[Federal Register Volume 59, Number 117 (Monday, June 20, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14228]
[[Page Unknown]]
[Federal Register: June 20, 1994]
_______________________________________________________________________
Part III
Department of Justice
_______________________________________________________________________
Office of the Attorney General
_______________________________________________________________________
28 CFR Part 35, et al.
Nondiscrimination on the Basis of Disability in the State and Local
Government Services; Public Accommodations and Commercial Facilities;
Accessibility Standards; Proposed Rule
DEPARTMENT OF JUSTICE
Office of the Attorney General
28 CFR Parts 35, 36, and 37
[Order No. 1889-94]
Nondiscrimination on the Basis of Disability in State and Local
Government Services; Public Accommodations and Commercial Facilities;
Accessibility Standards
AGENCY: Department of Justice.
ACTION: Proposed rule.
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SUMMARY: This proposed rule would amend the regulations of the
Department of Justice (Department) implementing titles II and III of
the Americans with Disabilities Act (ADA) to incorporate, as the ADA
Standards for Accessible Design, the ADA Accessibility Guidelines for
Buildings and Facilities as they are revised in the interim rule with
request for comments being published by the Architectural and
Transportation Barriers Compliance Board (Access Board) elsewhere in
this issue of the Federal Register. In so doing, the proposed rule
would establish new ADA standards for construction and alterations
covered by the Department's title II regulations. (The guidelines set
forth in the Access Board's interim rule are effective only as guidance
for the Departments of Justice and Transportation; they have no effect
on the public and should not be used by the public until such time as
the Department of Justice and the Department of Transportation adopt
them as standards.) The proposed rule would also add new enforcement
procedures to subpart F of the title II regulation.
DATES: To be assured of consideration, comments must be in writing and
must be received on or before August 19, 1994. Comments that are
received after the closing date will be considered to the extent
practicable.
ADDRESSES: Comments on this proposed rule should be sent to: Merrily A.
Friedlander, Acting Chief, Coordination and Review Section, Civil
Rights Division, U.S. Department of Justice, Rulemaking Docket 007,
P.O. Box 66118, Washington, DC 20035-6118. However, comments on the
proposed ADA Standards for Accessible Design, published as an interim
rule by the Access Board elsewhere in this issue of the Federal
Register, should be sent to: Office of the General Counsel,
Architectural and Transportation Barriers Compliance Board, 1331 F
Street NW., suite 1000, Washington, DC 20004-1111. For further
information on comments, see the beginning of SUPPLEMENTARY
INFORMATION.
Comments submitted to the Department of Justice will be available
for public inspection in Room 4014, 1425 New York Avenue NW.,
Washington, DC, from 9 a.m. to 5 p.m., Monday through Friday, except
legal holidays, from July 5, 1994 until the Department publishes this
rule in final form. Persons who need assistance to review the comments
will be provided with appropriate aids such as readers or print
magnifiers.
FOR FURTHER INFORMATION CONTACT: Merrily A. Friedlander, Acting Chief,
Coordination and Review Section, Civil Rights Division, U.S. Department
of Justice, Washington, DC 20530, (202) 514-0301 (Voice), (202) 514-
0383 (TDD) (the Division's ADA Information Line). These telephone
numbers are not toll-free numbers.
Copies of this rule are available in the following alternative
formats: large print, Braille, electronic file on computer disk, and
audio-tape. Copies may be obtained from the Coordination and Review
Section at (202) 514-0301 (Voice) or (202) 514-0383 (TDD). The rule is
also available on electronic bulletin board at (202) 514-6193. These
telephone numbers are not toll-free numbers.
SUPPLEMENTARY INFORMATION: All timely comments received by the Access
Board on its guidelines published December 21, 1992 (57 FR 60612), and
on its interim rule published today in the Federal Register will be
deemed by the Department to have been submitted in response to this
proposed rule and will be thoroughly analyzed and considered by the
Department prior to the adoption of any final rule. Therefore, it is
not necessary for any comments submitted to the Board on its proposed
or interim rules to be resubmitted to the Department.
Background
On July 26, 1991, the Department published its final rules
implementing titles II and III of the Americans with Disabilities Act,
Pub. L. 101-336, 42 U.S.C. 12131-12134 and 12181-12189, which prohibits
discrimination on the basis of disability by public entities and in
places of public accommodation and commercial facilities. 56 FR 35694,
35544. The Department's implementing regulations were codified at 28
CFR, parts 35 and 36. Subtitle A of title II of the ADA protects
qualified individuals with disabilities from discrimination on the
basis of disability in the services, programs, or activities of all
state and local governments. It extends the prohibition of
discrimination in federally assisted programs established by section
504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, to all activities
of state and local governments, including those that do not receive
federal financial assistance, and incorporates specific prohibitions of
discrimination on the basis of disability from titles I, III, and V of
the ADA. Title III of the ADA protects qualified individuals with
disabilities from discrimination on the basis of disability by public
accommodations and in commercial facilities.
This proposed rule would amend 28 CFR 35.151 and 36.406 to adopt
the ADA Accessibility Guidelines for Buildings and Facilities (ADAAG),
as revised by the Access Board in their interim rule that is published
elsewhere in this issue of the Federal Register, as the ADA Standards
for Accessible Design (ADA Standards) for new construction and
alterations covered by the Department's title II regulation. The ADA
Standards would apply to facilities designed, constructed, or altered
after the effective date of the amendment to Sec. 35.151. The proposed
rule would also remove the original ADA Standards for Accessible
Design, 28 CFR part 36, Appendix A; add the ADA Standards, as amended
by the Access Board's interim rule, as Appendix A to part 37; and amend
parts 35 and 36 to correctly reference the redesignated ADA Standards.
