain buildings until such time as the 
Department's standards were issued.

   General Substantive Requirements of the New Construction Provisions

    The rule requires, as does the statute, that covered newly 
constructed facilities be readily accessible to and usable by 
individuals with disabilities. The phrase ``readily accessible to and 
usable by individuals with disabilities'' is a term that, in slightly 
varied formulations, has been used in the Architectural Barriers Act of 
1968, the Fair Housing Act, the regulations implementing section 504 of 
the Rehabilitation Act of 1973, and current accessibility standards. It 
means, with respect to a facility or a portion of a facility, that it 
can be approached, entered, and used by individuals with disabilities 
(including mobility, sensory, and cognitive impairments) easily and 
conveniently. A facility that is constructed to meet the requirements of 
the rule's accessibility standards will be considered readily accessible 
and usable with respect to construction. To the extent that a particular 
type or element of a facility is not specifically addressed by the 
standards, the language of this section is the safest guide.
    A private entity that renders an ``accessible'' building 
inaccessible in its operation, through policies or practices, may be in 
violation of section 302 of the Act. For example, a private entity can 
render an entrance to a facility inaccessible by keeping an accessible 
entrance open only during certain hours (whereas the facility is 
available to others for a greater length of time). A facility could 
similarly be rendered inaccessible if a person with disabilities is 
significantly limited in her or his choice of a range of accommodations.
    Ensuring access to a newly constructed facility will include 
providing access to the facility from the street or parking lot, to the 
extent the responsible entity has control over the route from those 
locations. In some cases, the private entity will have no control over 
access at the point where streets, curbs, or sidewalks already exist, 
and in those instances the entity is encouraged to request modifications 
to a sidewalk, including installation of curb cuts, from a public entity 
responsible for them. However, as some commenters pointed out, there is 
no obligation for a private entity subject to title III of the ADA to 
seek or ensure compliance by a public entity with title II. Thus, 
although a locality may have an obligation under title II of the Act to 
install curb cuts at a particular location, that responsibility is 
separate from the private entity's title III obligation, and any 
involvement by a private entity in seeking cooperation from a public 
entity is purely voluntary in this context.

                               Work Areas

    Proposed paragraph 36.401(b) addressed access to employment areas, 
rather than to the areas where goods or services are being provided. The 
preamble noted that the proposed paragraph provided guidance for new 
construction and alterations until more specific guidance was issued by 
the ATBCB and reflected in this Department's regulation. The entire 
paragraph has been deleted from this section in the final rule. The 
concepts of paragraphs (b) (1), (2), and (5) of the proposed rule are 
included, with modifications and expansion, in ADAAG. Paragraphs (3) and 
(4) of the proposed rule, concerning fixtures and equipment, are not 
included in the rule or in ADAAG.
    Some commenters asserted that questions relating to new construction 
and alterations of work areas should be addressed by the

[[Page 699]]

EEOC under title I, as employment concerns. However, the legislative 
history of the statute clearly indicates that the new construction and 
alterations requirements of title III were intended to ensure 
accessibility of new facilities to all individuals, including employees. 
The language of section 303 sweeps broadly in its application to all 
public accommodations and commercial facilities. EEOC's title I 
regulations will address accessibility requirements that come into play 
when ``reasonable accommodation'' to individual employees or applicants 
with disabilities is mandated under title I.
    The issues dealt with in proposed Sec. 36.401(b) (1) and (2) are now 
addressed in ADAAG section 4.1.1(3). The Department's proposed 
paragraphs would have required that areas that will be used only by 
employees as work stations be constructed so that individuals with 
disabilities could approach, enter, and exit the areas. They would not 
have required that all individual work stations be constructed or 
equipped (for example, with shelves that are accessible or adaptable) to 
be accessible. This approach was based on the theory that, as long as an 
employee with disabilities could enter the building and get to and 
around the employment area, modifications in a particular work station 
could be instituted as a ``reasonable accommodation'' to that employee 
if the modifications were necessary and they did not constitute an undue 
hardship.
    Almost all of the commenters agreed with the proposal to require 
access to a work area but not to require accessibility of each 
individual work station. This principle is included in ADAAG 4.1.1(3). 
Several of the comments related to the requirements of the proposed 
ADAAG and have been addressed in the accessibility standards.
    Proposed paragraphs (b) (3) and (4) would have required that 
consideration be given to placing fixtures and equipment at accessible 
heights in the first instance, and to purchasing new equipment and 
fixtures that are adjustable. These paragraphs have not been included in 
the final rule because the rule in most instances does not establish 
accessibility standards for purchased equipment. (See discussion 
elsewhere in the preamble of proposed Sec. 36.309.) While the Department 
encourages entities to consider providing accessible or adjustable 
fixtures and equipment for employees, this rule does not require them to 
do so.
    Paragraph (b)(5) of proposed Sec. 36.401 clarified that proposed 
paragraph (b) did not limit the requirement that employee areas other 
than individual work stations must be accessible. For example, areas 
that are employee ``common use'' areas and are not solely used as work 
stations (e.g., employee lounges, cafeterias, health units, exercise 
facilities) are treated no differently under this regulation than other 
parts of a building; they must be constructed or altered in compliance 
with the accessibility standards. This principle is not stated in 
Sec. 36.401 but is implicit in the requirements of this section and 
ADAAG.

               Commercial Facilities in Private Residences

    Section 36.401(b) of the final rule is a new provision relating to 
commercial facilities located in private residences. The proposed rule 
addressed these requirements in the preamble to Sec. 36.207, ``Places of 
public accommodation located in private residences.'' The preamble 
stated that the approach for commercial facilities would be the same as 
that for places of public accommodation, i.e., those portions used 
exclusively as a commercial facility or used as both a commercial 
facility and for residential purposes would be covered. Because 
commercial facilities are only subject to new construction and 
alterations requirements, however, the covered portions would only be 
subject to subpart D. This approach is reflected in Sec. 36.401(b)(1).
    The Department is aware that the statutory definition of 
``commercial facility'' excludes private residences because they are 
``expressly exempted from coverage under the Fair Housing Act of 1968, 
as amended.'' However, the Department interprets that exemption as 
applying only to facilities that are exclusively residential. When a 
facility is used as both a residence and a commercial facility, the 
exemption does not apply.
    Paragraph (b)(2) is similar to the new paragraph (b) under 
Sec. 36.207, ``Places of public accommodation located in private 
residences.'' The paragraph clarifies that the covered portion includes 
not only the space used as a commercial facility, but also the elements 
used to enter the commercial facility, e.g., the homeowner's front 
sidewalk, if any; the doorway; the hallways; the restroom, if used by 
employees or visitors of the commercial facility; and any other portion 
of the residence, interior or exterior, used by employees or visitors of 
the commercial facility.
    As in the case of public accommodations located in private 
residences, the new construction standards only apply to the extent that 
a portion of the residence is designed or intended for use as a 
commercial facility. Likewise, if a homeowner alters a portion of his 
home to convert it to a commercial facility, that work must be done in 
compliance with the alterations standards in appendix A.

                       Structural Impracticability

    Proposed Sec. 36.401(c) is included in the final rule with minor 
changes. It details a statutory exception to the new construction 
requirement: the requirement that new construction be accessible does 
not apply where

[[Page 700]]

an entity can demonstrate that it is structurally impracticable to meet 
the requirements of the regulation. This provision is also included in 
ADAAG, at section 4.1.1(5)(a).
    Consistent with the legislative history of the ADA, this narrow 
exception will apply only in rare and unusual circumstances where unique 
characteristics of terrain make accessibility unusually difficult. Such 
limitations for topographical problems are analogous to an acknowledged 
limitation in the application of the accessibility requirements of the 
Fair Housing Amendments Act (FHAA) of 1988.
    Almost all commenters supported this interpretation. Two commenters 
argued that the DOJ requirement is too limiting and would not exempt 
some buildings that should be exempted because of soil conditions, 
terrain, and other unusual site conditions. These commenters suggested 
consistency with HUD's Fair Housing Accessibility Guidelines (56 FR 9472 
(1991)), which generally would allow exceptions from accessibility 
requirements, or allow compliance with less stringent requirements, on 
sites with slopes exceeding 10%.
    The Department is aware of the provisions in HUD's guidelines, which 
were issued on March 6, 1991, after passage of the ADA and publication 
of the Department's proposed rule. The approach taken in these 
guidelines, which apply to different types of construction and implement 
different statutory requirements for new construction, does not bind 
this Department in regulating under the ADA. The Department has included 
in the final rule the substance of the proposed provision, which is 
faithful to the intent of the statute, as expressed in the legislative 
history. (See Senate report at 70-71; Education and Labor report at 
120.)
    The limited structural impracticability exception means that it is 
acceptable to deviate from accessibility requirements only where unique 
characteristics of terrain prevent the incorporation of accessibility 
features and where providing accessibility would destroy the physical 
integrity of a facility. A situation in which a building must be built 
on stilts because of its location in marshlands or over water is an 
example of one of the few situations in which the exception for 
structural impracticability would apply.
    This exception to accessibility requirements should not be applied 
to situations in which a facility is located in ``hilly'' terrain or on 
a plot of land upon which there are steep grades. In such circumstances, 
accessibility can be achieved without destroying the physical integrity 
of a structure, and is required in the construction of new facilities.
    Some commenters asked for clarification concerning when and how to 
apply the ADA rules or the Fair Housing Accessibility Guidelines, 
especially when a facility may be subject to both because of mixed use. 
Guidance on this question is provided in the discussion of the 
definitions of place of public accommodation and commercial facility. 
With respect to the structural impracticability exception, a mixed-use 
facility could not take advantage of the Fair Housing exemption, to the 
extent that it is less stringent than the ADA exemption, except for 
those portions of the facility that are subject only to the Fair Housing 
Act.
    As explained in the preamble to the proposed rule, in those rare 
circumstances in which it is structurally impracticable to achieve full 
compliance with accessibility retirements under the ADA, places of 
public accommodation and commercial facilities should still be designed 
and constructed to incorporate accessibility features to the extent that 
the features are structurally practicable. The accessibility 
requirements should not be viewed as an all-or-nothing proposition in 
such circumstances.
    If it is structurally impracticable for a facility in its entirety 
to be readily accessible to and usable by people with disabilities, then 
those portions that can be made accessible should be made accessible. If 
a building cannot be constructed in compliance with the full range of 
accessibility requirements because of structural impracticability, then 
it should still incorporate those features that are structurally 
practicable. If it is structurally impracticable to make a particular 
facility accessible to persons who have particular types of 
disabilities, it is still appropriate to require it to be made 
accessible to persons with other types of disabilities. For example, a 
facility that is of necessity built on stilts and cannot be made 
accessible to persons who use wheelchairs because it is structurally 
impracticable to do so, must be made accessible for individuals with 
vision or hearing impairments or other kinds of disabilities.