Finally, the proposed rule would amend the Compliance Procedures in
subpart F of part 35 to incorporate procedures used under agency
regulations implementing section 504 of the Rehabilitation Act for
federally assisted programs and activities.
Accessibility Standard
Section 504 of the ADA requires the Access Board to issue
supplemental Minimum Guidelines and Requirements for Accessible Design
of buildings and facilities subject to the ADA, including titles II and
III. Sections 204(c) and 306(c) of the ADA provide that the Attorney
General shall promulgate regulations implementing titles II and III
that are consistent with the Access Board's ADA guidelines. In issuing
its final title II regulation, the Department explained that it
intended to amend the regulation to adopt the new accessibility
standards for title II after the Access Board had amended its ADA
Accessibility Guidelines to include specific requirements applicable to
buildings and facilities operated by entities subject to title II. The
Access Board is now publishing its interim guidelines for title II
elsewhere in this issue of the Federal Register, and this proposed rule
would adopt those guidelines. Rather than having the ADA Standards for
Accessible Design published twice, as an appendix to both parts 35 and
36, this proposed rule would adopt the revised ADA Standards as
Appendix A to part 37. Parts 35 and 36 are amended to reference those
standards.
The Access Board received public comments on its proposed
guidelines, published on December 21, 1992, and is soliciting comments
on its interim rule, which is published elsewhere in this issue of the
Federal Register. The Department, as a member of the Access Board, will
be actively involved in the review and analysis of the comments that
the Access Board receives on its interim guidelines and in making any
revisions to the guidelines in response to those comments. Therefore,
the Department has proposed to adopt the guidelines, as revised by the
Access Board in its final rule, as the ADA Standards for Accessible
Design. Comments submitted to the Access Board in response either to
its Notice of Proposed Rulemaking or its Interim Rule, therefore, will
also be considered by the Department as comments on this proposed rule,
and need not be separately submitted to the Department. Comments
previously received by the Access Board concerning provision of unisex
restrooms will be considered by the Department of Justice through
future rulemaking or other action.
28 CFR 35.151 would be replaced by Secs. 35.151-35.155 of the
proposed regulation. At present, Sec. 35.151 provides that those
buildings that are constructed or altered by, on behalf of, or for the
use of a public entity shall be designed, constructed, or altered to be
readily accessible to and usable by individuals with disabilities.
Current Sec. 35.151(c) establishes two standards for accessible new
construction and alteration. Under paragraph (c), design, construction,
or alteration of facilities in conformance with the Uniform Federal
Accessibility Standards (UFAS) or with the Americans with Disabilities
Act Accessibility Guidelines for Buildings and Facilities (ADAAG) is
deemed to comply with the requirements of this section with respect to
those facilities (except that, if ADAAG is chosen, the elevator
exemption does not apply). ADAAG was initially developed by the Access
Board as a guideline for accessibility to buildings and facilities that
are subject to title III. It was adopted by the Department as the
standard for places of public accommodation and commercial facilities
under title III of the ADA and was published as Appendix A to the
Department's regulation implementing title III, 28 CFR part 36, and
amended on January 18, 1994, 59 FR 2674. This rule removes that
appendix and adds the Access Board's revised guidelines as Appendix A
to 28 CFR part 37.
The proposed rule would revise 28 CFR 35.151 and add four new
sections, 28 CFR 35.152-35.155, which follow the format of parallel
provisions in the Department's title III regulation at 28 CFR part 36,
subpart D.
Section 35.150 Existing Facilities
The proposed rule would amend Sec. 35.150(a)(2), which provides
that, in ensuring access to programs in existing facilities, a public
entity is not required to take any action that would threaten or
destroy the historic significance of an historic property. The proposed
amendment to Sec. 35.150(a)(2) would incorporate the procedures set out
in section 4.1.7 of the ADA Standards for determining whether a
physical alteration would threaten or destroy the historic significance
of an historic property.
The proposed rule would also amend Sec. 35.150(b)(1) to make clear
that the path of travel requirements of Sec. 35.153 do not apply to
measures taken solely to comply with program accessibility
requirements. This amendment is consistent with Sec. 36.304(d)(1) of
the title III regulation, which states that ``[t]he 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.''
Section 35.151 New Construction
Section 35.151, as revised, would require that newly constructed
facilities be readily accessible to and usable by individuals with
disabilities. Paragraph 35.151(b)(2) of the proposed rule incorporates
the ADA's ``structural impracticability'' exception for new
construction. Under that exception, in new construction, full
compliance with the requirements of the ADA Standards is not required
where a public entity can demonstrate that it is structurally
impracticable to meet the requirements. However, full compliance will
be considered structurally impracticable only in those rare
circumstances when the unique characteristics of terrain prevent the
incorporation of accessibility features.
The statute dictates that regulations promulgated under title II of
the ADA ``shall be consistent with [the other titles of] this Act'' as
well as with section 504 of the Rehabilitation Act of 1973. Pub. L. No.