                           Elevator Exemption

    Section 36.401(d) implements the ``elevator exemption'' for new 
construction in section 303(b) of the ADA. The elevator exemption is an 
exception to the general requirement that new facilities be readily 
accessible to and usable by individuals with disabilities. Generally, an 
elevator is the most common way to provide individuals who use 
wheelchairs ``ready access'' to floor levels above or below the ground 
floor of a multi-story building. Congress, however, chose not to require 
elevators in new small buildings, that is, those with less than three 
stories or less than 3,000 square feet per story. In buildings eligible 
for the exemption, therefore, ``ready access'' from the building 
entrance to a floor above

[[Page 701]]

or below the ground floor is not required, because the statute does not 
require that an elevator be installed in such buildings. The elevator 
exemption does not apply, however, to a facility housing a shopping 
center, a shopping mall, or the professional office of a health care 
provider, or other categories of facilities as determined by the 
Attorney General. For example, a new office building that will have only 
two stories, with no elevator planned, will not be required to have an 
elevator, even if each story has 20,000 square feet. In other words, 
having either less than 3000 square feet per story or less than three 
stories qualifies a facility for the exemption; it need not qualify for 
the exemption on both counts. Similarly, a facility that has five 
stories of 2800 square feet each qualifies for the exemption. If a 
facility has three or more stories at any point, it is not eligible for 
the elevator exemption unless all the stories are less than 3000 square 
feet.
    The terms ``shopping center or shopping mall'' and ``professional 
office of a health care provider'' are defined in this section. They are 
substantively identical to the definitions included in the proposed rule 
in Sec. 36.104, ``Definitions.'' They have been moved to this section 
because, as commenters pointed out, they are relevant only for the 
purposes of the elevator exemption, and inclusion in the general 
definitions section could give the incorrect impression that an office 
of a health care provider is not covered as a place of public 
accommodation under other sections of the rule, unless the office falls 
within the definition.
    For purposes of Sec. 36.401, a ``shopping center or shopping mall'' 
is (1) a building housing five or more sales or rental establishments, 
or (2) a series of buildings on a common site, either under common 
ownership or common control or developed either as one project or as a 
series of related projects, housing five or more sales or rental 
establishments. The term ``shopping center or shopping mall'' only 
includes floor levels containing at least one sales or rental 
establishment, or any floor level that was designed or intended for use 
by at least one sales or rental establishment.
    Any sales or rental establishment of the type that is included in 
paragraph (5) of the definition of ``place of public accommodation'' 
(for example, a bakery, grocery store, clothing store, or hardware 
store) is considered a sales or rental establishment for purposes of 
this definition; the other types of public accommodations (e.g., 
restaurants, laundromats, banks, travel services, health spas) are not.
    In the preamble to the proposed rule, the Department sought comment 
on whether the definition of ``shopping center or mall'' should be 
expanded to include any of these other types of public accommodations. 
The Department also sought comment on whether a series of buildings 
should fall within the definition only if they are physically connected.
    Most of those responding to the first question (overwhelmingly 
groups representing people with disabilities, or individual commenters) 
urged that the definition encompass more places of public accommodation, 
such as restaurants, motion picture houses, laundromats, dry cleaners, 
and banks. They pointed out that often it is not known what types of 
establishments will be tenants in a new facility. In addition, they 
noted that malls are advertised as entities, that their appeal is in the 
``package'' of services offered to the public, and that this package 
often includes the additional types of establishments mentioned.
    Commenters representing business groups sought to exempt banks, 
travel services, grocery stores, drug stores, and freestanding retail 
stores from the elevator requirement. They based this request on the 
desire to continue the practice in some locations of incorporating 
mezzanines housing administrative offices, raised pharmacist areas, and 
raised areas in the front of supermarkets that house safes and are used 
by managers to oversee operations of check-out aisles and other 
functions. Many of these concerns are adequately addressed by ADAAG. 
Apart from those addressed by ADAAG, the Department sees no reason to 
treat a particular type of sales or rental establishment differently 
from any other. Although banks and travel services are not included as 
``sales or rental establishments,'' because they do not fall under 
paragraph (5) of the definition of place of public accommodation, 
grocery stores and drug stores are included.
    The Department has declined to include places of public 
accommodation other than sales or rental establishments in the 
definition. The statutory definition of ``public accommodation'' 
(section 301(7)) lists 12 types of establishments that are considered 
public accommodations. Category (E) includes ``a bakery, grocery store, 
clothing store, hardware store, shopping center, or other sales or 
rental establishment.'' This arrangement suggests that it is only these 
types of establishments that would make up a shopping center for 
purposes of the statute. To include all types of places of public 
accommodation, or those from 6 or 7 of the categories, as commenters 
suggest, would overly limit the elevator exemption; the universe of 
facilities covered by the definition of ``shopping center'' could well 
exceed the number of multitenant facilities not covered, which would 
render the exemption almost meaningless.
    For similar reasons, the Department is retaining the requirement 
that a building or series of buildings must house five or more sales or 
rental establishments before it falls within the definition of 
``shopping center.''

[[Page 702]]

Numerous commenters objected to the number and requested that the number 
be lowered from five to three or four. Lowering the number in this 
manner would include an inordinately large number of two-story 
multitenant buildings within the category of those required to have 
elevators.
    The responses to the question concerning whether a series of 
buildings should be connected in order to be covered were varied. 
Generally, disability rights groups and some government agencies said a 
series of buildings should not have to be connected, and pointed to a 
trend in some areas to build shopping centers in a garden or village 
setting. The Department agrees that this design choice should not negate 
the elevator requirement for new construction. Some business groups 
answered the question in the affirmative, and some suggested a different 
definition of shopping center. For example, one commenter recommended 
the addition of a requirement that the five or more establishments be 
physically connected on the non-ground floors by a common pedestrian 
walkway or pathway, because otherwise a series of stand-alone facilities 
would have to comply with the elevator requirement, which would be 
unduly burdensome and perhaps infeasible. Another suggested use of what 
it characterized as the standard industry definition: ``A group of 
retail stores and related business facilities, the whole planned, 
developed, operated and managed as a unit.'' While the rule's definition 
would reach a series of related projects that are under common control 
but were not developed as a single project, the Department considers 
such a facility to be a shopping center within the meaning of the 
statute. However, in light of the hardship that could confront a series 
of existing small stand-alone buildings if elevators were required in 
alterations, the Department has included a common access route in the 
definition of shopping center or shopping mall for purposes of 
Sec. 36.404.
    Some commenters suggested that access to restrooms and other shared 
facilities open to the public should be required even if those 
facilities were not on a shopping floor. Such a provision with respect 
to toilet or bathing facilities is included in the elevator exception in 
final ADAAG 4.1.3(5).
    For purposes of this subpart, the rule does not distinguish between 
a ``shopping mall'' (usually a building with a roofed-over common 
pedestrian area serving more than one tenant in which a majority of the 
tenants have a main entrance from the common pedestrian area) and a 
``shopping center'' (e.g., a ``shopping strip''). Any facility housing 
five or more of the types of sales or rental establishments described, 
regardless of the number of other types of places of public 
accommodation housed there (e.g., offices, movie theatres, restaurants), 
is a shopping center or shopping mall.
    For example, a two-story facility built for mixed-use occupancy on 
both floors (e.g., by sales and rental establishments, a movie theater, 
restaurants, and general office space) is a shopping center or shopping 
mall if it houses five or more sales or rental establishments. If none 
of these establishments is located on the second floor, then only the 
ground floor, which contains the sales or rental establishments, would 
be a ``shopping center or shopping mall,'' unless the second floor was 
designed or intended for use by at least one sales or rental 
establishment. In determining whether a floor was intended for such use, 
factors to be considered include the types of establishments that first 
occupied the floor, the nature of the developer's marketing strategy, 
i.e., what types of establishments were sought, and inclusion of any 
design features particular to rental and sales establishments.
    A ``professional office of a health care provider'' is defined as a 
location where a person or entity regulated by a State to provide 
professional services related to the physical or mental health of an 
individual makes such services available to the public. In a two-story 
development that houses health care providers only on the ground floor, 
the ``professional office of a health care provider'' is limited to the 
ground floor unless the second floor was designed or intended for use by 
a health care provider. In determining if a floor was intended for such 
use, factors to be considered include whether the facility was 
constructed with special plumbing, electrical, or other features needed 
by health care providers, whether the developer marketed the facility as 
a medical office center, and whether any of the establishments that 
first occupied the floor was, in fact, a health care provider.
    In addition to requiring that a building that is a shopping center, 
shopping mall, or the professional office of a health care provider have 
an elevator regardless of square footage or number of floors, the ADA 
(section 303(b)) provides that the Attorney General may determine that a 
particular category of facilities requires the installation of elevators 
based on the usage of the facilities. The Department, as it proposed to 
do, has added to the nonexempt categories terminals, depots, or other 
stations used for specified public transportation, and airport passenger 
terminals. Numerous commenters in all categories endorsed this proposal; 
none opposed it. It is not uncommon for an airport passenger terminal or 
train station, for example, to have only two floors, with gates on both 
floors. Because of the significance of transportation, because a person 
with disabilities could be arriving or departing at any gate, and 
because inaccessible facilities could result in a total denial of 
transportation services, it is reasonable to require that newly 
constructed transit facilities be

[[Page 703]]

accessible, regardless of square footage or number of floors. One 
comment suggested an amendment that would treat terminals and stations 
similarly to shopping centers, by requiring an accessible route only to 
those areas used for passenger loading and unloading and for other 
passenger services. Paragraph (d)(2)(ii) has been modified accordingly.
    Some commenters suggested that other types of facilities (e.g., 
educational facilities, libraries, museums, commercial facilities, and 
social service facilities) should be included in the category of 
nonexempt facilities. The Department has not found adequate 
justification for including any other types of facilities in the 
nonexempt category at this time.
    Section 36.401(d)(2) establishes the operative requirements 
concerning the elevator exemption and its application to shopping 
centers and malls, professional offices of health care providers, 
transit stations, and airport passenger terminals. Under the rule's 
framework, it is necessary first to determine if a new facility 
(including one or more buildings) houses places of public accommodation 
or commercial facilities that are in the categories for which elevators 
are required. If so, and the facility is a shopping center or shopping 
mall, or a professional office of a health care provider, then any area 
housing such an office or a sales or rental establishment or the 
professional office of a health care provider is not entitled to the 
elevator exemption.
    The following examples illustrate the application of these 
principles:
    1. A shopping mall has an upper and a lower level. There are two 
``anchor stores'' (in this case, major department stores at either end 
of the mall, both with exterior entrances and an entrance on each level 
from the common area). In addition, there are 30 stores (sales or rental 
establishments) on the upper level, all of which have entrances from a 
common central area. There are 30 stores on the lower level, all of 
which have entrances from a common central area. According to the rule, 
elevator access must be provided to each store and to each level of the 
anchor stores. This requirement could be satisfied with respect to the 
60 stores through elevators connecting the two pedestrian levels, 
provided that an individual could travel from the elevator to any other 
point on that level (i.e., into any store through a common pedestrian 
area) on an accessible path.
    2. A commercial (nonresidential) ``townhouse'' development is 
composed of 20 two-story attached buildings. The facility is developed 
as one project, with common ownership, and the space will be leased to 
retailers. Each building has one accessible entrance from a pedestrian 
walk to the first floor. From that point, one can enter a store on the 
first floor, or walk up a flight of stairs to a store on the second 
floor. All 40 stores must be accessible at ground floor level or by 
accessible vertical access from that level. This does not mean, however, 
that 20 elevators must be installed. Access could be provided to the 
second floor by an elevator from the pedestrian area on the lower level 
to an upper walkway connecting all the areas on the second floor.
    3. In the same type of development, it is planned that retail stores 
will be housed exclusively on the ground floor, with only office space 
(not professional offices of health care providers) on the second. 
Elevator access need not be provided to the second floor because all the 
sales or rental establishments (the entities that make the facility a 
shopping center) are located on an accessible ground floor.
    4. In the same type of development, the space is designed and 
marketed as medical or office suites, or as a medical office facility. 
Accessible vertical access must be provided to all areas, as described 
in example 2.
    Some commenters suggested that building owners who knowingly lease 
or rent space to nonexempt places of public accommodation would violate 
Sec. 36.401. However, the Department does not consider leasing or 
renting inaccessible space in itself to constitute a violation of this 
part. Nor does a change in use of a facility, with no accompanying 
alterations (e.g., if a psychiatrist replaces an attorney as a tenant in 
a second-floor office, but no alterations are made to the office) 
trigger accessibility requirements.
    Entities cannot evade the requirements of this section by 
constructing facilities in such a way that no story is intended to 
constitute a ``ground floor.'' For example, if a private entity 
constructs a building whose main entrance leads only to stairways or 
escalators that connect with upper or lower floors, the Department would 
consider at least one level of the facility a ground story.
    The rule requires in Sec. 36.401(d)(3), consistent with the proposed 
rule, that, even if a building falls within the elevator exemption, the 
floor or floors other than the ground floor must nonetheless be 
accessible, except for elevator access, to individuals with 
disabilities, including people who use wheelchairs. This requirement 
applies to buildings that do not house sales or rental establishments or 
the professional offices of a health care provider as well as to those 
in which such establishments or offices are all located on the ground 
floor. In such a situation, little added cost is entailed in making the 
second floor accessible, because it is similar in structure and floor 
plan to the ground floor.
    There are several reasons for this provision. First, some 
individuals who are mobility impaired may work on a building's second 
floor, which they can reach by stairs and

[[Page 704]]

the use of crutches; however, the same individuals, once they reach the 
second floor, may then use a wheelchair that is kept in the office. 
Secondly, because the first floor will be accessible, there will be 
little additional cost entailed in making the second floor, with the 
same structure and generally the same floor plan, accessible. In 
addition, the second floor must be accessible to those persons with 
disabilities who do not need elevators for level changes (for example, 
persons with sight or hearing impairments and those with certain 
mobility impairments). Finally, if an elevator is installed in the 
future for any reason, full access to the floor will be facilitated.
    One commenter asserted that this provision goes beyond the 
Department's authority under the Act, and disagreed with the 
Department's claim that little additional cost would be entailed in 
compliance. However, the provision is taken directly from the 
legislative history (see Education and Labor report at 114).
    One commenter said that where an elevator is not required, platform 
lifts should be required. Two commenters pointed out that the elevator 
exemption is really an exemption from the requirement for providing an 
accessible route to a second floor not served by an elevator. The 
Department agrees with the latter comment. Lifts to provide access 
between floors are not required in buildings that are not required to 
have elevators. This point is specifically addressed in the appendix to 
ADAAG (Sec. 4.1.3(5)). ADAAG also addresses in detail the situations in 
which lifts are permitted or required.

                       Section 36.402  Alterations

    Sections 36.402-36.405 implement section 303(a)(2) of the Act, which 
requires that alterations to existing facilities be made in a way that 
ensures that the altered portion is readily accessible to and usable by 
individuals with disabilities. This part does not require alterations; 
it simply provides that when alterations are undertaken, they must be 
made in a manner that provides access.
    Section 36.402(a)(1) provides that any alteration to a place of 
public accommodation or a commercial facility, after January 26, 1992, 
shall be made so as to ensure that, to the maximum extent feasible, the 
altered portions of the facility are readily accessible to and usable by 
individuals with disabilities, including individuals who use 
wheelchairs.
    The proposed rule provided that an alteration would be deemed to be 
undertaken after January 26, 1992, if the physical alteration of the 
property is in progress after that date. Commenters pointed out that 
this provision would, in some cases, produce an unjust result by 
requiring the redesign or retrofitting of projects initiated before this 
part established the ADA accessibility standards. The Department agrees 
that the proposed rule would, in some instances, unfairly penalize 
projects that were substantially completed before the effective date. 
Therefore, paragraph (a)(2) has been revised to specify that an 
alteration will be deemed to be undertaken after January 26, 1992, if 
the physical alteration of the property begins after that date. As a 
matter of interpretation, the Department will construe this provision to 
apply to alterations that require a permit from a State, County or local 
government, if physical alterations pursuant to the terms of the permit 
begin after January 26, 1992. The Department recognizes that this 
application of the effective date may require redesign of some 
facilities that were planned prior to the publication of this part, but 
no retrofitting will be required of facilities on which the physical 
alterations were initiated prior to the effective date of the Act. Of 
course, nothing in this section in any way alters the obligation of any 
facility to remove architectural barriers in existing facilities to the 
extent that such barrier removal is readily achievable.
    Paragraph (b) provides that, for the purposes of this part, an 
``alteration'' is a change to a place of public accommodation or a 
commercial facility that affects or could affect the usability of the 
building or facility or any part thereof. One commenter suggested that 
the concept of usability should apply only to those changes that affect 
access by persons with disabilities. The Department remains convinced 
that the Act requires the concept of ``usability'' to be read broadly to 
include any change that affects the usability of the facility, not 
simply changes that relate directly to access by individuals with 
disabilities.
    The Department received a significant number of comments on the 
examples provided in paragraphs (b)(1) and (b)(2) of the proposed rule. 
Some commenters urged the Department to limit the application of this 
provision to major structural modifications, while others asserted that 
it should be expanded to include cosmetic changes such as painting and 
wallpapering. The Department believes that neither approach is 
consistent with the legislative history, which requires this 
Department's regulation to be consistent with the accessibility 
guidelines (ADAAG) developed by the Architectural and Transportation 
Barriers Compliance Board (ATBCB). Although the legislative history 
contemplates that, in some instances, the ADA accessibility standards 
will exceed the current MGRAD requirements, it also clearly indicates 
the view of the drafters that ``minor changes such as painting or 
papering walls * * * do not affect usability'' (Education and Labor 
report at 111, Judiciary report at 64), and, therefore, are not 
alterations. The proposed rule was based on the existing MGRAD 
definition of ``alteration.''

[[Page 705]]

The language of the final rule has been revised to be consistent with 
ADAAG, incorporated as appendix A to this part.
    Some commenters sought clarification of the intended scope of this 
section. The proposed rule contained illustrations of changes that 
affect usability and those that do not. The intent of the illustrations 
was to explain the scope of the alterations requirement; the effect was 
to obscure it. As a result of the illustrations, some commenters 
concluded that any alteration to a facility, even a minor alteration 
such as relocating an electrical outlet, would trigger an extensive 
obligation to provide access throughout an entire facility. That result 
was never contemplated.
    Therefore, in this final rule paragraph (b)(1) has been revised to 
include the major provisions of paragraphs (b)(1) and (b)(2) of the 
proposed rule. The examples in the proposed rule have been deleted. 
Paragraph (b)(1) now provides that alterations include, but are not 
limited to, remodeling, renovation, rehabilitation, reconstruction, 
historic restoration, changes or rearrangement in structural parts or 
elements, and changes or rearrangement in the plan configuration of 
walls and full-height partitions. Normal maintenance, reroofing, 
painting or wallpapering, asbestos removal, or changes to mechanical and 
electrical systems are not alterations unless they affect the usability 
of building or facility.
    Paragraph (b)(2) of this final rule was added to clarify the scope 
of the alterations requirement. Paragraph (b)(2) provides that if 
existing elements, spaces, or common areas are altered, then each such 
altered element, space, or area shall comply with the applicable 
provisions of appendix A (ADAAG). As provided in Sec. 36.403, if an 
altered space or area is an area of the facility that contains a primary 
function, then the requirements of that section apply.
    Therefore, when an entity undertakes a minor alteration to a place 
of public accommodation or commercial facility, such as moving an 
electrical outlet, the new outlet must be installed in compliance with 
ADAAG. (Alteration of the elements listed in Sec. 36.403(c)(2) cannot 
trigger a path of travel obligation.) If the alteration is to an area, 
such as an employee lounge or locker room, that is not an area of the 
facility that contains a primary function, that area must comply with 
ADAAG. It is only when an alteration affects access to or usability of 
an area containing a primary function, as opposed to other areas or the 
elements listed in Sec. 36.403(c)(2), that the path of travel to the 
altered area must be made accessible.
    The Department received relatively few comments on paragraph (c), 
which explains the statutory phrase ``to the maximum extent feasible.'' 
Some commenters suggested that the regulation should specify that cost 
is a factor in determining whether it is feasible to make an altered 
area accessible. The legislative history of the ADA indicates that the 
concept of feasibility only reaches the question of whether it is 
possible to make the alteration accessible in compliance with this part. 
Costs are to be considered only when an alteration to an area containing 
a primary function triggers an additional requirement to make the path 
of travel to the altered area accessible.
    Section 36.402(c) is, therefore, essentially unchanged from the 
proposed rule. At the recommendation of a commenter, the Department has 
inserted the word ``virtually'' to modify ``impossible'' to conform to 
the language of the legislative history. It explains that the phrase 
``to the maximum extent feasible'' as used in this section applies to 
the occasional case where the nature of an existing facility makes it 
virtually impossible to comply fully with applicable accessibility 
standards through a planned alteration. In the occasional cases in which 
full compliance is impossible, alterations shall provide the maximum 
physical accessibility feasible. Any features of the facility that are 
being altered shall be made accessible unless it is technically 
infeasible to do so. If providing accessibility in conformance with this 
section to individuals with certain disabilities (e.g., those who use 
wheelchairs) would not be feasible, the facility shall be made 
accessible to persons with other types of disabilities (e.g., those who 
use crutches or who have impaired vision or hearing, or those who have 
other types of impairments).

               Section 36.403  Alterations: Path of Travel

    Section 36.403 implements the statutory requirement that any 
alteration that affects or could affect the usability of or access to an 
area of a facility that contains a primary function shall be made so as 
to ensure that, to the maximum extent feasible, the path of travel to 
the altered area, and the restrooms, telephones, and drinking fountains 
serving the altered area, are readily accessible to and usable by 
individuals with disabilities, including individuals who use 
wheelchairs, unless the cost and scope of such alterations is 
disproportionate to the cost of the overall alteration. Paragraph (a) 
restates this statutory requirement.
    Paragraph (b) defines a ``primary function'' as a major activity for 
which the facility is intended. This paragraph is unchanged from the 
proposed rule. Areas that contain a primary function include, but are 
not limited to, the customer services lobby of a bank, the dining area 
of a cafeteria, the meeting rooms in a conference center, as well as 
offices and all other work areas in which the activities of the public 
accommodation or other private entities using the facility are

[[Page 706]]

carried out. The concept of ``areas containing a primary function'' is 
analogous to the concept of ``functional spaces'' in Sec. 3.5 of the 
existing Uniform Federal Accessibility Standards, which defines 
``functional spaces'' as ``[t]he rooms and spaces in a building or 
facility that house the major activities for which the building or 
facility is intended.''
    Paragraph (b) provides that areas such as mechanical rooms, boiler 
rooms, supply storage rooms, employee lounges and locker rooms, 
janitorial closets, entrances, corridors, and restrooms are not areas 
containing a primary function. There may be exceptions to this general 
rule. For example, the availability of public restrooms at a place of 
public accommodation at a roadside rest stop may be a major factor 
affecting customers' decisions to patronize the public accommodation. In 
that case, a restroom would be considered to be an ``area containing a 
primary function'' of the facility.
    Most of the commenters who addressed this issue supported the 
approach taken by the Department; but a few commenters suggested that 
areas not open to the general public or those used exclusively by 
employees should be excluded from the definition of primary function. 
The preamble to the proposed rule noted that the Department considered 
an alternative approach to the definition of ``primary function,'' under 
which a primary function of a commercial facility would be defined as a 
major activity for which the facility was intended, while a primary 
function of a place of public accommodation would be defined as an 
activity which involves providing significant goods, services, 
facilities, privileges, advantages, or accommodations. However, the 
Department concluded that, although portions of the legislative history 
of the ADA support this alternative, the better view is that the 
language now contained in Sec. 36.403(b) most accurately reflects 
congressional intent. No commenter made a persuasive argument that the 
Department's interpretation of the legislative history is incorrect.
    When the ADA was introduced, the requirement to make alterations 
accessible was included in section 302 of the Act, which identifies the 
practices that constitute discrimination by a public accommodation. 
Because section 302 applies only to the operation of a place of public 
accommodation, the alterations requirement was intended only to provide 
access to clients and customers of a public accommodation. It was 
anticipated that access would be provided to employees with disabilities 
under the ``reasonable accommodation'' requirements of title I. However, 
during its consideration of the ADA, the House Judiciary Committee 
amended the bill to move the alterations provision from section 302 to 
section 303, which applies to commercial facilities as well as public 
accommodations. The Committee report accompanying the bill explains 
that:
    New construction and alterations of both public accommodations and 
commercial facilities must be made readily accessible to and usable by 
individuals with disabilities * * *. Essentially, [this requirement] is 
designed to ensure that patrons and employees of public accommodations 
and commercial facilities are able to get to, enter and use the facility 
* * *. The rationale for making new construction accessible applies with 
equal force to alterations.
Judiciary report at 62-63 (emphasis added).
    The ADA, as enacted, contains the language of section 303 as it was 
reported out of the Judiciary Committee. Therefore, the Department has 
concluded that the concept of ``primary function'' should be applied in 
the same manner to places of public accommodation and to commercial 
facilities, thereby including employee work areas in places of public 
accommodation within the scope of this section.
    Paragraph (c) provides examples of alterations that affect the 
usability of or access to an area containing a primary function. The 
examples include: Remodeling a merchandise display area or employee work 
areas in a department store; installing a new floor surface to replace 
an inaccessible surface in the customer service area or employee work 
areas of a bank; redesigning the assembly line area of a factory; and 
installing a computer center in an accounting firm. This list is 
illustrative, not exhaustive. Any change that affects the usability of 
or access to an area containing a primary function triggers the 
statutory obligation to make the path of travel to the altered area 
accessible.
    When the proposed rule was drafted, the Department believed that the 
rule made it clear that the ADA would require alterations to the path of 
travel only when such alterations are not disproportionate to the 
alteration to the primary function area. However, the comments that the 
Department received indicated that many commenters believe that even 
minor alterations to individual elements would require additional 
alterations to the path of travel. To address the concern of these 
commenters, a new paragraph (c)(2) has been added to the final rule to 
provide that alterations to such elements as windows, hardware, controls 
(e.g. light switches or thermostats), electrical outlets, or signage 
will not be deemed to be alterations that affect the usability of or 
access to an area containing a primary function. Of course, each element 
that is altered must comply with ADAAG (appendix A) . The cost of 
alterations to individual elements would be included in the overall cost 
of an alteration for purposes of determining disproportionality and 
would be counted