101-336, Sec. 204(b). Furthermore, the legislative history of the ADA
indicates that ``the forms of discrimination prohibited by [title II
are] identical to those set out in the applicable provisions of titles
I and III.'' H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 2, at 84
(1990). Thus the structural impracticability exception for public
accommodations and commercial facilities contained in the Department of
Justice title III regulations at 28 CFR 36.401(c) has been incorporated
in Sec. 35.151 and is included in the ADA Standards at
Sec. 4.1.1(5)(a). Other revisions to this rule and to the ADA Standards
that render this rule and the ADA Standards consistent with title III,
which are discussed below, are based on this same statutory mandate and
legislative history.
Consistent with the legislative history of the ADA, the
Department's proposed rule states that the structural impracticability
exception will apply only in rare and unusual circumstances where
unique characteristics of terrain make accessibility unusually
difficult. This exception is the same as the exception in the
Department's title III regulation, 28 CFR 36.401(c), and is narrower
than the exception in the Department of Housing and Urban Development'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 limited structural impracticability exception adopted by the
proposed rule would allow deviations from accessibility requirements
only where unique characteristics of terrain prevent the incorporation
of accessibility features or 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.
In addition, if full compliance with the accessibility standards
would be structurally impracticable, compliance is required to the
extent that it is not structurally impracticable. Any portion of the
facility that can be made accessible must be made accessible to the
extent that it is not structurally impracticable. In addition, if
providing accessibility to individuals with certain disabilities (e.g.,
those who use wheelchairs) would be structurally impracticable,
accessibility must 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.
Section 35.152 Alterations: General
New Sec. 35.152 of the proposed rule establishes the requirements
for alterations. It includes a definition of ``alteration'' based on
the Department's title III regulation. The term ``resurfacing'' is
added to this definition to be consistent with the Access Board's
proposed change to the definition of alteration in ADAAG Sec. 3.5. It
also adds a definition of the phrase ``to the maximum extent
feasible,'' as used in Sec. 35.152(a), which requires that alterations
be done, to the maximum extent feasible, in such manner that the
altered portion of the facility is accessible. That proposed definition
is taken from the Department's title III regulation, 28 CFR 36.402(c),
and provides that the phrase 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. Like the structural impracticability exception
for new construction, it requires that the facility be made accessible
to persons with other types of disabilities even if providing
accessibility for individuals who use wheelchairs would not be
feasible.
Section 35.153 Alterations: Path of Travel
Proposed Sec. 35.153, Alterations: Path of Travel, is also based on
the title III regulation. UFAS and ADAAG both contain requirements for
provision of an accessible ``path of travel'' to the altered area when
an existing facility is altered, although the circumstances that
trigger the requirements are somewhat different under each statute.
Under Sec. 4.1.6(3) of UFAS, an accessible route to the altered area,
an accessible entrance, and (where applicable) accessible toilet
facilities must be provided when a substantial alteration is made to an
existing building. An alteration is considered ``substantial'' if the
total cost of all alterations within any twelve-month period amounts to
50% or more of the full and fair cash value of the building. The
proposed rule eliminates the UFAS ``substantial alteration'' basis for
path of travel requirements because it eliminates UFAS as an option.
The path of travel requirements of proposed Sec. 35.153 are based
on section 303(a)(2) of the ADA, which provides that, when an entity
undertakes an alteration to a place of public accommodation or
commercial facility that affects or could affect the usability of or
access to an area that contains a primary function, the entity shall
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.
Paragraph (b)(1) of proposed Sec. 35.153 provides that areas such
as mechanical rooms, boiler rooms, supply storage rooms, employee
lounges and locker rooms, janitorial closets, entrances, and corridors
are not areas containing a primary function. Nor are restrooms areas
containing a primary function unless the provision of restrooms is the
major reason that the facility is maintained by a public entity, such
as at a highway rest stop. In that situation, a restroom would be
considered to be an ``area containing a primary function'' of the
facility.
The requirement for an accessible path of travel does not apply,
however, to the extent that the cost and scope of alterations to the
path of travel is disproportionate to the cost of the overall
alteration, as determined under criteria established by the Attorney
General. Sections 227 and 242 of the ADA adopt the same requirement for
public transportation facilities under title II.
Section 4.1.6(2) of the ADA Standards, which is not modified by the
Access Board's proposed amendments, adopts the statutory path of travel
requirement, and Sec. 36.403 of the Department's title III regulation
establishes the criteria for determining when the cost of alterations
to the path of travel are ``disproportionate'' to the cost of the
overall alteration. The proposed rule would add a new Sec. 35.153(d) to
adopt the same disproportionality criteria for facilities altered by
public entities as are applied to private entities under title III.
Alterations made to provide an accessible path of travel to the altered
area would be deemed disproportionate to the overall alteration when
the cost exceeds 20% of the cost of the alteration to the primary
function area.
Section 35.154 Alterations: Historic Preservation
Proposed Sec. 35.154 would incorporate the procedures set out in
section 4.1.7 of the ADA Standards for determining whether a physical
alteration would threaten or destroy the historic significance of an
historic property and would replace Sec. 35.151(d) of the Department's
current title II regulation.
Section 35.155 Standards for New Construction and Alterations
Proposed Sec. 35.155 provides that, as of the effective date of
this amendment, new construction and alterations subject to the
regulation shall comply with the ADA Standards for Accessible Design
published as Appendix A to 28 CFR part 37 in this publication. Appendix
A to 28 CFR part 37, which the proposed rule would adopt as the ADA
Standards for Accessible Design, would incorporate the text of the
revised ADAAG, which is published as an interim rule elsewhere in
today's Federal Register.