[[Page 707]]

when determining the aggregate cost of a series of small alterations in 
accordance with Sec. 36.401(h) if the area is altered in a manner that 
affects access to or usability of an area containing a primary function.
    Paragraph (d) concerns the respective obligations of landlords and 
tenants in the cases of alterations that trigger the path of travel 
requirement under Sec. 36.403. This paragraph was contained in the 
landlord/tenant section of the proposed rule, Sec. 36.201(b). If a 
tenant is making alterations upon its premises pursuant to terms of a 
lease that grant it the authority to do so (even if they constitute 
alterations that trigger the path of travel requirement), and the 
landlord is not making alterations to other parts of the facility, then 
the alterations by the tenant on its own premises do not trigger a path 
of travel obligation upon the landlord in areas of the facility under 
the landlord's authority that are not otherwise being altered. The 
legislative history makes clear that the path of travel requirement 
applies only to the entity that is already making the alteration, and 
thus the Department has not changed the final rule despite numerous 
comments suggesting that the tenant be required to provide a path of 
travel.
    Paragraph (e) defines a ``path of travel'' as a continuous, 
unobstructed way of pedestrian passage by means of which an altered area 
may be approached, entered, and exited; and which connects the altered 
area with an exterior approach (including sidewalks, streets, and 
parking areas), an entrance to the facility, and other parts of the 
facility. This concept of an accessible path of travel is analogous to 
the concepts of ``accessible route'' and ``circulation path'' contained 
in section 3.5 of the current UFAS. Some commenters suggested that this 
paragraph should address emergency egress. The Department disagrees. 
``Path of travel'' as it is used in this section is a term of art under 
the ADA that relates only to the obligation of the public accommodation 
or commercial facility to provide additional accessible elements when an 
area containing a primary function is altered. The Department recognizes 
that emergency egress is an important issue, but believes that it is 
appropriately addressed in ADAAG (appendix A), not in this paragraph. 
Furthermore, ADAAG does not require changes to emergency egress areas in 
alterations.
    Paragraph (e)(2) is drawn from section 3.5 of UFAS. It provides that 
an accessible path of travel may consist of walks and sidewalks, curb 
ramps and other interior or exterior pedestrian ramps; clear floor paths 
through lobbies, corridors, rooms, and other improved areas; parking 
access aisles; elevators and lifts; or a combination of such elements. 
Paragraph (e)(3) provides that, for the purposes of this part, the term 
``path of travel'' also includes the restrooms, telephones, and drinking 
fountains serving an altered area.
    Although the Act establishes an expectation that an accessible path 
of travel should generally be included when alterations are made to an 
area containing a primary function, Congress recognized that, in some 
circumstances, providing an accessible path of travel to an altered area 
may be sufficiently burdensome in comparison to the alteration being 
undertaken to the area containing a primary function as to render this 
requirement unreasonable. Therefore, Congress provided, in section 
303(a)(2) of the Act, that alterations to the path of travel that are 
disproportionate in cost and scope to the overall alteration are not 
required.
    The Act requires the Attorney General to determine at what point the 
cost of providing an accessible path of travel becomes disproportionate. 
The proposed rule provided three options for making this determination.
    Two committees of Congress specifically addressed this issue: the 
House Committee on Education and Labor and the House Committee on the 
Judiciary. The reports issued by each committee suggested that 
accessibility alterations to a path of travel might be 
``disproportionate'' if they exceed 30% of the alteration costs 
(Education and Labor report at 113; Judiciary report at 64). Because the 
Department believed that smaller percentage rates might be appropriate, 
the proposed rule sought comments on three options: 10%, 20%, or 30%.
    The Department received a significant number of comments on this 
section. Commenters representing individuals with disabilities generally 
supported the use of 30% (or more); commenters representing covered 
entities supported a figure of 10% (or less). The Department believes 
that alterations made to provide an accessible path of travel to the 
altered area should be deemed disproportionate to the overall alteration 
when the cost exceeds 20% of the cost of the alteration to the primary 
function area. This approach appropriately reflects the intent of 
Congress to provide access for individuals with disabilities without 
causing economic hardship for the covered public accommodations and 
commercial facilities.
    The Department has determined that the basis for this cost 
calculation shall be the cost of the alterations to the area containing 
the primary function. This approach will enable the public accommodation 
or other private entity that is making the alteration to calculate its 
obligation as a percentage of a clearly ascertainable base cost, rather 
than as a percentage of the ``total'' cost, an amount that will change 
as accessibility alterations to the path of travel are made.

[[Page 708]]

    Paragraph (f)(2) (paragraph (e)(2) in the proposed rule) is 
unchanged. It provides examples of costs that may be counted as 
expenditures required to provide an accessible path of travel. They 
include:
     Costs associated with providing an accessible entrance and 
an accessible route to the altered area, for example, the cost of 
widening doorways or installing ramps;
     Costs associated with making restrooms accessible, such as 
installing grab bars, enlarging toilet stalls, insulating pipes, or 
installing accessible faucet controls;
     Costs associated with providing accessible telephones, such 
as relocating telephones to an accessible height, installing 
amplification devices, or installing telecommunications devices for deaf 
persons (TDD's);
     Costs associated with relocating an inaccessible drinking 
fountain.
    Paragraph (f)(1) of the proposed rule provided that when the cost of 
alterations necessary to make the path of travel serving an altered area 
fully accessible is disproportionate to the cost of the overall 
alteration, the path of travel shall be made accessible to the maximum 
extent feasible. In response to the suggestion of a commenter, the 
Department has made an editorial change in the final rule (paragraph 
(g)(1)) to clarify that if the cost of providing a fully accessible path 
of travel is disproportionate, the path of travel shall be made 
accessible ``to the extent that it can be made accessible without 
incurring disproportionate costs.''
    Paragraph (g)(2) (paragraph (f)(2) in the NPRM) establishes that 
priority should be given to those elements that will provide the 
greatest access, in the following order: An accessible entrance; an 
accessible route to the altered area; at least one accessible restroom 
for each sex or a single unisex restroom; accessible telephones; 
accessible drinking fountains; and, whenever possible, additional 
accessible elements such as parking, storage, and alarms. This paragraph 
is unchanged from the proposed rule.
    Paragraph (h) (paragraph (g) in the proposed rule) provides that the 
obligation to provide an accessible path of travel may not be evaded by 
performing a series of small alterations to the area served by a single 
path of travel if those alterations could have been performed as a 
single undertaking. If an area containing a primary function has been 
altered without providing an accessible path of travel to serve that 
area, and subsequent alterations of that area, or a different area on 
the same path of travel, are undertaken within three years of the 
original alteration, the total cost of alterations to primary function 
areas on that path of travel during the preceding three year period 
shall be considered in determining whether the cost of making the path 
of travel serving that area accessible is disproportionate. Only 
alterations undertaken after January 26, 1992, shall be considered in 
determining if the cost of providing accessible features is 
disproportionate to the overall cost of the alterations.

             Section 36.404  Alterations: Elevator Exemption

    Section 36.404 implements the elevator exemption in section 303(b) 
of the Act as it applies to altered facilities. The provisions of 
section 303(b) are discussed in the preamble to Sec. 36.401(d) above. 
The statute applies the same exemption to both new construction and 
alterations. The principal difference between the requirements of 
Sec. 36.401(d) and Sec. 36.404 is that, in altering an existing facility 
that is not eligible for the statutory exemption, the public 
accommodation or other private entity responsible for the alteration is 
not required to install an elevator if the installation of an elevator 
would be disproportionate in cost and scope to the cost of the overall 
alteration as provided in Sec. 36.403(f)(1). In addition, the standards 
referenced in Sec. 36.406 (ADAAG) provide that installation of an 
elevator in an altered facility is not required if it is ``technically 
infeasible.''
    This section has been revised to define the terms ``professional 
office of a health care provider'' and ``shopping center or shopping 
mall'' for the purposes of this section. The definition of 
``professional office of a health care provider'' is identical to the 
definition included in Sec. 36.401(d).
    It has been brought to the attention of the Department that there is 
some misunderstanding about the scope of the elevator exemption as it 
applies to the professional office of a health care provider. A public 
accommodation, such as the professional office of a health care 
provider, is required to remove architectural barriers to its facility 
to the extent that such barrier removal is readily achievable (see 
Sec. 36.304), but it is not otherwise required by this part to undertake 
new construction or alterations. This part does not require that an 
existing two story building that houses the professional office of a 
health care provider be altered for the purpose of providing elevator 
access. If, however, alterations to the area housing the office of the 
health care provider are undertaken for other purposes, the installation 
of an elevator might be required, but only if the cost of the elevator 
is not disproportionate to the cost of the overall alteration. Neither 
the Act nor this part prohibits a health care provider from locating his 
or her professional office in an existing facility that does not have an 
elevator.
    Because of the unique challenges presented in altering existing 
facilities, the Department has adopted a definition of ``shopping center 
or shopping mall'' for the purposes of this section that is slightly 
different from the definition adopted under Sec. 36.401(d). For

[[Page 709]]

the purposes of this section, a ``shopping center or shopping mall'' is 
(1) a building housing five or more sales or rental establishments, or 
(2) a series of buildings on a common site, connected by a common 
pedestrian access route above or below the ground floor, either under 
common ownership or common control or developed either as one project or 
as a series of related projects, housing five or more sales or rental 
establishments. As is the case with new construction, the term 
``shopping center or shopping mall'' only includes floor levels housing 
at least one sales or rental establishment, or any floor level that was 
designed or intended for use by at least one sales or rental 
establishment.
    The Department believes that it is appropriate to use a different 
definition of ``shopping center or shopping mall'' for this section than 
for Sec. 36.401, in order to make it clear that a series of existing 
buildings on a common site that is altered for the use of sales or 
rental establishments does not become a ``shopping center or shopping 
mall'' required to install an elevator, unless there is a common means 
of pedestrian access above or below the ground floor. Without this 
exemption, separate, but adjacent, buildings that were initially 
designed and constructed independently of each other could be required 
to be retrofitted with elevators, if they were later renovated for a 
purpose not contemplated at the time of construction.
    Like Sec. 36.401(d), Sec. 36.404 provides that the exemptions in 
this paragraph do not obviate or limit in any way the obligation to 
comply with the other accessibility requirements established in this 
subpart. For example, alterations to floors above or below the ground 
floor must be accessible regardless of whether the altered facility has 
an elevator. If a facility that is not required to install an elevator 
nonetheless has an elevator, that elevator shall meet, to the maximum 
extent feasible, the accessibility requirements of this section.