As originally published, the ADA Standards consisted 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. Sections 5 through 9 are special application sections and
contain additional requirements for restaurants and cafeterias, medical
care facilities, business and mercantile facilities, libraries, and
transient lodging. Section 10, which established requirements for
transportation facilities, was added on January 18, 1994 (59 FR 2674).
The appendix to the ADA Standards contains additional information to
aid in understanding the technical specifications.
The Department is now proposing to supplement the original ADA
Standards by adding specific requirements applicable to public
entities. These requirements are set out in sections 11 through 14 of
the Access Board's interim guidelines, which are special application
sections for facilities covered by title II. Section 11 would apply to
Judicial, Legislative, and Regulatory Facilities; section 12 to
Detention and Correctional Facilities; section 13 to Accessible
Residential Housing subject to title II; and section 14 to Public
Rights-of-Way. The Department's proposed rule would also amend certain
general requirements of the ADA Standards to clarify application to
facilities covered by title II. (It would, for example, clarify that
the elevator exemption applies to places of public accommodation and
commercial facilities, but not to facilities covered by title II.)
Section 35.151 of the current regulation applies to design,
construction, and alteration of facilities if the construction was
commenced after the effective date of the regulation, January 26, 1992.
Facilities under design for new construction on that date were governed
by that section if the date that bids were invited fell after the
effective date. Alterations were deemed to have commenced after January
26, 1992, if the physical alteration of the property began after that
date.
Paragraph (c) of Sec. 35.151, which provides that public entities
could use either UFAS or ADAAG as the accessibility standard, would be
replaced by Sec. 35.155, which adopts the ADA Standards (i.e., the
Access Board's ADAAG as revised in the interim rule) as the applicable
standard, as of the effective date of the amendment. Consistent with
federal practice under section 504, the new standard to be adopted by
this proposed amendment would not be applied retroactively. Facilities
that were designed, constructed, or altered in conformance with the
requirements of Sec. 35.151 prior to the effective date of this
proposed amendment would not be required to be retrofitted to conform
to the new standard.
Thus, newly constructed or altered facilities would continue to be
covered by either UFAS or ADAAG if the construction or alteration
commenced between January 26, 1992, and the effective date of the
proposed amendments.
Proposed Sec. 35.155 could create a potential conflict between the
revised regulation and the existing agency regulations implementing
section 504 of the Rehabilitation Act for federally assisted programs.
These section 504 regulations require that newly constructed or altered
facilities be readily accessible to and usable by individuals with
disabilities and provide that facilities designed, constructed, or
altered in conformance with UFAS shall be deemed to comply with that
requirement. Public entities that receive federal financial assistance,
therefore, would be required by this regulation to follow the ADA
Standards, while, under section 504, they could also be required to
follow UFAS. This overlap between the requirements of title II of the
ADA and section 504 of the Rehabilitation Act was one of the reasons
that the current regulation allows public entities the option of using
either UFAS or ADAAG. Pursuant to its authority under Executive Order
12,250 for coordination of implementation and enforcement of section
504, therefore, the Department has advised the federal agencies that
have regulations implementing section 504 for their federally assisted
programs that facilities designed, constructed, or altered by a public
entity in conformance with the proposed ADAAG should be deemed to
comply with the requirements for new construction and alterations of
any regulation implementing section 504 of the Rehabilitation Act that
applies to that public entity. Private entities that receive federal
financial assistance would continue to be governed by the standards in
any applicable regulation implementing section 504. It is expected
that, when ADA Standards proposed in this rule are finalized, the
agencies with enforcement responsibilities under section 504 will amend
their regulations to adopt the ADA Standards as the standard for new
construction and alterations. In the interim, the agencies that enforce
section 504 should not require public entities to conform to both UFAS
and ADAAG.
Enforcement Procedures
Subpart F of the current regulation establishes administrative
procedures for enforcement of title II of the ADA. Section 203 of the
ADA adopts the ``remedies, procedures, and rights'' provided in section
505 of the Rehabilitation Act, 29 U.S.C. 794a, as the enforcement
procedures for title II. Section 505, in turn, incorporates by
reference the remedies, procedures, and rights set forth in title VI of
the Civil Rights Act of 1964 (42 U.S.C. 2000d to 2000d-4a). Section 204
of the ADA, which requires the Department to issue regulations to
implement subtitle A of title II, requires that the regulations be
consistent with the section 504 coordination regulation for federally
assisted programs and activities at 28 CFR Part 41. The House Committee
on Education and Labor explained that it expected the Attorney General
to use the section 504 enforcement procedures as the model for title II
enforcement. H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 2, at 98
(1990). See also S. Rep. No. 116, 101st Cong., 1st Sess., at 57-58
(1989).
As required by sections 203 and 204(b) of the ADA, the proposed
enforcement procedures are the procedures for enforcement of section
504, which, in turn, adopt the enforcement procedures for title VI.
Title VI, which prohibits discrimination on the basis of race, color,
or national origin in federally assisted programs and activities, is
enforced by the federal agencies that provide the federal financial
assistance to the covered programs and activities in question. If
voluntary compliance cannot be achieved, federal agencies enforce title
VI either by the termination of federal funds to a program or activity
that is found to discriminate, following an administrative hearing, or
by a referral to the Department of Justice for judicial enforcement.
Title II of the ADA extended the requirements of section 504 to all
services, programs, and activities of state and local governments, not
only those that receive federal financial assistance. Subpart F of the
Department's original regulation establishes basic procedures to be
followed by the agencies designated in subpart G for processing
complaints against state and local government entities when the
designated agency does not have jurisdiction under section 504. As
required by section 204(b) of the ADA, these procedures are consistent
with the Department's coordination regulation for section 504 of the
Rehabilitation Act, 28 CFR 41.5(a)(1), which directs agencies to adopt
the enforcement procedures of their title VI regulations for
enforcement of section 504. Although section 203 of the ADA mandates
that the title II procedures be the same as the section 504 procedures,
the final rule did not detail procedures for investigations other than
those based on individual complaints. Nor did it include requirements
for cooperation by public entities in investigations, as required under
title VI. This proposed rule would clarify Secs. 35.172 and 35.174 of
subpart F by specifically incorporating the language of the regulations
implementing title VI and section 504 for federally assisted programs
with respect to those provisions.
Section 35.172 of the Department's current regulation requires
designated agencies to investigate all complete complaints for which
they were responsible as determined under Sec. 35.171. It requires the
designated agency to issue a Letter of Findings at the conclusion of
the investigation if the complaint was not resolved informally, and to
attempt to negotiate a voluntary compliance agreement if a violation
was found. It does not, however, include specific procedural
requirements for investigations, and does not address compliance
reviews that are not based on individual complaints.
Proposed Sec. 35.172, captioned Investigations and Compliance
reviews, makes clear that the same procedures that apply to complaint
investigations also apply to compliance reviews that are not initiated
by receipt of a complaint, but rather are based on other information
indicating that discrimination exists in a service, program, or
activity covered by this part. This provision is consistent with the
Department's procedures for enforcing title VI at 28 CFR 42.107, as
required by the section 504 coordination regulation at 28 CFR
41.5(a)(1).
Paragraph (e) of proposed Sec. 35.172 explicitly spells out the
agency's authority to require a public entity to cooperate in the
investigation by permitting access by the designated agency to its
records and other sources of information and to its facilities. It also
makes clear that access by the designated agency may not be barred on
the basis of considerations of privacy or confidentiality and that
confidential information obtained by the designated agency shall not be
disclosed except where necessary in formal enforcement proceedings or
where otherwise required by law. These provisions of the proposed rule
are based on the enforcement procedures for title VI and section 504 in
federally assisted programs, e.g., 28 CFR 42.106 (Department of Justice
title VI regulation, as incorporated in the Department of Justice
section 504 regulation by 28 CFR 42.530); 45 CFR 80.6, 80.7 (Department
of Health and Human Services).
Section 35.173 of the current regulation establishes requirements
for voluntary compliance agreements and would not be changed by the
proposed rule.
Section 35.174 of the current regulation and Sec. 35.174(a) of the
proposed regulation provide for referral of a matter to the Department
of Justice when a public entity declines to enter into voluntary
compliance negotiations or when negotiations are unsuccessful. The
proposed rule adds a new Sec. 35.174(b), which provides that the
designated agency may refer the matter to the Department with a
recommendation for appropriate action or use any other means authorized
by law to achieve compliance when there appears to be a failure or
threatened failure to comply with this part that cannot be corrected by
informal means. This provision is taken from language in existing title
VI and section 504 regulations for federally assisted programs. See,
e.g., 28 CFR 42.108; 45 CFR 80.8.
ADA Standards for Accessible Design
This proposed rule would amend the regulations of the Department of
Justice implementing titles II and III of the ADA to incorporate, as
the ADA Standards for Accessible Design, the ADA Accessibility
Guidelines for Buildings and Facilities, currently Appendix A to 28 CFR
Part 36, as they are revised in the Access Board's interim rule
published elsewhere in this issue of the Federal Register. (The
guidelines set forth in the Access Board's interim rule are effective
only as guidance for the Departments of Justice and Transportation;
they have no effect on the public and should not be used by the public
until such time as the Department of Justice and the Department of
Transportation adopt them as standards.) The ADA Standards will be set
forth in full in the new part 37 of 28 CFR when this rule is printed in
final.
The ADA Standards set out in the Access Board's interim rule
supplement the original ADA Standards by adding specific requirements
applicable to public entities. These requirements are set out in
sections 11 through 14 of the Access Board's interim guidelines, which
are special application sections for facilities covered by title II.
Section 11 would apply to Judicial, Legislative, and Regulatory
Facilities; section 12 to Detention and Correctional Facilities;
section 13 to Accessible Residential Housing subject to title II; and
section 14 to Public Rights-of-Way. For a section-by-section analysis
of these requirements, see the Access Board's preamble to its interim
rule published in today's Federal Register.
In addition to purely editorial changes, the Access Board's interim
rule contains several substantive changes that needed to be made to
Secs. 3, 4, 7, and 10 of ADAAG, either as a result of the addition of
new sections 11-14 or to make certain provisions of ADAAG specifically
applicable to title II facilities. These changes are discussed below.