           Section 36.405  Alterations: Historic Preservation

    Section 36.405 gives effect to the intent of Congress, expressed in 
section 504(c) of the Act, that this part recognize the national 
interest in preserving significant historic structures. Commenters 
criticized the Department's use of descriptive terms in the proposed 
rule that are different from those used in the ADA to describe eligible 
historic properties. In addition, some commenters criticized the 
Department's decision to use the concept of ``substantially impairing'' 
the historic features of a property, which is a concept employed in 
regulations implementing section 504 of the Rehabilitation Act of 1973. 
Those commenters recommended that the Department adopt the criteria of 
``adverse effect'' published by the Advisory Council on Historic 
Preservation under the National Historic Preservation Act (36 CFR 800.9) 
as the standard for determining whether an historic property may be 
altered.
    The Department agrees with these comments to the extent that they 
suggest that the language of the rule should conform to the language 
employed by Congress in the ADA. Therefore, the language of this section 
has been revised to make it clear that this provision applies 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.) and to buildings or facilities that are 
designated as historic under State or local law. The Department 
believes, however, that the criteria of adverse effect employed under 
the National Historic Preservation Act are inappropriate for this rule 
because section 504(c) of the ADA specifies that special alterations 
provisions shall apply only when an alteration would ``threaten or 
destroy the historic significance of qualified historic buildings and 
facilities.''
    The Department intends that the exception created by this section be 
applied only in those very rare situations in which it is not possible 
to provide access to an historic property using the special access 
provisions in ADAAG. Therefore, paragraph (a) of Sec. 36.405 has been 
revised to provide that alterations to historic properties shall comply, 
to the maximum extent feasible, with section 4.1.7 of ADAAG. Paragraph 
(b) of this section has been revised to provide that if it has been 
determined, under the procedures established in ADAAG, 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 property, alternative methods 
of access shall be provided pursuant to the requirements of Subpart C.

     Section 36.406  Standards for New Construction and Alterations

    Section 36.406 implements the requirements of sections 306(b) and 
306(c) of the Act, which require the Attorney General to promulgate 
standards for accessible design for buildings and facilities subject to 
the Act and this part that are consistent with the supplemental minimum 
guidelines and requirements for accessible design published by the 
Architectural and Transportation Barriers Compliance Board (ATBCB or 
Board) pursuant to section 504 of the Act. This section of the rule 
provides that new construction and alterations subject to this part 
shall comply with the standards for accessible design published as 
appendix A to this part.
    Appendix A contains the Americans with Disabilities Act 
Accessibility Guidelines for

[[Page 710]]

Buildings and Facilities (ADAAG) which is being published by the ATBCB 
as a final rule elsewhere in this issue of the Federal Register. As 
proposed in this Department's proposed rule, Sec. 36.406(a) adopts ADAAG 
as the accessibility standard applicable under this rule.
    Paragraph (b) was not included in the proposed rule. It provides, in 
chart form, guidance for using ADAAG together with subparts A through D 
of this part when determining requirements for a particular facility. 
This chart is intended solely as guidance for the user; it has no effect 
for purposes of compliance or enforcement. It does not necessarily 
provide complete or mandatory information.
    Proposed Sec. 36.406(b) is not included in the final rule. That 
provision, which would have taken effect only if the final rule had 
followed the proposed Option Two for Sec. 36.401(a), is unnecessary 
because the Department has chosen Option One, as explained in the 
preamble for that section.
    Section 504(a) of the ADA requires the ATBCB to issue minimum 
guidelines to supplement the existing Minimum Guidelines and 
Requirements for Accessible Design (MGRAD) (36 CFR part 1190) for 
purposes of title III. According to section 504(b) of the Act, the 
guidelines are to establish additional requirements, consistent with the 
Act, ``to ensure that buildings and facilities are accessible, in terms 
of architecture and design, . . . and communication, to individuals with 
disabilities.'' Section 306(c) of the Act requires that the 
accessibility standards included in the Department's regulations be 
consistent with the minimum guidelines, in this case ADAAG.
    As explained in the ATBCB's preamble to ADAAG, the substance and 
form of the guidelines are drawn from several sources. They use as their 
model the 1984 Uniform Federal Accessibility Standards (UFAS) (41 CFR 
part 101, subpart 101-19.6, appendix), which are the standards 
implementing the Architectural Barriers Act. UFAS is based on the 
Board's 1982 MGRAD. ADAAG follows the numbering system and format of the 
private sector American National Standard Institute's ANSI A117.1 
standards. (American National Specifications for Making Buildings and 
Facilities Accessible to and Usable by Physically Handicapped People 
(ANSI A117-1980) and American National Standard for Buildings and 
Facilities--Providing Accessibility and Usability for Physically 
Handicapped People (ANSI A117.1-1986).) ADAAG supplements MGRAD. In 
developing ADAAG, the Board made every effort to be consistent with 
MGRAD and the current and proposed ANSI Standards, to the extent 
consistent with the ADA.
    ADAAG consists of nine main sections and a separate appendix. 
Sections 1 through 3 contain general provisions and definitions. Section 
4 contains scoping provisions and technical specifications applicable to 
all covered buildings and facilities. The scoping provisions are listed 
separately for new construction of sites and exterior facilities; new 
construction of buildings; additions; alterations; and alterations to 
historic properties. The technical specifications generally reprint the 
text and illustrations of the ANSI A117.1 standard, except where 
differences are noted by italics. Sections 5 through 9 of the guidelines 
are special application sections and contain additional requirements for 
restaurants and cafeterias, medical care facilities, business and 
mercantile facilities, libraries, and transient lodging. The appendix to 
the guidelines contains additional information to aid in understanding 
the technical specifications. The section numbers in the appendix 
correspond to the sections of the guidelines to which they relate. An 
asterisk after a section number indicates that additional information 
appears in the appendix.
    ADAAG's provisions are further explained under Summary of ADAAG 
below.

                            General Comments

    One commenter urged the Department to move all or portions of 
subpart D, New Construction and Alterations, to the appendix (ADAAG) or 
to duplicate portions of subpart D in the appendix. The commenter 
correctly pointed out that subpart D is inherently linked to ADAAG, and 
that a self-contained set of rules would be helpful to users. The 
Department has attempted to simplify use of the two documents by 
deleting some paragraphs from subpart D (e.g., those relating to work 
areas), because they are included in ADAAG. However, the Department has 
retained in subpart D those sections that are taken directly from the 
statute or that give meaning to specific statutory concepts (e.g., 
structural impracticability, path of travel). While some of the subpart 
D provisions are duplicated in ADAAG, others are not. For example, 
issues relating to path of travel and disproportionality in alterations 
are not addressed in detail in ADAAG. (The structure and contents of the 
two documents are addressed below under Summary of ADAAG.) While the 
Department agrees that it would be useful to have one self-contained 
document, the different focuses of this rule and ADAAG do not permit 
this result at this time. However, the chart included in Sec. 36.406(b) 
should assist users in applying the provisions of subparts A through D, 
and ADAAG together.
    Numerous business groups have urged the Department not to adopt the 
proposed ADAAG as the accessibility standards, because the requirements 
established are too high, reflect the ``state of the art,'' and are 
inflexible, rigid, and impractical. Many of these objections have been 
lodged on the

[[Page 711]]

basis that ADAAG exceeds the statutory mandate to establish ``minimum'' 
guidelines. In the view of the Department, these commenters have 
misconstrued the meaning of the term ``minimum guidelines.'' The statute 
clearly contemplates that the guidelines establish a level of access--a 
minimum--that the standards must meet or exceed. The guidelines are not 
to be ``minimal'' in the sense that they would provide for a low level 
of access. To the contrary, Congress emphasized that the ADA requires a 
``high degree of convenient access.'' Education and Labor report at 117-
18. The legislative history explains that the guidelines may not 
``reduce, weaken, narrow or set less accessibility standards than those 
included in existing MGRAD'' and should provide greater guidance in 
communication accessibility for individuals with hearing and vision 
impairments. Id. at 139. Nor did Congress contemplate a set of 
guidelines less detailed than ADAAG; the statute requires that the ADA 
guidelines supplement the existing MGRAD. When it established the 
statutory scheme, Congress was aware of the content and purpose of the 
1982 MGRAD; as ADAAG does with respect to ADA, MGRAD establishes a 
minimum level of access that the Architectural Barriers Act standards 
(i.e., UFAS) must meet or exceed, and includes a high level of detail.
    Many of the same commenters urged the Department to incorporate as 
its accessibility standards the ANSI standard's technical provisions and 
to adopt the proposed scoping provisions under development by the 
Council of American Building Officials' Board for the Coordination of 
Model Codes (BCMC). They contended that the ANSI standard is familiar to 
and accepted by professionals, and that both documents are developed 
through consensus. They suggested that ADAAG will not stay current, 
because it does not follow an established cyclical review process, and 
that it is not likely to be adopted by nonfederal jurisdictions in State 
and local codes. They urged the Department and the Board to coordinate 
the ADAAG provisions and any substantive changes to them with the ANSI 
A117 committee in order to maintain a consistent and uniform set of 
accessibility standards that can be efficiently and effectively 
implemented at the State and local level through the existing building 
regulatory processes.
    The Department shares the commenters' goal of coordination between 
the private sector and Federal standards, to the extent that 
coordination can lead to substantive requirements consistent with the 
ADA. A single accessibility standard, or consistent accessibility 
standards, that can be used for ADA purposes and that can be 
incorporated or referenced by State and local governments, would help to 
ensure that the ADA requirements are routinely implemented at the design 
stage. The Department plans to work toward this goal.
    The Department, however, must comply with the requirements of the 
ADA, the Federal Advisory Committee Act (5 U.S.C app. 1 et seq.) and the 
Administrative Procedure Act (5 U.S.C 551 et seq.). Neither the 
Department nor the Board can adopt private requirements wholesale. 
Furthermore, neither the 1991 ANSI A117 Standard revision nor the BCMC 
process is complete. Although the ANSI and BCMC provisions are not 
final, the Board has carefully considered both the draft BCMC scoping 
provisions and draft ANSI technical standards and included their 
language in ADAAG wherever consistent with the ADA.
    Some commenters requested that, if the Department did not adopt ANSI 
by reference, the Department declare compliance with ANSI/BCMC to 
constitute equivalency with the ADA standards. The Department has not 
adopted this recommendation but has instead worked as a member of the 
ATBCB to ensure that its accessibility standards are practical and 
usable. In addition, as explained under subpart F, Certification of 
State Laws or Local Building Codes, the proper forum for further 
evaluation of this suggested approach would be in conjunction with the 
certification process.
    Some commenters urged the Department to allow an additional comment 
period after the Board published its guidelines in final form, for 
purposes of affording the public a further opportunity to evaluate the 
appropriateness of including them as the Departments accessibility 
standards. Such an additional comment period is unnecessary and would 
unduly delay the issuance of final regulations. The Department put the 
public on notice, through the proposed rule, of its intention to adopt 
the proposed ADAAG, with any changes made by the Board, as the 
accessibility standards. As a member of the Board and of its ADA Task 
Force, the Department participated actively in the public hearings held 
on the proposed guidelines and in preparation of both the proposed and 
final versions of ADAAG. Many individuals and groups commented directly 
to the Department's docket, or at its public hearings, about ADAAG. The 
comments received on ADAAG, whether by the Board or by this Department, 
were thoroughly analyzed and considered by the Department in the context 
of whether the proposed ADAAG was consistent with the ADA and suitable 
for adoption as both guidelines and standards. The Department is 
convinced that ADAAG as adopted in its final form is appropriate for 
these purposes. The final guidelines, adopted here as standards, will 
ensure the high level of access contemplated by Congress, consistent 
with the ADA's balance between the interests of people with disabilities 
and the business community.