In Sec. 3.5, the definition of ``alteration'' is revised to
explicitly cover pedestrian facilities in the public right-of-way and
to include resurfacing. This change is consistent with the decision in
Kinney v. Yerusalim, 812 F. Supp. 547 (E.D.Pa. 1993), aff'd, 9 F.3d
1067 (3d Cir. 1993), cert. denied, 114 S. Ct. 1545 (1994), holding that
resurfacing of a street constitutes an alteration under the ADA. Also
in Sec. 3.5, definitions are being added for the following terms:
continuous passage, public right-of-way, public sidewalk, public
sidewalk curb ramp, principal public entrance, site infeasibility, and
technically infeasible; and the term text telephone is being replaced
with the term TTY. Finally, the definition of ``transient lodging'' is
revised to include residential facilities rather than facilities that
contain one or more dwelling units.
The general exception in Sec. 4.1.1(5)(b)(i) is expanded to include
all raised areas used primarily for purposes of security or life or
fire safety; several more examples are added to the non-occupiable
spaces listed in Sec. 4.1.1(5)(b)(ii); and Sec. 4.1.1(5)(b)(iii) is
added to exempt single-occupant structures accessed only by passageways
below grade or elevated above grade, such as certain toll booths.
Exception 1 to Sec. 4.1.3(5) is expanded to exempt the upper level
of drawbridge towers, boat traffic towers, lock and dam control
stations, train dispatching towers, and similar structures less than
three stories and not open to the general public if the upper level
houses no more than five persons and is less than 500 square feet.
Exception 4 to Sec. 4.1.3(5) is expanded to allow platform lifts to
provide access to raised judges' benches, clerks' stations, speakers'
rostrums, raised daises, jury boxes, and witness stands, and to connect
levels within an individual dwelling unit.
Exception 5 is added to Sec. 4.1.3(5) to exempt the cab level and,
in some instances, the penultimate floor of air traffic control towers.
Language is added to Sec. 4.1.3(8)(a)(i) to require that, in
facilities subject to title II, all planned principal public entrances
shall be included within the 50% of public entrances required to be
accessible.
Section 4.1.3(17)(c)(ii) is expanded to require that, in stadiums,
arenas, and convention centers subject to title II, at least one public
TTY shall be provided on each floor level having a public pay
telephone.
Sections 4.1.3(17)(c) (iv) and (v) are added to require that if an
interior public pay telephone is provided in a public use area of a
facility covered by title II, at least one interior public TTY shall be
provided in at least one public use area, and if an interior public pay
telephone is provided in the secured area of a detention or
correctional facility subject to section 12, then at least one public
TTY shall also be provided in at least one secured area.
An exception is added to Sec. 4.1.3(17)(d) to exempt the secured
areas of detention or correctional facilities where shelves and outlets
are prohibited for purposes of security or safety.
Section 4.1.3(22) is added to require that permanently-installed
swimming pools subject to title II shall be designed so as to provide
at least one means of access into the water, if such swimming pools are
intended for recreational purposes and not intended solely for diving
or wading.
The previously-reserved exception to Sec. 4.1.7(1)(a) is added to
allow alternative methods of access if it is determined that it is not
feasible to provide physical access to a qualified historic building or
facility in a manner that will not threaten or destroy the historic
significance of the building or facility.
Section 7.2(3) is added to cover title II facilities, and requires
that, where counters have cash registers and are provided for the sale
or distribution of goods or services to the public, at least one of
each type shall comply with 7.2(1); at counters that may not have cash
registers but at which goods or services are sold or distributed, a
portion of the main counter shall be accessible or an accessible
auxiliary counter shall be provided in close proximity; and at counter
or teller windows with solid partitions or security glazing separating
personnel from the public, at least one of each type shall provide a
method to facilitate voice communication that is accessible to both
individuals who use wheelchairs and individuals who have difficulty
bending or stooping.
Section 10.4.1(8), which was previously reserved, is added to
require that, in airports covered by title II, at least one accessible
route shall be provided through fixed security barriers, and where
security barriers incorporate equipment, such as metal detectors, which
cannot be made accessible, an accessible route shall be provided
adjacent to such security screening devices. An exception is also added
to this section to exempt doors, doorways, and gates designed to be
operated only by security personnel from the requirements of 4.13.6,
4.13.9, 4.13.11, and 4.13.12.
Finally, appendix notes are added for the following sections: 3.5
(definition of transient lodging); 4.1.3(8)(a)(i) (public entrances);
4.1.3(8)(b) (path of travel to building entrances); 7.2(3)(iii)
(counter or teller windows with partitions); and 10.4.1(8) (security
systems in transportation facilities).
Regulatory Process Matters
This notice of proposed rulemaking has been reviewed by the Office
of Management and Budget under Executive Order 12866. The Access Board
has analyzed the impact of applying its proposed amendments to ADAAG to
entities covered by titles II and III of the ADA and has determined
that they are a significant regulatory action for purposes of Executive
Order 12866. The Access Board has prepared a Regulatory Assessment,
which includes a cost impact analysis for certain accessibility
elements and a discussion of the regulatory alternatives considered.
Adoption of the revised ADA Standards as the standards for title II is,
therefore, also a significant regulatory action to which the Access
Board's Regulatory Assessment would apply. Comments submitted to the
Access Board on its Regulatory Assessment will also be considered by
the Department as comments on this proposed rule.
The Access Board has determined that this proposed rule will have a
significant economic impact on a substantial number of small entities
and, therefore, has included the flexibility analysis required by the
Regulatory Flexibility Act in its Regulatory Assessment. The Access
Board has made every effort to lessen the economic impacts of its
proposed rule on small entities, but recognizes that such impacts are
the necessary result of the mandate of the ADA itself. The Access
Board's analysis also applies to the Department's proposed adoption of
the revised ADAAG. The Department's proposed procedural amendments will
not have a significant economic impact on small entities.
The Access Board has made every effort to lessen the impact of its
proposed guidelines on state and local governments, but recognizes that
the guidelines will have some federalism impacts. These impacts are
discussed in the Access Board's Regulatory Assessment, which also
applies to the Department's proposed rule.
Executive Order 12875 prohibits executive departments and agencies
from promulgating any regulation that is not required by statute and
that creates a mandate upon a state, local, or tribal government unless
certain conditions are met. The Access Board is required by statute to
issue minimum guidelines for the purposes of implementing titles II and
III of the ADA (42 USC 12204). The Department of Justice is required by
statute to promulgate regulations that implement title II of the ADA
and that are consistent with the minimum guidelines and requirements
issued by the Access Board (42 USC 12134). Because the Department of
Justice is required by statute to promulgate regulations that do not go
below the Access Board's minimum guidelines, and because this rule
adopts guidelines issued by the Access Board as also required by
statute, this rule is required by statute. Therefore, the special
conditions in Executive Order 12875 need not be met. However, the
Department will provide any comments submitted that suggest ways to
make compliance less burdensome or that would improve the effectiveness
of the title II regulation in achieving its objective.
List of Subjects
28 CFR Part 35
Administrative practice and procedure, Alcoholism, Blind, Buildings
and facilities, Civil rights, Drug abuse, Historic preservation, HIV/
AIDS, Individuals with disabilities, Intergovernmental relations,
Reporting and recordkeeping requirements, State and local governments.
28 CFR Part 36
Administrative practice and procedure, Alcoholism, Blind, Buildings
and facilities, Business and industry, Civil rights, Consumer
protection, Drug abuse, Historic preservation, HIV/AIDS, Individuals
with disabilities, Reporting and recordkeeping requirements,
Transportation.
28 CFR Part 37
Buildings and facilities, Civil rights, Individuals with
disabilities, Historic preservation, Transportation.
By the authority vested in me as Attorney General by 28 U.S.C. 509,
510, 5 U.S.C. 301, and sections 204 and 306 of the Americans with
Disabilities Act, Pub. L. 101-336, 42 U.S.C. 12134 and 12186, and for
the reasons set forth in the preamble, Chapter I of Title 28 of the
Code of Federal Regulations is proposed to be amended as follows:
PART 35--NONDISCRIMINATION ON THE BASIS OF DISABILITY IN STATE AND
LOCAL GOVERNMENT SERVICES
1. The authority citation for 28 CFR part 35 is revised to read as
follows:
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12134.
2. In Sec. 35.150, paragraph (a)(2) and the third sentence of
paragraph (b)(1) are revised to read as follows:
Sec. 35.150 Existing facilities.
(a) * * *
* * * * *
(2) Require a public entity to take any action that would threaten
or destroy the historic significance of an historic property, as
determined under the procedures set out in section 4.1.7 of appendix A
to part 37 of this chapter; or
* * * * *
(b) * * *
(1) * * * A public entity, in making alterations to existing
buildings, shall meet the accessibility requirements of Sec. 35.151.
The path of travel requirements of Sec. 35.153 shall not apply to
measures taken solely to comply with the program accessibility
requirements of this section. * * *
* * * * *
3. Section 35.151 is revised and Secs. 35.152 through 35.155 are
added to read as follows:
Sec. 35.151 New construction.
(a) Design and construction. Each facility or part of a facility
constructed by, on behalf of, or for the use of a public entity shall
be designed and constructed in such manner that the facility or part of
the facility is readily accessible to and usable by individuals with
disabilities, if the construction was commenced after January 26, 1992.
(b) Exception for structural impracticability. (1) Full compliance
with the requirements of this section is not required where a public
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 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.
Sec. 35.152 Alterations: General.
(a) General. (1) Each facility or part of a facility altered by, on
behalf of, or for the use of a public entity in a manner that affects
or could affect the usability of the facility or part of the facility
shall, to the maximum extent feasible, be altered in such manner that
the altered portion of the facility is readily accessible to and usable
by individuals with disabilities, if the alteration was commenced after
January 26, 1992.
(2) An alteration is deemed to have commenced 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 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,
resurfacing, 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.
(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 part 37 of this chapter.
(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. 35.153 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 meeting rooms in a
conference center, as well as offices and other work areas in which the
activities of the public entity using the facility are carried out.
(1) Mechanical rooms, boiler rooms, supply storage rooms, employee
lounges or locker rooms, janitorial closets, entrances, and corridors
are not areas containing a primary function. Restrooms are not areas
containing a primary function, unless the provision of restrooms is the
principal purpose of the area, e.g., in highway rest stops.
(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.
(c) 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.
(d) Disproportionality. (1) Alterations made to provide an
accessible path of travel to the altered area will be deemed
disproportionate to the overall 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.
(e) 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.
(f) 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 the effective date of this
amendment 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. 35.154 Alterations: Historic preservation.
(a) Alterations to buildings or facilities that are ``historic
properties'' as defined in Sec. 35.104 shall comply, to the maximum
extent feasible, with section 4.1.7 of appendix A to part 37 of this
chapter.
(b) If it is determined under the procedures set out in section
4.1.7 of appendix A to part 37 of this chapter that it is not feasible
to provide physical access to an historic property 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 Sec. 35.150.