[[Page 712]]

    A few commenters, citing the Senate report (at 70) and the Education 
and Labor report (at 119), asked the Department to include in the 
regulations a provision stating that departures from particular 
technical and scoping requirements of the accessibility standards will 
be permitted so long as the alternative methods used will provide 
substantially equivalent or greater access to and utilization of the 
facility. Such a provision is found in ADAAG 2.2 and by virtue of that 
fact is included in these regulations.

            Comments on specific provisions of proposed ADAAG

    During the course of accepting comments on its proposed rule, the 
Department received numerous comments on ADAAG. Those areas that 
elicited the heaviest response included assistive listening systems, 
automated teller machines, work areas, parking, areas of refuge, 
telephones (scoping for TDD's and volume controls) and visual alarms. 
Strenuous objections were raised by some business commenters to the 
proposed provisions of the guidelines concerning check-out aisles, 
counters, and scoping for hotels and nursing facilities. All these 
comments were considered in the same manner as other comments on the 
Department's proposed rule and, in the Department's view, have been 
addressed adequately in the final ADAAG.
    Largely in response to comments, the Board made numerous changes 
from its proposal, including the following:
     Generally, at least 50% of public entrances to new 
buildings must be accessible, rather than all entrances, as would often 
have resulted from the proposed approach.
     Not all check-out aisles are required to be accessible.
     The final guidelines provide greater flexibility in 
providing access to sales counters, and no longer require a portion of 
every counter to be accessible.
     Scoping for TDD's or text telephones was increased. One TDD 
or text telephone, for speech and hearing impaired persons, must be 
provided at locations with 4, rather than 6, pay phones, and in 
hospitals and shopping malls. Use of portable (less expensive) TDD's is 
allowed.
     Dispersal of wheelchair seating areas in theaters will be 
required only where there are more than 300 seats, rather than in all 
cases. Seats with removable armrests (i.e., seats into which persons 
with mobility impairments can transfer) will also be required.
     Areas of refuge (areas with direct access to a stairway, 
and where people who cannot use stairs may await assistance during a 
emergency evacuation) will be required, as proposed, but the final 
provisions are based on the Uniform Building Code. Such areas are not 
required in alterations.
     Rather than requiring 5% of new hotel rooms to be 
accessible to people with mobility impairments, between 2 and 4% 
accessibility (depending on total number of rooms) is required. In 
addition, 1% of the rooms must have roll-in showers.
     The proposed rule reserved the provisions on alterations to 
homeless shelters. The final guidelines apply alterations requirements 
to homeless shelters, but the requirements are less stringent than those 
applied to other types of facilities.
     Parking spaces that can be used by people in vans (with 
lifts) will be required.
     As mandated by the ADA, the Board has established a 
procedure to be followed with respect to alterations to historic 
facilities.

                            Summary of ADAAG

    This section of the preamble summarizes the structure of ADAAG, and 
highlights the more important portions.

                       Sections 1 Through 3

    Sections 1 through 3 contain general requirements, including 
definitions.

                    Section 4.1.1, Application

    Section 4 contains scoping requirements. Section 4.1.1, Application, 
provides that all areas of newly designed or newly constructed buildings 
and facilities and altered portions of existing buildings and facilities 
required to be accessible by Sec. 4.1.6 must comply with the guidelines 
unless otherwise provided in Sec. 4.1.1 or a special application 
section. It addresses areas used only by employees as work areas, 
temporary structures, and general exceptions.
    Section 4.1.1(3) preserves the basic principle of the proposed rule: 
Areas that may be used by employees with disabilities shall be designed 
and constructed so that an individual with a disability can approach, 
enter, and exit the area. The language has been clarified to provide 
that it applies to any area used only as a work area (not just to areas 
``that may be used by employees with disabilities''), and that the 
guidelines do not require that any area used as an individual work 
station be designed with maneuvering space or equipped to be accessible. 
The appendix to ADAAG explains that work areas must meet the guidelines' 
requirements for doors and accessible routes, and recommends, but does 
not require, that 5% of individual work stations be designed to permit a 
person using a wheelchair to maneuver within the space.
    Further discussion of work areas is found in the preamble concerning 
proposed Sec. 36.401(b).
    Section 4.1.1(5)(a) includes an exception for structural 
impracticability that corresponds to the one found in Sec. 36.401(c) and 
discussed in that portion of the preamble.

[[Page 713]]

  Section 4.1.2, Accessible Sites and Exterior Facilities: New 
                              Construction

    This section addresses exterior features, elements, or spaces such 
as parking, portable toilets, and exterior signage, in new construction. 
Interior elements and spaces are covered by Sec. 4.1.3.
    The final rule retains the UFAS scoping for parking but also 
requires that at least one of every eight accessible parking spaces be 
designed with adequate adjacent space to deploy a lift used with a van. 
These spaces must have a sign indicating that they are van-accessible, 
but they are not to be reserved exclusively for van users.

      Section 4.1.3, Accessible Buildings: New Construction

    This section establishes scoping requirements for new construction 
of buildings and facilities.
    Sections 4.1.3 (1) through (4) cover accessible routes, protruding 
objects, ground and floor surfaces, and stairs.
    Section 4.1.3(5) generally requires elevators to serve each level in 
a newly constructed building, with four exceptions included in the 
subsection. Exception 1 is the ``elevator exception'' established in 
Sec. 36.401(d), which must be read with this section. Exception 4 allows 
the use of platform lifts under certain conditions.
    Section 4.1.3(6), Windows, is reserved. Section 4.1.3(7) applies to 
doors.
    Under Sec. 4.1.3(8), at least 50% of all public entrances must be 
accessible. In addition, if a building is designed to provide access to 
enclosed parking, pedestrian tunnels, or elevated walkways, at least one 
entrance that serves each such function must be accessible. Each tenancy 
in a building must be served by an accessible entrance. Where local 
regulations (e.g., fire codes) require that a minimum number of exits be 
provided, an equivalent number of accessible entrances must be provided. 
(The latter provision does not require a greater number of entrances 
than otherwise planned.)
    ADAAG Section 4.1.3(9), with accompanying technical requirements in 
Section 4.3, requires an area of rescue assistance (i.e., an area with 
direct access to an exit stairway and where people who are unable to use 
stairs may await assistance during an emergency evacuation) to be 
established on each floor of a multi-story building. This was one of the 
most controversial provisions in the guidelines. The final ADAAG is 
based on current Uniform Building Code requirements and retains the 
requirement that areas of refuge (renamed ``areas of rescue 
assistance'') be provided, but specifies that this requirement does not 
apply to buildings that have a supervised automatic sprinkler system. 
Areas of refuge are not required in alterations.
    The next seven subsections deal with drinking fountains 
(Sec. 4.1.3(10)); toilet facilities (Sec. 4.1.3(11)); storage, shelving, 
and display units (Sec. 4.1.3(12)), controls and operating mechanisms 
(Sec. 4.1.3(13)), emergency warning systems (Sec. 4.1.3(14)), detectable 
warnings (Sec. 4.1.3(15)), and building signage (Sec. 4.1.3(16)). 
Paragraph 11 requires that toilet facilities comply with Sec. 4.22, 
which requires one accessible toilet stall 
(60<x60<) in each newly constructed restroom. In 
response to public comments, the final rule requires that a second 
accessible stall (36<x60<) be provided in 
restrooms that have six or more stalls.
    ADAAG Section 4.1.3(17) establishes requirements for accessibility 
of pay phones to persons with mobility impairments, hearing impairments 
(requiring some phones with volume controls), and those who cannot use 
voice telephones. It requires one interior ``text telephone'' to be 
provided at any facility that has a total of four or more public pay 
phones. (The term ``text telephone'' has been adopted to reflect current 
terminology and changes in technology.) In addition, text telephones 
will be required in specific locations, such as covered shopping malls, 
hospitals (in emergency rooms, waiting rooms, and recovery areas), and 
convention centers.
    Paragraph 18 of Section 4.1.3 generally requires that at least five 
percent of fixed or built-in seating or tables be accessible.
    Paragraph 19, covering assembly areas, specifies the number of 
wheelchair seating spaces and types and numbers of assistive listening 
systems required. It requires dispersal of wheelchair seating locations 
in facilities where there are more than 300 seats. The guidelines also 
require that at least one percent of all fixed seats be aisle seats 
without armrests (or with moveable armrests) on the aisle side to 
increase accessibility for persons with mobility impairments who prefer 
to transfer from their wheelchairs to fixed seating. In addition, the 
final ADAAG requires that fixed seating for a companion be located 
adjacent to each wheelchair location.
    Paragraph 20 requires that where automated teller machines are 
provided, at least one must comply with section 4.34, which, among other 
things, requires accessible controls, and instructions and other 
information that are accessible to persons with sight impairments.
    Under paragraph 21, where dressing rooms are provided, five percent 
or at least one must comply with section 4.35.

                     Section 4.1.5, Additions

    Each addition to an existing building or facility is regarded as an 
alteration subject to Secs. 36.402 through 36.406 of subpart D, 
including the date established in Sec. 36.402(a). But additions also 
have attributes of new construction, and to the extent that a space or 
element in the addition is newly constructed,

[[Page 714]]

each new space or element must comply with the applicable scoping 
provisions of sections 4.1.1 to 4.1.3 for new construction, the 
applicable technical specifications of sections 4.2 through 4.34, and 
any applicable special provisions in sections 5 through 10. For 
instance, if a restroom is provided in the addition, it must comply with 
the requirements for new construction. Construction of an addition does 
not, however, create an obligation to retrofit the entire existing 
building or facility to meet requirements for new construction. Rather, 
the addition is to be regarded as an alteration and to the extent that 
it affects or could affect the usability of or access to an area 
containing a primary function, the requirements in section 4.1.6(2) are 
triggered with respect to providing an accessible path of travel to the 
altered area and making the restrooms, telephones, and drinking 
fountains serving the altered area accessible. For example, if a museum 
adds a new wing that does not have a separate entrance as part of the 
addition, an accessible path of travel would have to be provided through 
the existing building or facility unless it is disproportionate to the 
overall cost and scope of the addition as established in Sec. 36.403(f).

                    Section 4.1.6, Alterations

    An alteration is a change to a building or facility that affects or 
could affect the usability of or access to the building or facility or 
any part thereof. There are three general principles for alterations. 
First, if any existing element or space is altered, the altered element 
or space must meet new construction requirements (section 4.1.6(1)(b)). 
Second, if alterations to the elements in a space when considered 
together amount to an alteration of the space, the entire space must 
meet new construction requirements (section 4.1.6(1)(c)). Third, if the 
alteration affects or could affect the usability of or access to an area 
containing a primary function, the path of travel to the altered area 
and the restrooms, drinking fountains, and telephones serving the 
altered area must be made accessible unless it is disproportionate to 
the overall alterations in terms of cost and scope as determined under 
criteria established by the Attorney General (Sec. 4.1.6(2)).
    Section 4.1.6 should be read with Secs. 36.402 through 36.405. 
Requirements concerning alterations to an area serving a primary 
function are addressed with greater detail in the latter sections than 
in section 4.1.6(2). Section 4.1.6(1)(j) deals with technical 
infeasibility. Section 4.1.6(3) contains special technical provisions 
for alterations to existing buildings and facilities.

               Section 4.1.7, Historic Preservation

    This section contains scoping provisions and alternative 
requirements for alterations to qualified historic buildings and 
facilities. It clarifies the procedures under the National Historic 
Preservation Act and their application to alterations covered by the 
ADA. An individual seeking to alter a facility that is subject to the 
ADA guidelines and to State or local historic preservation statutes 
shall consult with the State Historic Preservation Officer to determine 
if the planned alteration would threaten or destroy the historic 
significance of the facility.

                    Sections 4.2 Through 4.35

    Sections 4.2 through 4.35 contain the technical specifications for 
elements and spaces required to be accessible by the scoping provisions 
(sections 4.1 through 4.1.7) and special application sections (sections 
5 through 10). The technical specifications are the same as the 1980 
version of ANSI A117.1 standard, except as noted in the text by italics.

                       Sections 5 Through 9

    These are special application sections and contain additional 
requirements for restaurants and cafeterias, medical care facilities, 
business and mercantile facilities, libraries, and transient lodging. 
For example, at least 5 percent, but not less than one, of the fixed 
tables in a restaurant must be accessible.
    In section 7, Business and Mercantile, paragraph 7.2 (Sales and 
Service Counters, Teller Windows, Information Counters) has been revised 
to provide greater flexibility in new construction than did the proposed 
rule. At least one of each type of sales or service counter where a cash 
register is located shall be made accessible. Accessible counters shall 
be dispersed throughout the facility. At counters such as bank teller 
windows or ticketing counters, alternative methods of compliance are 
permitted. A public accommodation may lower a portion of the counter, 
provide an auxiliary counter, or provide equivalent facilitation through 
such means as installing a folding shelf on the front of the counter at 
an accessible height to provide a work surface for a person using a 
wheelchair.
    Section 7.3., Check-out Aisles, provides that, in new construction, 
a certain number of each design of check-out aisle, as listed in a chart 
based on the total number of check-out aisles of each design, shall be 
accessible. The percentage of check-outs required to be accessible 
generally ranges from 20% to 40%. In a newly constructed or altered 
facility with less than 5,000 square feet of selling space, at least one 
of each type of check-out aisle must be accessible. In altered 
facilities with 5,000 or more square feet of selling space, at least one 
of each design of check-out aisle must be made accessible when altered, 
until the number of accessible aisles

[[Page 715]]

of each design equals the number that would be required for new 
construction.

             Section 9, Accessible Transient Lodging

    Section 9 addresses two types of transient lodging: hotels, motels, 
inns, boarding houses, dormitories, resorts, and other similar places 
(sections 9.1 through 9.4); and homeless shelters, halfway houses, 
transient group homes, and other social service establishments (section 
9.5). The interplay of the ADA and Fair Housing Act with respect to such 
facilities is addressed in the preamble discussion of the definition of 
``place of public accommodation'' in Sec. 36.104.
    The final rule establishes scoping requirements for accessibility of 
newly constructed hotels. Four percent of the first hundred rooms, and 
roughly two percent of rooms in excess of 100, must meet certain 
requirements for accessibility to persons with mobility or hearing 
impairments, and an additional identical percentage must be accessible 
to persons with hearing impairments. An additional 1% of the available 
rooms must be equipped with roll-in showers, raising the actual scoping 
for rooms accessible to persons with mobility impairments to 5% of the 
first hundred rooms and 3% thereafter. The final ADAAG also provides 
that when a hotel is being altered, one fully accessible room and one 
room equipped with visual alarms, notification devices, and amplified 
telephones shall be provided for each 25 rooms being altered until the 
number of accessible rooms equals that required under the new 
construction standard. Accessible rooms must be dispersed in a manner 
that will provide persons with disabilities with a choice of single or 
multiple-bed accommodations.
    In new construction, homeless shelters and other social service 
entities must comply with ADAAG; at least one type of amenity in each 
common area must be accessible. In a facility that is not required to 
have an elevator, it is not necessary to provide accessible amenities on 
the inaccessible floors if at least one of each type of amenity is 
provided in accessible common areas. The percentage of accessible 
sleeping accommodations required is the same as that required for other 
places of transient lodging. Requirements for facilities altered for use 
as a homeless shelter parallel the current MGRAD accessibility 
requirements for leased buildings. A shelter located in an altered 
facility must have at least one accessible entrance, accessible sleeping 
accommodations in a number equivalent to that established for new 
construction, at least one accessible toilet and bath, at least one 
accessible common area, and an accessible route connecting all 
accessible areas. All accessible areas in a homeless shelter in an 
altered facility may be located on one level.

                  Section 10, Transportation Facilities

    Section 10 of ADAAG is reserved. On March 20, 1991, the ATBCB 
published a supplemental notice of proposed rulemaking (56 FR 11874) to 
establish special access requirements for transportation facilities. The 
Department anticipates that when the ATBCB issues final guidelines for 
transportation facilities, this part will be amended to include those 
provisions.

                         Subpart E--Enforcement

    Because the Department of Justice does not have authority to 
establish procedures for judicial review and enforcement, subpart E 
generally restates the statutory procedures for enforcement.
    Section 36.501 describes the procedures for private suits by 
individuals and the judicial remedies available. In addition to the 
language in section 308(a)(1) of the Act, Sec. 36.501(a) of this part 
includes the language from section 204(a) of the Civil Rights Act of 
1964 (42 U.S.C. 2000a-3(a)) which is incorporated by reference in the 
ADA. A commenter noted that the proposed rule did not include the 
provision in section 204(a) allowing the court to appoint an attorney 
for the complainant and authorize the commencement of the civil action 
without the payment of fees, costs, or security. That provision has been 
included in the final rule.
    Section 308(a)(1) of the ADA permits a private suit by an individual 
who has reasonable grounds for believing that he or she is ``about to 
be'' subjected to discrimination in violation of section 303 of the Act 
(subpart D of this part), which requires that new construction and 
alterations be readily accessible to and usable by individuals with 
disabilities. Authorizing suits to prevent construction of facilities 
with architectural barriers will avoid the necessity of costly 
retrofitting that might be required if suits were not permitted until 
after the facilities were completed. To avoid unnecessary suits, this 
section requires that the individual bringing the suit have `reasonable 
grounds'' for believing that a violation is about to occur, but does not 
require the individual to engage in a futile gesture if he or she has 
notice that a person or organization covered by title III of the Act 
does not intend to comply with its provisions.
    Section 36.501(b) restates the provisions of section 308(a)(2) of 
the Act, which states that injunctive relief for the failure to remove 
architectural barriers in existing facilities or the failure to make new 
construction and alterations accessible ``shall include'' an order to 
alter these facilities to make them readily accessible to and usable by 
persons with disabilities to the extent required by title III. The 
Report of the Energy and Commerce Committee notes that ``an order to 
make a facility readily accessible to and usable by

[[Page 716]]

individuals with disabilities is mandatory'' under this standard. H.R. 
Rep. No. 485, 101st Cong., 2d Sess, pt 4, at 64 (1990). Also, injunctive 
relief shall include, where appropriate, requiring the provision of an 
auxiliary aid or service, modification of a policy, or provision of 
alternative methods, to the extent required by title III of the Act and 
this part.
    Section 36.502 is based on section 308(b)(1)(A)(i) of the Act, which 
provides that the Attorney General shall investigate alleged violations 
of title III and undertake periodic reviews of compliance of covered 
entities. Although the Act does not establish a comprehensive 
administrative enforcement mechanism for investigation and resolution of 
all complaints received, the legislative history notes that 
investigation of alleged violations and periodic compliance reviews are 
essential to effective enforcement of title III, and that the Attorney 
General is expected to engage in active enforcement and to allocate 
sufficient resources to carry out this responsibility. Judiciary Report 
at 67.
    Many commenters argued for inclusion of more specific provisions for 
administrative resolution of disputes arising under the Act and this 
part in order to promote voluntary compliance and avoid the need for 
litigation. Administrative resolution is far more efficient and 
economical than litigation, particularly in the early stages of 
implementation of complex legislation when the specific requirements of 
the statute are not widely understood. The Department has added a new 
paragraph (c) to this section authorizing the Attorney General to 
initiate a compliance review where he or she has reason to believe there 
may be a violation of this rule.
    Section 36.503 describes the procedures for suits by the Attorney 
General set out in section 308(b)(1)(B) of the Act. If the Department 
has reasonable cause to believe that any person or group of persons is 
engaged in a pattern or practice of resistance to the full enjoyment of 
any of the rights granted by title III or that any person or group of 
persons has been denied any of the rights granted by title III and such 
denial raises an issue of general public importance, the Attorney 
General may commence a civil action in any appropriate United States 
district court. The proposed rule provided for suit by the Attorney 
General ``or his or her designee.'' The reference to a ``designee'' has 
been omitted in the final rule because it is unnecessary. The Attorney 
General has delegated enforcement authority under the ADA to the 
Assistant Attorney General for Civil Rights. 55 FR 40653 (October 4, 
1990) (to be codified at 28 CFR 0.50(l).)
    Section 36.504 describes the relief that may be granted in a suit by 
the Attorney General under section 308(b)(2) of the Act. In such an 
action, the court may grant any equitable relief it considers to be 
appropriate, including granting temporary, preliminary, or permanent 
relief, providing an auxiliary aid or service, modification of policy or 
alternative method, or making facilities readily accessible to and 
usable by individuals with disabilities, to the extent required by title 
III. In addition, a court may award such other relief as the court 
considers to be appropriate, including monetary damages to persons 
aggrieved, when requested by the Attorney General.
    Furthermore, the court may vindicate the public interest by 
assessing a civil penalty against the covered entity in an amount not 
exceeding $50,000 for a first violation and not exceeding $100,000 for 
any subsequent violation. Section 36.504(b) of the rule adopts the 
standard of section 308(b)(3) of the Act. This section makes it clear 
that, in counting the number of previous determinations of violations 
for determining whether a ``first'' or ``subsequent'' violation has 
occurred, determinations in the same action that the entity has engaged 
in more than one discriminatory act are to be counted as a single 
violation. A ``second violation'' would not accrue to that entity until 
the Attorney General brought another suit against the entity and the 
entity was again held in violation. Again, all of the violations found 
in the second suit would be cumulatively considered as a ``subsequent 
violation.''
    Section 36.504(c) clarifies that the terms ``monetary damages'' and 
``other relief'' do not include punitive damages. They do include, 
however, all forms of compensatory damages, including out-of-pocket 
expenses and damages for pain and suffering.
    Section 36.504(a)(3) is based on section 308(b)(2)(C) of the Act, 
which provides that, ``to vindicate the public interest,'' a court may 
assess a civil penalty against the entity that has been found to be in 
violation of the Act in suits brought by the Attorney General. In 
addition, Sec. 36.504(d), which is taken from section 308(b)(5) of the 
Act, further provides that, in considering what amount of civil penalty, 
if any, is appropriate, the court shall give consideration to ``any good 
faith effort or attempt to comply with this part.'' In evaluating such 
good faith, the court shall consider ``among other factors it deems 
relevant, whether the entity could have reasonably anticipated the need 
for an appropriate type of auxiliary aid needed to accommodate the 
unique needs of a particular individual with a disability.''
    The ``good faith'' standard referred to in this section is not 
intended to imply a willful or intentional standard--that is, an entity 
cannot demonstrate good faith simply by showing that it did not 
willfully, intentionally, or recklessly disregard the law. At the same 
time, the absence of such a course of conduct would be a factor a court 
should weigh in determining the existence of good faith.

[[Page 717]]

    Section 36.505 states that courts are authorized to award attorneys 
fees, including litigation expenses and costs, as provided in section 
505 of the Act. Litigation expenses include items such as expert witness 
fees, travel expenses, etc. The Judiciary Committee Report specifies 
that such items are included under the rubric of ``attorneys fees'' and 
not ``costs'' so that such expenses will be assessed against a plaintiff 
only under the standard set forth in Christiansburg Garment Co. v. Equal 
Employment Opportunity Commission, 434 U.S. 412 (1978). (Judiciary 
report at 73.)
    Section 36.506 restates section 513 of the Act, which encourages use 
of alternative means of dispute resolution. Section 36.507 explains 
that, as provided in section 506(e) of the Act, a public accommodation 
or other private entity is not excused from compliance with the 
requirements of this part because of any failure to receive technical 
assistance.