Sec. 35.155 Standards for new construction and alterations.
Effective on [the effective date of the final rules] new
construction and alterations subject to this part shall comply with the
standards for accessible design in 28 CFR part 37, appendix A.
4. Section 35.172 is revised to read as follows:
Sec. 35.172 Investigations and compliance reviews.
(a) The designated agency shall investigate each complete complaint
for which it is responsible under Sec. 35.171.
(b) The designated agency may conduct compliance reviews of public
entities based on information indicating a possible failure to comply
with the nondiscrimination requirements of this part.
(c) Where appropriate, the designated agency shall attempt informal
resolution of any matter being investigated under this section, and, if
resolution is not achieved, issue to the public entity and the
complainant, if any, a Letter of Findings that shall include--
(1) Findings of fact and conclusions of law;
(2) A description of a remedy for each violation found; and
(3) Notice of the rights and procedures available under paragraph
(d) of this section and Secs. 35.173 and 35.174.
(d) At any time, the complainant may file a private suit pursuant
to section 203 of the Act, whether or not the designated agency finds a
violation.
(e) A public entity shall permit access by the designated agency
during normal business hours to books, records, accounts, and other
sources of information, and its facilities as may be pertinent to
ascertain compliance with this part. Whenever any information required
of a public entity is in the exclusive possession of any other agency,
institution, or person and that agency, institution, or person fails or
refuses to furnish that information, the public entity shall so certify
in its report and shall set forth the efforts that it has made to
obtain the information. Asserted considerations of privacy or
confidentiality may not operate to bar the designated agency from
evaluating or seeking to enforce compliance with this part. Information
of a confidential nature obtained in connection with compliance
evaluation or enforcement shall not be disclosed except where necessary
in formal enforcement proceedings or where otherwise required by law.
5. Section 35.174 is revised to read as follows:
Sec. 35.174 Enforcement.
(a) If a public entity declines to enter into voluntary compliance
negotiations or if negotiations are unsuccessful, the designated agency
shall refer the matter to the Attorney General with a recommendation
for appropriate action.
(b) If there appears to be a threatened failure to comply with this
part and if the threatened noncompliance cannot be corrected by
informal means, the designated agency may use any means authorized by
law to achieve compliance, including, but not limited to, referral to
the Department of Justice with a recommendation for appropriate action.
PART 36--NONDISCRIMINATION ON THE BASIS OF DISABILITY BY PUBLIC
ACCOMMODATIONS AND IN COMMERCIAL FACILITIES
6. The authority citation for 28 CFR part 36 continues to read as
follows:
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; (42 U.S.C. 12186).
7. Section 36.402(b)(2) is revised to read as follows:
Sec. 36.402 Alterations.
* * * * *
(b) * * *
(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 part 37 of this chapter.
* * * * *
8. Section 36.405 is revised to read as follows:
Sec. 36.405 Alterations: Historic preservation.
(a) Alterations to buildings or facilities that are eligible for
listing in the National Register of Historic Places under the National
Historic Preservation Act (16 U.S.C. 470 et seq.), or are designated as
historic under State or local law, shall comply to the maximum extent
feasible with section 4.1.7 of appendix A to part 37 of this chapter.
(b) If it is determined under the procedures set out in section
4.1.7 of appendix A to part 37 of this chapter 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.
9. Paragraphs (a) and (b) of Sec. 36.406 are revised to read as
follows:
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 designs published as appendix
A to part 37 of this chapter.
(b) The chart in the appendix to this section provides guidance to
the user in reading appendix A to part 37 of this chapter together with
subparts A through D of this part, when determining requirements for a
particular facility.
* * * * *
10. In the Appendix to Sec. 36.406, in the heading in the third
column of the table, ``ADAAG'' is revised to read ``ADA Standards''.
Appendix A to Part 36 [Removed]
Appendix B to Part 36 [Redesignated as Appendix A to Part 36]
11. Appendix A to Part 36 is removed and Appendix B to Part 36 is
redesignated as Appendix A to Part 36.
PART 37--NONDISCRIMINATION ON THE BASIS OF DISABILITY IN STATE AND
LOCAL GOVERNMENT SERVICES AND BY PUBLIC ACCOMMODATIONS AND IN
COMMERCIAL FACILITIES
12. Part 37 is added to read as follows:
Sec.
37.101 Accessibility Standards.
37.102-37.999 [Reserved]
Appendix A to Part 37--Standards for Accessible Design
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12134,
12186.
Sec. 37.101 Accessibility Standards.
The standards for accessible design for purposes of the Americans
with Disabilities Act are set forth in Appendix A of this part.
Secs. 37.102-37.999 [Reserved]
Appendix A to Part 37--Standards for Accessible Design
[Note: the text of the Appendix, including the changes set out
in the Access Board's interim rule published elsewhere in this issue
of the Federal Register, is available from John Wodatch, Public
Access Section, Civil Rights Division, U.S. Department of Justice,
P.O. Box 66738, Washington, D.C. 20035-9998. Telephone (202) 307-
2227 (Voice) or (202) 514-0383 (TTY) (the Division's ADA Information
Line). These are not toll free numbers.]
Dated: June 5, 1994.
Janet Reno,
Attorney General.
[FR Doc. 94-14228 Filed 6-17-94; 8:45 am]
BILLING CODE 4410-01-P