                     Section 36.305  Effective Date

    In general, title III is effective 18 months after enactment of the 
Americans with Disabilities Act, i.e., January 26, 1992. However, there 
are several exceptions to this general rule contained throughout title 
III. Section 36.508 sets forth all of these exceptions in one place.
    Paragraph (b) contains the rule on civil actions. It states that, 
except with respect to new construction and alterations, no civil action 
shall be brought for a violation of this part that occurs before July 
26, 1992, against businesses with 25 or fewer employees and gross 
receipts of $1,000,000 or less; and before January 26, 1993, against 
businesses with 10 or fewer employees and gross receipts of $500,000 or 
less. In determining what constitutes gross receipts, it is appropriate 
to exclude amounts collected for sales taxes.
    Paragraph (c) concerns transportation services provided by public 
accommodations not primarily engaged in the business of transporting 
people. The 18-month effective date applies to all of the transportation 
provisions except those requiring newly purchased or leased vehicles to 
be accessible. Vehicles subject to that requirement must be accessible 
to and usable by individuals with disabilities if the solicitation for 
the vehicle is made on or after August 26, 1990.

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

    Subpart F establishes procedures to implement section 
308(b)(1)(A)(ii) of the Act, which provides that, on the application of 
a State or local government, the Attorney General may certify that a 
State law 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.
    Three significant changes, further explained below, were made from 
the proposed subpart, in response to comments. First, the State or local 
jurisdiction is required to hold a public hearing on its proposed 
request for certification and to submit to the Department, as part of 
the information and materials in support of a request for certification, 
a transcript of the hearing. Second, the time allowed for interested 
persons and organizations to comment on the request filed with the 
Department (Sec. 36.605(a)(1)) has been changed from 30 to 60 days. 
Finally, a new Sec. 36.608, Guidance concerning model codes, has been 
added.
    Section 36.601 establishes the definitions to be used for purposes 
of this subpart. Two of the definitions have been modified, and a 
definition of ``model code'' has been added. First, in response to a 
comment, a reference to a code ``or part thereof'' has been added to the 
definition of ``code.'' The purpose of this addition is to clarify that 
an entire code need not be submitted if only part of it is relevant to 
accessibility, or if the jurisdiction seeks certification of only some 
of the portions that concern accessibility. The Department does not 
intend to encourage ``piecemeal'' requests for certification by a single 
jurisdiction. In fact, the Department expects that in some cases, rather 
than certifying portions of a particular code and refusing to certify 
others, it may notify a submitting jurisdiction of deficiencies and 
encourage a reapplication that cures those deficiencies, so that the 
entire code can be certified eventually. Second, the definition of 
``submitting official'' has been modified. The proposed rule defined the 
submitting official to be the State or local official who has principal 
responsibility for administration of a code. Commenters pointed out that 
in some cases more than one code within the same jurisdiction is 
relevant for purposes of certification. It was also suggested that the 
Department allow a State to submit a single application on behalf of the 
State, as well as on behalf of any local jurisdictions required to 
follow the State accessibility requirements. Consistent with these 
comments, the Department has added to the definition language clarifying 
that the official can be one authorized to submit a code on behalf of a 
jurisdiction.
    A definition of ``model code'' has been added in light of new 
Sec. 36.608.
    Most commenters generally approved of the proposed certification 
process. Some approved of what they saw as the Department's attempt to 
bring State and local codes into alignment with the ADA. A State agency 
said that this section will be the backbone of the intergovernmental 
cooperation essential

[[Page 718]]

if the accessibility provisions of the ADA are to be effective.
    Some comments disapproved of the proposed process as timeconsuming 
and laborious for the Department, although some of these comments 
pointed out that, if the Attorney General certified model codes on which 
State and local codes are based, many perceived problems would be 
alleviated. (This point is further addressed by new Sec. 36.608.)
    Many of the comments received from business organizations, as well 
as those from some individuals and disability rights groups, addressed 
the relationship of the ADA requirements and their enforcement, to 
existing State and local codes and code enforcement systems. These 
commenters urged the Department to use existing code-making bodies for 
interpretations of the ADA, and to actively participate in the 
integration of the ADA into the text of the national model codes that 
are adopted by State and local enforcement agencies. These issues are 
discussed in preamble section 36.406 under General comments.
    Many commenters urged the Department to evaluate or certify the 
entire code enforcement system (including any process for hearing 
appeals from builders of denials by the building code official of 
requests for variances, waivers, or modifications). Some urged that 
certification not be allowed in jurisdictions where waivers can be 
granted, unless there is a clearly identified decision-making process, 
with written rulings and notice to affected parties of any waiver or 
modification request. One commenter urged establishment of a dispute 
resolution mechanism, providing for interpretation (usually through a 
building official) and an administrative appeals mechanism (generally 
called Boards of Appeal, Boards of Construction Appeals, or Boards of 
Review), before certification could be granted.
    The Department thoroughly considered these proposals but has 
declined to provide for certification of processes of enforcement or 
administration of State and local codes. The statute clearly authorizes 
the Department to certify the codes themselves for equivalency with the 
statute; it would be ill-advised for the Department at this point to 
inquire beyond the face of the code and written interpretations of it. 
It would be inappropriate to require those jurisdictions that grant 
waivers or modifications to establish certain procedures before they can 
apply for certification, or to insist that no deviations can be 
permitted. In fact, the Department expects that many jurisdictions will 
allow slight variations from a particular code, consistent with ADAAG 
itself. ADAAG includes in Sec. 2.2 a statement allowing departures from 
particular requirements where substantially equivalent or greater access 
and usability is provided. Several sections specifically allow for 
alternative methods providing equivalent facilitation and, in some 
cases, provide examples. (See, e.g., section 4.31.9, Text Telephones; 
section 7.2(2) (iii), Sales and Service Counters.) Section 4.1.6 
includes less stringent requirements that are permitted in alterations, 
in certain circumstances.
    However, in an attempt to ensure that it does not certify a code 
that in practice has been or will be applied in a manner that defeats 
its equivalency with the ADA, the Department will require that the 
submitting official include, with the application for certification, any 
relevant manuals, guides, or any other interpretive information issued 
that pertain to the code. (Sec. 36.603(c)(1).) The requirement that this 
information be provided is in addition to the NPRM's requirement that 
the official provide any pertinent formal opinions of the State Attorney 
General or the chief legal officer of the jurisdiction.
    The first step in the certification process is a request for 
certification, filed by a ``submitting official'' (Sec. 36.603). The 
Department will not accept requests for certification until after 
January 26, 1992, the effective date of this part. The Department 
received numerous comments from individuals and organizations 
representing a variety of interests, urging that the hearing required to 
be held by the Assistant Attorney General in Washington, DC, after a 
preliminary determination of equivalency (Sec. 36.605(a)(2)), be held 
within the State or locality requesting certification, in order to 
facilitate greater participation by all interested parties. While the 
Department has not modified the requirement that it hold a hearing in 
Washington, it has added a new subparagraph 36.603(b)(3) requiring a 
hearing within the State or locality before a request for certification 
is filed. The hearing must be held after adequate notice to the public 
and must be on the record; a transcript must be provided with the 
request for certification. This procedure will insure input from the 
public at the State or local level and will also insure a Washington, 
DC, hearing as mentioned in the legislative history.
    The request for certification, along with supporting documents 
(Sec. 36.603(c)), must be filed in duplicate with the office of the 
Assistant Attorney General for Civil Rights. The Assistant Attorney 
General may request further information. The request and supporting 
materials will be available for public examination at the office of the 
Assistant Attorney General and at the office of the State or local 
agency charged with administration and enforcement of the code. The 
submitting official must publish public notice of the request for 
certification.
    Next, under Sec. 36.604, the Assistant Attorney General's office 
will consult with the ATBCB and make a preliminary determination to 
either (1) find that the code is equivalent

[[Page 719]]

(make a ``preliminary determination of equivalency'') or (2) deny 
certification. The next step depends on which of these preliminary 
determinations is made.
    If the preliminary determination is to find equivalency, the 
Assistant Attorney General, under Sec. 36.605, will inform the 
submitting official in writing of the preliminary determination and 
publish a notice in the Federal Register informing the public of the 
preliminary determination and inviting comment for 60 days. (This time 
period has been increased from 30 days in light of public comment 
pointing out the need for more time within which to evaluate the code.) 
After considering the information received in response to the comments, 
the Department will hold an hearing in Washington. This hearing will not 
be subject to the formal requirements of the Administrative Procedure 
Act. In fact, this requirement could be satisfied by a meeting with 
interested parties. After the hearing, the Assistant Attorney General's 
office will consult again with the ATBCB and make a final determination 
of equivalency or a final determination to deny the request for 
certification, with a notice of the determination published in the 
Federal Register.
    1If the preliminary determination is to deny certification, there 
will be no hearing (Sec. 36.606). The Department will notify the 
submitting official of the preliminary determination, and may specify 
how the code could be modified in order to receive a preliminary 
determination of equivalency. The Department will allow at least 15 days 
for the submitting official to submit relevant material in opposition to 
the preliminary denial. If none is received, no further action will be 
taken. If more information is received, the Department will consider it 
and make either a final decision to deny certification or a preliminary 
determination of equivalency. If at that stage the Assistant Attorney 
General makes a preliminary determination of equivalency, the hearing 
procedures set out in Sec. 36.605 will be followed.
    Section 36.607 addresses the effect of certification. First, 
certification will only be effective concerning those features or 
elements that are both (1) covered by the certified code and (2) 
addressed by the regulations against which they are being certified. For 
example, if children's facilities are not addressed by the Department's 
standards, and the building in question is a private elementary school, 
certification will not be effective for those features of the building 
to be used by children. And if the Department's regulations addressed 
equipment but the local code did not, a building's equipment would not 
be covered by the certification.
    In addition, certification will be effective only for the particular 
edition of the code that is certified. Amendments will not automatically 
be considered certified, and a submitting official will need to reapply 
for certification of the changed or additional provisions.
    Certification will not be effective in those situations where a 
State or local building code official allows a facility to be 
constructed or altered in a manner that does not follow the technical or 
scoping provisions of the certified code. Thus, if an official either 
waives an accessible element or feature or allows a change that does not 
provide equivalent facilitation, the fact that the Department has 
certified the code itself will not stand as evidence that the facility 
has been constructed or altered in accordance with the minimum 
accessibility requirements of the ADA. The Department's certification of 
a code is effective only with respect to the standards in the code; it 
is not to be interpreted to apply to a State or local government's 
application of the code. The fact that the Department has certified a 
code with provisions concerning waivers, variances, or equivalent 
facilitation shall not be interpreted as an endorsement of actions taken 
pursuant to those provisions.
    The final rule includes a new Sec. 36.608 concerning model codes. It 
was drafted in response to concerns raised by numerous commenters, many 
of which have been discussed under General comments (Sec. 36.406). It is 
intended to assist in alleviating the difficulties posed by attempting 
to certify possibly tens of thousands of codes. It is included in 
recognition of the fact that many codes are based on, or incorporate, 
model or consensus standards developed by nationally recognized 
organizations (e.g., the American National Standards Institute (ANSI); 
Building Officials and Code Administrators (BOCA) International; Council 
of American Building Officials (CABO) and its Board for the Coordination 
of Model Codes (BCMC); Southern Building Code Congress International 
(SBCCI)). While the Department will not certify or ``precertify'' model 
codes, as urged by some commenters, it does wish to encourage the 
continued viability of the consensus and model code process consistent 
with the purposes of the ADA.
    The new section therefore allows an authorized representative of a 
private entity responsible for developing a model code to apply to the 
Assistant Attorney General for review of the code. The review process 
will be informal and will not be subject to the procedures of 
Secs. 36.602 through 36.607. The result of the review will take the form 
of guidance from the Assistant Attorney General as to whether and in 
what respects the model code is consistent with the ADA's requirements. 
The guidance will not be binding on any entity or on the Department; it 
will assist in evaluations of individual State or local codes and may 
serve as a basis for establishing priorities for consideration of 
individual codes. The Department anticipates

[[Page 720]]

that this approach will foster further cooperation among various 
government levels, the private entities developing standards, and 
individuals with disabilities.